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James O'Rourke - Criminal defense lawyer Portland Oregon

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Category: Measure 11

Oxycontin: The Gateway To Heroin And Measure 11 Crime

In my last blog I discussed the hypothetical client named “John.”  John was prescribed Oxycontin after an on the job injury.  Like many clients, he became addicted to this dangerous drug.  Here is the story of how that happened.

John’s Portland, Oregon doctor handed out Oxycontin like candy, raising his dosage over time to the maximum of 80 milligrams per dose.  John’s doctor eventually realized he was over prescribing and got worried about getting in trouble with the medical board.  He prescribed John a month worth of Percocet, a lower dose opiate, and terminated john as a patient.  His doctor did not follow the protocol for titration (a gradual reduction in dosage) or refer him to other doctors who could replace the opiate medicines with another, less harmful, drug.  John began using heroin and sold heroin to pay for his own habit.  He was caught dealing heroin after six months.  He had a number of criminal charges and the district attorney is asking for prison.  This is a common Oxycontin scenario.

Oxycontin came onto the market in 1995.  At that time, Purdue Pharma, the manufacturer of the drug, claimed that this new formulation of oxycodone, was less prone to abuse and that it could be discontinued without withdrawal symptoms. They trained their sales people to make these representations to physicians as they marketed the drug.  Because it is a long acting pain reliever, it became a favorite of physicians for the treatment of long term pain caused by cancer and back injuries.

These representations turned out to be false.  Oxycontin has an extremely high addiction potential.  Withdrawal from long term use of this drug is particularly miserable.  Although Purdue Pharma stopped making these representations in 2001, thousands of lives had been affected.  Also in 2001, the FDA required a “black box warning” that specifically warned of the drug’s high abuse potential.  In 2007, Purdue Pharma pleaded guilty to making these misrepresentation and paid a fine of 634 million dollars.  Three high ranking executive at Purdue Pharma also pleaded guilty and paid millions in fines.

Purdue Pharma has made improvements to this drug.  They have developed a new formulation that can’t be crushed and injected.  It is being phased into the market.  Tie will tell if this safety feature can be defeated.

I have seen the effects of this drug first hand.  Oxycontin leads to a powerful addiction to opiates.  These addicts will do almost anything to acquire opiate drugs.  The craving to acquire and use opiates can become more powerful than the drive to eat or sleep.

As a result, I have seen people who commit crimes by forging prescriptions, stealing from their employers, using and selling heroin and even committing robberies to get opiate drugs.  The end up being charged with forgery, theft, identity theft and even Measure 11 robbery.

Like John in my hypothetical, as a Portland Measure 11 Defense Attorney, I have seen many people with no prior criminal record or addiction history become addicted to opiates and commit crimes as a result of taking legally prescribed pain medications.  Some persons forge or alter prescriptions and get charged with forgery or identity theft.  Others turn to heroin and get charged with delivery or possession of a controlled substance.  Too many resort to robbery, like John, and get charged with Measure 11 robbery.

Of course, these people are devastated and feel like their lives are over.  Fortunately, that is not true.  As a Portland Drug Crimes Lawyer, I have helped many persons through the criminal case process and they have been able to keep their positions in society.  Almost none of my clients are convicted of Measure 11 crimes.

 

Dealing with Measure 11 Cases of Honest Addiction

As a Portland Criminal Defense Lawyer, I see many people who come by their legal problems as a result of the drug addiction driven criminal behavior.  I see many cases where a client has become addicted to opiates as a result of taking prescribed medication in the course of legitimate medical treatment.

Many criminal cases unfold like this.  A person suffers an injury and is prescribed opiate based medications.  The person uses these medications as prescribed and becomes addicted.  They begin to use the medications to avoid withdrawal and use them to cope with life stress.  Often their doctors cut people off suddenly or do not follow the proper medical protocols to titrate (gradually reduce dosage) a person off of the medications.  Often people will try to get the drugs on their own.  Prescription drugs are very expensive on the street and most people run out of money quickly.  Some people acquire the money by theft, forging prescriptions, identity theft and even robbery.  Some turn to heroin as a substitute.

Heroin is cheap and easy to obtain in Portland.  We see people using this drug who one would never expect to see using heroin.  We see people with no criminal history at all engaging in the purchase and sale of heroin in order to support their habit.

