ARGUMENT

I. RELYING ON DRUG WEIGHT AND PACKAGING TO ESTABLISH A SUBSTANTIAL STEP TOWARD DELIVERY UNFAIRLY TREATS POSSESSION AS ATTEMPTED DELIVERY, OR UNDER BOYD, AS COMPLETED DELIVERY.

ORS 161.405 describes attempt as “when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405(1). To prove a defendant took a substantial step in furtherance of a criminal act, as opposed to mere preparation, the state must submit evidence which proves the defendant had a criminal intent and separate evidence of conduct which strongly corroborates that intent. State v. Walters, 311 Or 80, 85, 804 P2d 1164 (1991); see also State v. Rinkin, 141 Or App 355, 365-66, 917 P2d 1035 (1996). Oregon courts have held, without adequate consideration of alternate justifications, that aggregate drug weight can be sufficient to establish intent and the presence of individual packages can strongly corroborate that intent. See State v. Newsted, 297 Or App 848, 444 P3d 527, rev den, 365 Or 557 (2019); see also State v. Alvarez-Garcia, 212 Or App 663, 159 P3d 357 (2007); State v. Fulmer, 105 Or App 334, 804 P2d 515 (1991). The problems with this approach are numerous. Aggregate drug weight is not a useful or predictable indicator of intent because people possess larger quantities of drugs for a variety of reasons, most of which are consistent with possession for personal use. Relying on the presence of individual packaging to establish conduct which advances an intent to deliver is similarly problematic because people may store drugs in this manner for many reasons, including the possibility that they purchased the drugs that way. Relying on quantity and packaging to infer intent to deliver can be used to unfairly turn possession into a substantial step toward delivery, and under Boyd, punished as a completed delivery.

A. Drug weight is not a useful indicator of intent.

The weight of a mixture containing controlled substances, by itself, does very little to indicate intent to distribute. The amount of controlled substances possessed does not necessarily relate to an individual’s involvement in commercial drug distribution. In fact, people may possess differing quantities of controlled substances for a variety of personal and environmental reasons. Thus, it is not reliable to determine intent to sell based on quantity possessed alone.

There is no one threshold for a given controlled substance that can be used to determine possession for personal use versus possession with intent to distribute. Concluding that a person intended to distribute a controlled substance based solely on the amount possessed is therefore inappropriate. There are numerous reasons why a person may possess larger quantities of drugs without being involved in commercial drug activity. For instance, people may buy large amounts of substances on or near the day when they receive their income. Further, purchasing larger amounts may result in a lower unit price, meaning people may purchase in bulk to save money. People may also purchase larger quantities to reduce the amount of contact with their supplier, thus reducing the risk of detection by law enforcement and time and costs associated with meeting with the supplier. Especially in rural areas, considerations of the time and cost of transportation to a supplier’s location may influence people to purchase larger quantities. People with severe substance use disorders are also more likely to possess larger quantities because they have higher tolerances and must consume larger quantities in order to experience the effects of the drugs and so they can minimize the risk of withdrawal. Assuming that higher quantities infer an intent to distribute will subject people with substance use disorders, who are more likely to possess higher quantities, to prosecution and harsher criminal penalties for attempted drug delivery, even though they may be the most in need of community-based health services.

Other factors that may impact the quantity of a controlled substance possessed include the route of administration used (e.g., smoking versus injection) and the purity and price of the controlled substance. For example, a person may purchase more when the price is lower. Given the variety of reasons that a person may possess large quantities of drugs, most of which are consistent with possession for personal use, it is imprudent to assume that a certain quantity of controlled substances implies an intent to distribute.

Assuming that possession of higher quantities of controlled substances indicates an intent to distribute may have negative health repercussions. People may consume more or more quickly, or both, if they fear severe penalties for drug distribution based on the amount they possess. Doing so would likely increase the risk of overdose. Because there are a multitude of reasons that people possess larger quantities of drugs, most of which are not associated with intent to distribute, it is not appropriate to assume that quantity alone equals an intent to distribute. Therefore, in the present case, intent to transfer should not have been inferred based on quantity alone.

B. The manner in which drugs are packaged does not inherently corroborate an intent to deliver.

Just as drug weight provides little indication of distributive intent, the manner of packaging does not inherently corroborate an intent to deliver. People who use drugs may store their drugs in a variety of manners, including in individual containers, even if not engaging in commercial activity. If a person is making a bulk purchase to acquire a multiple day supply, there is no guarantee that they will receive such an order in bulk packaging instead of individual packages. See State v. Wilkins, 703 S.E.2d 807, 810 (Ct. App. N.C. 2010) (“While small bags may typically be used to package [a controlled substance], it is just as likely that the defendant was a consumer who purchased the drugs in that particular packaging from a dealer.”) One researcher noted, “It is recommended that the number of bags/wraps should not be used as a criterion for distinguishing possession from [possession with intent to supply], because many dealers who give price reductions on larger purchases provide the user with multiple retailsize deals, rather than providing the larger amount in a single bag/wrap” (emphasis in original). The presence of individual packages may simply be indicative of the amount purchased, because greater quantities could have been bought in a greater number of packages. If so, the packaging may only reflect the amount purchased rather than corroborate intent to distribute. Smaller packaging can therefore be consistent with possession for personal use and should not be interpreted to intrinsically verify intent to distribute.

There are additional reasons why a person may store drugs in separate packages without intending to deliver the drugs. For safety reasons, they may weigh out individual use units in advance to decrease the likelihood of overdose. They may ration out a bulk quantity into individual doses to last over a certain period of time. This is particularly true of rural users, who may have to travel long distances to make purchases. They may also be mistaken about the law, and assume that their packaging into individual use units makes them less culpable than possession of a bulk quantity would.

Given the host of reasons that a person may possess large quantities of controlled substances and store those substance in individual packaging, most of which are not related to intent to distribute, it is inappropriate to assume that greater quantities and individual packaging translates into attempted delivery. In some circumstances, individual packaging may only reflect that a person bought a larger quantity. Treating these as separate factors indicating both an intent to deliver and verification of that intent is thus unjust. Relying on drug weight and packaging alone to confirm attempted delivery ignores the lived realities of people who use drugs and may expose them to severe drug delivery penalties for engaging in logical financial and risk management practices. More is needed to sustain a conviction for attempted delivery.

