Criminal Justice in Clackamas County


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Mon, 08/21/2017 - 6:30pm to 7:00pm
Clackamas County DA John Foote
A Conversation With Clackamas County DA John Foote

Clackamas County is the third most populous county in the state of Oregon with more than 400,000 residents. It's one of the three Oregon counties that comprise the Portland metropolitan area, along with the larger Multnomah and Washington counties. In spite of that, Clackamas County and its criminal justice system don't always get the attention that they deserve. It's time to correct that, so on this edition of Prison Pipeline, host Doug McVay has a conversation with the chief prosecutor for the county, Clackamas County District Attorney John Foote.

Clackamas County DA's Office

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Subject: Your show with John Foote
From: Joshua Marquis
Aug 21


I just listened to the audio posted on KBOO's website.

While I appreciate you opening the conversation to someone like Clackamas District Attorney John Foote I wanted to set one fact correctly.

I did testify against HB 2355 before a senate committee on behalf of the overwhelming majority of DAs in the state after Linn County District Attorney Doug Marteeny testified (before me) in the House against the bill.

When HB 2355 was in a different form back last fall I appeared on OPB's Think Out Loud program debating the Keizer Chief of Police who was then advocating the form of the bill you referred to - that after ONE time, a second heroin or meth charge could be a felony, but the first would be a misdemeanor. As now configured any case involving "residue" (defined as less than 1/10th of a gram - the usual dose unit for heroin these days) will always be a misdemeanor, in cases of more than .10 grams up to 2 grams of heroin or meth, it will be a misdemeanor the first TWO times, and amounts over that will remain felonies.

My reasons have been stated in public and are preserved in audio files, which I invite you to listen to. The first link is to the OPB broadcast last October, the second to a show broadcast last week on KMUN-FM, the independent community-supported radio station in Astoria where I have been a jazz DJ for over 20 years.

It's the third and last segment in the OPB program:

For KMUN it's the second button down:

What I have said - consistently - is NOT that "we don't charge these anyway" as you misquoted me, but that NOBODY goes to prison in Oregon for simple possession for the last 25 years. If you doubt me listen to the criminal defense attorney who appeared with me on KMUN (the first 16 minutes is devoted to grand jury changes, the second half to the de-felonization of heroin and meth).

To be really clear on my position it is and was that while most DAs were fine with the first 9 pages of HB 2355 which require police to gather ethnic and racial data, that making heroin and meth - the scourges of our communities no more serious than a misdemeanor shoplifting or tagging a freeway underpass is both sending the wrong message and, as the defense attorney explains, will likely result in far FEWER addicts getting treatment. You may not like the criminal justice system but the harsh truth is that it provides some of the few treatment options for those wanting to work off a felony. Someone who stays clean and completes drug court gets the entire charge dismissed.

We prosecutors are not looking for convictions, but safer, better communities, for all - including people with addictions.


Joshua Marquis
District Attorney
Clatsop County


From: Doug McVay
Aug 21 8:05 PM

Thank you for emailing. I appreciate you taking the time to get in touch with your concerns, frankly I'm flattered that you reached out.

My interpretation of your position on HB2355 was based on your testimony before the legislature's joint ways & means committee on July First, just before the bill was approved and sent to the governor. I didn't hear the interviews to which you referred. I'm sorry if you feel I misinterpreted what you said, though to be clear I didn't say that I was directly quoting you. You were being rushed along that day by the committee chair. Here's a transcript of your remarks in that hearing:

