Several significant changes to Oregon’s criminal justice system were signed into law during the 2015 legislative session and become effective Jan. 1.
A ban on police profiling and immunity from certain criminal charges when seeking help for someone experiencing a drug overdose are new protections extended to Oregonians.
Also coming into effect are two criminal-history-forgiveness measures. Employers are now prohibited from asking potential employees about their criminal record in the early stages of the hiring process, and people convicted of Schedule I drug charges no longer have to wait 20 years before asking the court to seal their record.
The box is banned
Employers in Oregon can no longer ask a job applicant about his or her criminal history on a job application or at any other time prior to the initial interview. If there is no interview, the employer must make a conditional job offer before criminal history is discussed.
This rule does not apply to jobs in which current laws and regulations require a consideration of an applicant’s criminal history as a condition of employment, such as jobs in law enforcement and the criminal justice system. Nor does it apply to volunteer positions.
Unlike an earlier version of this legislation, the bill that passed does allow for an employer to run a criminal background check at any point in the hiring process. The employer just can’t ask the applicant to self-report up front.
“Oregon’s new ban-the-box law will remove barriers to employment for workers so that they can contribute to Oregon’s workforce and society,” said Brad Avakian, commissioner of Oregon Bureau of Labor and Industries, in a written statement. “Our agency looks forward to working with employers so that they understand and comply with the new law.”
Business owners and managers with questions about the implementation of this law can call BOLI’s Technical Assistance for Employers program at 971-673-0824.
If you apply for a job in Oregon and the employer asks about your criminal history on a job application or before offering you an interview — or, if there is no interview, before extending a job offer — contact the Bureau of Labor and Industries Civil Rights Division at 971-673-0764 or firstname.lastname@example.org to file a complaint.
Criminal record expungement
Senate Bill 908 was an agreement between defense and prosecuting attorneys – each side of the bench got two “fixes” to Oregon’s expungement law, attorney Gail Meyer explained to the House Committee on Judiciary during a May hearing on the bill.
The most substantial change came from the defense bar: Prior to Jan. 1, people convicted of possession or delivery of certain controlled substances had to wait 20 years before they could apply to have the conviction removed from their criminal record. With the new amendment, they must wait only three years from the date of judgment – if they successfully complete their sentence and haven’t been convicted of any subsequent misdemeanors or felonies.
Charges now eligible for expungement after three years include most drug-related class B felonies – such as Schedule I drug possession. Schedule I drugs include heroin, magic mushrooms, peyote, LSD and party drugs such as Ecstasy. Possession of cocaine and methamphetamine charges were already eligible for expungement after three years.
Also from defense attorneys is a provision allowing an offender one subsequent violation before the wait time for expungement is extended from three to 10 years. This includes offenses such as nonpayment of TriMet fare and misdemeanors that have been reduced to violations. It does not include more serious crimes.
From the district attorney’s side of the aisle came two changes that add new limitations to expungement eligibility. For one, offenders who have been revoked from probation are no longer eligible for getting their convictions set aside in three years, but must wait 10 years instead.
Prosecutors also mandated that third-degree assault is no longer eligible for expungement in cases where the victim is 10 or younger and the assailant is 18 or older at the time of the offense.
Additionally, Oregon’s massive marijuana bill contained an expungement provision that makes it easier to expunge past pot felonies. When an offender applies for expungement, the court will consider the offense under current law, meaning that if the crime was a Class A felony before Measure 91 but after Measure 91 it was a Class B felony, then it’s now expungeable after three years, although most marijuana convictions were already eligible.
Eligible crimes are not automatically removed from offenders’ records. To expunge eligible convictions, an offender must petition the court in a nine-step process that includes fingerprinting, paying state police $80, and a court filing fee. In Multnomah County, the fee is $252.
A new good-Samaritan law goes into effect with protections for people who seek help in a drug overdose emergency. The person who sought medical help and the person overdosing are immune from certain charges and arrest if evidence of a crime is obtained because the person contacted emergency medical services or a law enforcement agency.
