Thursday, October 28, 2010

Getting Honest About Marijuana

I've been writing about marijuana for years, and recently I've been helping out my good friend and colleague Clatsop County Sheriff Tom Bergin in speaking out against Measure 74, which purports to establish a vast network of medical marijuana dispensaries but is in reality a back-door attempt at legalization without thinking out all the ramifications.

I do think there are people who genuinely benefit from medical marijuana. When the measure passed in 1998, supporters thought there might be 500 to 1,500 people who needed cards. Today there are more than 40,000, with 5,000 applications in the pipeline (pun intended). It's clear that a lot of people are smoking doobies because they simply like getting high.

Like many other justice issues, I think we need to be honest in the debate. The Yes side is fairly well funded and has published 11 voters' pamphlet statements. The No side has published two statements, one on behalf of all Oregon's DAs, Sheriffs and Police Chiefs. I have been doing the rounds, going to KGW, OPB, and most recently the very hip Portland Mercury newspaper, arguing the No side. I was stunned when that paper listened carefully to me and decided to urge its readers to vote No. They have incurred the wrath of many of their cannabis-loving readers. I'm appending the Mercury's editorial. (Click on that link to read the 34, at the time of this posting, outraged reader comments.)

As Susan Nielsen, columnist for the Oregonian, wrote today:
"[Josh Marquis is] fine with medical marijuana but oppose[s] Measure 74 as another absurdist twist of drug law. 'You have (federal law) saying marijuana has no medical use. Then the other side says marijuana is the answer to everything. The answer, as with most things, is somewhere in the middle.'"

Here's the Mercury's endorsement:
Measure 74: No

We really, really, really wanted to support this measure—a plan to bring Oregon's medicinal marijuana market out from basements and backyards and into regulated nonprofit dispensaries instead. We support legalization. We also support improving access to pot for patients who can't grow their own stuff and live either in far-flung rural areas or for whatever reason don't run in the same circles as casual pot smokers.

And while this measure comes close to winning our assent, we're not convinced it's the right measure for Oregon patients. Much of the measure's promise of regulation and reform hinges on state rules that would be crafted only after the measure is approved—and there's the very real chance those rules would fall short of advocates' claims. A highly touted provision that calls for grass to be tested lacks a firm financial commitment. There is no limit on the number of dispensaries, meaning more could crop up than the state can afford to regulate (even at best-case scenarios of $40 million in annual revenue from permits). Also, the five-year background checks required by the measure won't weed out (pun intended) someone with a serious drug record who got out of prison yesterday but was first convicted seven years ago.

Our current system in which patients can grow their own shit, or have someone trusted grow for them, isn't perfect. The best growers already have a full complement of patients, and with a lesser grower, it's hard to know what you'll wind up getting. A dispensary measure that was more explicit about testing and regulation would be far more likely to win our favor. For now, vote no.

Tuesday, October 19, 2010

Astoria rejects DUII cases takeover

Tuesday, October 19, 2010
The Daily Astorian

District Attorney complains about "choreographed attack"
Driving Under the Influence of Intoxicants cases will stay in Astoria Municipal Court.

That decision was made at Monday night's City Council meeting. Members unanimously passed a lengthy resolution indicating there had been no persuasive evidence that the cases handled in circuit court would result in a higher prosecution rate or greater justice.

District Attorney Josh Marquis was in attendance and disagreed.

"Ms. (Arline) LaMear was quoted at the (American Association of University Women) AAUW forum as saying she was very disappointed. I am, too," Marquis said. "I came two weeks ago hoping for a conversation. We did not have a conversation. We had a choreographed attack on some information that I had hoped would be helpful."

Mayor Willis Van Dusen said the City Council owed Marquis an answer to the question posed by his report, which sought to move DUII cases to circuit court. He said the City Council members also owed the citizens of Astoria a reason for their answer.

"We went through the district attorney's report and there were just a number or errors," Van Dusen said afterward. "There's always a silver lining to a report like this. It forced us as a City Council and city staff to scrub municipal court and just scour it and see if there are any problems."

