"The goal of the courts is to get these cases through the system," says Jones. "Truth, justice and the American way? That's the goal, too, but sometimes that gets sacrificed to judicial economy." "It's extremely frustrating," says McDonnell, who is not critical of his boss so much as fed up with the constraints he's forced to operate under. "It seems like all we're doing for the vast majority of cases is pushing paper." Last year, Schrunk saw that the numbers had reached a crisis point. At the front end of the system, his deputies were swamped by rising caseloads. At the other end, prison sentences were relatively shorter because of the bed-space crunch at the state Department of Corrections. Local sentences also had become an exercise in futility, because Multnomah County jails were releasing scores of inmates due to overcrowding. At the same time, Schrunk couldn't very well tell police to stop bringing him drug offenders for prosecution--as an exceedingly careful and politically savvy elected official, he wasn't about to say something as unpopular as that. Schrunk can, however, tweak the system in other, more subtle ways. All across the state, district attorneys have the authority to apply the law in a way that bests suits their constituents (within certain constraints). It's called prosecutorial discretion, and it's one of the tools that makes DAs such powerful figures in law enforcement. In Multnomah County, Schrunk says it's not always a simple matter to prioritize according to the will of the people. Although the stereotypical metro-area resident is relatively liberal on social issues, many Portlanders have been personally affected--and outraged--by drug crime near work or home. As a result, Schrunk says, he's torn. "People want something done but I'm not sure they truly believe in locking the drug user up," he says. "I think what they want you to do is fix them." Only problem is, "We haven't found the magic pill to fix them yet." The conflicting signals are probably one reason Schrunk keeps relatively quiet on drug issues. (For instance, he didn't weigh in during the recent legislative debate over marijuana recriminalization.) This public reluctance hasn't prevented him from acting quietly to set priorities in his own office. Although he hasn't made a big announcement, during the past year he has issued several new written policies that loosen his office's grip on drug offenders. He says he has done so to keep up with the overwhelming volume, because sentencing laws have effectively tied his hands, and because he tends to believe some drug offenders don't deserve prison. "The idea isn't to keep people from going to jail," Meabe says, "although that certainly is the end result." Schrunk made his first move in the spring of 1996. He issued a written policy stating that Multnomah County would no longer prosecute as felonies cases in which police found only trace amounts of cocaine or methamphetamine. This was at odds with state statutes, which say that possession of the drugs--even residue, like what police found in Dave Peters' house--is a Class C felony, right up there with third-degree rape and criminally negligent homicide. Under Schrunk's new policy, most of these so-called "residue cases" would be treated more like a traffic infraction under the new policy: Just give the accused a citation and send him on his way. Schrunk is by no means the only DA in Oregon to decide against prosecuting residue cases. But the decision was nonetheless a change for Multnomah County, where defense lawyers had complained for years that he was too tough on drug users, particularly on residue cases. Prosecutors say the decision had little practical effect--they say people charged with possession, particularly first-time offenders, usually were sentenced to probation even when they were more vigorously prosecuted, because of state sentencing guidelines. But the decision is a boon to any drug user who wants to avoid having a felony on his record. In July of this year, Schrunk made another change in drug prosecution policy--and gave drug offenders a quick out--by creating the "expedited docket." Essentially, it offers relatively lenient plea bargains to drug defendants who don't qualify for the new residue policy, but are caught with small amounts (called "personal use quantities") of drugs. Under this new policy, most of those charged with drug possession also won't serve a day in jail. Instead, they can strike a deal with prosecutors to have their case immediately closed by pleading guilty to felony drug possession on the day following arrest. In exchange for the quick resolution, they must agree to stay out of Portland's four drug-free zones. If they enter the zones, they risk immediate arrest. "If a person doesn't care about having a felony record, we have for all intents and purposes legalized personal quantities of hard drugs," McDonnell says, noting that because of circumstances that included a decade-old sentencing statute, Schrunk didn't have much choice. Schrunk was forced to make the change because in April he faced the fallout from a court ruling that Portland's drug-free zones were unconstitutional as enforced. Schrunk's new policy gets around the judge's ruling but still keeps intact the drug-free zones, which many argue are one of the city's most useful law enforcement tools. Schrunk isn't through tinkering with drug prosecution policy. In conversations with WW, he said he was considering taking one more step that could even allow some drug dealers to avoid having a felony conviction on their record. His plan is to expand STOP, Multnomah County's innovative drug diversion program that has until now accepted only those charged