On February 6, 2012, Multnomah County Circuit Court Judge Cheryl Albrecht issued an opinion in the case of several persons arrested at an Occupy Portland protest. Each of the defendants had been initially charged with at least one misdemeanor crime and the District Attorney elected to “charge down” to violations.

The defendants argued in court that, because the charges started out as and could still be sentenced as criminally punishable crimes, they were therefore entitled to the Constitutional and statutory procedural protections of right to jury trial, right to appointed counsel, right to confront witnesses, privilege against self-incrimination, and the “beyond a reasonable doubt” burden of proof. These protections are not typically available to persons who were initially charged with a violation. Judge Albrecht agreed with the defendants. Her analysis explained that the Oregon statutes that lay out the trial process for charged down violations entitle the defendants to proof beyond a reasonable doubt standard, confrontation of adverse witnesses, and the right not to be required to appear as a witness in one’s own case. The protections not afforded by statute are provided by Article I, section 11 of the Oregon Constitution and the 6th Amendment of the U.S. Constitution, she reasoned, including the right to a jury trial and the right to appointed counsel.

The implications of this opinion were limited because it was issued by only one judge in one county. In agreement with Judge Albrecht’s legal analysis in the opinion, however, the Multnomah County District Attorney’s office anticipated that other judges might rule the same way in similar cases, a result that would significantly strain the already stretched resources of their office. As a response to this concern, the DA’s asked the House Judiciary Committee to adopt an amendment to SB 1527 (a bill already moving through the process with a small technical fix to a bill from the 2011 session) to cap the fine for a violation in cases where the defendant was initially charged with a misdemeanor and the DA elected to charge down. The amendment did not directly reverse Judge Albrecht’s decision, but it changed a significant piece of the analysis. With fines capped at the violation level, it is more difficult to make the argument that a defendant is still subject to misdemeanor-level penalty and thus greater procedural protection.

We joined the criminal defense lawyers in supporting this amendment to SB 1527 because, while it remains unclear whether a judge in a future case would come to the same conclusion as Judge Albrecht with the capped fine for charged down violations, it is clear that a violation charge, whether or not it began as a misdemeanor charge, should be treated as a violation. By capping the fine for violations, we reasoned, the legislature is acknowledging that it does not make sense for someone charged with a violation to be subject to a misdemeanor level fine. The amendment was adopted and the bill passed, but the change does not apply retroactively, so these Occupy Portland defendants as well as any other defendant who has received a charged down violation before the enactment of this law will not be affected by the change.

WIN: PASSED

    Vote: 30-0 (Senate); 59-0, 1 absent (House); 27-0, 3 excused (Senate concurring vote)