Oregon State Bar Bulletin — JULY 2008



It’s been called a "war" on methamphetamine.

But some of Oregon’s "warriors" aren’t law enforcement officers; they’re lawyers.

And they aren’t just lawyers who prosecute drug crimes. They’re a county counsel who’s become an internationally sought-after speaker on meth; a legislator; a deputy district attorney assigned to neighborhoods; a sole practitioner and even a member of the American Bar Association who is helping to fight meth in Oregon through his job as attorney general of another country — Mexico.

So far, the war has had mixed results. Local meth labs have been virtually eliminated, the drug’s purity is down and its price is up, but meth supplied by Mexican drug cartels has replaced local sources, and its use continues.

Nonetheless, Rob Bovett, assistant counsel for Lincoln County and the author of what has been called the strongest anti-meth legislation in the country, is pleased with Oregon’s progress.

"The move in where meth is manufactured was a totally predictable consequence of the laws Oregon passed in 2005," says Bovett, who has been invited to speak at the first international meth conference this fall in Prague. "The reason we passed the legislation was not to get rid of meth. It was to get rid of meth labs. We knocked them out and became an international model."

Oregon’s Drug Corridor
If Oregon is now a model of meth enforcement, it may be because of its unfortunate past.

"Oregon is in the middle of a methamphetamine epidemic, one in which [it] has had the unenviable distinction of serving as a national leader for over a decade," a Public Safety Review report to Gov. Ted Kulongoski concluded in January 2005.

But Bovett says he’s "cautious about saying Oregon’s the meth capital of the world."

"Everyone can claim to be the meth capital of the world, and everyone is right," says Bovett, who also is counsel to the Oregon Narcotics Enforcement Association. "But this really did start in the I-5 corridor."

Bovett says that’s because the interstate highway is an "historical drug corridor for biker and Mexican drug trafficking."

Both groups have long-term ties to methamphetamine, which was first synthesized by a Japanese chemist in 1919, "discovered" by West Coast motorcycle gangs in the 1970s, and adopted by Mexican drug dealers in the early 1980s.

The drug, which comes in many different forms and colors, can be smoked, ingested orally, snorted or injected. According to the 2005 Public Safety Review report, it is a "powerful stimulant" that increases energy and alertness and decreases appetite.

"Chronic methamphetamine abuse can lead to psychotic behavior," the report says. "Long-term use…may result in…addiction."

Because it is derived from amphetamine, which originally was intended for use in nasal decongestants, bronchial inhalers and other limited medical applications, methamphetamine can be manufactured using ingredients found in such common cold medicines as Sudafed and Actifed.

The most commonly used of these ingredients are pseudoephedrine and its molecular "mirror image," ephedrine.

In 1976, the Federal Drug Administration approved pseudoephedrine for sale over the counter. This was followed by what Bovett and other experts say were multiple "missed opportunities" by Congress to rein in the availability of pseudoephedrine and ephedrine, with a resulting decade-long, nationwide meth "epidemic" between 1996 and 2005.

Bovett, who has been assistant counsel for Lincoln County since 1992, says he got involved in the meth issue because "Lincoln County is pretty small. My boss and I divided our workload, and I got litigation and law enforcement. I became the lawyer for the local narcotics team and later counsel for the Oregon Narcotics Enforcement Association and president of the Oregon Alliance for Drug Endangered Children. By the late ’90s, my job had grown into what I do these days."

But Bovett says his job didn’t grow because Lincoln County had an unusually bad meth problem.

"Everybody did have a meth problem, and everybody still does," says Bovett ruefully. "The (county) commissioners here have been exceptionally gracious in lending me out to Salem and Washington, D.C., because some (meth-related) problems couldn’t be solved at the local level."

Those problems include: meth-related drug and property crimes; children in foster care because of their parents’ meth-related activity; and law enforcement and treatment resources that are stretched thin.

In October 2004, an Oregonian series, "Unnecessary epidemic," got local and national credit for attracting attention to these problems in Oregon and elsewhere.

But in fact, Oregon’s statewide concern about meth began almost a year earlier, when Kulongoski called for the creation of a task force to lead an effort to crush methamphetamine production, distribution and use in Oregon.

"If what I am told is true," the governor said at that time, "methamphetamine is the driver for between 85 to 90 percent of the property and identity theft crimes in this state."

"I am particularly concerned about the impact that meth has had on the young children whose homes have become toxic and whose parents have become at best distant strangers and at worst their abusers," Kulongoski went on. "It doesn’t take a genius to figure out that there is no greater challenge facing our public safety system than methamphetamine production, distribution and addiction."

Although Portland’s Willamette Week newspaper later challenged his and The Oregonian’s statistics on meth-related crime and the number of children in foster care because of meth, no one doubted that Oregon had a real problem. The task force went to work.