C. Inferring intent to deliver based on factors consistent with possession for personal use results in severe and unjust punishment for possession.

Relying on possession of certain amounts of controlled substances stored in individual packages to establish intent to deliver, thereby satisfying the substantial step requirement for attempted delivery, or under Boyd, punished as a completed delivery, will result in extremely harsh penalties for conduct consistent with possession for personal use. Recent changes to Oregon law reclassified possession of smaller amounts of controlled substances to a civil infraction punishable by a presumptive $100 fine, while simple possession of a quantity greater than statutory thresholds remains a class A misdemeanor punishable by up to 364 days imprisonment and a fine of up to $6,250 if the amount possessed is not “a substantial quantity.” ORS 475.900(1)(a); ORS 153.019; ORS 161.615(1); ORS 161.635(1)(a); ORS 475.752(3), (7); ORS 475.854. In contrast, delivery of a certain controlled substances is a class A felony, punishable by up to 20 years imprisonment and a fine of up to $375,000. See ORS 161.605(1); ORS 161.625(1)(b); ORS 475.752(1)(a); ORS 475.850(2). Depending on the state’s discretion, the same conduct could be treated as a civil infraction or one of the most serious felonies. Without adequately considering whether quantity and packaging indicates intent to deliver or simply reflects other factors consistent with possession for personal use, people will likely be prosecuted for serious drug delivery felonies, including completed delivery under Boyd.

he people of the State of Oregon and the legislature have determined that possession of drugs should be not be subject to criminal penalties when the amount is below certain quantities and should be punished as a misdemeanor when those quantities are exceeded (unless “a substantial amount” was possessed). See Senate Bill (SB) 755 (2021) (enacted); Ballot Measure 110, Drug Addiction Treatment and Recovery Act (2020) (enacted).

Condoning that drug weight and packaging, without more, suffices to establish a substantial step toward delivery, severely undermines the intent of the people and legislature by authorizing law enforcement to treat conduct consistent with possession for personal use as attempted drug delivery. The Boyd doctrine further exacerbates this injustice by punishing the conduct as a completed delivery.

Drug weight and packaging are unreliable indicators of intent to deliver. Possession of larger quantities and individual packaging are often consistent with possession for personal use. Convictions for attempted delivery, or completed delivery under Boyd, should require more evidence than weight and packaging to prove a defendant took a substantial step toward delivery. Otherwise, people who possess drugs for personal use risk facing severe delivery charges at the discretion of law enforcement, an outcome contrary to the intent of the voters of Oregon and the legislature.

II. CONTINUANCE OF THE FLAWED BOYD DOCTRINE AND USE OF CONDUCT CONSISTENT WITH POSSESSION FOR PERSONAL USE TO ESTABLISH ATTEMPTED DELIVERY IS LIKELY TO EXACERBATE RACIAL INEQUITIES.

The Court of Appeals astutely asked, in reference to Boyd, “whether we risk perpetuating a construction that would not only be wrong and unjust, but one whose effects may be disproportionately borne along racial and ethnic lines.” Hubbell, 314 Or App at 866. Further, the court pondered “[H]as the brunt of our mistake in elevating attempted delivery to completed delivery been born, disproportionately, by Oregonians of color?” Id. at 867. The answer to these inquiries is almost certainly yes. Further, relying on conduct consistent with possession for personal use to establish a substantial step toward attempted delivery similarly “raise[s] a serious question about the delivery of equal justice in Oregon.” Id. Affirming the overturning of Boyd and requiring sufficient evidence to prove a substantial step toward attempted delivery will help to reduce rampant racial disparities in Oregon drug law enforcement.

Black, Indigenous, and people of color (BIPOC) communities have long borne the brunt of drug law enforcement in Oregon and across the nation. Engagement in drug selling is consistent across racial groups. An analysis from data collected by the federal Substance Abuse and Mental Health Services Administration found that 3.4 percent of white people, 2.9 percent of Black people, 2.8 percent of Latinx people, 4.2 percent of Native Americans or Alaskan Natives, 3.5 percent of Native Hawaiians or Other Pacific Islanders, and 1.1 percent of Asian people reported selling drugs in the past year. Yet, 78 percent of people in federal prison for a drug offense (99.5 percent of whom were there for selling and distribution) were people of color: 38.8 percent were Black and 37.2 percent Latinx, although these groups make up only 13.6 percent and 18.9 percent of the total population, respectively.

Additional research has found that Black people were more frequently charged with drug sales offenses than white people, noting that “while Blacks were significantly more likely than Whites to have been arrested most recently for drug sales, we found no statistical race difference in self-reports of ever having sold drugs.” Even in open air drug markets, where transactions are more visible, disparities persist. Regardless of racial composition of those present and levels of engagement in drug activity, Black individuals were substantially more likely to be arrested for sales offenses than white individuals.

The disparities continue past arrest and charging into sentencing. A landmark meta-analysis of 71 studies concluded that Black individuals are generally sentenced more harshly than white individuals, even when all other variables are controlled for. The disparity grows even larger in the context of drug crimes.

These data demonstrate that people of color are more likely to be arrested, prosecuted, and sentenced harshly for drug sales offenses. It stands to reason that the Boyd decision has resulted in much more severe penalties for people of color by virtue of their increased likelihood of being prosecuted for drug delivery. Should this flawed decision be allowed to stand, people of color will continue to be disproportionately exposed to harsh penalties for drug sales offenses. Permitting conduct consistent with possession for personal use to be treated as a substantial step in furtherance of delivery will similarly allow for continued racial disparities in attempted delivery prosecutions. The Court of Appeals rightly raised concerns about the racial disparities implicated by Boyd, but those same concerns also council against relying on drug weight and packaging to prove attempted delivery.

III. PUNISHING ACTS CONSISTENT WITH POSSESSION FOR PERSONAL USE AS ATTEMPTED DELIVERY, AND UNDER BOYD AS COMPLETED DELIVERY, REDUCES THE EFFECTIVENESS OF HARM REDUCTION APPROACHES AND FURTHER ENDANGERS INDIVIDUALS WHO USE DRUGS.