In all of the evidence brought forth by the report, Van Dusen added, only two cases in nine years had been mishandled. And although it may be uncomfortable to do business such as this in a public setting, that is the way the City Council handles business. Van Dusen said they will move on from here.

Councilor Blair Henningsgaard, who is an attorney, weighed in during the meeting.

"Personally, I've said many times that I don't particularly care where these cases are prosecuted. My interest is in doing what's best for the city and for the citizens," said Henningsgaard. "Mr. Marquis' report and the evidence that we have heard indicates to me that the DUIIs are being handled as well in municipal court as they are in circuit court ... It doesn't make any sense whatsoever to move them."

LaMear, who was in favor of moving the court cases before the presentation was given earlier this month,. echoed those remarks.

"What we were given was so full of holes that we couldn't gather any real information, and the statistics were not correct when you looked at the whole thing because cases that were used to put those statistics together were incorrect," she said.

Marquis admitted the report had "definitely some errors," but said no matter if his law student intern who put the report together had spent the entire summer on the report or if Marquis had put the report together himself, City Prosecutor Mary Ann Murk and Judge Kris Kaino would still have found mistakes.

Afterward, Marquis added to his argument. "People have asked me if I thought providing a perfect report would have made a difference. And the answer is no," Marquis said. Another issue about the perception of justice is that the judge and the public defender are criminal defense attorneys when they are not in municipal court and are paid to defend people, like drunk drivers, he said.

Marquis said he has no intention of presenting the information to the City Council again.

"That would just be a waste of everybody's time," he said. "It will have to be resolved in another venue in court sometime in the future."

During the meeting, he did, however, ask the City Council to consider its language more carefully in the resolution before it was passed. It states, "Cases the district attorney felt demonstrated misconduct or malfeasance in the municipal court..."

"Mayor Van Dusen, if I thought it was malfeasance or misconduct, I wouldn't be appearing in front of you for a conversation. I'd be presenting it to a grand jury or asking the Attorney General or someone else to investigate it," Marquis said.

Henningsgaard read the definition of those two words to the City Council and all agreed they were appropriate words.

Minor language differences aside, Marquis made clear his thoughts on the municipal court system's handling of the DUII cases and asked the council to consider what they were doing and why.

"I'm offering to dig you a ditch for free and the question is, why are you refusing?" he said. "I would never have come before the City Council and offered to take on these cases if I thought they would be an undue burden on my office or create more taxpayer expense, or that they would do an undo burden on a very hardworking staff of the circuit court. Again, I just ask you to consider why I would be making this request."

Marquis, still upset about the decision this morning, said he has no motivation - higher wages, higher office, more staffing or otherwise - to do this other than to save lives.

"I do not have a personal vendetta. My only personal vendetta is against drunk driving," he said. "I am passionate about this because people are dying because they don't get help, and that is why I feel so strongly about it. I'm disappointed that they had the meeting with no notice and asked for zero public comment and I have to ask why on earth they are fighting this so hard if it doesn't matter, as Blair said, where these are handled? What are they so afraid of?"

In other news Monday night:

• Recology, the San Francisco-based company taking over Western Oregon Waste, gave a presentation seeking approval for serving the city. Van Dusen and Henningsgaard will be visiting the San Fransisco office in November. The City Council did not make a decision.

• City staff are in the process of securing FEMA funding to relocate the Bond Street water main, damaged by the 2007 landslide.

• Columbia River Maritime Museum Executive Director Sam Johnson recounted the excitement of placing the Peacock outside of the museum last week, also adding a surprise announcement" Jim Campbell, who towed the Peacock into place, told Johnson that he would be doing it for free. Campbell Crane, whose crane was involved in an accident near John Day, offered to charge only for labor.

• The city of Astoria is looking to hire a full-time building official and code enforcement officer. The officer would handle code enforcement for buildings and businesses as well as handle parking control.

Monday, October 18, 2010

Getting honest as well as smart about crime in Oregon


Guest column, published Monday, October 18, 2010

Getting "smart on crime" are the new code words to tell voters that they are stupid and that the experts, as always, know what's best for them.