The "Meth Caucus" response
In January 2005, the task force issued its first report to Kulongoski, calling for — among other things — legislation to keep most products containing pseudoephedrine and ephedrine behind the counter.

Bovett, who served on the task force, also authored legislation containing this and other provisions, which was adopted by the Oregon Legislature in August 2005.

He credits the legislation’s passage to a "meth caucus" that included another lawyer, Rep. Greg Macpherson, D-Dist. 38, as well as then-Sen. Roger Beyer, R-Dist. 9, Rep. Ginny Burdick, D-Dist. 18 and Rep. Wayne Krieger, R-Dist. 1.

"Two Democrats and two Republicans put aside party differences to pass what was in my opinion — then and still today — the strongest anti-meth legislation in the nation," says Bovett.

The statutory package also included money for what Bovett calls "science-based treatment, most notably drug courts and relief nurseries to provide respite and other critical recovery-support services to high-risk parents."

Although the legislation did not mandate county drug courts, Bovett says that all or nearly all of Oregon’s counties — most of which previously lacked such courts — have applied for the grant funding for them that was included in the legislation.

"Meth is an ongoing problem in Oregon, but we’ve made substantial progress," "meth caucus" member Macpherson told The Bulletin. "In calendar year 2004, about 450 home meth labs were busted in Oregon. In 2005, we passed the ban on over-the-counter sale of [meth’s] raw ingredients, effective July 2006. In calendar year 2007, the number of labs busted in Oregon was 18, and nearly all of those were old dump sites."

Fighting meth at the neighborhood level
While Bovett and Macpherson were working in the legislative arena, other Oregon lawyers were combating meth on the neighborhood level.

"When I started working in the neighborhoods, I did a lot of small search warrants based on neighborhood complaints," says Multnomah County Deputy District Attorney Jim Hayden, who spent 13 years in North and Northeast Portland as a neighborhood DA.

"There were more little meth labs then," says Hayden, who moved to another position in the DA’s downtown office last fall. "They didn’t stop all of a sudden, but they certainly diminished over time; towards the end, I don’t recall any. In my own opinion, it was because they couldn’t get product anymore, principally due to the change in Oregon law."

But Hayden says he didn’t see meth use go down along with its local manufacture.

"There’s still meth in North Portland, but I’d say it’s shifted to East Portland — more outer than inner — east Multnomah County and Gresham," he says.

Hayden attributes this shift to the gentrification of North Portland, which drove some residents out of its previously low-rent neighborhoods; police pressure applied to North and Northeast Portland, which he says "also were grappling with a crack cocaine problem;" and drug-free zones that were established in both North and Northeast Portland in 1997.

"A lot of crime headed east," he says. "East Portland is experiencing a lot of the problems the inner city experienced 10 years ago."

"My job wasn’t to try to solve the overall problem of meth," he says of the shift. "In some measure, we were doing our jobs
by moving it out of those (North and Northeast Portland) neighborhoods."

While Hayden was working as a neighborhood deputy DA, another Portland lawyer was combating meth using another source of law — civil law.

As a result, Greg Abbott became the first — and to his knowledge — still the only private-practice attorney in Oregon to use a state anti-nuisance statute to shut down a suspected meth house.

Abbott has a North Portland office in a classic old warehouse that used to be the Portland Woolen Mills. He usually represents small business owners and consumers, but in 2006, he was contacted by residents of a North Portland neighborhood who wanted help with a real estate problem. Specifically, they wanted a suspected meth house out of their neighborhood.

The Portland Police Bureau already had searched the property twice under warrants that Hayden had obtained based on the neighbors’ observations of apparent drug-related activity. As a result of the evidence obtained from those searches, the property had been declared a "chronic nuisance" under the city’s code.

Abbott met with Hayden and community police officers, then suggested that the residents file a complaint under ORS 105.550 et seq., which allows a person residing or doing business in the county where the property is located to bring a civil action to restrain or enjoin a nuisance. Such actions can result in orders directing the closure of property for any purpose for up to one year.

But nobody in the neighborhood wanted to put their name on the lawsuit.

"So I did," says Abbott. "I’m single and I don’t have a family; that might have made a difference."

"There seems to be a difference between meth houses and crack houses," Abbott adds. "Police have told me that meth houses tend to be passive; in crack houses, the people are crazy. If it had been a crack house, I still would have gone after it, but with more apprehension and perhaps increased awareness and security practices."

Abbott could have filed his lawsuit in either circuit or small claims court. He chose small claims court: "If I screwed it up," he notes, "there was no point in making it more expensive than it had to be."