During the Boyd rule’s existence, the number and rate of annual fatal drug overdoses in Oregon has dramatically increased and is now at its highest point in history. Punitive drug laws have failed to protect the health of Oregonians. In fact, Boyd and Oregon’s broader discretionary criminal approach further endangers residents’ health by impeding harm reduction efforts targeting the overdose crisis.

Across the United States, drug overdoses have consistently increased in the past two decades, but recent years have seen the most severe upticks. Following an increase of 30 percent in 2020, fatal overdoses further increased by nearly 15 percent to reach 107,622 overdose deaths in 2021. In Oregon, drug overdose deaths reflect the national trend of the past two decades, with the rate of deaths per 100,000 Oregonians tripling from 6.1 in 1999 to 18.7 in 2020. As with the harms of drug law enforcement, the burden of overdose deaths is most severe in communities of color. Overdose rates are highest among Indigenous Oregonians, at 42.8 deaths per 100,000 people, followed by non-Hispanic Black Oregonians, at 32.5 deaths per 100,000 people. The prevalence of substance use disorders is also high. In Oregon, 18.22 percent of residents have a substance use disorder, which is the third highest percentage in the United States. Treatment for people with substance use disorders is also lacking. Nearly one-fifth of Oregonians needing treatment at a specialty facility did not receive it: the highest percentage of any state.

Over-criminalization of drug use and enhanced enforcement of drug laws exacerbates overdose concerns. Increased neighborhood police activity has been associated with increased fatal drug overdoses. Criminalization may cause people to prepare and use drugs in a quicker, more private manner to avoid police detection, exposing them to greater overdose risk. Moreover, criminalization hinders the provision of HIV prevention and care. Criminalization also solidifies and institutionalizes stigma against people who use drugs, which has additional health implications.

For example, Good Samaritan laws are an evidence-based solution that is threatened by the prosecution standard for attempted delivery and the continuation of the Boyd rule. For people witnessing an overdose, fear of police is the most cited reason for not calling for assistance. To address this concern, Good Samaritan laws provide some criminal immunity to witnesses of drug overdoses who call emergency services. These laws may make people more likely to call 911 for help and have been associated with lower overdose fatality. Oregon’s Good Samaritan statute provides protection from arrest and prosecution for possession of controlled substances, possession of paraphernalia with intent to distribute, and frequenting a place where controlled substances are used. ORS 475.898(3). The protection extends to the person seeking emergency assistance and the person experiencing an overdose. ORS 475.898(1)-(2).

Permitting use of drug weight and packaging to establish a substantial step toward delivery, and under Boyd completed delivery, undermines Oregon’s Good Samaritan law. The protections of that law do not extend to arrest and prosecution for attempted delivery or completed delivery. Faced with the risk of being charged with a delivery offense based on factors like weight and packaging alone, bystanders are disincentivized to call for assistance.30 Particularly given that people witnessing overdoses may consider the dangers that may come to others if they call the police, the prosecution of attempted delivery may serve as further deterrence for calling emergency services.

Unless people feel they will not be arrested and prosecuted for attempted, or under Boyd, completed delivery, based on drug weight and packaging, they will continue to be discouraged to call for emergency aid during an overdose. Premising delivery convictions on conduct that is consistent with possession for personal use will continue to disincentivize people for calling for help at a time when all tactics are necessary to prevent the continued loss of life to overdoses.

For the foregoing reasons, we urge the Court to affirm the Court of Appeals’ overturning of Boyd but reverse the order to remand for entry of a conviction of attempted delivery of a controlled substance.

ARGUMENT

I. Reliance on Drug Weight and Packaging to Establish Attempted Delivery is Problematic

The law defines an attempt as intentionally engaging in actions that represent a substantial step toward committing a crime. To prove a substantial step, evidence of criminal intent and separate evidence of conduct strongly supporting that intent are required. Courts have sometimes ruled that the total weight of controlled substances can show intent, and the presence of individual packages can support this intent. However, this approach presents several problems. Drug weight is an unreliable indicator because people possess larger quantities for various personal reasons, often unrelated to selling. Similarly, individual packaging does not necessarily confirm an intent to deliver, as people may store drugs this way for reasons like bulk purchasing or safety. Relying solely on quantity and packaging can unfairly transform simple possession into attempted delivery, or even a completed delivery under the "Boyd" doctrine.

A. Drug Weight Does Not Reliably Show Intent to Deliver

The total weight of a mixture containing controlled substances, by itself, reveals little about an intent to distribute. The quantity of drugs someone possesses does not always indicate involvement in commercial distribution. People may possess different amounts for various personal or environmental reasons, making it unreliable to determine an intent to sell based on quantity alone.

No single threshold exists for a controlled substance that can reliably distinguish possession for personal use from possession with intent to distribute. Many factors explain why someone might possess larger quantities without being involved in commercial drug activity. For example, individuals may buy larger amounts when they receive income or to benefit from lower unit prices, similar to bulk purchasing of other goods. Buying larger quantities can also reduce contact with suppliers, lowering the risk of detection and saving time and travel costs, particularly in rural areas. People with severe substance use disorders often possess larger quantities due to higher tolerance and the need to prevent withdrawal symptoms. Assuming higher quantities imply an intent to distribute would subject these individuals, who are often in greatest need of health services, to harsher penalties for attempted drug delivery.

Other factors influencing the quantity of drugs possessed include the method of administration (e.g., smoking versus injection) and the substance's purity and price. For instance, a person might purchase more when prices are lower. Given these varied reasons, most of which align with personal use, it is inappropriate to assume a specific quantity indicates an intent to distribute. Such assumptions can also lead to negative health outcomes, as individuals might consume drugs more quickly or in larger amounts out of fear of severe distribution penalties, increasing overdose risk.

B. Drug Packaging Does Not Reliably Show Intent to Deliver

Similar to drug weight, the way drugs are packaged does not inherently confirm an intent to deliver. Individuals who use drugs may store them in various ways, including individual containers, even without commercial intent. When making a bulk purchase for personal use, there is no guarantee the drugs will be received in a single large package rather than multiple individual ones. Some research suggests that dealers offering price reductions for larger purchases often provide users with several retail-sized packages instead of one large one. Thus, individual packaging may simply reflect the amount purchased rather than corroborating an intent to distribute, making it consistent with personal use.

