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A Due Process Challenge to DCS within 1000 Feet of a School

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This wikilog article is a draft, it was not published yet.

by: Jessbarton • February 10, 2011 • no comments

For several years the defense bar has tried to limit the breadth of application of the state's school-proximity subclassification factor, which increases the seriousness rankings of drug crimes committed within 1,000 feet of a school. The defense bar has advanced those efforts by arguing that the school-proximity factor carries a mental-state (mens rea) requirement. So far those efforts have failed. See, e.g., State v. Rodriguez-Barrera, 213 Or App 56, 159 P3d 1201 (2007).

But the failed efforts to eliminate this strict liability may have a lot to do with the nature of the legal argument made so far-statutory construction. That sort of argument inevitably runs into the same sort of problems the St. Joseph's Hospital and Medical Center in Phoenix recently faced, after it permitted its staff to perform a therapeutic abortion on a woman who likely would have died if she had taken her pregnancy to term.

For that the Roman Catholic church effectively "excommunicated" the hospital. As Nicholas Kristof explained in his January 26, 2011 column, this excommunication was the inevitable result of a "battle" between the church and the hospital-a battle that "illuminates two rival religious approaches . . . One approach focuses upon dogma, sanctity, rules and the punishment of sinners. The other exalts compassion for the needy and mercy for sinners-and, perhaps, above all, inclusiveness." *

Also inevitably, a constructional argument against strict liability on the school-proximity factor does battle with a legal approach that focuses on dogma, sanctity, rules, and the punishment of sinners, to the exclusion of anything resembling mercy for the defendant. Theconstructional argument can't win that battle. But maybe a different argument could.

Like Oregon's school-proximity factor, in Florida drug delivery is a strict-liability crime. As explained in a January 31, 2011 news release issued by the National Association of Criminal Defense Lawyers (NACDL), the defense bar is challenging the Florida statute on grounds that it "runs afoul of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and is inconsistent with centuries of common law, sound public policy, and the norms of international legal systems and principles generally embraced by the United States." A copy of the amicus brief NACDL filed in the Florida litigation is available here.

The difference between the Florida statute and Oregon's school-proximity law is only one of degree. Florida allows a strict-liability conviction. Oregon requires proof of a mental state for a drug-crime conviction, but allows strict-liability aggravation of a defendant's presumptive sentence (from probation to prison).

Viscerally, that may seem like a big difference. But bear in mind that because AfricanAmerican populations overwhelmingly live in urban areas where schools are almost always nearby, school-proximity enhancement facts have racially disparate effects. See Marc Mauer, The Race to Incarcerate 169-70 (2d ed. 2006). As Oregon's Criminal Justice Commission and Legislature now have been on notice for nearly two years, Oregon's school-proximity factor helps explain why the state imprisons African-Americans at a rate six times greater than it imprisons Caucasians.

The factor's racially disparate impact, along with the fact that the commission and the legislature are on notice of that impact, support the argument that compared with Florida's drug law, Oregon's school-proximity factor "runs [further] afoul of the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution and is [more] inconsistent with centuries of common law, sound public policy, and the norms of international legal systems and principles generally embraced by the United States."

Thus, the state's defense bar could refuse to accept the validity of cases such as Rodriguez-Barrera. Instead the bar could borrow the Florida defense bar's theories to bring a renewed attack on Oregon's strict-liability school-proximity factor.


* My thanks to Rich Oberdorfer for bringing Kristof's column to my attention (through a Facebook posting, no less)