dissenting.
This is a case of statutory construction. The majority holds that, as used in ORS 162.135(7), the word “custody” includes detention in a correctional facility. I respectfully dissent.
Every judge of this court recognizes that the context of ORS 162.135(7) (unauthorized departure) does not permit a coherent application of the definition of “custody” contained in ORS 162.135(3), and that the legislature made a mistake in 1989 when it failed to amend ORS 162.135(3). The question is whether we may correct that mistake.
ORS 162.135(7) defines “unauthorized departure” to be “the failure to return to custody after any form of temporary release or transitional leave from a correctional facility.” (Emphasis added.) ORS 162.135(3) defines “custody” to be “the imposition of actual or constructive restraint by a peace officer pursuant to * * * court order, but does not include detention in a correctional facility.” (Emphasis added.) The Multnomah County Restitution Center (MCRC) is a correctional facility.
From the foregoing, I conclude that, under the facts of this case, ORS 162.135(7) and 162.135(3) operate to create a circumstance where the state could not prove a necessary element of the crime charged, i.e., that defendant failed to return to “custody.” The majority recognizes that, reading the statutory subsections literally, this result logically follows. Notwithstanding, the majority affirms defendant’s conviction by disregarding what the statutory subsections explicitly say and by substituting its understanding of what the legislature must have meant them to say.
The majority first states:
“The problem arises because ORS 162.135(7) defines ‘unauthorized departure’ as the ‘failure to return to custody after temporary release * * * from a correctional facility’ and ORS 162.135(3) states that ‘custody’ ‘does not include detention in a correctional facility.’ (Emphasis added.)” 312 Or at 38.
*43Later in its opinion, the majority candidly acknowledges that the problem arises because the 1989 legislature overlooked the need to amend ORS 162.135(3). 312 Or at 39. The majority explains:
“The legislature did not, however, amend ORS 162.135(3), which continued to exclude ‘detention in a correctional facility’ from the definition of ‘custody.’ ” 312 Or at 39.
In an effort to avoid an unreasonable or absurd result, the majority resolves the inconsistency on the face of the two statutory subsections by relying on legislative intent and statutory context. My quarrel is with the majority’s method of analysis that begins, not with what the statutory subsections explicitly say, but with a search for what the legislature must have meant them to say. The majority then construes the statutes to fulfill its conclusions about perceived legislative intent. Simplistic applications of the maxims of statutory interpretation may be useful tools for decision, but they do not substitute for specific analysis in the first instance. State v. Wagner, 309 Or 5, 9,786 P2d 93 (1990). This dissent, then, analyzes the two bases on which the majority relies, and rejects them both.
LEGISLATIVE INTENT
The pursuit of legislative intent is permissible when the words of a statute are ambiguous. Whipple v. Howser, 291 Or 475,479-83, 632 P2d 782 (1981); Easton v. Hurita, 290 Or 689, 694, 625 P2d 1290 (1981). But here, the words of ORS 162.135(3) are not ambiguous. They state, unequivocally, that as used in ORS 162.135(7), the word “custody” “does not include detention in a correctional facility.”
If the language of a statute is unambiguous but the legislature has failed to translate its intent into operative language, then no matter what the legislative history indicates, this court may not ignore the plain meaning of the unambiguous words and rewrite the statute to better serve some other perceived legislative intent. See State ex rel Everding v. Simon, 20 Or 365, 373-74, 26 P 170 (1891) (where the legislature has mistakenly not made the provisions necessary to carry out its intent, the court cannot by construction supply those provisions). The function of this court is to *44interpret the law, not to make it. Judicial “fiddling” is simply not our line of work or, at least, it ought not to be.
In Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976), this court stated:
“Whatever the legislative history of an act may indicate, it is for the legislature to translate its intent into operational language. This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent. Lane County v. Heintz Construction Co. et al, 228 Or 152, 157, 364 P2d 627 (1961).”
And in Berry Transport, Inc. v. Heltzel, 202 Or 161, 166-67, 272 P2d 965 (1954), this court explained:
“However, it is only in cases where the language used in a statute is ambiguous and uncertain that resort may be had to rules of statutory construction in ascertaining and declaring the legislative intent. It is elementary that when the legislature, in enacting a law, makes use of plain, unambiguous, and understandable language, it is presumed to have intended precisely what its words imply. There is no occasion to go beyond those words and their plain meaning to ascertain by application of the rules of statutory construction the legislative purpose. The words used speak for themselves.”
See also Curly’s Dairy v. Dept. of Agriculture, 244 Or 15, 20, 415 P2d 740 (1966) (“If the statute is clear and unambiguous, then the court may not resort to rules of statutory construction in ascertaining and declaring the legislative intent.”); State v. Young, 74 Or App 399, 403, 145 P 647 (1915) (same); Foster v. Goss, 180 Or 405, 408, 168 P2d 589, 175 P2d 794 (1947) (“the court has no legislative powers and is not authorized to supply deficiencies in a statute”).
