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How well do "drug-free" zones really work?

State Rep. Chip Shields is asking the city for an independent review of its controversial “drug-free” zones

By Abby Sewell

Over the next three months, Portland residents will have a chance to weigh in on the city’s controversial “drug-free zones,” before they come to the city council to be renewed on February 2, 2006. Originally intended to cut down on street level dealing in certain high-traffic areas of the city, the drug free zones have been backed by the Portland Business Alliance, the police bureau, and some neighborhood associations, and opposed by many civil liberties activists and social service workers. Although the drug-free zones have been challenged as unconstitutional on a number of occasions, the Oregon courts have thus far upheld them with only a few minor changes.

Within the two zones — one in downtown Portland and the other in northeast — police officers may issue ninety-day exclusion orders to people they suspect of dealing or buying drugs. While these exclusions are in effect, people can be arrested for trespassing if they return to the area.

Prior to 1997, drug suspects could be issued a ninety-day exclusion at the time of their arrest and could then be excluded for an additional year if they were charged and convicted. However, in 1997, a Multnomah County Circuit Court judge ruled that issuing an exclusion and pressing charges at the same time unconstitutionally creates “double jeopardy,” punishing a person twice for the same crime. Under the current law, officers are left with the discretion to issue exclusions instead of arresting and charging low level suspects.

The police department and the district attorney like this system because it saves them time and money on prosecuting people in cases that would likely be dropped to a violation or thrown out for lack of evidence in court. Exclusions require a lower level of evidence than criminal convictions. To convict someone of a crime, the prosecution must show “beyond a reasonable doubt” that they committed it. In drug cases, this generally means having physical evidence or a verbal admission by the suspect. To issue an exclusion, the officer only needs a “preponderance of evidence” that the suspect was dealing or buying, which can be based on observing a person’s behavior, without necessarily finding any drugs on the scene.

After being issued exclusion orders, people have only 10 days to appeal them. They may also apply for variances, which allow them to be in the drug-free zone for specific purposes, such as work, using social services, or if they happen to live there. Opponents of the drug-free zones say that the appeals process and the process of getting variances are too difficult for many people.

Chip Shields, the state representative for North and Northeast Portland, worked in social services for most of his career before entering politics. He helped to found Better People, a counseling and job placement program for recovering drug addicts and other people coming out of the legal system in Portland. Shields believes that the drug-free zones give police too much leeway with no judicial review.

“If you’re going to exclude somebody, particularly exclude them from the area they live in, you should have that based on the person being convicted,” Shields said.

He is asking the city to commission an independent review of the drug-free zones to see if they have even been effective in curbing street dealing or drug addiction in Portland. To date, such a review has never been undertaken.

“I always had concerns about drug-free zones and wanted them to be more supportive of people in recovery from addiction: at the least, have a better appeals process and variance process for being in the zone for legitimate reasons,” Shields said.

Glenn White, a recovering crack addict from northeast Portland, would agree with that assessment.

“Say you’re a person in recovery. How do you get to and from your meetings? How do you get to housing, if you’re trying to find housing? To therapy? How do you meet your basic needs?” he asked.

In 1999, White was excluded from the Northeast Portland drug-free zone, where his house is located. In the months following, he was arrested repeatedly for violating the exclusion, within blocks of his home. On one occasion, he said, he was arrested for trespassing while standing on the front steps of his house. Although White had a variance in the city’s computer system, he had left the physical variance paper inside, and the officers would not allow him to go in and retrieve it. A judge later threw out the trespassing charge, but the case highlights how officers can use exclusions to take out personal vendettas or prejudices. Especially in Northeast Portland, opponents of the drug free zones believe many exclusions are based on racial profiling.

White says that rather than cutting down on the overall level of street level drug dealing in Portland, the exclusion zones simply spread it to more locations around the city.

“Have crimes gone down? No. Have crimes from people using drugs gone down? No. All you’ve done is relocate the problem so it looks a little better. It’s a band-aid,” he said.

In Cincinatti, which instituted an exclusion ordinance similar to Portland’s in 1996, an American Civil Liberties Union lawsuit led the Ohio Supreme Court and the U.S. District Court for Southern Ohio to judge the drug-free zone unconstitutional in 2000. The District Court ruled that the ordinance violated citizens’ First Amendment right to freedom of association by restricting their ability to move freely in public areas. In Cincinatti as in Portland, the population of the designated “drug free zone” was primarily African American.

The Portland drug free zones must be reviewed and renewed every three years by the Portland City Council. This year’s review was initially set for Oct. 19, but according to Maria Rubio, a spokesperson from Mayor Potter’s office, the mayor wanted more time to get public input. Potter is reportedly interested in making some reforms to the ordinance, including changing the rule that allows police to exclude people against whom they are not going to press charges. This would mean that a higher standard of evidence would be required in order to issue an exclusion and also that a judge would review every exclusion issued.

Despite the contention that excluding and charging the same person constitutes double jeopardy, Chip Shields believes this system would be more fair than the current one.

“If they’re pursuing a conviction, it makes it more likely that there will be a second set of eyes looking at the original exclusion ... It will get us closer to an ‘innocent until proven guilty’ system,” he said.

The review is now scheduled for Feb. 2, 2006. Rubio said that Potter will be convening public forums on the issue in November and December but was unable to give any dates as of press time.

The city will also be considering creating another drug-free zone in outer southeast Portland.

Abby Sewell is a local writer and former Alliance intern.