By David R. Anderson
of The Oregonian staff
The Multnomah County district attorney's office has a deal for people facing charges for having small amounts of cocaine and methamphetamine
Plead guilty and you no longer have to face felony charges. Instead, it is now a misdemeanor to be caught with less than 2 grams.
In addition, prosecutors are no longer seeking misdemeanor charges in cases where police find drug residue on pipes or other drug paraphernalia. That effectively downgrades about 400 cases a year because suspects will get citations instead.
But the shift, which went into effect May 1, is not going to significantly change the penalties people face, said Norm Frink, chief deputy district attorney. Before the policy change, only rarely did anyone face a jail sentence for having amounts of drugs that were clearly for personal use and not dealing.
"This is not a major practical change in what happens on cases," Frink said. "Even after the new policies, we are being more aggressive and more wide-ranging than other jurisdictions we were able to find."
Frink said the district attorney's office made the change because of Measure 11, the get-tough initiative passed by voters in November 1994 that set mandatory minimum sentences for violent crimes. Those cases have been taking more of prosecutors' time. One deputy district attorney already has left the drug unit to work on Measure 11 crimes.
That leaves 10 prosecutors to handle about 4,500 drug cases a year.
"This is a measured response to try and reduce the literally overwhelming prosecution of drug cases," Frink said.
Under state law, the initial charge remains a felony. But prosecutors can agree to a charge of at-
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Drugs: Policy draws crusader's criticism
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tempted possession, in exchange for a guilty plea.
The move might not mean much more to suspects than a better chance of getting a job because they don't have a felony record. But even if the change is symbolic, it raises an emotional issue for both sides in the drug debate.
Sandra Bennett, an anti-drug crusader and director of Drug Watch Oregon, thinks the district attorney is sending the wrong message. She compares the drug problem to a classroom of unruly children. And what the prosecutor is doing is turning a blind eye to some of the children who deserve punishment.
I can't think of an instance where lessening sanctions has made bad behavior go away," Bennett said.
But Steve Buckstein, president of the Cascade Policy Institute, a Portland free-market think tank, said the change is a good one if it signals an end to past practices. Strict enforcement fails because it drives up drug prices and leads to increases in other crimes so users can afford them, he said.
"My initial reaction would probably be positive," Buckstein said. "I think law enforcement is not the appropriate place to deal with drugs in the first place."
The new policy does not apply to heroin. And possession of less than an ounce of marijuana is still only a violation that results in a citation.
Multnomah County has long had a diversion program that allows people to avoid criminal charges if they agree to an intensive drug-treatment program. More of that is needed, said William Keys, chief criminal judge in Multnomah County Circuit Court. Keys said drug cases are clogging the courts, and he agrees with the district attorney's decision.
"They made a philosophic decision about resources, and they took it off the lowest end of the scale," he said.
There will be differences in the sentences that people get under the new system, Keys said. For example, a misdemeanor conviction is more likely to draw probation that requires less rigorous supervision.
"The difference is probably more significant in theory than practice," Keys said.
A typical sentence for felony drug possession before the change in policy was 18 months' probation and a fine, Frink said. That has not changed much, even though it is now a misdemeanor. And one irony is that judges have more discretion in sentencing misdemeanors than because they do not fall under state sentencing guidelines. In theory, a judge could impose a stiffer sentence than if it was a felony conviction.
Multnomah County Sheriff Dan Noelle also understands the change to more misdemeanor plea agreements.
"Obviously, we want to be tough on drugs, but this is a note of realism with what we can afford to do," Noelle said.
Capt. Lynnea Berg, who heads the Portland Police Bureau's Drugs and Vice Division, said she was aware of the changes in residue cases but not in the possession cases.
However, Frink said he briefed a group that included Berg about two months ago on both policy changes. The fact that she does not remember, he said, is an indication of how minor the change will be.
Wayne Baldassare, a police officer in Portland's drug unit, did not know about the change in prosecuting people caught with less than 2 grams.
"Obviously, we do a lot of cases where we'll serve a search warrant and not get a large amount, and I wouldn't want it to be pled down to a little sentence," he said. "That would kind of bother me."
Frink said prosecutors will work with police to pursue felony charges in special cases, such as when it's clear that the person is dealing.
The new deal is attractive to defendants because it keeps a felony conviction off their records, said defense attorney Deven Coggins, who has about 10 active drug cases.
"What it has done is it gives more incentive to resolve a case rather than go to trial and take up more of the court's time," he said.
Cases now are resolved in two weeks, rather than two months plus a trial, Coggins said.
In researching the change, a deputy district attorney went to Seattle. Even with the change, Multnomah County is more aggressive, Frink said. Last year, Multnomah County brought charges in about 4,500 drug cases compared with King County's 2,500 cases.
There is no standard approach in how to handle minor drug possession cases in Oregon counties.
In Clackamas County, prosecutors think the Legislature wanted such crimes charged as felonies, District Attorney John Foote said.
"Typically, we do not reduce them," he said. "That's the violation and that's the charge."
Washington County has a policy similar to Multnomah County's new approach, said Tom Tintera, senior deputy district attorney. Unless there are other factors involved, the district attorney will accept a plea to misdemeanor charges. And Washington County does not prosecute residue cases unless the suspect has an extensive criminal background or there are special circumstances, he said.
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