Words that are defined in a definition statute are not ambiguous. In Chapman Bros. v. Miles-Hiatt Investments, 282 Or 643, 646, 580 P2d 540 (1978), this court explained:
“The function of a definition section in a statute or regulation is to give the terms there defined the precise meaning intended by the draftsman whenever one of those terms is used in the statute, rather than what might otherwise appear to be their meaning in common usage or in other contexts, and thereby to exclude doubts and disputes based on reference to such extrinsic usage. The draftsman in effect asserts *45that when the defined word appears in the operative sections of the statute, it has been used in full awareness of the definition given it for that statute and should be so understood by the reader.”
Courts are. bound by duly enacted statutory definitions, unless they are obviously absurd. Bunnell v. Parelius, 166 Or 174, 180, 111 P2d 88 (1941). ORS 162.135(3) is not obviously absurd. That statutory definition of “custody” clearly and unequivocally exempts “detention in a correctional facility” from the scope of ORS 162.175(l)(a), which defines the crime of “unlawful departure”; we are bound by that definition. Therefore, no reference to legislative history is permissible here.
Nevertheless, the majority has rewritten the definition of a term, i.e., “custody,” that the legislature has precisely defined. The majority directs that “the context of ORS 162.135 requires that a definition of ‘custody’ other than the one in ORS 162.135(3) be applied.” 312 Or at 39. That is not interpretation, it is legislation. See ORS 174.010 (courts may not omit from statute what the legislature has inserted or insert what has been omitted). I find the notion that a statutorily defined word may have different meanings in the same statutory scheme more than troublesome. In this case, the statute might be unworkable, but fixing an unworkable but unambiguous statute is the legislature’s responsibility, not ours.
STATUTORY CONTEXT
Assuming, however, for the sake of argument, that ORS 162.135(3) is ambiguous, the majority’s reliance on “context” also is flawed. The apparent objective of the 1989 legislative amendments to ORS 162.135 and 162.175 was to punish unlawful departure from constructive custody less severely than unlawful departure from actual physical custody. In 1989, the legislature took the language regarding constructive restraint, “including failure to return to custody after temporary leave granted for a specific purpose or limited period,” from the definition of “escape” and moved it with some alteration to the definition of “unauthorized departure”; this move indicated its intent that departure from constructive restraint would now be punished as an unauthorized departure, a misdemeanor. As ORS 162.135(7) *46is presently worded, however, no construction of the word “custody” can advance this legislative intent.
“Custody” means restraint, either physical restraint or constructive restraint. As used in ORS 162.135(3), “custody” means physical restraint in a correctional facility, or some other form of constructive restraint imposed by a correctional facility. “Unauthorized departure” is the failure to return to “custody” after any form of temporary release or transitional leave from a correctional facility. ORS 162.135(7). A person on temporary release or transitional leave, however, has been released only from the physical restraint of the correctional facility; that person has not been released from the constructive restraint of the correctional facility. If that person has not been released from constructive restraint, he or she cannot fail to return to “custody” because, by definition, “custody” includes constructive restraint. ORS 162.135(3). Thus, even though the majority concludes that the legislature intended to proscribe departure from the constructive restraint of a correctional facility, because of the way ORS 162.135 is written it is nonsensical to construe the word “custody” to include constructive restraint.
On the other hand, if the “custody” does not include constructive restraint, that word can mean only physical restraint. That construction, however, clearly is not consistent with the majority’s assumed legislative intent. Under it, “custody” presumably would mean physical confinement within a correctional facility, whether that facility is a penitentiary, a jail, a work camp, a restitution center, or a home where the person was under “house arrest.” The word would exclude work release or an intensive supervision program (ISP) where a convicted person must telephone, or report in-person to authorities as required (but otherwise is not in physical confinement). If “custoay” were so defined, in some situations, including this case, ORS 162.135(7) could be used effectively to carry out the assumed legislative intent. However, in other situations that the legislature apparently intended ORS 162.135(7) to cover, the statute, so construed, could not do so.1
*47Read together, these conflicting definitional statements are nonsensical. The trial judge in this case clearly recognized the internal inconsistency which appears on the face of the two statutory subsections. The judge stated:
“The critical issue is whether ORS 162.135(3) is fatal to the state’s ability to prosecute unauthorized departure cases such as those before me. * * *
“Without subsection (3), * * * there is no adequate basis for reaching ‘constructive custody,’ such as failure to return to ISP. The state cannot have it both ways. ORS 162.135(3) unavoidably excludes correctional facilities, so it cannot logically apply to the ‘failure to return to custody after any form of temporary release or transitional leave from a correctional facility’ without doing violence to the obvious legislative intent.