At a time when state dollars are at an extreme premium it's clear Oregonians cannot continue to spend money on all the things we have in the past. The question is where can we afford to cut? Well, the one in six state dollars spent doing everything from running the state police to staffing the courts to providing lawyers for those accused of crimes is the last place we should be cutting.

Most -- if not all -- of these public safety services have already been cut to the bone and further. We have fewer state troopers on the road than 30 years ago, and the state provide the counties that run local jails with virtually no financial support of any kind. The Oregonian recently published a jarring story about crimes that simply won't be prosecuted in Oregon's three largest counties because the state keeps deinvesting in public safety.

The conventional wisdom is that we're continuing to sacrifice our children's future on an altar built on revenge, as evidenced by the continued construction of prisons. This view was repeated in the lead commentary in The Sunday Oregonian's Opinion section recently by an economist with no real world experience with the justice system.

To get just a flavor of how the voters -- not the "experts" -- think, look at the interactive online poll The Oregonian provided to ask readers how they would cut costs. Of the 15 alternatives offered by the newspaper, the one that received the very least number of votes was to close a prison. The author of the Sunday commentary says that "[c]oincident with the prison-building boom has been a sharp reduction in crime." That would be like saying it was "coincident" that forcing your child to do his homework occurred at the same time his grades went up.

For those of us who labor in the sometimes gritty fields of Oregon's justice system, we see it the way most voters do. If you incapacitate the less than 1 percent of the population that's preying on the other 99 percent, the rate of victimization will go down.

Nowhere in the Sunday commentary does it mention that public safety is the least funded of the three primary state mandates: education, welfare/public health, and public safety.

Those are the biggest parts of the state general fund and lottery fund, with roughly 52 cents of every dollar of discretionary funds (the ones the Legislature can actually control) going to education, 25 cents to health and welfare and about 17 cents to public safety -- which includes everything from judges to public defenders to prisons, probation officers, the state police and the National Guard.

Now how is Oregon doing on national benchmarks in these three areas?

In both the education and human services parts, we aren't doing so well. Despite valiant efforts by many working in those fields, the fact is we graduate fewer from high school and allow more kids to be abused and slip into poverty. The one benchmark where Oregon has been steadily improving is public safety.

By any standard, there is less crime and fewer victims. So now is the time to stop doing what has been the one bright spot in an otherwise gloomy scorecard?

Oregon used to be among the 10 most dangerous states to live in, and now it's one of the 10 least dangerous. Oregon ranks 30th out of 50 states in incarceration rates, according to the U.S. Department of Justice. Yet we are among the most expensive states in per-inmate cost, according to other studies. How is that possible? A close look needs to be taken at the cost of management in the Department of Corrections. The problem isn't with the corrections officers walking the yard without a weapon at the Oregon State Penitentiary.

The claim is sometimes made that we can't afford our relatively modest rate of incarceration. But that ignores the studies from our neighboring state of Washington that showed that for every dollar spent locking up a violent felon -- who make up more than 60 percent of Oregon's relatively small prison population -- the economic savings alone exceed $4 for every $1 spent on incarceration.

It's this sort of "we know what's best for you" arrogance that enrages ordinary Oregonians. If you really believe in democracy, as did the populists who helped invent the initiative system in Oregon a hundred years ago, then Oregon's leaders need to listen to voters, not self-styled experts.

It's time to start getting honest about crime in Oregon before we start re-creating the disaster that Oregon experienced in the 1970s and '80s. Don't fix what isn't broken, and learn from the mistakes and arrogance that made Oregon a dangerous place to live 30 years ago. We elect our judges, sheriffs and district attorneys, so whoever becomes governor should seriously consider inviting some of those 250 elected officials, whose job it is to administer justice at the ground level, to the table to figure out where state money can be saved and where it cannot.

Joshua Marquis is district attorney of Clatsop County, served on the Oregon Criminal Justice Commission and is a member of the American Bar Association Criminal Justice Council.

