Oregon prosecutors say recent court decision is making it harder to charge drug dealers

By Ezra Kaplan

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    PORTLAND Oregon (KPTV) — Since 1988, the standard in Oregon has been that if you are caught with a large amount of drugs, prosecutors were safe to assume, and charge, that you were a drug dealer with the intent of making delivery.

“For over 30 years now, it hasn’t been require that you actually catch someone in the act of a hand to hand transaction. You can look at the evidence that surrounds that person,” said Washington County District Attorney Kevin Barton explaining that the circumstantial evidence around the even was enough to conclude that there was an intent to deliver drugs.

But that’s no longer the case.

In October, the Oregon Supreme Court upheld a 2021 Court of Appeals decision that overturned that precedent and declaring that possession alone of a large amount of drugs is not enough to prove that someone intended to deliver them. In short, having a lot of drugs is not enough to assume that a person is a drug dealer. Now the legislature is weighing their options on how to fix the problem.

“We need a comprehensive approach towards the drug addiction crisis, and that means having tools to address drug dealers at all different levels across the spectrum. And right now, we don’t have those tools,” said District Attorney Barton. “If this issue isn’t resolved, it’s like keeping one hand tied behind our back at a moment in time when we need all hands on deck.”

But defense attorneys, including the one who argued the case at the center of the case, say the courts made the right decision and it would be unwise to go back to the way things were.

Anne Munsey is a senior public defender who has represented defendants under the previous standard, known as Boyd for the case that determined it. She says that the prosecutors need to prove their case beyond a reasonable doubt and that under Boyd, it was too easy to convict people.

“So in my opinion, they were sweeping in people under the delivery statute that were not drug dealers, that were not delivering,” she said. “It’s the state’s burden to prove beyond a reasonable doubt and Boyd is a shortcut. It allows them to kind of get around that.”

Munsey represented Brian Hubbell, whose case led to the high court’s reversal.

It all started in 2018, when Tigard police responded to a report that three people had overdosed. One of them told the police that the drugs had come Brian Hubbell who was in jail at the time by had a room at an extended stay hotel.

When police searched his hotel room, they found a Rubbermaid bin with enough fentanyl for thousands of doses. From jail, Hubbell admitted the drugs were his but did not say that he intended to sell them. Washington County prosecutors charged him with attempt to transfer a controlled substance. They did not include testimony from the person who initially pointed to Hubbell as the source of their drugs.

Munsey took on the case after a Washington County judge found that the evidence presented by the district attorney met the conditions under the Boyd standard. As an attorney focused on appeals, she prepared to defend her client within that standard. But when she began to argue her case to the panel of appellate judges, she was surprised to find the door open to challenging the standard itself.

Those judges would eventually overturn the lower court’s conviction of Hubbell. Then in October, the Oregon Supreme Court agreed with the appellate court and the 30-year standard was no more.

“We’ve been we’ve been fighting for this reversal for years and years and years. And the Court of Appeals actually took that on in Hubbell and said, actually, we think that we made a mistake in Boyd,” said Munsey.

Prosecutors say it is just unreasonable to expect them to have to catch a drug dealer in the act before charging them with delivery.

“The amount of resources that requires, you know, time after time after time again to try and catch those individuals engaged in that moment is really intensive. I think that creates an unreasonable expectation,” said Barton. “That’s the standard of today, but that was not the standard of two years ago. And so it’s within the legislature is power to simply change the law, to make it back to what it had been for three decades, to give us that tool back so that we can address this issue.”

As the legislature gears up for the 2024 session, a representative from the State Senate Majority’s office tells FOX 12 that a fix for Hubbell/Boyd is definitely on the table. But which way legislators are leaning is yet to be determined.

Here’s a response from Senator Lieber:

“As a former prosecutor, I know the Hubbell decision is making it harder to keep drug dealers off our streets. We need to take action to keep people safe… There are still several options on the table right now that need to be fully vetted, but this is a very high priority, and we are working hard to have a plan ready to pass during the 2024 session.”

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