With a remake of Oregon’s drug decriminalization measure in the spotlight, the state’s Supreme Court chief justice, Meagan Flynn, wrote to two leading Democratic lawmakers about a key element in their wide-ranging proposal.
Writing on behalf of Oregon’s judges, trial court administrators and court staff in 27 judicial districts, she outlined a detailed list of concerns that some of their ideas to address the state’s addiction crisis would pose for the judiciary. Flynn sent the eight-page letter, obtained by the Capital Chronicle, to Senate Majority Leader Kate Lieber and Rep. Jason Kropf, co-chairs of a joint committee on the crisis.
The letter came in response to a request for input by the Democrats about their proposal to charge those caught with illegal drugs with a misdemeanor and offer them an opportunity to avoid criminal charges by entering a so-called deflection program. Such programs would require a suspect to be assessed and attend a follow-up appointment to help them get into treatment rather than jail.
Drug-related deflection programs don’t exist in Oregon, and the judiciary is concerned about the resources needed to set them up and run them, the letter said. Nevertheless, the idea is moving forward. Aides for Lieber and Kropf, chairs of the Joint Committee on Addiction and Community Safety Response, and an Oregon Judicial Department spokesman, said the proposal, in House Bill 4002 is being reworked. It is currently in the joint committee.
Lieber and Kropf did not circulate the letter in the committee, though their aides said they discussed its concerns with members. They also said they are working with the judicial department to address the concerns.
“We anticipate there will be new amendments to update,” said Todd Sprague, a spokesman for the Oregon Judicial Department. “We will continue to participate and be productive partners in this discussion.”
The letter reflects the complexity of the drug addiction crisis and challenge that officials face in trying to balance public health and public safety. It also shows that a major part of the plans to tackle the addiction crisis could strap the judiciary, with judges concerned about enacting the legislation without more resources.
The state has a shortage of public defenders, and the tendency of some defendants to skip court appearances could further strain the state’s frayed criminal justice system, for example by crowding jails if people miss court dates and warrants are issued for their arrest.
The letter offers a rare view of the thinking about the proposed reforms among Oregon judges, who often are more comfortable on the bench than testifying before lawmakers.
“Our judges and court staff have extensive experience working with people at the intersection of the criminal legal system and the behavioral health and substance use system,” Flynn wrote. “Additionally, we want to do everything possible to contain the possible costs associated with this bill, and therefore want to give you information that might help you understand how we can reduce costs where possible.”
‘Primary concerns’
Among the “primary concerns,” the Oregon Judicial Department lacks the ability to enact changes immediately, the letter said.
“We understand the desire to keep this bill streamlined to minimize costs, but as a practical matter, OJD will have significant new responsibilities and will need additional time and resources to implement the requirements of the bill,” the letter said.
Other concerns include:
- Defendants for misdemeanor drug possession charges would face challenges in obtaining legal representation. Already, the shortage of public defenders for people who cannot afford a lawyer means that many courts are unable to appoint public defenders even for lower-level felony cases, which get dismissed because judges do not want to leave defendants in legal limbo.
- The courts would have to handle the complexity of parsing cases with misdemeanor drug possession charges that might qualify for expungement while other charges don’t.
“As currently drafted, the bill requires courts to set aside (drug) charges in cases where other charges that are not eligible to be sealed are included on the charging instrument,” the letter said. “This creates an extraordinary workload. It requires court staff to manually review the case to redact only the portions related to the (drug) charge, while leaving everything else. This process typically takes approximately 10 hours per case.”
Deflection program concerns
The letter outlined several concerns related to deflection programs. It said the proposal doesn’t say how courts should tackle cases when they lack the ability to handle deflection cases. Further, it notes that the proposal lacks a timeline for certifying deflection programs, which means some of them may be operating in some parts of the state at one point and not in others, creating an inequality.
“OJD anticipates that, until that infrastructure gap is resolved, there will be disparate access to treatment and uneven charging of the new C misdemeanor offenses across the state,” the letter states.
The letter raises another potential pitfall: the Democrats proposed level misdemeanor for possession, a class C, which carries up to 30 days in jail. That could lead to more serious charges if a defendant missed their court date. Charges for failure to appear, or FTA, are class A misdemeanors, which carry up to a year in jail, and can increase the likelihood of a person landing in a cell.
“In counties with limited jail space, the FTA rate is even higher, and risks creating an even greater cycle of warrants and citations to appear,” the letter said.
Republicans are pushing for a class A misdemeanor offense, which carries up to a year in jail and has different requirements for people when they enter programs. Those proposals are in House Bill 4036 and Senate Bill 1555.
Drug users who are now found with small amounts of hard drugs can avoid arrest and jail unless they are charged with something besides drug possession. Measure 110, which voters passed in 2020, decriminalized possession of small amounts of drugs. In the years since, fentanyl has exploded in streets in Oregon and other states, forcing lawmakers to prioritize the issue amid a wave of deadly overdoses.
Lawmakers respond
A spokesperson for Kropf and Lieber told the Capital Chronicle they value the judges’ input to get the bill right and address issues like the lack of public defenders.
“We hope that the proposed deflection program will significantly decrease the need for public defense attorneys for drug possession cases,” Tess Seger, a spokesperson from the Senate Democratic Caucus, said in an email.
Many of the concerns have been or will be addressed as they will continue to work with the judicial department, prosecutors, public defenders and law enforcement, officials said.
For example, lawmakers said they are working with the judicial department to set up a system for handling notices of deflection program completions..
“It is important that HB 4002 works for people on the ground, both those in our community suffering from addiction and the people entrusted with ensuring our court processes can run efficiently,” Lieber and Kropf said in a joint statement.
-- Ben Botkin, Oregon Capital Chronicle
Oregon Capital Chronicle is an affiliate of States Newsroom, a national nonprofit supported by grants and a coalition of donors and readers.