Defense Lawyers Scrap Decriminalization Bill, Ask Lawmakers to Give Judges More Discretion

Despite that pendulum swing, the Oregon Criminal Defense Lawyers Association urged the House Judiciary Committee last week to support legislation that would allow judges to reduce many misdemeanors to violations at the time of sentencing.

The OCDLA introduced House Bill 2469, which, in addition to making changes in court procedure and the use of grand jury recordings, would “authorize the court to enter a judgment for a Class A violation when a person is convicted of a misdemeanor.” (A Class A violation is similar in severity to a traffic ticket.)

In an email, Mae Lee Browning, the group’s lobbyist, says defense lawyers believe the reduction from a misdemeanor is warranted in many cases and would have the added benefit of reducing the caseload that the association thinks is contributing to the large number of defendants unrepresented by an attorney.

“What crimes need to be in our criminal legal system?" Browning asks. “What is a good use of our resources? What about the 19-year-old who was just messing around, just being a young person, and charged with a Criminal Trespass 2?

“She’s a young person with no criminal record. Criminal Trespass 2 is a C misdemeanor. There was no damage and no one was harmed. Do we really need to charge this ‘crime,’ wait for a public defender to be appointed, and drag this young person back into court, disrupting their school or job?”

(The Oregon Judicial Department told lawmakers earlier this year that misdemeanor filings were up 17% last year and are expected to be up 38% for the biennium.)

In testimony Feb. 26, the OCDLA agreed with concerns from the Oregon District Attorneys Association that some misdemeanors, such as DUII, domestic violence and other person crimes, should not be eligible for reduction to violations, and the group noted the reductions should take place only when a judge deems them appropriate, not automatically.

Multnomah County Chief Deputy District Attorney Amanda Nadell testified on behalf of the ODAA that prosecutors opposed giving judges such discretion because the court would give up the authority to hold the convicted party accountable to restitution or conditions of probation.

While the defense lawyers and prosecutors took turns arguing their differing theories of criminal justice on a series of bills, the OCDLA pulled from consideration another piece of legislation scheduled for a hearing Feb. 26. House Bill 2640 would have gone further than allowing judges more discretion. Instead, the bill proposed downgrading numerous common misdemeanors, including criminal trespass, criminal mischief, and theft of “basic need items” to violations. Those basic need items include food, water, medical supplies, tarps and tents.

The Northwest Grocery Retail Association, on behalf of itself and a host of other business groups, submitted testimony opposing the bill.

HB 2640 also proposed to raise the bar for conviction on a charge of spitting on a public safety officer by adding language to the current statute on aggravated harassment to specify that the saliva must “create a risk of spreading communicable disease.”

“Proving whether a person has created a significant risk of transmitting a communicable disease is a complex and costly endeavor,” Marion County Sheriff Nick Hunter noted in written testimony. The Oregon State Fire Fighters Council and the Oregon Association Chiefs of Police joined the sheriffs in opposing that section of the bill.

Browning, the OCDLA lobbyist, says her group decided to pull HB 2640 to give more time for the House Judiciary Committee to hear another bill on witness impeachment and also because lawmakers signaled they were more interested in giving judges greater leeway than simply decriminalizing a list of offenses.

“Some [lawmakers] felt more comfortable with our proposal in HB 2469 that would give judges discretion to reduce certain misdemeanors to violations,” Browning says. “After all, that is what we elect judges to do — judge and exercise their discretion. Based on the opposition testimony to a couple of our bills, the DAs do not seem to support judges having such discretion.”

Browning says HB 2640 is dead.

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This story was produced by the Oregon Journalism Project (oregonjournalismproject.org), a nonprofit investigative newsroom for the state of Oregon.