Additional reasons exist for storing drugs in separate packages without an intent to deliver. For safety, individuals may pre-weigh individual doses to reduce overdose risk. They might also ration a bulk supply into separate doses to last over a specific period, a common practice for users in rural areas who travel long distances for purchases. Some may also mistakenly believe that packaging drugs into individual units makes them less legally culpable than possessing a bulk quantity.

Given the many reasons why a person might possess large quantities of controlled substances and store them in individual packaging, most of which are unrelated to distribution, it is inappropriate to assume that greater quantities and individual packaging automatically indicate attempted delivery. Sometimes, individual packaging merely reflects a larger purchase. Treating these factors as separate evidence for both intent to deliver and corroboration of that intent is therefore unfair. Relying solely on drug weight and packaging to confirm attempted delivery ignores the realities of drug users and risks exposing them to severe penalties for practices related to financial and risk management. More evidence is necessary to secure a conviction for attempted delivery.

C. Severe Penalties Result from Misinterpreting Possession as Attempted Delivery

Inferring an intent to deliver based on factors consistent with personal possession, and then using this to satisfy the "substantial step" requirement for attempted delivery (or completed delivery under "Boyd"), leads to extremely harsh penalties for conduct that is not distribution. Recent changes in state law reclassified possession of smaller amounts of controlled substances as a civil infraction, while possession of larger amounts remains a misdemeanor. In contrast, delivery of certain controlled substances is a serious felony, carrying much longer imprisonment and higher fines. This means the same actions could be treated as a minor civil infraction or a major felony, depending on how law enforcement interprets the situation. Without careful consideration of whether quantity and packaging genuinely indicate an intent to deliver or simply reflect personal use, individuals risk prosecution for serious drug delivery felonies, including completed delivery under "Boyd."

The state's citizens and legislature have previously expressed that drug possession should not result in criminal penalties below certain quantities and should be a misdemeanor when those quantities are exceeded, unless the amount is substantial. Allowing drug weight and packaging, without additional evidence, to establish a "substantial step" toward delivery significantly undermines the intent of the public and lawmakers. It enables law enforcement to treat conduct consistent with personal possession as attempted drug delivery, a problem exacerbated by the "Boyd" doctrine, which punishes it as a completed delivery.

Drug weight and packaging are unreliable indicators of an intent to deliver, as larger quantities and individual packaging often align with personal use. Convictions for attempted delivery, or completed delivery under "Boyd," should demand more evidence than just weight and packaging to prove a substantial step toward delivery. Otherwise, individuals possessing drugs for personal use face severe delivery charges at law enforcement's discretion, an outcome contrary to the wishes of the state's voters and legislature.

II. The "Boyd" Doctrine and Misinterpretations of Possession Worsen Racial Inequality

A previous court acknowledged concerns about the "Boyd" doctrine, questioning whether it perpetuates an unjust legal interpretation whose effects are disproportionately borne by people of color. The answer to this inquiry is very likely affirmative. Furthermore, relying on conduct consistent with personal possession to establish a substantial step toward attempted delivery similarly raises serious questions about equal justice. Overturning "Boyd" and requiring sufficient evidence for attempted delivery will help reduce widespread racial disparities in drug law enforcement.

Black, Indigenous, and people of color (BIPOC) communities have historically faced the brunt of drug law enforcement across the nation. Studies indicate that engagement in drug selling is consistent across racial groups. Despite similar rates of self-reported drug selling among different racial groups, people of color, particularly Black and Latinx individuals, are significantly overrepresented in federal prisons for drug offenses, especially those related to selling and distribution. This disparity persists even in highly visible drug markets, where Black individuals are more likely to be arrested for sales offenses than white individuals, regardless of actual drug activity levels.

These disparities extend beyond arrest and charging into sentencing. Research consistently shows that Black individuals receive harsher sentences than white individuals, even when controlling for other variables, with this disparity being particularly pronounced in drug-related crimes. These data demonstrate that people of color are more likely to be arrested, prosecuted, and sentenced more severely for drug sales offenses. It is reasonable to conclude that the "Boyd" decision has led to much harsher penalties for people of color due to their increased likelihood of being prosecuted for drug delivery. If this flawed decision remains, people of color will continue to face disproportionately severe penalties for drug sales offenses. Similarly, allowing conduct consistent with personal possession to be treated as a substantial step toward delivery will perpetuate racial disparities in attempted delivery prosecutions.

III. Punishing Personal Possession as Attempted Delivery Harms Public Health Efforts

During the existence of the "Boyd" rule, the number of fatal drug overdoses in the state has dramatically increased, reaching historic highs. Punitive drug laws have failed to protect public health and, in fact, "Boyd" and the state’s broader criminal approach endanger residents by impeding harm reduction efforts against the overdose crisis.

Drug overdoses have steadily risen nationally over the past two decades, with recent years showing the most severe increases. This state mirrors the national trend, with overdose death rates tripling in two decades. The burden of overdose deaths is particularly severe in communities of color, with Indigenous and Black residents experiencing the highest rates. The state also faces a high prevalence of substance use disorders and a lack of adequate treatment services.

Over-criminalization of drug use and stricter enforcement of drug laws worsen overdose concerns. Increased police presence in neighborhoods has been linked to higher rates of fatal drug overdoses. Criminalization may compel individuals to prepare and use drugs more quickly and privately to avoid detection, increasing their overdose risk. Furthermore, criminalization hinders HIV prevention and care and solidifies the stigma against people who use drugs, leading to additional health consequences.

For example, "Good Samaritan" laws, which are evidence-based solutions, are undermined by the current prosecution standards for attempted delivery and the continuation of the "Boyd" rule. A major reason people witnessing an overdose hesitate to call for help is fear of police involvement. "Good Samaritan" laws aim to address this by offering some legal protection to witnesses who call emergency services, potentially increasing calls for help and reducing overdose fatalities. The state's "Good Samaritan" statute offers protection from arrest and prosecution for possession of controlled substances and paraphernalia. However, this protection does not extend to attempted or completed delivery charges.

