Defense attorneys successfully are attacking Portland's drug-free and prostitution-free zones, contending the ordinances that banish suspected criminals from certain areas is unconstitutional. [sic - Portland NORML]
In two cases, judges have agreed that the ordinances are unconstitutional and dismissed criminal cases. Attorneys successfully have argued that excluding a person from a part of the city, followed by prosecution for the same crime, violates the Fifth Amendment ban on double jeopardy, being punished twice for the same offense.
Although opponents say the ordinances trample defendants' rights, backers say the zones provide tools for police and the community to take back neighborhoods and business districts plagued by drug dealing or prostitution.
"I'd say that it's our most important tool at this point," said Susan Marshall, a Northeast Portland resident who helped get the city to enact prostitution-free zones in 1995. "This is something that we can depend on."
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Zones: Prosecutors are planning test case
Zones, Page A16
Zones: Prosecutors are planning test case
The Multnomah County district attorney's office is mounting a full-scale defense of the city ordinances. Prosecutors, who say they did not have an opportunity to conduct thorough research the issue for the first two cases [sic - Portland NORML], are hoping to use a drug trial next week as a test case, said Jim Hayden, a deputy district attorney.
"This is community policing," Hayden said. "This is what the citizens wanted, and now it's being attacked."
"In addition, Portland has been a model for other cities. For example, Albuquerque, New Mexico, in January adopted a drug-free zone ordinance based on Portland's.
Other people are watching," Hayden said.
The recent court cases are the first serious setbacks to ordinances that the city adopted in 1992 for drug-free zones and in 1995 for prostitution-free zones. In areas where the City Council determines those crimes are serious problems, people arrested for those crimes are excluded for 90 days. If they are convicted, they are excluded for an additional year. If police find them in the area during that time, they can be arrested for trespassing. The council last month expanded the drug-free zones for the first time into residential areas of Northeast Portland.
Both sides say the disputed legal issue boils down to one question: Does being banned from a portion of the city constitute punishment?
Prosecutors and city officials say they are confident that higher courts will rule that the ordinances are similar to losing a driver's license when someone is arrested for drunken driving.
The ordinances do not focus on the person but on the geographic area, Hayden said. Their purpose is not retribution or deterrence, typical goals of punishment. Instead, the ordinances are try to fix neighborhood crime problems. Hayden points to Washington Park, which used to be a drug-free zone but no longer is because the problem was cleaned up.
"It does not have punishing people as its goal," Hayden said. "It has remedying a community problem as its goal."
But Philip A. Lewis, the defense attorney who won the first dismissal in a prostitution case, said any punishment could be called remedial by that reasoning.
"That's very creative but an intellectually disingenuous argument," he said.
In January, Multnomah County Circuit Judge Janice Wilson dismissed a prostitution case against Daniel Ray Edwards, 46, of Southeast Portland. Portland police arrested Edwards on Aug. 15 at Northeast 30th Avenue and Oregon Street for allegedly soliciting an undercover policewoman. Police also seized Edwards' 1977 Ford van and issued Edwards a notice of exclusion.
Lewis successfully argued that a form of banishment is more serious than forfeiting a car or losing a driver's license or being the subject of a restraining order.
"When you're restricting someone's freedom of travel, that's punishment," he said.
The district attorney's office appealed that case March 5 to the Oregon Court of Appeals.
Then, last week, Judge Stephen Walker dismissed a drug case against Debora Louise Parker, 39, of Northwest Portland. Police arrested Parker on Jan. 9 in the South Park Blocks for allegedly selling marijuana. Police issued her a 30-day park exclusion, which operates similar to a drug-free zone exclusion.
Word is getting around the legal community, and it is becoming common for defense attorneys to seek dismissals based on double jeopardy.
But in at least two other cases Multnomah County Judge Joseph Ceniceros ruled that drug-free zone exclusions do not constitute double jeopardy.
At some point, the Oregon Supreme Court may need to resolve the different rulings.
Police also are concerned about the rulings. Commander Ed May of the Portland Police Bureau's Central Precinct said the court rulings jeopardize police efforts to clear drugs out of downtown.
"I'm just outraged," he said. "If I were a businessman at Sixth and Alder, and drug dealers are keeping my customers away, this is the last thing I would want to hear."
Since September, police have arrested and excluded more than 1,200 suspected drug dealers and buyers in Operation North Star, an undercover operation along the transit mall.
But Lewis said the city should rely on existing criminal statutes and added that its attempts at "social engineering" will fail.
"The emperor doesn't have any clothes," he said.
[End]Two maps accompanied this article in its original format under a joint heading, "No Vice." The first map, "Drug-free zones," delineates several areas. All of downtown is included, from the Willamette River west to Interstate 405 (14th Avenue), between the Fremont Bridge at the north to as far south as Clay Street, near Portland State University. There are three zones on the east side. The first stretches from the Willamette River east to Southeast 12th Avenue, and from between Northeast Lloyd Boulevard on the north to Southeast Stark Street on the south. The second zone, the "Beech residential area," lies between Interstate 5 and stretches east to Northeast Eighth Avenue, between North Skidmore Street on the north to Northeast Cook Street on the south. The third zone, the "Alberta residential area," stretches from Northeast Ninth Avenue east to Northeast 19th Avenue, from Northeast Jarrett Street on the north to Northeast Wygant Street on the south.
The second, larger map details Portland's "Prostitution-free zones." Roughly, those zones cover Northeast Martin Luther King Junior Boulevard from Interstate 84 near downtown to as far north as North Columbia Boulevard. The zone also covers the east side of downtown, from the Willamette River near Interstate 84 to Northeast Sandy Boulevard, and along Sandy Boulevard all the way east to Northeast 82nd Avenue. The zone also extends along Northeast 82nd Avenue many miles south, all the way to Southeast Crystal Springs Boulevard. Text accompanying the map of the Prostitution-free zones states: "The city updated its prostitution-free zones in 1995. The zones are a popular crime-fighting tool with businesses and neighborhood residents."
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