The Multnomah County District Attorney's office Thursday said a program intended to provide stiff penalties for certain nuisance crimes has frequently been misapplied in more than eight months of use, resulting in consequences for unintended targets.
The Chronic Offender Pilot Project—first revealed by the Mercury this week—was born in June with the intent of levying harsher-than-usual consequences for people who continually drink in public, urinate on the street, and litter. But, apparently due to an errant memo sent early on in the process, cops have largely used the project to target people sitting or sleeping on the sidewalk, not offenders committing the kind of aggressive offenses authorities said they intended to address.
"We were looking at behavior that was active, quality of life behavior," said Chuck Sparks, a chief deputy in the district attorney's office, in an interview in his office Thursday afternoon. "Not someone sleeping in a sleeping bag."
Instead, Sparks said 17 of 19 people who've been arrested under the COPP program were sanctioned for violations of the city's sidewalk use ordinance.
According to a review of those offenders, the prosecutor's office believes many are so-called "travelers" who descend on the city each summer. But prosecutors concede there's no scientific way to make that distinction.
Even without the missteps in enforcement, the project has proved controversial since the Mercury reported on it for this week's issue. Commissioner Amanda Fritz said she was "horrified and very disturbed" to learn of the policy—which uses an oft-criticized Oregon statute to leverage harsh penalties on crimes often associated with homelessness.
But that was COPP as prosecutors say they intended it to be used—for aggressive individuals who frequently litter, drink and urinate in public. Instead, the bulk of the enforcement appears to have been aimed at people using the sidewalks in a way that breaches city policy.
The problem, Sparks said, is that a memo [pdf] issued to the Portland Police Bureau early on in the project contained violations of the city's sidewalk policy as behavior to be targeted. The verbiage was inserted into the memo by a deputy district attorney Sparks supervises, he says.
"I think it was just an oversight," he said. "I should have caught it."
But Sparks said he'd been alerted in October—around the time COPP was extended beyond an initial four-month tryout—that the memo included instructions to enforce sidewalk violations. He says he gave instructions then that the cops should stop using it in that way, but can't remember to whom. And the DA's office didn't look at that time to see how many people had been arrested and subjected to stiffened penalties as a result of the mix-up (16 sidewalk-related arrests had been made by October 22).
That didn't happen until yesterday, after the Mercury filed a public records request with Jim Hayden, a senior deputy district attorney.
"I appreciate the fact you asked the question, and we went back and looked," Sparks said.
Among other documents, the DA's office sent the Mercury and other publications copies of an e-mail Hayden wrote today to police Commander Bob Day, who runs the bureau's central precinct.
"We realize we inadvertently provided you incorrect information previously that formed the basis for exclusions by your officers for the Sidewalk Obstruction Ordinance," Hayden wrote. "We apologize for that."
COPP was intended to take a novel approach to certain crimes—littering, public intoxication, public urination—which have historically been treated lightly. Whereas offenders in past years were cited, given a court date, and met virtually no consequences if they didn't show, the new project targets lawbreakers with arrest, then bench warrants if they miss a court date.
To do so, the Portland police and the district attorney's office are leveraging the state's "interfering with a peace officer" law, which makes it a class A misdemeanor to refuse "to obey a lawful order." Under COPP, cops who see a person littering/drinking/peeing in public issue a warning and put the person on a list. If the offender is caught literring/drinking/peeing again, they're taken to jail for not following the earlier order.
Sparks and Hayden say the intent is to convince people to accept services, but neither prosecutors nor police make a secret of the fact they're fine with undesirable elements leaving town.
"There needs to be accountability," Day told the Mercury this week. "If they're going to drink and urinate in the streets of Portland and they decide that's inconvenient and they want to go to Santa Barbara, I'm fine with that."
According to a procedure document detailing the program, it "should serve to make Portland less attractive to people who want to come here and openly violate the law and degrade community livability."
But the list of people who've been arrested and prosecuted under COPP overwhelmingly contains instances of people "sleeping past wake-up call" under bridges and in business alcoves. (This from a project Mayor Charlie Hales' office argued on Wednesday did not target the homeless.)
On top of that, dozens upon dozens more individuals—apparently the majority of folks contacted under COPP—had been issued official warnings after violating the city's sidewalk ordinance. That means the next brush with an officer for sidewalk issues, littering, urinating or drinking in public would have resulted in arrest.
"This is a mistake that was made," Hayden said. "I think the program has value, I think it can work. I'm just frustrated we got off track."
To address the misuse, Hayden says the DA' s office plans to eliminate the list of 19 offenders who've been prosecuted under COPP, and make sure those with open cases get the same treatment as they would before the program launched. Prosecutors will also sift through a lengthy list of people who've been warned—an initial step in the COPP process—and remove warnings borne of a sidewalk violation.
But criminal convictions that resulted from the program? They're not going anywhere.
The COPP program, which is widely expected to continue past its current April 1 expiration date, is not a known commodity among some folks who are otherwise very familiar with the county's justice system. Abbey Stamp, executive director of the Local Public Safety Coordinating Council, said recently she'd not heard of it, and Multnomah County Commissioner Judy Shiprack's office said didn't she know much. Even the Multnomah County Sheriff's Office—which runs an oft-filled jail system that could be affected by the policy—said it hadn't been briefed.
Fritz, who's worked extensively on homeless issues in recent months, was upset Mayor Charlie Hales didn't mention the effort. Hales is the commissioner in charge of the police bureau.
"I've been quite involved in houselessness issues and caring for people that live outside," she said Wednesday. "The communication obviously is lacking, and how to correct that more than a year into this council is an ongoing challenge."
But there are signs Hales' office was well aware of the program's use for sidewalk offenses. In an interview Wednesday, Hales spokesman Dana Haynes said he wasn't familiar with the name "Chronic Offender Pilot Project," but was aware of a new enforcement concept. But the policy Haynes described didn't jibe with the one the district attorney's office had outlined.
"Folks who had been saying: 'I'm going to stay on the sidewalk forever and ever and there's nothing you could do about it,'" Haynes said. "We could go to them and say 'you can't live here.' Do you really think coming to Portland every summer is so much fun when you have a bench warrant?"
Haynes also took pains to dispute the Mercury's description—in a headline—that the COPP is a "tough new police policy that targets the homeless."
"We are going to disagree with you that it is targeting the homeless," he said, calling the Mercury's reporting "bad journalism."
But the DA's documents make clear the homeless have borne the brunt of the program's effects to-date. Of the 19 who've been prosecuted under COPP, Hayden believes 16 are definitely or probably "travelers," many of whom, he notes, are sleeping under the city's bridges. The remaining three have no listed address, and one keeps his belongings in a shopping cart.