Permitting the use of drug weight and packaging to establish a substantial step toward delivery (or completed delivery under "Boyd") discourages bystanders from calling for assistance during an overdose. Faced with the risk of being charged with a delivery offense based solely on factors like weight and packaging, individuals are disincentivized to seek emergency aid. Unless people feel they will not be arrested and prosecuted for delivery based on these factors, they will continue to be reluctant to call for help. Basing delivery convictions on conduct consistent with personal use will continue to deter calls for emergency aid at a time when all strategies are needed to prevent further loss of life to overdoses.

For these reasons, the Court should affirm the overturning of "Boyd" but reverse the order to send the case back for a conviction of attempted delivery of a controlled substance.

ARGUMENT

Relying on Drug Weight and Packaging as Proof of Attempted Delivery is Unfair

Oregon law defines attempting a crime as intentionally taking a significant action toward committing that crime. To prove this significant action, the state must show both criminal intent and separate conduct that strongly confirms that intent. Oregon courts have often ruled that the total weight of drugs and the way they are packaged can show intent to deliver, even without fully considering other reasons for these factors. This approach has many issues. Drug weight is not a reliable sign of intent because people may possess larger amounts for various personal reasons. Similarly, individual packaging does not necessarily mean intent to deliver, as people might store drugs this way for personal use or because they bought them that way. Relying on quantity and packaging to infer intent to deliver can unfairly turn simple possession into attempted delivery, and sometimes, into a completed delivery offense.

Drug Weight is Not a Reliable Sign of Intent

The weight of a drug mixture by itself reveals little about someone's intent to sell it. The amount of drugs a person possesses does not always relate to their involvement in drug sales. Many personal and environmental factors can influence the quantity of drugs an individual keeps. Therefore, judging intent to sell based solely on the amount possessed is not reliable.

There is no specific drug quantity that clearly separates possession for personal use from possession with intent to distribute. Deciding that a person planned to sell drugs based only on the amount they had is inappropriate. People might possess larger quantities for various reasons not related to selling drugs. For example, they might buy larger amounts when they get paid or to save money by purchasing in bulk. Buying more at once can also reduce how often they need to contact a supplier, lowering the risk of being caught and saving time and travel costs, especially in rural areas. People with severe substance use disorders might also possess larger quantities because they have higher tolerances and need more drugs to feel the effects or avoid withdrawal. Assuming higher quantities mean intent to distribute could lead to people with substance use disorders facing serious drug delivery charges, even though they may need health services more than punishment.

Other factors influencing the quantity of drugs possessed include the method of use (such as smoking versus injection) and the drug's purity and price. For example, someone might buy more when prices are low. Given these many reasons for possessing large quantities of drugs, most of which are consistent with personal use, it is unwise to assume a specific quantity indicates intent to distribute.

Assuming higher drug quantities mean intent to distribute could also have negative health impacts. People might use drugs faster or more frequently if they fear harsh penalties based on the amount they possess, increasing their risk of overdose. Since many reasons for possessing large quantities of drugs are unrelated to selling, it is incorrect to assume quantity alone equals intent to distribute.

How Drugs Are Packaged Does Not Always Mean Intent to Deliver

Just as drug weight is not a strong indicator of intent to distribute, the way drugs are packaged does not inherently prove an intent to deliver. People who use drugs might store them in various ways, including individual containers, even if they are not selling. If someone buys a large supply for several days, there is no guarantee it will be packaged in one large container rather than several smaller ones. As one expert noted, the number of individual packages should not be the main factor distinguishing personal possession from intent to sell, because dealers often give users multiple small packages when selling larger amounts at a reduced price. Thus, individual packaging may simply reflect the amount purchased, rather than confirm an intent to distribute. Smaller packaging can be consistent with personal use and should not automatically be seen as proof of intent to sell.

There are other reasons why a person might store drugs in separate packages without intending to sell them. For safety, they might pre-weigh individual doses to lower the risk of overdose. They may also divide a large quantity into individual doses to make it last over a specific period, a practice common among users in rural areas who must travel far to make purchases. Some individuals might also mistakenly believe that packaging drugs into individual units makes them less legally responsible than possessing a single bulk quantity.

Given the many reasons people might possess large drug quantities and store them in individual packages, most of which are not related to selling, it is inappropriate to assume that larger quantities and individual packaging automatically mean attempted delivery. In some cases, individual packaging may only show that a person bought a larger amount. Treating these factors as separate evidence of both intent to deliver and confirmation of that intent is therefore unjust. Relying solely on drug weight and packaging to confirm attempted delivery ignores the realities of people who use drugs and could expose them to severe delivery penalties for making practical financial and risk management choices. More evidence is needed to prove attempted delivery.

Using Personal Possession Factors to Infer Delivery Leads to Unjust Penalties

Interpreting possession of certain drug amounts in individual packages as intent to deliver—which meets the legal requirement for attempted delivery or, under a specific legal doctrine, as completed delivery—results in extremely harsh penalties for actions consistent with personal use. Recent changes in Oregon law have reclassified possession of smaller drug amounts as a civil offense, typically punishable by a $100 fine. Simple possession of quantities above these thresholds remains a serious misdemeanor, potentially leading to nearly a year in jail and a fine of up to $6,250, unless a "substantial quantity" was involved. In contrast, drug delivery is often a felony, punishable by up to 20 years in prison and a fine of up to $375,000. Depending on the state's discretion, the same conduct could be treated as a minor civil infraction or a major felony. Without properly considering whether quantity and packaging truly indicate intent to deliver or simply reflect other factors consistent with personal use, individuals are likely to face serious drug delivery felony charges, including for completed delivery.

The people of Oregon and the state legislature have clearly stated their intent that drug possession should not lead to criminal penalties for amounts below certain thresholds and should be a misdemeanor for amounts above those thresholds (unless the amount is "substantial"). This intent was expressed through legislative acts and voter initiatives.

Allowing drug weight and packaging alone to be sufficient proof of a significant action toward delivery severely undermines the intent of the public and the legislature. It permits law enforcement to treat actions consistent with personal drug possession as attempted drug delivery. The existing legal doctrine further compounds this injustice by punishing such conduct as if it were a completed delivery.

Drug weight and packaging are unreliable indicators of intent to deliver. Possessing larger quantities and using individual packaging are often consistent with personal use. Convictions for attempted delivery, or completed delivery under specific legal doctrines, should require more evidence than just weight and packaging to prove a person took a substantial step toward delivery. Otherwise, individuals who possess drugs for personal use risk facing severe delivery charges at the discretion of law enforcement, an outcome contrary to the will of Oregon voters and the legislature.