"JOSH MARQUIS: Thank you. My name is Joshua Marquis and I'm the district attorney in Clatsop County, where I've been for 24 years. I'm here not speaking necessarily for all of the Oregon DAs Association, I want to be very clear that, the -- many of us who are district attorneys see 2355 in two completely different lights. The first part, the part about profiling, I think as broad support, and frankly should be decoupled from the second part involving PCS.
"And I will try to be brief, but I think I'm probably the only voice you're going to hear, although I think mine is -- I know is carried by many district attorneys and many in the law enforcement community. We are very concerned, there's really not a war on drugs in Oregon, let's be honest, as somebody who's in court every day, the idea that, that we, as the ACLU says, have harsh drug sentences in Oregon, is frankly ludicrous. The sentence for your fourth conviction for heroin in my county is ten days in jail, probably eight of which will -- is served in jail, in fact after two days you'll probably be released.
"For your seventh conviction it's the same thing. Let's be clear on what, what drug laws are not in Oregon. Some of the testimony that has been heard, I don't know by this committee or others, talks about disenfranchisement, and I've handed out something from the Brennan Center. There's a common misunderstanding that if you're convicted of a felony you lose your right to vote, and that is true in some pretty regressive places, like Florida. Oregon is one of a group of states that the only people who lose their right to vote are the 15,000 people, approximately, in prison, and you literally do not go to prison for possession of controlled substances.
"The only reason somebody would be in prison would be they plead down. Oregon has, by most measurements, the second lowest rate of prison incarceration for drugs. The most recent data shows six percent.
"But the greatest concern I have as a prosecutor who's in court every day, and who, and frankly I can answer Mister Schmitt's question about why are these mushrooming numbers. Because we have a huge heroin and meth crisis in this state, and it crosses racial lines, it crosses class lines, although I would suspect that those people from backgrounds like my own, privileged backgrounds, are going to have a lot easier time finding treatment than those who do not have those advantages.
"And, at, one thing this will do is, say goodbye to drug court. It's gone. I've been a defense attorney for a brief period of time, I've been a prosecutor for a lot longer. I also have represented for twenty years on the National District Attorneys board. Now that's only relevant that I've been to other states, I've spoken at other states. I was at a conference in January in Washington, DC, talking about this very bill. And right behind me were representatives of Oklahoma and California. Couldn't find two more different states. Oklahoma's a very red state, very conservative, California's a very blue state.
"Both states had recently, as the ACLU points out, de-felonized, or decriminalized in my view, possession laws, and at least the prosecutors in both states thought they were both disastrous. California did it by initiative, Initiative 36 in 2000 [sic: it was actually Prop 47 in 2014], and there's a lot of research that shows that that has been frankly a failure. Drug rates have increased. Oklahoma actually was at the opposite end, people were actually doing two to three years in prison for mere possession, something that hasn't happened in Oregon at least for the most of my 35 years in practicing law.
"But, at the crux of drug court is that it is inherently a coercive process. Essentially, someone comes in, and they are possessing a relatively small amount of drugs, I would agree that the amounts set in 2355 are reasonable, they're use amounts. A gram, which is probably -- heroin is now sold by points, meaning a tenth of a gram is a use amount. When I was an investigator, it was a quarter of a gram, or half a gram, or a couple of grams, in any event, it's a lot cheaper now, it's a lot more addictive, it's a lot more powerful.
"But the calculus is very simple. A person comes in and says, I don't want to have a felony on my record, because there are collateral consequences, absolutely. You don't lose your right to vote, but there are other downsides, certainly, to being convicted of a felony. And, I personally handle drug court, every Monday, sit there for four hours, talk about each case, every person's record, individually. Do not look at them as a group, you look at them as a person.
"And if somebody is asked, by -- asked, well, I have two choices, I could either, I could take this felony conviction, or I could go through this drug court program. It's pretty arduous, they have to show up every week, they have to pee in a cup, they have to -- they have to stay clean for six months to graduate. If they graduate from the program --
"SENATOR JACKIE WINTERS: I'm not -- I'm not going to have to hurry you up too? Now, come on."
"JOSH MARQUIS: Okeh, I will, I will try, I don't think, Chair Winters, thank you, but I think you're, this, I'm the only person you're going to hear this from.
"That, that drug court will only work if it's a felony. I can tell you, the defense attorney, as a former defense attorney, and you should ask current defense attorneys, what is their suggestion going to be to somebody who comes in and is looking at a misdemeanor? And the answer is, that basically what this, what this part of 2355 does, is it sends up a white flag on heroin and methamphetamine. It says to the people of Oregon that we are now going to consider this as about as serious as writing graffiti on a wall or stealing a video game. Those are Class A misdemeanors.
"And, and I think that is, frankly, I'm not worried about having more customers. I'm in a recession proof business. So the number of felonies that come into my office are not going to affect my staffing or my funding, or the amount of money that you all give to district attorneys or the countries to, this is bad policy, and what I would urge each of you to do, because you're going to get different answers, is talk to your district attorney, find out, but this is a one size fits all that I think is going to be a disaster. Thank you. I'd be happy to answer questions but I know you have other witnesses."

