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Hard drugs and Oregon House Bill 2355

Oregon Governor Kate Brown recently signed into law Oregon House Bill 2355 as part of significant changes made to Oregon’s drug possession laws.

Photo: Statesman Journal, (Courtesy of Google Images)

The war on drugs has been a topic of tension since its inception in the 1970s during President Nixon’s administration. Ever since, drug possession and trafficking laws have seen both sides of the enhancement and reduction coin. They have arguably led to disproportionate conviction and incarceration rates among racial groups and further exacerbated recidivism rates within those same groups. Recently, Oregon’s legislative branch made a significant step in its drug possession laws by passing House Bill 2355 (HB 2355).

HB 2355 was first introduced in the Oregon House of Representatives just nine days into 2017. The House recommended the bill to the Senate on July 4, within just 7 months of its first reading. The Senate then quickly passed the bill, and just two days later, the bill was sent to Governor Kate Brown, who promptly signed it into law. HB 2355 has two main provisions. Provision one involves reducing the level of punishment for certain drug possession offenses. Provision two requires law enforcement agencies to implement policy and procedure changes to ensure equal police practicing statewide.

HB 2355 lowers the punishment of most first time drug possessions from varying classes of felonies to a Class A misdemeanor. Noticeably, this affects harder drugs that include but are not limited to: methamphetamines, heroin, cocaine, lysergic acid diethylamide (acid), and psilocybin (mushrooms). Keep in mind, Class A misdemeanors are the highest class of misdemeanor offenses in Oregon; however, a high-class misdemeanor charge still pales in comparison to becoming a convicted felon and receiving that “Scarlet F” on one’s criminal record.

Under the law, first time drug possession offenders may possess less than a gram of heroin or methamphetamine, less than two grams of cocaine, or less than 40 tablets or “user units” of substances such as oxycodone or acid. Individuals who have been convicted of a felony before or have two or more prior convictions for usable amounts of drug possession will not be afforded the statutory grace.

Lawmakers also wrote in provisions addressing police profiling practices around the state. Section Two of HB 2355 requires the Oregon Criminal Justice Commission (OCJC) to develop and implement a uniform method to be used by law enforcement to record officer–initiated traffic and pedestrian stop data. The statute states that the data will be used for generating statistical data. It appears that this information is being gathered to address concerns that the criminal justice system within the state is subjecting minorities to unequal legal consequences compared to their majority counterpart offenders. Governor Brown asked the OCJC to examine racial and ethnic disparities in drug convictions after she read the book “The New Jim Crow: Mass Incarceration in the Age of Colorblindness. Governor Brown “wanted to get a better handle on the reality here in the state because the first step to really addressing it in a comprehensive way is really understanding what the problem is.”

According to data received during the 2016 census, black people represented 2.1% of the state’s population compared to white people, who made up 87.4%, and Hispanic or Latinos who represented 12.8%. Native Americans made up 1.8% of the population and Asians represented 4.5%. The Oregon study showed that in 2015, black people were convicted of felony methamphetamine possession at a rate of 224.4 individuals per 100,000 people. This is more than twice the amount of white people, which the study found to be 104.4 people per 100,000. Interestingly, 175.1 Native Americans per 100,000 people were convicted of felony methamphetamine possession. Hispanics and Asians were in the bottom of this category at 48.3 and 19.5 individuals per 100,000 people, respectively.

[T]he results are significant in showing that a disparity potentially does exist and HB 2355 is a step potentially in the right direction.

The results regarding cocaine showed black people received felony convictions for possession at far higher rates than any other race or ethnicity. At 81.7 individuals per 100,000 people, this is almost 40 times higher than white, Hispanic, and Asian people, who each only made up less than two individuals per 100,000 people. The heroin results showed some uniformity among black, white, and Native American people, ranging between 26.5 and 31.2; however, black people still topped out this category as well. These numbers were 4 times higher than Hispanics at 6.3 individuals and 8 times higher than Asians at 3.1 individuals per 100,000.

It should be noted that a sample size of 100,000 in a state population of approximately 4 million people is quite small; however, the results are significant in showing that a disparity potentially does exist and HB 2355 is a step potentially in the right direction. Around the state of Oregon, these results brought mixed reactions from County District Attorneys, police officials, and other organizations.

John Foote, Clackamas County District Attorney, was surprised by the study’s results and felt prompted to research further into the potential disparities that the OCJC found. He took 52 past cases involving drug possession convictions involving black and Hispanic suspects and found that he “couldn’t see anything.” After taking it back to his team, they came to the conclusion that they also “don’t see a pattern.” Foote also stated that he fears the number of cases the OCJC analyzed from his county was too small to reach firm conclusions regarding disparities.

On the opposite side, Multnomah County District Attorney Rod Underhill was not shocked by the data discovered. His office is in the process of implementing two programs that he hopes will reduce conviction inequality among racial and ethnic groups. One program allows Portland officers to call in case managers to handle cases involving small amounts of drugs, which would reduce the number of addicts booked into jail. The other program is a type of drug court where participants will be assessed and ordered to undergo treatment personalized for them.

[T]here is some merit to the argument that there will be individuals who attempt to take advantage of the new law.

District Attorney Rick Wesenberg of Douglas County is concerned that with the passage of HB 2355, less people with drug addictions will be inclined to seek treatment through drug courts. “One of the consequences had been that folks could decide they wanted to get treatment, but it’s hard to imagine that looking at a misdemeanor, folks would want to enter drug court.” Douglas County Commissioner Chris Boice stated that the law is a “horrible idea” and “gives drug users and abusers more freedom to break the law with less consequences.” Although this view seems a bit extreme, there is some merit to the argument that there will be individuals who attempt to take advantage of the new law.

Kevin Campbell, executive director of the Oregon Association Chiefs of Police, wrote in a letter that “[t]oo often, individuals with addiction issues find their way to the doorstep of the criminal justice system . . . unfortunately, felony convictions in these cases also include unintended and collateral consequences.” In her statement after the bill’s passage, Governor Brown expressed that “[I]n Oregon, we’re demonstrating that we can mak[e] meaningful progress to improve the lives of Oregonians by working together around our shared values. With support and opposition on both sides, one cannot forget that with the introduction of a new law comes confusion along with it. Officers like Commander Marty Case of the Douglas Interagency Narcotics team are still waiting for some clarifications on what the bill does because ‘there are still a lot of questions to be answered.’”

However, one thing is clear, HB 2355 has made a significant change to not only drug possession law, but police practicing policies as well. As the law is enforced and the OCJC and law enforcement work towards its uniform procedures, it will be interesting to see if conviction rates fluctuate, and whether or not new uniform police practices will balance disproportionate arrest and conviction rates in the state.

Tommy Harvey III
About Tommy Harvey III (15 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.