Community prosecutors in Portland have spent a significant amount of their energy addressing problems related to drugs. Because jails were overcrowded, dealers were often released on their own recognizance and were back at the same location, peddling their wares within hours. This reality proved frustrating to police, local stakeholders and prosecutors.
“The police as part of a community policing pilot had set up a public safety work group,” said Wayne Pearson, who supervises Portland’s Neighborhood D.A. Unit and participated in the work group. “And the community was asking me at these meetings why when a police officer arrests a person for drug offending are they back there in hours? Why aren’t they kept away?”
It was police officers who came up with the idea that offenders be released only on the condition that they not return to the area where they were arrested. But setting such a condition, Pearson realized, was harder than it sounded. Pearson determined that judges had the power to ban dealers from certain areas as a condition of release, but the police didn’t have the power to enforce the bans without returning to court and obtaining an arrest warrant—a complicated and lengthy process that made the proposal unworkable. “All an officer can do is send a memo to a judge and ask him to put out a warrant, and all of that would take days or maybe weeks,” Pearson said.
And yet Pearson’s legal training told him that a solution was possible. “Constitutional rights are not absolute. We know that a felon can have his right to keep and bear arms under the Second Amendment removed or limited because he has abused that right, even by committing a crime unrelated to gun possession,” Pearson said. “And in free speech, that right is always subject to reasonable time, place, manner restrictions… I said this is not an easy nut to crack, but it’s also something that’s not without precedent. That suggested to me that if we were careful about the way we approached this, it might work.”
Guided by this reasoning, Pearson partnered with the City Attorney’s Office, the Portland Police Bureau and the community to propose a new ordinance to the City Council. The ordinance created a “drug-free zone,” the first of its kind in the country. (The name originally proposed was a “high-vice area restriction” but community members objected, feeling that the words “high vice” denigrated the neighborhood. “They said, ‘We don’t want the whole city to stamp us with a negative name like “high vice.” Why don’t you call it a drug-free zone, so that the implication to the community at large would be that these sorts of behaviors won’t be tolerated here?’” Pearson recalled as an example of the value and need for community involvement.)
Prosecutors spent a good deal of time researching not only the legal underpinnings of the proposed ordinance but also selling it to the entire community. “The commander of the local precinct and I took this draft ordinance around and talked to anybody and everybody who may have wanted input,” Pearson said. “We went to all the needle exchange programs, methadone clinics, social service providers, homeless clinics, to explain what it was, who it was aimed at.”
In the first iteration of the ordinance, three drug-free zones were created. “The deputies spent hours driving around the neighborhoods just to make sure they got the boundaries right. It took thousands of hours of prep working with the city attorney,” said Judy Phelan, Schrunk’s staff assistant.
“In the end, the ordinance sailed through [the City Council] primarily because we’d gone around to virtually everybody, including the ACLU, who might have an impression about it and given them the opportunity for input,” Pearson said.
The ordinance strives to be “very due-process oriented,” Pearson said, which has thus far allowed it to withstand legal challenges. Offenders, for instance, can appeal the exclusion and get variances if they live or work in the zone.
How Drug-Free Zones Work
This is how the drug-free zone works: If someone is arrested for a drug offense within the zone, the arresting officer can issue a 90-day notice of exclusion from the zone. If the person enters the zone within 90 days, he or she can be arrested for criminal trespass. This eliminates the cumbersome and time-consuming process of obtaining a contempt warrant for every violation.
When the ordinance sunsets every few years, the City Council, Prosecutor’s Office, Portland Police Bureau, the community and City Attorney’s Office have a chance to make adjustments to the law before renewing it. The biggest part of the process is usually changing the zones’ boundaries. “We go back and see how drug usage and dealing have changed. In some cases, zones or parts of zones have been abolished and taken off the books because the drug dealing has completely gone away,” Pearson said.
At one point, there were as many as five drug-free zones. Currently, the city has two. Recently, there were 2,000 exclusions in effect in Portland, although many of the exclusions involved multiple citations of the same offender.
The D.A.’s Office says the drug-free zones have proven highly effective. The drug market was eradicated in one area of town and drug arrests significantly reduced in two of the zones. In one, drug arrests dropped 48 percent the first year and 51 percent the second year. In the same period citywide, drug arrests increased by 20 percent the first year and 21 percent the next. The District Attorney’s Office has kept a close eye on displacement; while there has certainly been some, arrest statistics seem to indicate that dealers haven’t simply picked up and moved wholesale to areas without drug-free zones.