Oregon has been at the forefront of new movements before, often encouraging other states across the country to follow in its footsteps. The state is now gearing up to usher in a new chapter, but this time rather than taking steps forward, Oregon is attempting to backtrack a landmark piece of legislation passed just over three years ago that decriminalized possession of small amounts of drugs.

On Friday, the Oregon Legislature passed a bill recriminalizing possession of small amounts of drugs. In a 21-8 vote, the Oregon Senate approved House BIll 4002 after the House passed it 51-7 on Thursday. Now, Gov. Tina Kotek will have the final sign off as the bill heads to her desk. The Senate passed House Bill 5204 with a 27-3 vote on Thursday as well to approve the $211 million in funding, which also heads to Kotek’s desk.

About Oregon Drug Decriminalization Measure 110

“With this bill, we are doubling down on our commitment to make sure Oregonians have access to the treatment and care that they need,” said Democratic Senate Majority Leader Kate Lieber, of Portland. Lieber, who also co-authored the bill, said that passing the legislation will “be the start of real and transformative change for our justice system.”

In 2020, nearly 60% of Oregon voters passed Measure 110, which decriminalized the possession of small amounts of illicit drugs. While drug sales and manufacturing remained illegal under the legislation, it lowered the penalty for possessing small amounts of drugs to a $100 fine, which could be avoided if an individual agreed to participate in a health assessment.

Additionally, the measure aimed to fund health assessments, addiction treatment, harm-reduction efforts and more services for Oregonians with addiction disorders.

One of the main goals was to treat drug use as a health issue, and advocates also expected the legislation to generate savings in the criminal justice system due to fewer drug arrests, prosecutions and incarcerations. 

However, there’s no predicting how a first-of-its-kind law may pan out in practice or what other variables could come into play.

A Failed Effort?

Despite the intent behind amping up harm reduction resources in Oregon, funding was slow to take effect. In 2021, only 1% of those who received possession citations actually sought health via Oregon’s new hotline. As time went on, many supporters and opponents argued that the measure’s incentives for individuals to enter treatment weren’t strong enough or well enforced.

Additionally, Oregon saw a 1,500% rise in overdose deaths since the start of the pandemic — the steepest increase in the nation — largely due to the broader fentanyl crisis, according to records from the Centers for Disease Control. 

While researchers have argued that it’s too soon to determine whether or not Measure 110’s passing was correlated to the surge in overdoses, the ongoing shortage in affordable housing and uptick in fentanyl use has led to an increase in more visible drug use in public.

Recriminalizing Drugs in Oregon: An Unfamiliar Road Forward

HB 4002 makes the possession of small amounts of illegal drugs a misdemeanor, punishable by up to six months in jail and enabling police to confiscate drugs and crack down on their public use. Drug treatment could be offered as an alternative to criminal penalties as part of a deflection program.

The bill would also make it easier to prosecute people selling drugs, though it aims to maintain some harm reduction measures like increasing access to addiction medication and helping folks to obtain and keep housing despite use of these medications.

However, the bill leaves it up to each individual county to decide the details of these deflection programs. Counties would also have the option, not a mandate, to set up state-funded deflection programs. It also includes a provision to allow the district attorney to argue before a judge that a person is not a candidate for diversion.

So far, 23 of Oregon’s 35 counties have signaled their intent to set up these programs.

Critics have argued that the reversal isn’t going to curb drug use, rather that it will make it harder for people to quit. Some have also questioned whether the state’s limited criminal justice system was equipped to handle the changes.

The American Civil Liberties Union (ACLU) of Oregon said that the state was rushing the bill and hasn’t undergone the necessary vetting by medical and addiction professionals who could adequately assess the potential drawbacks of such a massive public policy shift.

Opponents have also suggested that the changes will disproportionately affect Black and Latino people. Additionally, a study by the Oregon Criminal Justice Commission similarly concluded that the changes would disproportionately impact Black Oregonians specifically, though it noted disparities would be significantly less than before Measure 110 was passed.

“I’m concerned that it (the bill) will attempt to use the same tactics of the past, and fail, only to reinforce the punishment narrative that has failed for 50 years,” echoed Democratic Sen. Lew Frederick of Portland, one of four Black senators.

While Measure 110’s final fate is uncertain, Kotek said in January that she would be open to signing a bill reversing the state’s previous decriminalization measure.

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