In Bold Step Backward, OR Lawmakers Vote to Recriminalize Drug Possession [FEATURE]

With a final vote in the state Senate on Friday, Oregon lawmakers have passed a measure, House Bill 4002, that makes small-time drug possession a misdemeanor. If signed into law by Gov. Tina Kotek (D) as expected, the move would undo the decriminalization of drug possession that was approved by voters as part of Measure 110 in 2020 but would leave intact the increased spending for drug treatment, harm reduction and recovery services.

The groundbreaking decision to decriminalize drug possession fell victim to bad timing, scapegoating, and the slow implementation of its treatment and recovery components. Voters approved it just as fentanyl was replacing heroin in the Pacific Northwest, leading to a large spike in fatal overdoses for which decriminalization was wrongfully blamed, and amid the disruptions and social isolation caused by the arrival of the coronavirus pandemic in early 2020.

While foes of decriminalization blamed it for a three-fold jump in overdose deaths between 2019 and 2022, researchers who examined the data came to a different conclusion. In a peer-reviewed article published online in JAMA Psychiatry, they found "that in Oregon and Washington, two states that implemented drug decriminalization policies in early 2021, there is no evidence of an association between decriminalization and fatal drug overdose rates."

"Our analysis suggests that state decriminalization policies do not lead to increases in overdose deaths," Corey Davis, JD, MSPH, adjunct assistant professor in the Department of Population Health at NYU Grossman School of Medicine, a member of the Center for Opioid Epidemiology and Policy, and the study’s senior investigator said in a statement announcing the study's release.

In another study, researchers found that decriminalization dramatically reduced arrests for drug possession and didn't lead to more arrests for violent crime. "These two studies show that drug decriminalization measures in Oregon and Washington reduced arrests and did not increase overdose deaths. Taken together, these findings signal reduced harm to people who use drugs and possibly their communities as well," said Davis.

Yet another study had the hard numbers on the reduction in drug arrests. That study found that drug arrests averaged around 1200 a month before Measure 110, dropped to around 600 a month amidst the pandemic, then plummeted to around 200 a month once Measure 110 was in place. That is a roughly 85 percent reduction in drug arrests -- and that is nothing to sneeze at.

Foes of decriminalization also blamed it for contributing to public drug use and Portland's homelessness problem. But that critique is wrongheaded, or at least not clear: Public drug use is most directly a function of homelessness, and homelessness is a function of a tight housing market and high rents.

Still, Oregon lawmakers were proud of getting the Oregon Drug Intervention Plan, as they referred to recriminalization, passed. "We must take action. The drug crisis is killing Oregonians and threatening the health and safety of our communities. The Oregon Drug Intervention Plan is a treatment-focused approach that gives providers and law enforcement the tolls to keep people safe and save lives," Senate Majority Leader Kate Lieber (D-Beaverton), co-chair of the Joint Committee on Addiction and Community Safety Response, said in a statement following the final Senate vote.

While the bill recriminalizes drug possession, its "deflection plan" is aimed at keeping people out of jail. With deflection, once someone is cited or arrested for drug possession, if an officer makes a direct referral to a treatment option and treatment is completed, no charges are filed and there is no criminal record. For other drug arrestees, a conditional discharge must be offered if they agree to and complete treatment. If they go to court and plead or are found guilty, they must be sentenced to probation, given a connection to treatment, and their record expunged if treatment is completed. If they violate probation, they could face up to 30 days of treatment or jail, and if probation is revoked, they could face six months in jail.

But decriminalization and treatment community advocates were not happy.

"After fentanyl landed in Oregon and overdoses started rising in 2020, voters called for a public health approach that would expand treatment and require strong leadership at the state to bring law enforcement and providers together to implement that vision," said Tera Hurst, Executive Director of the Health Justice Recovery Alliance (HJRA). "Instead, service funding was delayed, the citation system was never set up, providers and law enforcement were sidelined, and overdoses continued to rise."

"Two wrongs don’t make a right," said Hurst. "The public health approach of expanding treatment without punishment was the right approach, but HB 4002 doubles down on the same mistakes the state made in implementing Measure 110. Unfortunately, it will be people struggling with addiction -- especially those living outside and Black and brown Oregonians -- who will pay the biggest price. And our communities will be no safer for it."

Still, advocates and activists will continue to try to make the best of the situation, she said.

"HJRA is committed to working with the state, service providers, counties, and police departments to ensure that implementation of HB 4002 does the most good with the least harm," said Hurst. "We must not lose sight of our shared goal to create a system of care that works for everyone, is available on-demand, and ensures that communities most impacted by drug war policies are given the resources to heal."

The Drug Policy Alliance (DPA), which had spent millions helping Measure 110 win back in 2020, was more scathing in response to lawmakers' actions. The bill "doubles down on the failed approach of arresting and jailing people for drug possession," the group said in a press release after the final vote. DPA also qualified it as "a disappointing setback" and "a false bill of goods" because "people struggling with drug use will go to jail and not get treatment."

"Today, politicians blamed an innovative policy in its infancy for decades of their own ineffectiveness," said DPA executive director Kassandra Frederique. "The fact is that drug decriminalization worked to reduce the harms of criminalization. It is Oregon leaders that didn't work. Their chronic underfunding of affordable housing, effective addiction services, and accessible health care are to blame for the heartbreaking public suffering seen in Oregon’s streets. And there is not a shred of evidence supporting claims that Measure 110 increased homelessness, overdose, or crime rates. Recriminalizing drugs is a false promise of change to distract from politicians' incompetence as they approach reelection."

If, as expected, Gov. Kotek signs the bill into law, it will indeed be a disappointing setback for the cause of drug reform, but the drug reform movement is accustomed to disappointing setbacks. It just gears up for the next battle.