What you can’t be arrested for: possession or use of a controlled substance, possession of drug paraphernalia with intent to deliver, or frequenting a place where controlled substances are used. Nor can you be arrested on an outstanding warrant or parole or probation violation for those offenses.
What you can be arrested for: federal and out-of-state warrants, local warrants for crimes that are not listed above, new crimes other than the drug-related crimes listed above.
“It appears the immunity only applies to offenses listed in the bill, so the offenses regarding delivering drugs or manufacturing drugs are not immune,” said Officer Jeremy Shaw, a Beaverton Police Department spokesperson.
Older good-Samaritan laws on the books in Oregon also protect minors from minor-in-possession charges when seeking help with alcohol poisoning and protect people with CPR training from lawsuits when they administer CPR with good faith in a medical emergency, unless they are grossly negligent.
Profiling, as defined by House Bill 2002, “means that a law enforcement agency or a law enforcement officer targets an individual for suspicion of violating a provision of law based solely on the real or perceived factor of the individual’s age, race, ethnicity, color, national origin, language, gender, gender identity, sexual orientation, political affiliation, religion, homelessness or disability, unless the agency or officer is acting on a suspect description or information related to an identified or suspected violation of a provision of law.”
While profiling was already banned in Portland, it’s now banned statewide. As of Jan. 1, all law enforcement agencies are required to send every profiling complaint they receive to the Criminal Justice Policy Research Institute at Portland State University. There, the complaints will be stored for 25 years and analyzed for patterns by the Law Enforcement Contacts Policy and Data Review Committee, or LECC. This committee will create and implement law enforcement training programs and make policy recommendations based on its findings.
As of Jan. 1, all law enforcement agencies are required to have multiple avenues for accepting complaints, including via phone and mail, electronically, through a third party, and anonymously. They are also required to have procedures in place for investigating each complaint and forwarding it to the LECC.
But in the case of anonymous complaints, investigators will have to rely on the quality of the information provided, said Lt. Steven Alexander, spokesperson for the Multnomah County Sheriff’s Office.
“For example, if we received an anonymous letter without contact information, we will be only able to rely upon the information provided and have no means to obtain further information regarding the complaint if needed,” he said in an email. “We can keep complainant’s information anonymous through the process, even when a follow-up clarification interview is needed.”
LECC has already begun profiling-related training of law enforcement officers through its partnership with the Oregon Department of Public Safety Standards and Training and the Simon Wiesenthal Center.
According to its 2015 annual report, LECC’s goals for this year include creating a plan for educating the public, developing “Profiling 101” training for both civilians and law enforcement agencies, and analyzing traffic stop and search data voluntarily submitted by law enforcement.
While profiling is banned, individual complaints of profiling are unlikely to lead to any disciplinary action against the offending officer because profiling is difficult to prove. The new system put in place to combat systematic profiling relies heavily on patterns of complaints, which is why it’s important that people who think they’ve been targeted speak up, regardless of whether it will lead to immediate disciplinary action.
FROM OUR ARCHIVES: Oregon's new profiling ban
People who want to make a profiling complaint against a Portland Police Bureau officer may file it with any member of PPB; using a Citizen Complaint Form found at the Portland Office of the City Auditor’s website; or in writing, over the phone, electronically or in person with the Independent Police Review. Call the IPR at 503-823-0146 for more information.
It’s also possible to submit a complaint against any law enforcement agency in the state directly to the LECC.
“Since we are not directly a part of law enforcement, this may help some feel more comfortable initiating a complaint in the first place,” said Brian Renauer, the institute’s director. “We also have resources to help with translation too.”
LECC recommends using its official complaint form online, which is available in several languages, including Spanish. Once received, the LECC will attempt a follow-up phone call within five business days. Let them know at that time if you wish to remain anonymous or you don’t want your complaint forwarded to local law enforcement. They will keep your name protected in locked cabinets and password-protected databases.
You may submit your complaint to LECC:
By phone: 503-725-522; staff is available to answer this line from 10 a.m. to 4 p.m. Monday through Friday, but callers can leave a voicemail at any time.
Law Enforcement Contacts Policy and Data Review Committee
P.O. Box 751
Portland, OR 97204
Email reporter Emily Green at email@example.com.