“* * * [T]here is no basis for reaching constructive custody in ORS 162.135(7) absent subsection (3), and subsection (3) cannot apply because ‘the context otherwise requires.’
“I conclude * * * that a mere failure to return to report to ISP is not within the unauthorized departure statute unless the state is prepared to prove that ISP involves actual custody.” (Emphasis in original).
Thus, the majority’s conclusion, that in order to give effect to the last clause of ORS 162.135(7) a definition of “custody” other than the one used in ORS 162.135(3) must be applied, results in the conclusion that the failure to return from constructive custody is not a violation of ORS 162.175(l)(a). That clearly is contrary to legislative intent.2
*48If this court is to interpret a statutory scheme in pursuance of its assumed legislative intent, then this court must not construe the scheme so as to effect that intent only partially. Otherwise, this court would be acting as a super-legislature, omitting a whole class of persons from the scheme’s purview. We must not omit from the statutory scheme what the legislature has included. ORS 174.010. There is no construction that this court may give the word “custody” that is in harmony with the context of the statutory scheme or that would fully promote the policies and objectives of the legislation. The legislature must address and solve the problem.
I hesitate to contemplate what the majority’s construction of the statutory scheme means in the context of State v. Pirkey, 203 Or 697, 281 P2d 698 (1955). In that case, this court apparently found a violation of the Fourteenth Amendment (Equal Protection Clause) and of Article I, section 20, of the Oregon Constitution, where the statutes fixed no standards within which the grand jury or the magistrate could exercise its discretion in charging a misdemeanor or a felony for the same conduct.3 Under the majority’s construction of the statute here, the prosecutor could in the exercise of unguided discretion charge defendant with the misdemeanor of unauthorized departure, ORS 162.175, or with the felony *49of escape in the second degree, ORS 162.155(l)(c). The undisputed facts would support either charge. Defendant himself argued in the Court of Appeals that he should have been charged with escape in the second degree, ORS 162.155(l)(c), rather than with unauthorized departure. In future cases, defense counsel no doubt will argue that the majority’s holding in this case makes the entire statutory scheme unconstitutional. State v. Pirkey, supra, 203 Or at 704-05.
I would hold that the state’s evidence in this case was insufficient to establish all of the essential elements of unauthorized departure. Therefore, the trial court erred in denying defendant’s motion for judgment of acquittal. Defendant’s conviction should be reversed.
Unis, J., joins in this dissent.For example, when one is on transitional leave, such as temporary leave before parole, no condition of leave requires that the person return to the actual physical *47restraint of the penitentiary. Therefore, that person could not be convicted of failing to return to custody. Yet, given the inclusion of the words “transitional leave” in the definition of unauthorized departure, the legislature clearly intended to permit the prosecution of people who violate the terms of their transitional leave by absconding and refusing to return to sign their parole papers. This same analysis also applies to those who are released from correctional facilities to work release or ISP. Thus, a definition of “custody” that includes only the concept of actual physical restraint would effect the legislative intent only partially, because people on temporary release could be prosecuted under OKS 162.175, but those on transitional leave could not.
As for the majority’s reluctance to reach “an unreasonable or absurd result,” 312 Or at 39, suffice it to say that I agree with the Court of Appeals that that doctrine must be applied with caution to assure that the line between judicial recognition of a statute’s apparent policy and judicial amendment of the legislation is not crossed. *48Dennehy v. City of Portland, 87 Or App 33, 40-41, 740 P2d 806 (1987).
In this case, there is nothing “unreasonable or absurd’ ’ in a literal reading of the statute, unless one is prepared to accept the proposition that any time the legislature makes a simple mistake, the result is “unreasonable or absurd.” Far from being absurd, a literal reading here may mean only that the state should have prosecuted defendant for escape in the second degree, ORS 162.155(l)(c). That statute provides in part that “[a] person commits the crime of escape in the second degree if * * * the person escapes from a correctional facility.” ORS 162.135(4) defines “escape” to be “the unlawful departure of a person from * * * a correctional facility.” Persons committed to a correctional facility who are lawfully outside the facility on work release, transitional leave, or under ISP, are still confined therein for purposes of the escape statute.
The precise holding in Pirkey was that the provision of the relevant statute ‘ ‘is unconstitutional. ” 203 Or at 708. It is not entirely clear from the opinion, however, whether that holding was based on the state or the federal constitution, or both.
The Oregon Constitution has no “equal protection” provision in so many words. However, when speaking of the state constitution’s guarantee of equal protection, this court, no doubt, is referencing Article I, section 20.