with possession. STOP began six years ago as a program to encourage drug users who had been arrested for possession to reform by offering them a choice between counseling or prosecution. At the time, it was an innovative idea--in fact, Multnomah County was the second place in the nation to have such a program--but drug courts, as they are known, have since sprung up everywhere. Although the qualifications for STOP have grown more liberal over the years--unlike most places across the country, Multnomah County allows people with prior convictions, even for violent crimes, to participate--it has so far been limited to drug users, as opposed to dealers. If Schrunk has his way, the program soon will accept small-time dealers. He describes them as people who provide drugs for a small group of friends. "If I kiss off a case in exchange for 12 months of treatment, that's a lot better to me than a judge giving you a sentence and you slip out the door [a short time later] with a big F stamped on your forehead for felony," he explains, lamenting the fact that county jails routinely release people before their sentence is up. As for his idea to allow small-time dealers into the mix, Schrunk says, "if we can get that group into treatment, we're better off.... The goal is to stop the use of illegal drugs and get people into treatment." Schrunk isn't the only public official who has quietly changed policies regarding drug criminals. Last year, the Legislature did so as well. Here's how it happened. Three years ago, voters passed Measure 11, which mandated tough sentences for certain crimes, none of which were drug-related. The long sentences had prison officials, and Gov. John Kitzhaber, worried about the limited state prison space--despite the prison-building currently under way. To ease the bed-space crunch, Kitzhaber came up with SB 1145, which transfers offenders sentenced to 12 months or less from state to county control. The Legislature overwhelmingly passed the bill in 1996, but criminal-justice experts all agree that it will have the practical effect of reducing sentences for some crimes, including drug crimes. That's because jail inmates typically serve less time than state prisoners, even when they have the same sentence, because they're allowed much more credit for good behavior. The overcrowding in Multnomah County jails, and the resulting pressure to release inmates early, makes the proposition of shorter sentences even more likely. Prosecutors say this ties their hands, essentially barring them by law from getting a prison sentence on most drug cases. The Multnomah County Board of Commissioners has also become softer toward drugs. This year, the commission approved a plan that will make probation, a sentence common for drug offenders, less onerous than ever before. Under this program--developed by the Multnomah County Department of Adult and Juvenile Community Justice--instead of spending 18 months on probation, as is currently the practice, many offenders will be sentenced to just 90 days of probation ("Betting Their ASSP," WW, June 18, 1997). Under the plan, those who violate the terms of their probation also won't risk incarceration like they do today. These changes are actually just the continuation of a trend. According to the Bureau of Justice Statistics' 1994 data (the latest year for which numbers are available), Oregon drug offenders spend less time in prison than the national average. The comparatively lenient sentences, particularly for drug possession, are the result of a 1989 sentencing law that ratcheted down prison time for nonviolent crimes--a law prosecutors bemoan daily. Never before, however, has the difference between the tough talk and the reality of drug crime been so acute. For more evidence, take a look at the Legislature's recent overwhelming decision to recriminalize possession of small amounts of marijuana--a grossly political move that threw out 25 years of history. Under the new law, scheduled to take effect Oct. 4, people caught with less than an ounce of pot could be charged with a misdemeanor, rather than a violation as they have been since the 1970s. But Schrunk, along with other DAs, has promised to continue treating small amounts of marijuana as violations, regardless of the new law. "Don't say I'm thumbing my nose at the Legislature," he pleaded with WW. "I'm trying to be a realist.... Everybody wants to say they went down there and made this a felony, but none of them have to run a DA's office or do what Charles Moose has to do and allocate resources." In practically the next breath, however, Schrunk insists he won't coddle drug criminals. "I don't think we're soft," he said repeatedly during the interview. "I will go kick in doors with the best of them." Although he doesn't like to admit to reducing prosecution of drug crimes, Schrunk is probably doing the right thing. History tells us that locking people up hasn't solved the drug problem. Besides, there's no way to translate all the tough talk into action. There are just too many drug users and dealers for the courts and the prisons to ever catch up. And no matter how many arrests the police make or how many dealers are sent to prison, the problem persists. It could be that drug users, and even some dealers, are a separate class of criminal for whom incarceration isn't as useful. New studies indicate that drug users, by and large, aren't responsible for violent crimes. "We act like this is a felony and say this is a terrible problem we have to stamp out," says a criminal lawyer who did not want his name used. "We just don't want to openly admit these cases aren't that critical for our mission, which is keeping criminals off the streets." |