HB2355 de-felonizes first offense possession. When you said: "The sentence for your fourth conviction for heroin in my county is ten days in jail, probably eight of which will -- is served in jail, in fact after two days you'll probably be released. For your seventh conviction it's the same thing."
That sounded to me like you're saying that people aren't being put behind bars for a first offense. If I have gotten hold of the wrong end of the stick, I'd appreciate it greatly if you'd clarify that for me. But that's my interpretation of what you said that day.

The next edition of Prison Pipeline that I'm scheduled to host/produce is sometime in the second half of October. (We have a two-week pledge drive in mid-September, one week we're off and the other we're doing a collective program in which I'll probably get about 8 minutes.) Other hosts have shows scheduled through Oct. 9, so I could try to get a broadcast date of October 16 or October 23. I'd be honored if you would be my guest. A pre-record is always easier to schedule. My travel is somewhat restricted -- Clatsop County is a long way from Gladstone when traveling by bicycle -- so we'd have to do that by phone or possibly skype, unless we could arrange a time when you were here in Portland that we could get together. There is also the option of doing a show live on the night, presumably by phone, or live in-studio if that could somehow work out.

Thank you again for emailing. I'm looking forward to our interview.


Doug McVay
Editor, Drug War Facts
Board Member, Common Sense for Drug Policy
Advisory Council Member, Students for Sensible Drug Policy
Host/Producer, Century Of Lies
Host/Producer, Free Culture Radio
twitter: @dougmcvay and @drugpolicyfacts
skype: dougmcvay

"Until we are all free, we are none of us free."
-- Emma Lazarus


From: Joshua Marquis
Aug 21 10:11 PM

Thanks for your note Mr. McVay.

I had no idea of the legislature was so rich they could afford to transcribe all the testimony they heard but particularly that which they ignored (as John Foote mentioned).

HB 2355 doesn't just reduce "first convictions," it reduces ALL residue cases and the first two "usable quantity"
cases of meth, heroin, etc. That is for broader than the original bill.

The record appears accurate, with the exception of whoever inserted "[sic] it was prop 47 in 2014."
No, the proposition that forbid imprisoning drug inmates was passed in 2000 in California and was called proposition 36. California proposition 47 further "de-felonized" a large group of other felonies, much beyond drug cases. Since proposition 36 has been in effect for more than 15 years it's been subject to the kind of thorough analysis Mr. Foote referred to, and largely found to be a failure.

As the record reflected, the chairwoman, Senator Winters made a point of making me wait almost 2 hours despite the fact I was the only witness testifying against the bill THAT DAY and I had driven almost 250 miles that day to go to and from the session.

I am sure that D.A. Doug Marteeny's testimony from Linn County is transcribed somewhere, though I haven't seen it or heard it.

The point I was trying to make that day, and which I made in the two radio segment I encourage you to listen to from October 2016 and two weeks ago here in Astoria, was that we were not disenfranchising people with drug felony conviction's but that the threat of a felony drug conviction, even without actual present time, might be the only thing to force them into treatment and away from addiction. As I'm sure you know there's a huge difference between 2 to 4 days in jail and 2 to 4 years in prison.

I appreciate your offer to appear on your program and I would be happy to do so.
I'm usually in the metro area once or twice a month for other reasons. For example I'm speaking up in Milwaukee Rotary Club tomorrow about the recent legislative session regarding criminal justice issues and I have a number of other similar request to fill this fall.

But if it would be easier to do a phone interview, I'd be happy to do so.


From: Doug McVay
Aug 21 11:25 PM

Hi Joshua,
The state didn't spring for that transcript. I typed it.

Prop 36 did not de-felonize or change penalty classifications for drug crimes in CA. Here's the official summary from the CA Attorney General:
"Initiative Statute.
"– Requires probation and drug treatment program, not incarceration, for conviction of possession, use, transportation for personal use or being under influence of controlled substances and similar parole violations, not including sale or manufacture.
"– Permits additional probation conditions except incarceration.
"– Authorizes dismissal of charges when treatment completed, but requires disclosure of arrest and conviction to law enforcement and for candidates, peace officers, licensure, lottery contractors, jury service; prohibits using conviction to deny employment, benefits, or license.
"– Appropriates treatment funds through 2005–2006; prohibits use of these funds to supplant existing programs or for drug testing."

