Oregon drug re-criminalization

What’s happening

On Monday, Oregon Governor Tina Kotek signed into law House Bill 4002, which re-criminalizes possession of small amounts of illicit drugs such as fentanyl, heroin, and cocaine in the state. The bill rolls back provisions of the currently active Measure 110, which decriminalized possession of illicit drugs after a 2020 voter referendum. (Measure 110 reduced the penalty for possession of small amounts of illicit drugs to a $100 fine that can be waived if the offender seeks treatment.)

Details: House Bill 4002 heightens the penalty for possession of small amounts of drugs to a misdemeanor crime. (The definition of “small amount” varies by drug.) Offenders face up to 18 months probation that, if violated, would result in up to 30 days of jail time. If probation is revoked by a judge, offenders would face up to 180 days in jail. In certain circumstances, violators may be released to drug treatment instead of serving out a sentence and may have the offense expunged from their record if they get treatment. The new rules take effect Sep 1.

A key feature of House Bill 4002 is its encouragement of “deflection” programs that would place violators directly in drug treatment programs instead of going through the justice system. Counties and law enforcement agencies are encouraged – but not required – to enact deflection policies, with 23 of the 36 Oregon counties agreeing to some form of deflection program so far.

For context: Legal cannabis sales tax revenue has been the primary driver of funding toward addiction treatment and support expansion throughout the state under Measure 110. That same mechanism will continue under House Bill 4002, which allocates $211M in additional funding toward treatment centers, mental health provider training, and addiction medications in jails.

House Bill 4002 comes amid what many perceive as worsening conditions across the state relative to public drug use, overdoses, and homelessness since Measure 110 took effect on Feb 1 2021. While 58% of voters supported Measure 110 in 2020, 56% of residents supported rolling it back in a 2023 survey.

Debate over Oregon’s decision to re-criminalize illicit drugs centers around whether decriminalization is to blame for Oregon’s uptick in fatal drug overdoses and the extent to which re-criminalization can improve outcomes for drug addicts and the public.

Read on to learn more and let us know what you think.

Notable viewpoints

AGAINST RE-CRIMINALIZATION

Oregon’s drug decriminalization did not drive up drug abuse and fatal overdoses.

• Recent studies suggest there is no correlation between drug decriminalization and fatal drug overdoses; one 2023 NYU study found no statistically significant increase in fatal overdose rates in Oregon or Washington in their respective first years of decriminalization.
• Oregon’s uptick in overdose deaths were driven more by the broader introduction of fentanyl to the west coast starting in 2019; one 2023 Brown University study found that there was no statistically significant association between Measure 110 and the increase in fentanyl overdoses in Oregon after controlling for the broader proliferation of fentanyl.

Oregon’s drug decriminalization did not drive up crime or homelessness.

• A 2023 NYU study found there was no statistically significant increase in monthly arrests for violent crimes in Oregon or Washington in the months following their respective decriminalizations through 2021.
• The homeless crisis and COVID-19 pandemic, during which evictions and economic insecurity drove a 23% increase in homelessness between 2020 and 2022, significantly complicated the outcomes of Measure 110 but were not a result of the policy.
• There is no evidence to suggest Measure 110 led to a rise in crime in Oregon; data shows a 14% reduction in all crime in 2023 compared to 2020.

Re-criminalization will be worse for drug addicts. 

• Forced treatment through the threat of incarceration has been shown through studies to be ineffective in reducing drug use.
• Research shows that a drug arrest increases someone’s risk for a fatal drug overdose in the future; a 2023 study focused on Maryland and a 2023 study focused on Oregon found that individuals arrested and incarcerated for drug offenses had a higher likelihood of a fatal overdose than those who had not been incarcerated, particularly within the first two weeks after release.
• House Bill 4002’s encouragement of counties to provide deflection programs is not enough and will result in inequitable treatment of drug addicts across the state; deflection should be mandated.

House Bill 4002 will disproportionately affect minorities.

• Black people are disproportionately policed compared to white people and have a higher probability of being impacted by reversals to Measure 110; 5.2% of drug citations were issued to black people during Measure 110’s effective period despite the black population only accounting for 2.3% of Oregonians.
• Data shows that black and Hispanic people are more likely than white people to be excluded from pre-trial deflection programs for treatment.
• “HB 4002 was drafted behind closed doors, leaving out the input of Black and brown people most affected by increased police power and without being informed by the input of addiction specialists or current science on addiction.” (Coalition Members of Oregonians for Safety and Recovery.)

Re-criminalization will overwhelm the judicial system.

• There is a shortage of public defense attorneys in Oregon and the system will be overwhelmed by the likely thousands more arrests of drug offenders resulting from House Bill 4002.
• Without enough attorneys to adjudicate cases, re-criminalization is likely to drive more addicts to be stranded in jail, where they are especially vulnerable and less likely to recover.

Measure 110 was effective and is being rolled back too soon.

• The Oregon Health Authority reported a 298% increase in individuals seeking support services over the period July 1 2022 to Jun 31 2023, highlighting Measure 110’s success in expanding treatment to addicts.
• Had Measure 110 continued, it would have saved an estimated $37M in Oregon taxpayer money between 2023 and 2025 given it is cheaper to provide treatment than incarceration.
• Oregon is rolling back Measure 110 too soon given compounding issues facing the state have impacted its success.

Oregon should invest in addressing underlying drivers of drug use, not incarceration.