Continuing Flawed Legal Doctrines and Using Personal Possession for Attempted Delivery Worsens Racial Injustice

As one court aptly asked about a specific legal doctrine, "do we risk continuing a legal interpretation that would not only be wrong and unfair, but one whose effects may be disproportionately felt along racial and ethnic lines?" The court also wondered if the burden of this mistake has been disproportionately carried by Oregonians of color. The answer to these questions is almost certainly yes. Furthermore, relying on actions consistent with personal drug possession to prove a significant step toward attempted delivery similarly "raises a serious question about the delivery of equal justice in Oregon." Overturning problematic legal doctrines and requiring sufficient evidence to prove a significant step toward attempted delivery will help reduce widespread racial disparities in Oregon's drug law enforcement.

Black, Indigenous, and people of color (BIPOC) communities have long experienced the harshest impacts of drug law enforcement in Oregon and across the nation. Studies show that rates of drug selling are similar across racial groups. For example, an analysis of federal data found that similar percentages of white, Black, and Latinx people reported selling drugs in the past year. However, a much larger percentage of people in federal prison for drug offenses (nearly all for selling and distribution) are people of color—roughly 39 percent Black and 37 percent Latinx—even though these groups make up a smaller portion of the total population.

Further research indicates that Black individuals are more frequently charged with drug sales offenses than white individuals, even when self-reported drug selling rates are comparable. Even in open drug markets, where transactions are more visible, racial disparities persist. Regardless of the racial makeup of those present or the level of drug activity, Black individuals are significantly more likely to be arrested for sales offenses than white individuals.

These disparities extend beyond arrest and charging to sentencing. A comprehensive review of many studies concluded that Black individuals generally receive harsher sentences than white individuals, even when other factors are the same. This disparity becomes even more pronounced in drug-related crimes.

These data show that people of color are more likely to be arrested, prosecuted, and sentenced severely for drug sales offenses. It is reasonable to conclude that a specific legal doctrine has led to much harsher penalties for people of color due to their increased likelihood of being prosecuted for drug delivery. If this flawed doctrine continues, people of color will remain disproportionately exposed to severe penalties for drug sales offenses. Allowing conduct consistent with personal use to be considered a significant step toward delivery will similarly allow for continued racial disparities in attempted delivery prosecutions. Concerns about racial disparities should also prevent reliance on drug weight and packaging to prove attempted delivery.

Punishing Personal Use as Attempted Delivery Harms Public Health

During the time a specific legal rule has been in place, the number and rate of fatal drug overdoses in Oregon have dramatically increased, reaching their highest point ever. Punitive drug laws have not protected the health of Oregonians. In fact, this legal rule and Oregon's broader criminal approach endanger residents' health by hindering efforts to reduce harm from the overdose crisis.

Drug overdoses have steadily risen across the United States for the past two decades, with the most severe increases in recent years. After a 30 percent rise in 2020, fatal overdoses increased by another nearly 15 percent in 2021, totaling over 107,000 deaths. In Oregon, drug overdose deaths mirror this national trend, with the death rate per 100,000 residents tripling from 1999 to 2020. Similar to drug law enforcement harms, communities of color bear the heaviest burden of overdose deaths. Overdose rates are highest among Indigenous Oregonians, followed by Black Oregonians. The prevalence of substance use disorders is also high in Oregon, ranking third highest nationally. Yet, nearly one-fifth of Oregonians needing treatment for substance use did not receive it, the highest percentage of any state.

Excessive criminalization of drug use and stricter enforcement of drug laws worsen overdose concerns. Increased police activity in neighborhoods has been linked to more fatal drug overdoses. Criminalization can lead people to prepare and use drugs more quickly and privately to avoid police, increasing their overdose risk. Additionally, criminalization impedes HIV prevention and care efforts. It also reinforces and institutionalizes negative stereotypes against people who use drugs, which has further health consequences.

For example, Good Samaritan laws are an effective solution that is undermined by the standard for prosecuting attempted delivery and the continuation of a specific legal rule. For people witnessing an overdose, fear of police is the most common reason for not calling for help. To address this, Good Samaritan laws offer some legal protection to witnesses of drug overdoses who call emergency services. These laws can encourage people to call 911 for help and have been linked to lower overdose fatalities. Oregon's Good Samaritan law protects individuals from arrest and prosecution for possessing controlled substances, possessing drug tools with intent to distribute, and frequenting places where controlled substances are used. This protection applies to both the person seeking emergency help and the person experiencing the overdose.

Allowing drug weight and packaging to establish a significant step toward delivery, and therefore completed delivery under a specific legal doctrine, weakens Oregon's Good Samaritan law. The protections of that law do not extend to arrests and prosecutions for attempted or completed delivery. Faced with the risk of being charged with a delivery offense based on factors like weight and packaging alone, bystanders are less likely to call for assistance. This is especially true since people witnessing overdoses might consider the risks to others if they involve the police; the possibility of attempted delivery charges further discourages calling emergency services.

Unless people feel confident that they will not be arrested and prosecuted for attempted, or completed, delivery based solely on drug weight and packaging, they will continue to be hesitant to call for emergency aid during an overdose. Basing delivery convictions on conduct consistent with personal use will continue to discourage people from seeking help at a time when every strategy is needed to prevent ongoing overdose deaths.

For these reasons, the Court is urged to uphold the Court of Appeals' decision to overturn a specific legal doctrine but to reverse the order that would require a conviction for attempted delivery of a controlled substance.

ARGUMENT

The legal system should not treat drug possession as attempted or completed drug delivery just because of the amount of drugs or how they are packaged. Current interpretations of the law, especially regarding the "Boyd doctrine," can lead to unfair punishments for people who only intend to use drugs themselves.

I. RELYING ON DRUG WEIGHT AND PACKAGING TO ESTABLISH A SUBSTANTIAL STEP TOWARD DELIVERY UNFAIRLY TREATS POSSESSION AS ATTEMPTED DELIVERY, OR UNDER BOYD, AS COMPLETED DELIVERY.

