For stuff people aren’t supposed to have (what cops and lawyers call “contraband”: such as drugs, guns, and cigarettes without federal tax stamps), it’s worse to deliver something than just to possess it, because delivering something includes at least one more person and may lead to conspiracies, criminal networks, and the kind of tax-evasion that got Al Capone convicted.
Possessing illegal drugs in Oregon is usually a Class C felony, which is the least-serious sort of felony. Occasionally it’s a Class B felony. But it is commonly treated as a misdemeanor, and possession of small amounts of marijuana isn’t a crime at all, it’s a violation – comparable to a traffic ticket. Delivering Schedule I drugs such as methamphetamine or heroin is a Class A felony, the most serious kind. That makes it more serious, in some sense, than first-degree sexual abuse, second-degree robbery, or second-degree assault, all of which are Class B felonies.
No one in the criminal justice system thinks that delivering heroin is more serious than those Class B felonies, all of which carry lengthy Measure 11 mandatory-minimum sentences. But to people not familiar with the system, a conviction for a Class A felony sounds worse than a conviction for a Class B felony. And the problem is compounded in the case of delivery of a controlled substance, because so little conduct is required to be guilty. For most crimes, if you attempt to commit the crime but don’t complete it, you’re guilty of a less-serious attempt rather than the more serious completed crime. If you try to break in to a house but you’re thwarted by a high-tech security system, you’re guilty of attempted burglary. If you try to walk out of a store without paying for the merchandise, you’re guilty of attempted theft. An attempt is usually one level lower than the completed crime, so an attempt to commit a Class A felony such as Burglary in the First Degree, is the Class B felony Attempted Burglary in the First Degree.
There isn’t really a crime of attempted delivery of a controlled substance, because, for some reason, “delivery” is defined in the law as including an attempt to deliver. Attempting to deliver is usually interpreted to include carrying around more than what a single person would be likely to use. So you can be convicted of “delivering” heroin, a Class A felony, if you’re carrying a significant amount of it: no actual delivery is required. And, although the Class A/Class B/ Class C felony distinction is archaic and not terribly important, it still sounds bad to prospective employers, landlords, and whoever else does a background check. Part of the problem is the unreasonably broad definition of delivery, but I suppose that most of it is the unnecessarily punitive treatment of drug offenses. Drugs are bad, and some (especially methamphetamine and alcohol) have broad and terrible social consequences. But the bad character revealed by having multiple baggies of cocaine on your person is a lot different than the bad character revealed through robbery or assault. I have a client right now who was convicted of a dubious charge of delivery of a controlled substance when the police found drugs in a car he was driving but had borrowed from someone else. Maybe he really was going to deliver; I don’t know. But ten years later, there’s still a semi-legitimate Class A felony conviction making it hard to keep a job or find an apartment. Why is anyone better off with such draconian consequences?
