Drug Free Zones: "The cops are being cop, judge and jury"

Portland's "Drug Free Zone" exclusionary laws, long-criticized for unconstitutionally revoking one's right to a trial and conviction before sentencing, fell under the scrutiny of a front page story in the July 30th Oregonian. Community members are calling for the dissolution of the DFZs, and attorneys Robert Newell and Shane Abma have filed a suit in Federal District Court challenging the constitutionality of these laws. Under the 1992 City ordinance, people suspected or convicted of drug crimes in certain areas of Portland can be excluded from all DFZs for either 90 days or one year. One chief area of concern is that police are given the power both to issue the exclusions and to approve the "variances" for individuals who have been excluded from the DFZs to enter the Zones for specified reasons.

Meanwhile, Mayor Katz has been pressed to voice concern and has acquiesced that court oversight of police prosecutions should be implemented. "I would prefer the prosecution as well ... for obvious reasons." From a politician instrumental in establishing the DFZ Ordinance, this statement of moderation suggests admission of the questionable legality of these laws.

Police have been handing out more exclusions and fewer citations for alleged criminal offenses since a Multnomah County Judge ruled that giving out both constitutes double jeopardy (see PPR #12). Since a conviction is not guaranteed, the City has opted to issue exclusions instead of criminal citations.

Since their establishment by City Council in response to concerned business owners in Old Town, Portland's Drug Free Zones have expanded and now cover about five times as much area and are broader in scope. In 1999, 3,700 exclusions were issuedčabout one fifth of which were issued by police officers with no judicial oversight. The remainder of the exclusions were issued in conjunction with convictions (as allowed by the city ordinance); through plea agreements; or by judges as a condition of probation.

The Oregonian's research shows that police use DFZs as a means to exercise racial profiling: 60% of all exclusions were issued to whites, yet 65% of the police offcer-issued exclusions were given to African-Americans and Latinos.

Advocates of DFZs defend the laws as constitutionally sound because the ordinances provide those excluded with an opportunity to appeal their exclusion to an administrative hearings officer. However, the burden falls overwhelmingly on the defendant to file a written request for a hearing, represent themselves at the hearing, and, in most cases, engage the hearing officer in determining the validity of the defendant's testimony versus the cop's.

From January 1999 to June 2000, 48 out of 1,000 officer-issued cases were appealed. Eight of the 10 appeals that went to a hearing were overturned by a hearings officer or withdrawn by the city. Do officers respect and follow these rulings? The July 30 Oregonian states no.

"The cops are being cop, judge, and jury," said Kelly Skye, an attorney with the Metropolitan Public Defenders. Chief Kroeker, who has maligned the trial system in the past (see p. 1) defends DFZs for the ease with which they allow police to make arrests and carry out their determination. Robin Franzen and Scott Learn, who wrote the Oregonian article, added, "Police say issuing exclusions is faster and cheaper than amassing enough evidence to make a minor drug charge stick."

Since their inception, the idea of DFZs has been replicated in cities across the country, but Portland's ordinance is the most far reaching and gives the police greatest power. In Cincinnati, for example "if there's no underlying charge, no arrest, no conviction, there is no exclusion."

Who controls the city and our communities should become even more apparent in the coming months: while Katz and City Council await the State Supreme Court's decision whether to tie exclusions to criminal charges, police and prosecutors state that they are unsure whether they will carry out that directive.

For more info call the Metropolitan Public Defenders at 503-225-9100.

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