Laws describe an "attempt" as intentionally taking a significant step toward committing a crime. However, using only drug weight and packaging to prove someone intended to deliver drugs is flawed. People may possess larger amounts for personal use to save money, reduce contact with suppliers, or manage severe substance use disorders. Similarly, individual packaging does not automatically mean a person intends to sell; they might buy in bulk in smaller packages, ration doses for safety, or misunderstand the law. These common reasons for possessing drugs for personal use are often mistaken for intent to deliver, resulting in severe felony charges instead of lesser possession offenses or civil penalties. This goes against recent efforts by Oregon voters and lawmakers to reduce criminal penalties for drug possession.

II. CONTINUANCE OF THE FLAWED BOYD DOCTRINE AND USE OF CONDUCT CONSISTENT WITH POSSESSION FOR PERSONAL USE TO ESTABLISH ATTEMPTED DELIVERY IS LIKELY TO EXACERBATE RACIAL INEQUITIES.

The Court of Appeals has questioned if these legal interpretations unfairly affect people of color, and evidence suggests they do. Studies show that Black, Indigenous, and other people of color are no more likely to sell drugs than white individuals, yet they are significantly more likely to be arrested, prosecuted, and given harsher sentences for drug sales offenses. Continuing to use drug weight and packaging as proof of intent to deliver, especially under the "Boyd doctrine," will only worsen these existing racial injustices within Oregon's legal system.

III. PUNISHING ACTS CONSISTENT WITH POSSESSION FOR PERSONAL USE AS ATTEMPTED DELIVERY, AND UNDER BOYD AS COMPLETED DELIVERY, REDUCES THE EFFECTIVENESS OF HARM REDUCTION APPROACHES AND FURTHER ENDANGERS INDIVIDUALS WHO USE DRUGS.

Oregon is experiencing a tragic rise in fatal drug overdoses, showing that current punitive drug laws are not protecting public health. Over-criminalization, particularly when possession for personal use is treated as attempted delivery, increases overdose risks by discouraging safe practices and promoting stigma. For example, "Good Samaritan" laws protect people who call for help during an overdose from possession charges. However, if those same people fear being charged with attempted or completed drug delivery based on drug weight and packaging, they will be less likely to call for emergency assistance. This undermines critical harm reduction efforts and puts more lives at risk.

Therefore, convictions for attempted or completed drug delivery should require more evidence than just drug weight and packaging. Relying solely on these factors for proof ignores the real-life reasons people possess drugs for personal use and creates severe, unjust penalties that go against the public's intent. This practice also worsens racial inequalities and obstructs vital efforts to save lives from drug overdoses.

Argument

1. Using Drug Weight and Packaging to Prove Someone Tried to Sell Drugs Is Unfair

State law says an attempt to commit a crime means someone purposely takes a major step toward doing it. To show that a person took a major step toward a crime, there must be proof that the person meant to commit the crime. There must also be other proof that strongly backs up that intent. Courts in Oregon have sometimes decided that the total weight of drugs, and how they are packaged, is enough to show someone meant to sell them. They often do this without looking at other reasons why a person might have drugs. This way of thinking causes many problems. The total weight of drugs does not reliably show if someone plans to sell them. People hold more drugs for many reasons, often just for their own use. Believing that individual packages mean someone wants to sell drugs is also an issue. People might store drugs this way for many reasons, or they might have bought them already packaged. When courts use only the amount and packaging of drugs to guess someone's intent, it can unfairly turn simply having drugs into an attempt to sell them. Under a rule called Boyd, this can even be punished as if the sale was completed.

A. How much a person has does not show they want to sell.

Just the weight of drugs alone does not truly show if a person plans to sell them. How much a person has does not always mean they are involved in selling drugs. People may have different amounts of drugs for many personal reasons. So, it is not fair to decide someone wants to sell drugs just based on the amount.

There is no single amount of drugs that clearly tells if someone has them for personal use or to sell. It is wrong to decide someone plans to sell drugs just because of the amount they have. People might have more drugs for many reasons that have nothing to do with selling. For example, some people buy more when they get paid or to save money by buying in bulk. Buying more also means fewer trips to a seller, which can be safer and save time, especially for people in country areas.

People who have strong drug problems may also have larger amounts. This is because they need more drugs to feel the effects or to avoid getting sick from withdrawal. If courts assume that having more drugs means someone wants to sell them, people with drug problems could face serious charges and punishments for trying to sell, even if they need help, not prison.

How a person uses drugs (like smoking or injecting) and how pure or expensive the drugs are can also affect how much they buy. For instance, if drugs are cheaper, people might buy more. Since there are many reasons a person might have a lot of drugs, most of which are for their own use, it is not wise to assume that a certain amount means they plan to sell them.

Believing that having more drugs means someone wants to sell them can also be bad for people's health. If people fear harsh punishments for selling based on how much they have, they might use drugs faster or use more at once. This could lead to a higher chance of overdose. Because there are many reasons people have larger amounts of drugs, most of which are not about selling, it is wrong to assume the amount alone means someone wants to sell. So, in this case, the court should not have guessed someone intended to sell based only on the amount of drugs.

B. How drugs are packaged does not always mean someone wants to sell them.

Like the weight of drugs, how they are packaged does not always show someone plans to sell them. People who use drugs might keep them in different ways, even in separate containers, without trying to sell them. If someone buys a large amount of drugs to last many days, they might get them in small, individual packages, not one big one. Sellers often give discounts for larger buys by giving many small packages instead of a single large one. So, having many small packages might just mean someone bought a larger amount for themselves, not that they plan to sell it. Small packages can be for personal use and should not be seen as proof of intent to sell.

There are other reasons why a person might keep drugs in separate packages without planning to sell them. They might separate them into single doses ahead of time to stay safer and avoid an overdose. They might also divide a large amount into smaller doses to make it last longer. This is often true for people in country areas who travel far to buy drugs. Some people might even think that having drugs in small packages makes their crime less serious than having a big amount.

Since there are many reasons a person might have a lot of drugs and store them in separate packages, most of which are not about selling, it is wrong to assume these things mean someone tried to sell drugs. Sometimes, separate packages just mean someone bought more. Using these as two different proofs for intent to sell is not fair. When courts only look at drug weight and packaging to say someone tried to sell, they ignore how people really live and use drugs. This can lead to harsh selling punishments for people who are just trying to manage their money or stay safe. More proof is needed to say someone tried to sell drugs.

