TOUGHER POT PENALTY: NO --

Measure 57 Invites Selective Enforcement

If tough laws and tough rhetoric were the answer to America's drug problem,
the problem would have been solved long ago. Supporters of Measure 57,
which would stiffen the penalty in Oregon for possession of small amounts
of marijuana, have both legal and rhetorical purposes in mind: They want
state law to send a stronger anti-drug message. The actual result, however,
would be to weaken the already shaky credibility of Oregon's drug laws.
Voters should reject Measure 57.

For 25 years, Oregon has treated possession of small amounts of marijuana
as a violation, a noncriminal act in the same league as a traffic offense.
Such a mild penalty, members of the 1997 Legislature felt, makes Oregon
seem tolerant of drugs. Lawmakers passed a bill making possession of less
than one ounce of marijuana a Class C misdemeanor, and Gov. John Kitzhaber
signed it. Opponents gathered enough petition signatures to refer the bill
to the Nov. 3 ballot.

A no vote would keep Oregon law as it is, with possession of less than one
ounce of marijuana punishable by a fine of $500 to $1,000. A yes vote would
allow the Legislature's bill to take effect: Possession of any amount of
marijuana would then become punishable by up to 30 days in jail, plus the
$500 to $1,000 fine. Measure 57 also imposes tighter conditions on the
diversion programs through which some have marijuana possession charges
dropped in exchange for an agreement to obtain drug treatment.

Oregon's current policy came about partly because the state's political
leaders at the time, including Gov. Tom McCall, believed jail time and a
criminal record were disproportionate punishments for most people arrested
with small quantities of marijuana. They were right. The penalties for
possessing other drugs, selling marijuana and possessing amounts of
marijuana greater than one ounce have remained heavy. This sensible
ordering of priorities has permitted the criminal justice system to devote
its attention to hard drugs and distributors.

If Measure 57 is approved, as a practical matter few people arrested in
small-time pot busts will spend any time in jail. Prosecutors would still
have the option of charging offenders with a violation, and according to
legislative testimony they would choose that option in an estimated 40
percent of cases. Most other cases would end with plea bargains. For most
casual marijuana smokers, the penalty for possession would be serious on
paper but minor in practice, thereby eroding the credibility of all drug
laws. And the cases of the few people who did end up behind bars on charges
of possessing less than an ounce of marijuana would raise issues of
selective enforcement while taking up jail space needed to hold other, more
serious criminals, including drug offenders.

The Legislature allocated $600,000 to cover the costs associated with
marijuana recriminalization during the first biennium, but that would not
be nearly enough. The state's fiscal impact statement places the biennial
cost at $2.4 million. Cost, however, is a secondary matter. The key
question is whether Measure 57 would contribute to an effective anti-drug
effort in Oregon. A generally empty threat of jail time for people at the
bottom of the marijuana distribution pyramid would do nothing to combat the
state's biggest drug problems, which involve methamphetamine and heroin.
The current law is in line with current practice, and the voters should
keep it that way by defeating Measure 57.