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Drug and Prostitution Free Zones are Flawed

By ANDREA MEYER

On September 26, Portland City Council heard testimony on its renewal of the Drug and Prostitution Free Zones. Upon arrest of a drug or prostitution-related crime, police officers can issue an exclusion order barring the person for 90 days from entering a designated area of the city. Upon conviction, the city can issue a one-year exclusion. Exclusion orders are also being issued even if the person isnāt arrested or there is no plan to prosecute. Although police regulations require that the exclusion terminate upon acquittal, dismissal of charges or failure to prosecute, that requirement is not written into the law and does not happen. A person receiving an exclusion order has only five days to appeal the exclusion to an administrative hearings officer. Because these exclusions are treated as civil, not criminal sanctions, an individual is not entitled to court-appointed counsel.

We oppose these ordinances on a number of grounds. We believe that that the ordinances are unconstitutional because they infringe on the right to freedom of speech and association; infringe on the right to freedom of movement in intrastate travel; violate the separation of powers (by allowing the police officers, as part of the executive branch, to usurp the role of the judicial branch by meting out the punishment); and violate the double jeopardy clause. We recently lost on the issue of double jeopardy before the Oregon Supreme Court. The other constitutional grounds have not been decided by any Oregon appellate court because once the exclusion period runs, the courts have been dismissing on the grounds that the case is moot.

We testified against the ordinances before council. However, we knew that there were enough votes for renewal so we urged them to adopt a number of proposals that have been put forward by us, along with the Oregon Law Center, Metropolitan Public Defenders and Better People. We called for expanding the appeal period from 5 to 45 days. We do not believe it is reasonable to expect individuals, not represented by counsel, to file an appeal in such a short period of time. We urged the increase to 45 days because that provides a realistic opportunity to obtain access to legal aid services. Council increased the days of appeal merely to ten days, which is insufficient. We also urged Council to require that the exclusion terminate upon failure to prosecute. That suggestion was rejected as well.

However, at the same time we were testifying, the 6th Circuit Court of Appeals held that the Cincinnati ordinance (which was modeled after the Portland ordinance) violated a personās right to freedom of association and freedom of movement in the form of intrastate travel. While this decision does not cover Oregon we are optimistic that eventually under those same principles, these ordinances will be found unconstitutional in Oregon.