and here's the analysis of Prop 36 by the legislative analyst:
"Changes in Sentencing Law. Under this proposition, effective July 1, 2001, an offender convicted of a "nonviolent drug possession offense" would generally be sentenced to probation, instead of state prison, county jail, or probation without drug treatment. As a condition of probation, the offender would be required to complete a drug treatment program.
"The measure defines a nonviolent drug possession offense as a felony or misdemeanor criminal charge for being under the influence of illegal drugs or for possessing, using, or transporting illegal drugs for personal use. The definition excludes cases involving possessing for sale, producing, or manufacturing of illegal drugs.
"Offenders convicted of nonviolent drug possession offenses would be sentenced by the court for up to one year of drug treatment in the community and up to six additional months of follow-up care. The drug treatment programs must be licensed and certified by the state and could include various types of treatment methods, including residential and outpatient services and replacement of narcotics with medications, such as methadone. A court could require offenders to participate in vocational training, family counseling, literacy training or community service, and could impose other probation conditions. The measure requires that offenders who are reasonably able to do so help pay for their own drug treatment."

Here's the summary of Prop 47 by the CA Attorney General:
"Criminal Sentences. Misdemeanor Penalties. Initiative Statute.
"• Requires misdemeanor sentence instead of felony for certain drug possession offenses.
"• Requires misdemeanor sentence instead of felony for the following crimes when amount involved is $950 or less: petty theft, receiving stolen property, and forging/writing bad checks.
"• Allows felony sentence for these offenses if person has previous conviction for crimes such as rape, murder, or child molestation or is registered sex offender.
"• Requires resentencing for persons serving felony sentences for these offenses unless court finds unreasonable public safety risk.
"• Applies savings to mental health and drug treatment programs, K–12 schools, and crime victims."

And this is from the analysis of Prop 47 by the legislative analyst:
"This measure reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes. The measure also allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences. In addition, the measure requires any state savings that result from the measure be spent to support truancy (unexcused absences) prevention, mental health and substance abuse treatment, and victim services."

Btw, I would never have said that people were being "disenfranchised" in this state, because as you know Oregon doesn't take away the vote from people who've been convicted of crimes (other than when they're actually incarcerated).

The next edition of Prison Pipeline that I'm hosting/producing is sometime in mid-to-late October, so we should be able to work out a schedule that's convenient. I wish I'd known about your visit to Milwaukie sooner, I'm on a deadline or I'd try to make it. I live between Milwaukie and Gladstone, so the Rotary Club would be within biking distance.



From: Joshua Marquis
Aug 22 6:13 AM


Sent from my iPhone


From: Doug McVay
Aug 22 7:08 AM

Hi Josh,
Yes, I see that you're scheduled to speak there today:
The time's not listed but there's a regular Tuesday lunch so I guess you must be today's luncheon speaker. I can't make any promises, but if I can finish up my work in time I might be able to make it. As I mentioned, I'm on a deadline, and I have a long family tradition of staying inside the deadline. (Don't know if you're a history buff, but my ancestors fought for the Union in the Civil War and one of them was a prisoner of war at Andersonville. The "dead line" was the perimeter around the camp, and prisoners who tried to cross it or just got too close to it were shot dead. Journalists sometimes have an odd sense of humor.)
Well in any case, best of luck with your speech today! I hope it goes well.


From: Joshua Marquis
Aug 22 11:02 AM

It made in virtually impossible for any judge to incarcerate weather in a prison or jail for either the first two or three drug convictions....

I appreciate your interest and transcribing my testimony. I think you will find what I said in October 2016 and two weeks ago to be remarkably similar to what I testified to at the legislature

Josh Marquis

Sent from my iPhone


From: Joshua Marquis
Aug 22 11:04 AM

I appreciate that you wouldn't say "disenfranchised," out but I watched the attorney general of Oregon use that exact phrase when testifying in favor of this particular bill.

Josh Marquis

Sent from my iPhone


From: Doug McVay
Aug 22 2:32 PM

Hi Josh,
I'll check all that out, thanks. Again, I'd love for you to be a guest on Prison Pipeline. The next edition that I'm producing/hosting will be sometime in October. I won't have a specific date until the second week of September, and when I do, I'll definitely get in touch with you about scheduling an interview. Thanks again for reaching out to me, it's always great hearing from a listener.

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