• Policies should address underlying factors that prevent drug abusers from seeking treatment such as treatment cost, access, and the strictness of treatment requirements.
• The state should invest in greater treatment capacity given it only has ~50% of treatment beds required to meet demand; it was ranked 7th worst nationally in the number of people who need drug treatment and are not receiving it.
• With evictions connected to higher rates of public drug use and fatal overdoses, Oregon should invest in more housing to address the homelessness crisis.

FOR RE-CRIMINALIZATION

Oregon’s drug decriminalization drove up drug abuse and fatal overdoses.

• Signaling that drug use is ok encourages more drug use; the number of fatal opioid overdoses in Oregon were 628 in the first 6 months of 2023 compared to 280 in all of 2019 prior to Measure 110 taking effect.
• A 2023 study from University of Toronto researchers found that Oregon’s drug decriminalization drove a 23% increase in fatal drug overdoses over what would have otherwise been predicted between Feb 2021 to Dec 2021.
• CDC data shows that overdose deaths in Oregon rose 75% between 2020 to 2022 compared to an 18% rise nationally. (Measure 110 took effect in Feb 2021.)
• Open air drug-use was at an “all-time high” in Portland in 2023, driving the City Counsel to pass a ban on public drug use in Sep 2023. (The ban requires updated state legislation to take effect.)
• CDC data showed a 43.9% increase in overdose deaths between Oct 2022 and Oct 2023, the highest increase in the country and significantly higher than the national increase of 1.1%.
• Oregon saw an increase from 77 fentanyl overdose deaths in 2019 to 1,268 fentanyl overdose deaths in 2023, partially prompting state leaders to issue a 90-day state of emergency in downtown Portland in Jan 2024.

Oregon’s drug decriminalization drove up crime and homelessness.

• According to FBI data, violent crime in Oregon has increased since the passage of Measure 110 while it decreased at the national level.
• Oregon’s Measure 110 has been “a disaster” – evidenced by increases in fatal opioid overdoses, shootings, and homelessness during its time in effect.

Re-criminalization will more effectively get drug users the help they need.

• Re-criminalization of drug possession will give law enforcement the legal leverage to drive addicts toward the help they need and House Bill 4002 more directly incentivizes treatment.
• Opponents of House Bill 4002 fail to acknowledge it encourages drug offenders to seek treatment prior to prosecuting them for a crime.
• The combination of public-safety and public-health coming together – which House Bill 4002 promotes – is the most effective way to incentivize drug addicts to get help.
• Oregon can and should capitalize on its investments in behavioral health and treatment during Measure 110, but it should also re-criminalize drug possession.
• Oregon must prioritize sobriety in order to get people clean and sober rather than enabling drug users.

Measure 110 was poorly executed and never lived up to its promise.

• Measure 110 was ineffective in driving people to treatment; an audit found that only 1% of people receiving citations for drug use sought treatment through the established help hotline in its first year. (This number has averaged out to ~5% throughout the life of the program.)
• Measure 110 didn’t have real consequences for drug use, with many offenders never paying the $100 citation and facing no repercussions.
• The Oregon Health Authority failed to efficiently award millions in allocated grant money in its first year due to understaffing and underestimating the complexity of grant approvals – midway through 2023, it had awarded only $184M of an allocated $265M before completing all awards later in the year.
• A public poll in 2023 found that 65% of Oregon citizens felt Measure 110 made drug addiction worse and 63% felt it made crime worse.

Proponents of Measure 110 and drug decriminalization inflate the benefits they have produced.

• A significant portion of the increases in the number of individuals in substance abuse treatment after Measure 110 took effect came from “harm reduction services” that mostly enable users through supplying fentanyl test strips and needle exchanges rather than encouraging sobriety.
• Many proponents of decriminalization cite Portugal’s 2001 drug decriminalization as a “success story” but it has not gone well recently; the proportion of adults using drugs in 2022 was at 12.8% compared to 7.8% the year it was enacted, and the number of people receiving treatment fell 69% between 2015 and 2021.

OTHER VIEWPOINTS

• Oregon should not have rushed the implementation of Measure 110 (it took effect 3 months after passing); Australia conducted a year-long process of training and preparation before enacting similar decriminalization.
• The timing of House Bill 4002 taking effect in Sep 2024 is likely to outpace an estimated 18 month window before officials fully establish deflection programs, which could lead to higher-than-necessary incarceration in its early days.
• Oregon citizens – once more supportive of providing treatment over incarceration – were likely compelled to turn less supportive of Measure 110 after witnessing increases in visible drug use near their homes.
• Oregon must prioritize youth treatment and prevention in the future – fatal teen overdoses were up 666% between 2019 and 2021 and Oregon is third-highest in the nation for teen addiction.

From the source

• Full text of re-criminalization bill: House Bill 4002
• Summary statistics on Measure 110 enforcement: Oregon Judicial Department
• Definition of "small amount" by drug: Measure 110 Background Brief
• Latest Oregon Secretary of State Audit of Measure 110: M110 Review Highlights (Dec 2023)
• CDC data on fatal drug overdoses: Provisional Drug Overdose Death Counts

Be heard

We want to hear from you! Share your perspective on drug re-criminalization in Oregon and we may feature it in our socials or future newsletters. Reply to this email in the format of your choosing (text, audio, or video). Below are topic ideas to consider.

• Are you in favor of re-criminalizing possession of small amounts of illicit drugs in Oregon?
• What are some arguments or supporting points you appreciate about the viewpoint you disagree with?

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