ONE TOKE OVER THE LINE

A Mistake By The Oregon Legislature Makes Selling Pot The 'King' Of Drug Crimes

Here in liberal Portland, marijuana's practically legal, right, dude?
Hell, pot-smoking grandpa Don DuPay got more votes last spring in his
run for Multnomah County sheriff than County Chair Diane Linn got in
her reelection bid. And backers of a measure that would have made
marijuana the 'lowest priority' for local law enforcement came close
to getting that proposal on the city's November ballot.

So how can it be that last year, the state Legislature accidentally
made selling pot the king of basic drug crimes in Oregon--and the
only one where sentencing guidelines for drug offenses recommend
prison for first-time offenders.

Senate Bill 907, a bipartisan effort to beef up penalties for
manufacturing meth and make it easier to track different drug crimes,
inadvertently lumped in the statute for 'unlawful delivery of
marijuana' with others setting stiffer sentences for drug crimes
committed within 1,000 feet of a school.

'This was a meth bill,' says state Sen. Ginny Burdick. 'It was not
our intention to elevate any of the penalties for marijuana.' Burdick
chairs the Judiciary Committee, which sponsored the 30-page bill with
the inadvertent changes.

There are currently 23 people in Oregon prisons who were convicted of
unlawful delivery of marijuana.

As a practical matter, nothing has actually changed in Multnomah
County, says Senior Deputy District Attorney Mark McDonnell, who
heads the county's drug prosecution unit. Even large busts rarely
result in prison time unless the offender has a long criminal history, he says.

'We couldn't argue with a straight face that the Legislature actually
intended to make this a more serious crime than the delivery of
heroin or methamphetamine,' says McDonnell, who first noticed the
gaffe over the summer. 'This is not a conspiracy by the White House
or drug czar.'

The county's presiding judge, Dale Koch, says he doesn't know of any
buildingwide directive to ensure judges use their discretion to give
light sentences. Circuit Court Judge Julie Frantz, who oversees
criminal cases, was attending a conference and could not be reached
for comment.

Still, Portland defense lawyer William Walsh says the specter of the
harsher sentence arose at one of his recent trials. The case went a
different direction, but Walsh says it can still come up again in
other cases. 'It may be a typographical error, but it's still the
law,' he says.

And, Walsh points out, legislators may hesitate to slash criminal
penalties, even based on a typo, because it might make them seem soft on crime.

During the 2007 session beginning in January, the Legislature will
have to make a statutory change if it wants to fix the error,
lowering the pot penalty back to a 'level four' on the sentencing
grid from its current position as a more severe 'level eight' charge,
Burdick says.

But she says that's not a certainty because 'we just have to worry
that somebody will come in and say, 'Let's put them all at an eight."