The civil statute he used has a number of plaintiff-friendly provisions. Actions filed under it take precedence over everything except "prior matters of the same character," criminal proceedings and election contests. Plaintiffs who file in circuit court can seek damages for mental suffering, emotional distress, inconvenience and interference with use of property, and reasonable attorneys’ fees. And in either court, the burden of proof is by the preponderance of the evidence, with opinion evidence allowed.

Abbott says the provision for opinion evidence means that "You can bring in all the neighbors to testify that they think drug activity is going on."

"Have them build a log: ‘Someone arrives at the house at 10:02, leaves at 10:08,’" advises Abbott, citing a technique that the Multnomah County DA’s Office also uses to obtain search warrants for suspected drug houses. "Then have someone come in and say that’s indicative of drug activity."

Abbott says his case settled mid-trial when the owner agreed to sell the property." She (eventually) sold it to a couple of guys who were looking to flip it. The neighbors are now happy."

Although he says he’s received other referrals from the police and neighborhood organizations, he hasn’t filed another anti-nuisance action. Still, he says he’s glad he put his name on this one; the neighborhood is cleaned up and the case remains, he says, a "nice little marketing aspect" for his practice.

Mission Accomplished?
It’s been more than four years since Kulongoski called methamphetamine production, addiction and distribution the greatest challenge facing Oregon’s public safety system. Where is the state now?

On the production side, there’s widespread agreement that — as Bovett, Macpherson and Hayden all noted — the 2005 legislation virtually eliminated local meth labs in Oregon.

"They’re gone," says Jay Wurscher, alcohol and drug services coordinator for the state Department of Human Services, noting that mid-May, when a six-month-old baby was removed from a Beaverton apartment, was the "first time we’ve taken a kid out of a meth lab environment in a couple of years."

"The lab wasn’t active, but it appeared they had all the stuff to make meth," says Wurscher. "The people admitted they got the ingredients from Washington state."

According to the meth task force’s December 2007 report, the number of meth-related arrests in Oregon also has dropped, based on analysis of law enforcement data that now breaks out Oregon’s drug crimes by the types of drug involved and crime committed.

"Based upon this data," the report said, "the number of persons arrested for all meth offenses peaked in February of 2007 and has dropped by approximately one-third since that time."

This drop "really became pronounced starting in March of 2007," according to Mike Stafford, public safety coordinator for the state Criminal Justice Commission, which coordinated the task force and analyzes crime-related data.

"Before the ‘Sudafed’ limit," says Stafford of the 2005 legislation, "if police hit a meth house, they’d get three or four people. Now, because the lab’s not there, they only get one person. We think that may be part of the trending down. We’re (also) seeing fewer people peeing dirty on workplace drug tests, so there may be a total reduction (in meth use). But we can’t say for sure because we haven’t been able to get data on emergency room admissions for three or four years because of privacy concerns. We can’t say, ‘We’re also seeing a drop in meth usage (as well as in meth-related arrests) because we’re seeing a drop in ER reports.’"

Property crime — which the public associates with drug use — also is down, in Oregon and elsewhere.

In its December 2007 report, the meth task force said it had anticipated that elimination of local meth labs might result in more property crime. The report said that "This was based on the notion that, if addicts could no longer cook their own meth, they might have to steal or engage in identity theft to support their addiction."

But the report concluded that the opposite has occurred.

"The latest federal data indicates property crime rates are declining in the 12 states that enacted the strongest meth lab control laws at nearly twice the average of the other states," the report said. "Furthermore, Oregon, which took the strongest action by passing HB 2485, has experienced our nation’s largest reduction in property crime. The reason is not yet clear, but speculation is that meth lab cells also operated as property crime cells."

Stafford agrees that property crime in Oregon and across the country has been "dropping consistently" since the mid-’80s, with what he calls a "very significant" drop in Oregon in 2006-07, the first year Oregon’s legislation was in effect.

But he cautions that there are "lots of other variables" that could be at work, including a reduction in the number of young males, who are the demographic responsible for most property crime, and the effects of Measure 11, which set mandatory minimum sentences for some crimes.

John Connors, director of the Metropolitan Public Defender’s Multnomah County office, agrees that the crime rate "certainly seems to be down in Multnomah County."

"Our case pick-up has steadily gone down the last few years," he says. "It could be a strong economy, a strong core downtown area in Portland and a special emphasis on and expertise in meth prosecutions. There have been task forces and tougher sentences available in the more serious cases. I also think some people’s awareness of how destructive meth is has had some impact, as has the availability of drug courts and treatment programs in the metropolitan area. People are finding out that they can be successful and stay clean."

But, while the number of meth labs and meth-related arrests and the amount of property crime all are down, the number of children living with meth-affected and/or addicted adults is not.

DHS’ Wurscher says that his department’s latest data, from 2006, shows that of parents who have children in the state’s
foster-care system, 60-61 percent have drug or alcohol problems. And of that 60-61 percent, about 65-69 percent have meth
problems.

