One Toke Over The Line

[October 18th, 2006] 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.'"