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State drug law's effects are difficult to predict.

Byline: Jim Hargreaves For The Register-Guard

When the Oregon Legislature adopted House Bill 2355 and sent it to the governor for her signature, there was a fair amount of hoopla in the press. One headline said the Legislature "decriminalized" drug possession (not true). Another declared that drug possession in Oregon was now a misdemeanor (only partially true). Here is what the Legislature actually did, and the interesting potential consequences in the real world.

Among a number of other provisions, HB 2355 makes the first- and second-time possession of small quantities of drugs such as cocaine, heroin and methamphetamines a misdemeanor instead of a felony - unless the person has a prior felony conviction for any type of crime, in which case nothing will change from today's law and practice.

At the moment, possession of these drugs, in any quantity, is a felony and the sentence for this crime is controlled by the Oregon Sentencing Guidelines. These guidelines must be uniformly applied around the state by all judges. Under the current guidelines, the sentence for a small-quantity possession case is probation for 18 months and up to 10 days in jail, no matter how many prior convictions for felonies or misdemeanors of any kind the defendant may have.

When the new law goes into effect, a person's first two such convictions will be Class A misdemeanors, carrying a maximum sentence of one year in jail, a fine of $6,250 or both. Unlike felonies, misdemeanor sentencing is not controlled by any statewide requirements, so it will be entirely up to each judge to decide what sentence he or she may think appropriate to impose, anywhere up to the statutory maximum.

From my many years of experience as a trial judge in Oregon, I can pretty much guarantee that the length of sentences will vary greatly from judge to judge and county to county, and the sentences imposed may well be more than the current maximum of 10 days in jail - possibly a great deal more - particularly for the second offense.

A seemingly anomalous situation arises if a defendant receives a third conviction under the new law. While the seriousness level of the crime increases to a felony, the sentencing guidelines that will then apply greatly reduce the potential punishment: The potential jail sentence drops to a maximum of 10 days instead of 365, and the potential fine of $6,250 disappears. The question then becomes: Since the felony conviction exposes the defendant to a tiny fraction of the potential punishment of the misdemeanor conviction, what is the deterrent effect of a felony conviction?

For some, the answer will that a felony conviction - with its potential for limiting employment opportunities, etc. - is a substantial deterrent to a third conviction. To others, not so much. Those who function at a level in society where a felony conviction is not perceived as a great disadvantage may in fact heave a sigh of relief to find themselves no longer subject to the more stringent penalties.

As an aside, this is not the only such anomalous sentencing disparity between misdemeanors and felonies in Oregon's criminal code.

Besides the interesting issues around sentencing under the new statute, there are some systemic implications that will need to be sorted out. Under the current law, sentencing on these small-quantity drug offenses is virtually a rote practice. The penalty is set by the sentencing guidelines, so little time or effort are required by either the prosecution or the defense attorney in regard to sentencing. Guilt may be a contested issue, but not sentencing.

That all changes under the new statute. All of a sudden, sentencing becomes a major issue, with a year in jail and a big fine both on the table. This will mean more time and effort expended by both prosecutors and defense attorneys, and much uncertainty for defendants regarding the outcome.

Another change that may occur: In some places, there may be a shifting of prosecution of the first- and second-offense drug cases from the state Circuit Court to municipal courts in cities, or even into justice of the peace courts in more rural areas. Since these first two offences will be misdemeanors, they no longer need be prosecuted in Circuit Court - so, with the substantial potential fine attached to them, cities in particular may see some financial merit in taking on these cases.

At this time, it is not possible to accurately predict the effects of HB 2355 on the prosecution and sentencing of small-quantity drug possession crimes. About three years from now, the statistics should be very interesting.

Jim Hargreaves, a retired Lane County Circuit Court judge, is a legal observer and commentator for Amicus Curiae Consulting in Eugene.
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Title Annotation:Guest Viewpoint
Publication:The Register-Guard (Eugene, OR)
Geographic Code:1U9OR
Date:Aug 10, 2017
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