Wednesday, October 13, 2010

Defendants get a bargain

published Thursday, October 14, 2010

A study released last week by the Brennan Center for Justice raised concerns that assessing convicted criminals fees for their public defenders would somehow dissuade them from exercising their constitutional rights or unfairly burden those who are broke.

More than 95% of crimes are prosecuted by locally elected prosecutors,
called district attorneys in most states. We live and work in the community alongside both the victims and the defendants. We are well aware of the tough economic times, which hit the victims of crime much harder than those who prey on them. And the poor are much more likely to be victims of crime.

When the citizens are asked to bear the cost of providing a lawyer for anyone who can't afford one, it is not unreasonable to ask those found guilty to pay at least part of that cost. In Oregon, that means about $300 for a misdemeanor and rarely more than $1,000 for a felony.

Given the value of the excellent legal representation many defendants receive, they are getting a bargain. Anyone who hired the same lawyers would be expected to pay a retainer several times that amount. And, unlike many of the portrayals on TV, public defenders usually offer outstanding representation.

Prosecutors have also come up with innovative early disposition programs, recognizing that most crimes don't need a sentence of jail or prison. These programs are under fire by some defense attorneys because the defendants choose not to avail themselves of a court-appointed lawyer. Often, the prosecutor offers community service, or even reduction of the charge, so the defendant ends up without any criminal record whatsoever.

The offender and the community benefit when people are held accountable, but not punished so severely that they can no longer work. The "broken window theory" — which says pay attention to the little things and they won't become bigger crimes — has proved a success. Americans are much safer now than they were 20 years ago.

We should never expect the justice system to be a revenue center for local or state government, but that doesn't mean that those who violate the law should get a free ride.

This opinion was solicited as a response to a USA Today Editorial Board View.

Thursday, October 7, 2010

National Day of Remembrance

I was asked to speak at the National Day of Remembrance for Murder Victims, in Oregon City, on September 24th. I was honored to speak after Attorney General John Kroger. These were my remarks to the approximately 100 members and supporters of Parents of Murdered Children:

I am humbled to be here among the survivors of the very worst thing that can happen to a family - the senseless loss of life out of time out of place -- and I never cease to be amazed by the grace and the eloquence of a victim’s family.

POMC is not a political organization and the rights of victims are not a partisan issue.

One of the most important rights we fought for and won - first in 1986 with Measure 10, then in Measure 69 in 1999 - was the right for the survivors to speak at the sentencing of the person who caused the loved ones’ death.

That simple right, that basic decency, may seem normal and expected to some of the younger people here. But 30 years ago there was no such right. Some claimed it would deprive the defendant of some basic right. But the right to be heard, the need to speak for the dead is too important not to ensconce in our constitution, where it properly sits today.

Over the years I have come to know remarkable people after they are gone.
I’ve learned of them through the memories of their families and friends, through the photographs and letters their family collected.

I recognize that as a prosecutor I am working with people at the very worst moments of their lives. When the world seems to have broken all around them, when the rules have all seem to fallen apart, when they are adrift in a sea of complex legalisms that all too often seems indifferent to their loss.

Out of this darkness I have been heartened to find the strength, the dignity, the passion, and the truth that these families speak.

I often stay in touch with them and when I’m lucky I run into them out of happenstance or, less welcoming for them, at a parole hearing to try and keep the killer in prison.

I’ve been trying murder cases for 25 years. For almost 20 years I’ve tried one case over and over again because of a promise I made those two decades ago to that family.

That promise was to stay the course until justice was done.

That voyage made its fourth trip through a courtroom in Bend this summer and a measure of justice was achieved.

Once again the family summoned the courage, the strength and the dignity to speak of the LIVES of the two people who were murdered in 1987.

The presiding juror later told me that, during deliberations, the jurors had put up in their room the one relatively small photo of the victims that I had been allowed to enter into evidence. The photo was to remind the jurors of why they were there.

Many ancient cultures believed the souls of the departed lived on so long as they were named and remembered.

Today we honor and remember those who you loved and lived with us.