MARIJUANA ADVOCATES around the country rejoiced this month after District Attorney Rod Underhill said his office would no longer prosecute pot offenses that will become legal next July, under the newly passed Measure 91.
In line with that announcement, Multnomah County prosecutors dumped charges in 50 cases, they said, and would no longer file applicable pot charges even if local cops sought them. It seemed, as the Mercury pointed out ["Technically Illegal," News, Nov 12], as if summer had come early to Oregon's most populous county.
But that's not technically true.
It turns out prosecutors don't even have the power to drop a portion of the citations cops write for marijuana. Those cases—mere violations akin to a traffic ticket—could include smoking in your home or carrying around less than an ounce of weed. They go directly before a judge without passing through the DA's office.
"They are not in our system," says Don Rees, a chief deputy in Underhill's office. "We never see them."
That's left the door open for an inequity court officials are rushing to fix: It's possible a person cited for a pot violation like low-level possession could be fined hundreds of dollars under existing Oregon law, while a person cited for the same infraction—but with an additional crime attached to the case, prompting DA involvement—would have the pot charge dropped.
More starkly, you could feasibly cultivate four marijuana plants in your home, or keep up to a half-pound of pot under your bed right now (both are currently felonies that will become legal under Measure 91), and not draw prosecutors' attention—but be fined more than $600 for having a dime bag in your pocket.
And judges would likely be powerless to stop that hypocrisy.
"The court can't sort of summarily decide it's going to step in and override the police officer," says Multnomah County Trial Court Administrator Doug Bray. "Especially because [Measure 91] isn't active until July. We will work on that."
Under Oregon law, district attorneys aren't typically allowed to act as the state's representative in mere violations, which don't rise to the level of a crime. The law states prosecutors "shall not appear in violation proceedings unless counsel for the defendant appears." That's incredibly rare in violations, if it happens at all. Instead, the tickets are either paid or added to a judge's docket, with the police officer who wrote the citation relaying details of the incident.
It's not clear how many active cases in Multnomah County include only a pot violation. A request for that figure, filed November 13, hadn't been filled by press time on Tuesday, November 18. (Update: We got it.)
Regardless of the number, the situation means cops who disagree with the DA can theoretically sidestep his decision to leave some marijuana offenses alone.
The Portland Police Bureau (PPB) says it's rare for officers to even bother with small-time pot infractions. But the bureau has also so far refrained from announcing any blanket policies regarding Measure 91.
"Their decision does not impact how we do business to any significant level," PPB spokesperson Sergeant Pete Simpson says of Underhill's office.
Cops are waiting on guidance from the city attorney's office, he says. But they're also hearing from another part of the courts system. Multnomah County Presiding Judge Nan Waller says one of her colleagues has reached out to Police Chief Mike Reese about solving the charging quandary.
"I think we can figure it out," says Waller, "and hopefully we'll figure it out in the easiest way possible."
Simpson says he hasn't heard about any such discussions. But if Reese is unwilling to help, the county's defense attorneys may be willing to step up.
Portland public defender Chris O'Connor says his firm, Metropolitan Public Defender Services, would gladly step in and represent offenders charged with a pot violation. That would allow prosecutors to make an appearance in the case, and ask that it be dismissed.
"I'll come down there every day and say, 'Does anyone here have a pot case?'" O'Connor says. "We'll voluntarily represent people on all those violations."