Many of our clients have no criminal history and are unaware of the serious punishments and consequences involved in criminal conduct.  Forging prescriptions necessarily involves identity theft.  Repeated acts of identity theft can be added together in a single charge (Aggravated Identity Theft) and lead to a prison sentence.  A Robbery conviction can bring Measure 11 sentences of 70 to 90 months, with no time reduction.

We know how to help our clients access appropriate resources and get into treatment.  We understand how to build a strong mitigation plan and explain exactly how Finally, we present our client’s cases to the district attorney and to the Court and almost none are convicted of Measure 11 crimes.

Consider the story of a hypothetical client named “John.”  John became addicted to heroin and committed a robbery with a firearm to get money to support his heroin habit.  He was facing a 90 month Measure 11 sentence that required that he serve every day, hour and minute of the sentence.  We put together a sentencing mitigation plan.  John’s plan involved treatment of the addiction and a psychological evaluation to show that John was not dangerous.  We use these tools to persuade a district attorney that the focus of the sentence should be rehabilitation, rather than a strictly punitive Measure 11 sentence.  The goal of John’s plan was to structure a sentence that had a short prison term and access to programs that would help him reduce his sentence even further by actively engaging in rehabilitation.

As a Portland Measure 11 Lawyer, I know how to develop mitigation plans based on honest addiction and present these facts to the district attorney.  Just because you are charged with a Measure 11 offense does not mean that you will serve the mandatory minimum Measure 11 prison term.  Strong advocacy in mitigation can sway a district attorney from a Measure 11 sentence.

In most cases, the district attorney decides if the case is subject to a Measure 11 sentence.  My staff and I have worked very hard to develop respectful relationships with prosecutors who work on Measure 11 cases.  Our decades of experience and hard work pay off for our clients.  Almost none of our clients end up with Measure 11 sentences.

Sensible Ways to Change Measure 11

The Oregon Legislature failed to enact Governor Kitzhaber’s proposed changes to Measure 11 in the last legislative session. Governor Kitzhaber proposed enacting a way for minors to argue their way into Juvenile Court in Measure 11 cases and exempting some lower level crimes from Measure 11 for juveniles and adults. District Attorney’s across the state resisted these changes. Changes to Measure 11 require a two thirds majority (in both the House and the Senate) to pass in into law. Any significant resistance by District Attorneys and law enforcement doom the proposed changes to failure.

As a , I believe there are other possible changes to the law that make sense. I believe that the primary problem is that Measure 11 is “cookie cutter justice” which does not account for the individual circumstances of the offense or the offender. These sentences must be served day for day and they provide no incentive for people to engage in rehabilitative programming that is available in the Department of Corrections. The truth is that the Department of Corrections has excellent drug treatment and cognitive based programs that can provide great benefits to inmates that choose to engage in the programs. The people at DOC who run these programs are highly motivated, professional and proud of their work. These programs work in preventing recidivism. In addition, inmates serving a day for day Measure 11 sentence have no incentive to cooperate with staff during their incarceration because there is nothing they can do to shorten their sentence. This creates institutional management problems.

There is one modest change that would solve this problem. That is to allow Measure 11 offenders to earn the right to sentence reduction for good institutional behavior and meaningful participation and progress in rehabilitative programs. One way to implement this would be to allow Measure 11 offenders to petition their sentencing Judge, after 12 to 24 months of incarceration, to modify their sentence to allow good time (a ten percent sentence reduction for good behavior), earned time (a ten percent sentence reduction for working in prison and/or participating in programs) and Alternative Incarceration Programs (drug treatment and cognitive behavioral therapy programs). This would give an incentive for Measure 11 Offenders to engage in the programming that will help prevent them from returning to prison!

This approach would change the “one size fits all” problems with Measure 11. We should encourage all prison inmates to address the underlying problems that landed them in prison in the first place. These rehabilitative and treatment programs work. As a Portland Criminal Defense lawyer I have seen hundreds of my clients change their lives by addressing the problems that get them into trouble of the law in the first place.