"That [breakdown] hasn’t changed in quite a long time," says Wurscher.

In addition, distribution of meth from sources other than local labs remains a huge problem, despite a striking reduction in the drug’s purity (the amount by which it has not been diluted, or "cut") and an equally striking increase in its price.

In November 2007, The Portland Tribune reported that "There’s a lot more meth than there ever was before," at least in Multnomah County.

"There’s so much, it’s ridiculous," the story quoted Mark DeLong, a 23-year Portland Police Bureau officer who focuses on meth-related crime, as saying. "In my first 20 years as an officer the most I ever saw was 2 ounces; now it’s common to pull over a car with 9 ounces or a pound and a half."

"What seems wrong," the story continued, "…is that two years ago, amid much self-congratulatory hoopla, Oregon adopted the most stringent anti-meth laws in the nation — eliminating key ingredients for local meth cooks and kick-starting a national, even global war on what many consider the most addictive and disturbing illegal narcotic. Today, it’s undeniable that Oregon’s laws were hugely successful in one area: The meth labs …across the state have been all but eliminated. As the officers indicate, however, that success has borne unintended consequences — thanks to a massive influx of meth supplied by Mexican drug cartels."

Bovett called The Tribune’s claim that the Oregon legislation had "unintended consequences" "not quite accurate."

"According to federal estimates," he said in an op-ed response to the article, "local meth labs account for only 20 percent of the meth on our streets. We were fully aware that eliminating local meth labs would drive that demand to the drug cartels. But by eliminating local meth labs, we removed that source of meth, in addition to saving Oregon taxpayers and property owners approximately $159 million per year."

Bovett told The Bulletin that the $159 million annual savings figure was based on a model developed by the Oklahoma Bureau of Narcotics to calculate the economic costs of eliminating local meth labs.

"(Eliminating local labs and saving the cost of dealing with them) enhanced our ability to fight the [meth] problem," Bovett’s op-ed piece continued. "We can now focus on cutting off the international supply of meth."

But whether shifting the fight from local labs to international drug cartels will, in fact, enhance Oregon’s ability to fight its meth problem likely will be the subject of ongoing debate.

On the one hand, says the Criminal Justice Commission’s Stafford, local law enforcement no longer is "running from lab to lab."

"Look at Umatilla County," he says. "In 2004-05, they busted 68 meth labs. At $5,000 per lab (in costs), what do you think that does to their budget? The shift from local labs to international trafficking allows drug teams to move to interdiction. The result is we’re seeing an increased number of arrests with large amounts of meth."

But, while the officers quoted in The Tribune confirmed that larger amounts of meth are being seized, the story noted that interdiction efforts against international dealers also are costly. It cited a recent case filed in U.S. District Court in Oregon in which the arrest of Mexican nationals in Hillsboro and an "affiliated group" in California "yielded roughly $200,000 in federal seizures — a paltry sum considering the size of the smuggling operation. …Meanwhile, other smuggling rings promptly sprang up to fill the demand."

But Bovett says that Oregon and the United States have an ally in their war against the Mexican meth cartels: Eduardo Medina-Mora Icaza, who is a Mexican national, a graduate of a Mexican law school and, curiously, also a member of the American Bar Association.

Medina-Mora was appointed Mexico’s attorney general in 2006. That same year, another Mexican agency made pseudoephedrine and ephedrine available by prescription only, an action that Bovett says was "driven forward" by Medina-Mora.

In 2007, Mexico issued its last permits for the importation of pseudoephedrine and ephedrine. Those permits expired in April: next year, Mexico is slated to ban the sale of pseudoephedrine and ephedrine entirely.

"I was afraid he (Medina-Mora) would back off because of the level of violence among and between drug cartels," says Bovett. (In late May, Medina-Mora said in a radio interview that 1,378 persons had been killed in 2008 as the result of an "underworld war" between drug cartels, compared with 940 in the first five months of 2007, when Mexico’s president began an assault on the cartels involving thousands of soldiers and federal agencies.) "But he didn’t. I’ve heard him speak in English and in Spanish, and he’s passionate about ending drug use. He’s going after them. Not only is it helping out his county, but the results are being played out on the streets of America."

In May, Bovett and Medina-Mora were recognized by the U.S. Department of Justice’s National Methamphetamine and Chemical Initiative for having made the year’s most-significant domestic (Bovett) and international (Medina-Mora) contribution to solving the meth problem.

In January, Bovett will leave the Lincoln County Counsel’s office to be the county’s newly elected district attorney.

ABOUT THE AUTHOR
Janine Robben has been a member of the Oregon State Bar since 1980. She is a frequent contributor to the Bulletin.

© 2008 Janine Robben


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