C. Treating personal drug use as an attempt to sell leads to harsh and unfair penalties.

When courts use having certain amounts of drugs in separate packages as proof of intent to sell (an "attempted delivery"), or as a completed sale under the Boyd rule, people face very harsh punishments for simply having drugs for personal use. Recent changes in Oregon law made having small amounts of drugs a minor offense, like a $100 ticket. Having more than a certain amount is a serious misdemeanor, which can mean almost a year in jail and a fine of up to $6,250. But selling drugs is a major felony, which can mean up to 20 years in prison and a fine of up to $375,000. This means that the same action could be seen as a small ticket or a very serious crime, depending on what the state decides.

The people of Oregon and their lawmakers have decided that having small amounts of drugs should not lead to criminal charges. They also decided that having more than those small amounts should be a misdemeanor, not a felony (unless it's a very large amount).

If courts allow drug weight and packaging alone to show someone tried to sell drugs, it goes against what the people and lawmakers of Oregon want. It lets police treat personal drug use as an attempt to sell. The Boyd rule makes this even worse by punishing it as if the sale was actually completed.

The amount of drugs and how they are packaged are not good ways to tell if someone plans to sell them. Having more drugs or drugs in separate packages often means a person has them for their own use. To convict someone for trying to sell drugs, or for a completed sale under Boyd, there should be more proof than just drug weight and packaging. If not, people who have drugs for personal use could face very serious charges for selling, which is not what Oregon voters and lawmakers intended.

2. Continuing the Flawed Boyd Rule and Penalizing Personal Drug Use Will Make Racial Unfairness Worse.

A court once wisely asked if the Boyd rule might be unfair and affect people of color more. It also asked if mistakes in treating attempted sales as completed sales have mainly hurt people of color in Oregon. The answer is most likely yes. Also, using personal drug use to say someone tried to sell drugs raises serious questions about fair justice in Oregon. If the Boyd rule is removed and more proof is needed to show someone tried to sell drugs, it will help make drug laws more fair for all races in Oregon.

People of color, including Black, Indigenous, and Latinx communities, have been harmed most by drug laws in Oregon and the U.S. Data shows that people from all racial groups sell drugs at similar rates. For example, about 3-4% of white, Black, and Latinx people said they sold drugs in the past year. However, 78% of people in federal prison for drug crimes, mostly for selling, are people of color. Black people make up 38.8% and Latinx people make up 37.2% of these prisoners, even though these groups are much smaller parts of the total U.S. population.

Other studies show that Black people are charged with drug selling crimes more often than white people. Even though Black and white people report selling drugs at similar rates, Black people are much more likely to be arrested for it. This unfairness happens even in places where drug deals are easy to see. No matter how many people of different races are there or how much drug activity is happening, Black people are far more likely to be arrested for selling drugs than white people.

This unfairness continues after arrests and charges, into sentencing. A large study of 71 reports found that Black people usually get harsher sentences than white people, even when everything else is the same. This unfairness is even worse for drug crimes.

This information shows that people of color are more likely to be arrested, charged, and given harsh sentences for selling drugs. It makes sense that the Boyd rule has led to much tougher punishments for people of color because they are more often charged with drug selling. If this bad rule stays, people of color will keep facing unfair, harsh penalties for drug crimes. Letting personal drug use be treated as an attempt to sell drugs will also keep racial unfairness going in court cases. The court was right to worry about how Boyd affects different races, and those same worries mean courts should not use drug weight and packaging to prove someone tried to sell drugs.

3. Punishing Personal Drug Use as an Attempt to Sell Drugs Makes Things More Dangerous and Harms Efforts to Help People.

While the Boyd rule has been in place, the number of people dying from drug overdoses in Oregon has greatly increased. It is now at the highest level ever. Strict drug laws have not kept Oregonians healthy. In fact, the Boyd rule and Oregon's way of dealing with drug crimes make people less safe by slowing down efforts to prevent overdoses.

Across the country, drug overdoses have gone up steadily for 20 years, with the biggest jumps recently. In 2021, over 107,000 people died from overdoses. In Oregon, overdose deaths have tripled since 1999. Overdose deaths hurt communities of color the most, with Indigenous and Black Oregonians having the highest rates. Many people in Oregon also struggle with drug problems. About 18% of Oregonians have a drug problem, one of the highest rates in the U.S. Yet, almost one in five Oregonians who need help for drug problems do not get it, which is also the highest rate in any state.

Making drug use a crime and enforcing drug laws more strictly makes the overdose problem worse. When there is more police activity in neighborhoods, more people die from drug overdoses. This is because people might prepare and use drugs faster or in secret to avoid police, which makes overdoses more likely. Making drugs a crime also makes it harder to give help for HIV and creates a bad image for people who use drugs, which can harm their health even more.

Good Samaritan laws are a proven way to help, but they are at risk because of how courts treat attempted drug sales and the Boyd rule. People who see an overdose often do not call for help because they fear the police. Good Samaritan laws try to fix this by protecting people from some criminal charges if they call emergency services during an overdose. These laws can make people more likely to call 911 and have been linked to fewer overdose deaths. Oregon's Good Samaritan law protects both the person calling for help and the person having the overdose from being arrested or charged for having drugs or drug items.

Allowing drug weight and packaging to prove someone tried to sell drugs, or completed a sale under Boyd, weakens Oregon's Good Samaritan law. This law does not protect people from being charged with trying to sell or completing a drug sale. If people who see an overdose know they could be charged with selling based only on how much drugs are present or how they are packaged, they will not want to call for help. People who witness an overdose also think about the dangers that calling the police might bring to others. So, prosecuting attempted drug sales makes people even less likely to call for emergency help. Unless people believe they will not be arrested and charged for trying to sell, or for a completed sale under Boyd, based on drug weight and packaging alone, they will keep being afraid to call for help during an overdose. Basing selling convictions on actions that are just personal drug use will continue to stop people from calling for help when every call is needed to save lives from overdoses.

For all these reasons, the argument asks the Court to agree with the Court of Appeals to get rid of the Boyd rule. However, it also asks the Court not to send the case back to convict the person for trying to sell drugs.