Criminal Law Changes Try To Flat Line Prison Population Growth

In advancing House Bill 3194, Governor Kitzhaber wanted to make changes to the punishment for certain expenses and avoid the need to construct new prisons.  The Governor’s ambitious plans to make changes to Measure 11, which included allowing some minors to be remanded to Juvenile Court, were not enacted.  However, there were some sensible changes that promise to make a difference in the number of people incarcerated in prison.

As a Portland Measure 11 Criminal Defense Lawyer I have seen the horrific results of giving minors Measure 11 sentences.  I believe that mandatory minimum “one size fits all” sentences are particularly inappropriate for minors and I hope the legislature revisits this issue in the next session.

The most significant change was in reclassifying the crime seriousness of charges related to the manufacture, delivery and possession of marijuana under Oregon’s Sentencing Guidelines.  Under prior law, many marijuana manufacturing and delivery charges were ranked as a “level 8” crime seriousness, a level of seriousness that automatically called for a prison sentence unless there were mitigating factors that allowed a court to place a person on probation.  As of August 1, 2013,  marijuana offenses will have a maximum crime seriousness of “level 6.”  This effectively makes it impossible to send a person to prison for a marijuana offense unless the person has a serious criminal record.  This change will have a significant impact on prison populations.

The legislature also changed the crime seriousness ranking for Felony Driving While Suspended.  In the past, a person with a Felony Driving while Suspended charge was always exposed to a prison sentence.   However, under the new law the only people with a certain prison sentence are those whose suspensions resulted from a vehicular homicide.  People who have suspensions based on vehicular assault and DUII charges will have a chance to avoid prison.

The legislature also made a small tweak to the Repeat Property Offenders Act (REPO), which created presumptive prison sentences for people with multiple convictions for property crimes.  REPO offenses carry sentences of 24 or 18 months depending on the severity of the property crime.  HB 3194 moved Robbery in the Third Degree and Identity Theft from the 24 month category into the 18 month category. The changes to REPO under HB 3194 “sunset” on July 31, 2023.

As an Portland, Oregon Criminal Defense Lawyer, I support these changes in Oregon law.  These are sensible first steps to reduce the explosive growth of prisons in our state.  Also, these changes are part of an important shift to rehabilitation based solutions for people who commit crimes.   The legislature should revisit the proposed changes to Measure 11 in the next session.

By James F. O’Rourke Jr.

Oregon Measure 11 Defense Lawyer Supports Proposed to Measure 11 Changes

Governor Kitzhaber and others are proposing the first significant changes to Measure 11 in over a decade.  The Governor’s concern is driven mainly by projected prison costs over the next ten years and the likely need to build and staff more prisons if changes are not made to this 1995 law.

House Bill 3194 proposes a number of modifications.

First, the bill would completely eliminate mandatory minimum sentences for persons convicted of Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree.  Persons convicted of these crimes would be sentenced under the existing sentencing guidelines and the length of a prison term would be based on a person’s prior record.

Second, the bill would end mandatory adult prosecution of 15, 16, and 17 year olds who are charged with Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree.  Currently, juveniles accused of these crimes are automatically transferred to adult court.   Ordinarily, a juvenile is entitled to a hearing in juvenile court and could contest being remanded to adult court.  If passed, this bill would restore that process for juveniles accused of these crimes.

Third, juveniles who are sentenced under Measure 11 would automatically be eligible for “Second Look,” which allows juveniles to have a judge review their sentences when they have completed one half to three quarters of their sentence.  If a juvenile has demonstrated good institutional behavior and has made progress with programs, the court has the authority to release the juvenile conditionally and allow them to complete their sentence on probation.

These changes are being opposed by many District Attorneys.  Several District Attorneys believe that the projected expenses for the Department of Corrections over the next ten years are overstated.  The supporters of House Bill 3194 believe that leaving Measure 11 unchanged will require the construction of at least one new prison and require hundreds of millions of dollars of new spending.  The supporters of HB 3194 believe that the changes would allow the Department of Corrections to reduce its budget by five percent over the next ten years, rather than increase the budget.

Changing Measure 11 will be a real challenge, since any modifications of Measure 11 must be approved by a two thirds majority of both the House and the Senate.

As an Oregon Criminal Defense Attorney who represents persons charged with Measure 11 crimes, I support the changes proposed in House Bill 3194.