Did Oregon pull the plug too soon on drug decriminalization?

Oregon Gov. Tina Kotek (D) ended the state’s experiment with decriminalizing the possession of small amounts of hard drugs this week, but the debate over whether the state pulled the plug too soon is just beginning.

Addiction experts in the state say the decision to end Measure 110 about three years after voters passed the first-in-the-nation law is misguided and misinformed.

But those who pushed for the overhaul say the state’s fentanyl crisis made change urgent and describe Oregon House Bill 4002 as a necessary compromise.

The goal of Measure 110 was to keep drug users from being criminalized and instead address root causes of their addiction by diverting them to recovery programs and investing in community treatment programs.

Obstacles to success

But the program was hampered from the start, according to Tera Hurst, executive director of the Health Justice Recovery Alliance in Oregon. 

“I think ultimately, we had multiple crises hitting our state — unprecedented crises, not just crises, right — including but not limited to the pandemic that really crippled our state. And they were not able to respond to the overdose crisis and the houseless crisis at the same level as they should have,” Hurst said.

The $100 million in annual funding that the measure provided was often slow to reach those who could benefit, she said. The pandemic forced some providers to close their doors or cut down capacity, and they struggled to maintain staffing levels that facilitated full usage of the funds.

“The dollars did not flow for 18 months, so we weren’t able to get the investments that were so critical to meeting folks where they’re at and keeping businesses … providers, treatment centers from closing at the level that we really needed,” Hurst said.

And while overdose rates in Oregon did rise after the measure was passed, that was true for the entire country as fentanyl seeped into more of the drug supply.

Despite the hurdles, experts such as Emily Kaltenbach, senior director of state advocacy and criminal legal reform at the Drug Policy Alliance, argue decriminalization was working. 

“We know that decriminalization was working. It was meeting its intended goals, the goals of reducing the harms of criminalization by limiting arrests, criminal records, and barriers to jobs and housing that come with those records,” Kaltenbach said.  

“We also know that funding over $300 million in funding to expand addiction services in its first two years alone resulted in dramatic increases in the number of clients accessing services.”

As the Prison Policy Initiative think tank noted in a blog post earlier this year, the Oregon Health Authority reported a nearly 300 percent increase in people seeking screenings for substance use disorders in the first full of year reporting since Measure 110 went into effect. 

The group further noted there is no evidence linking Measure 110 to increased crime or drug use.

When reached for a response to the criticisms made against Oregon House Bill 4002, Kotek’s office said in a statement: “The Governor has been frank about the flaws in Measure 110 implementation and the steps she has taken as Governor to address them. The executive and judicial branches, along with local jurisdictions, should all take lessons from the past in order to ensure HB 4002 delivers improved outcomes for individuals experiencing addiction.” 

“The Governor’s Office is committed to being a partner with implementing authorities across government branches to ensure the best possible outcomes for Oregonians.” 

New direction

In November 2020, Oregon voters passed Measure 110 with 58 percent of the vote, changing small-time possession of hard drugs from a misdemeanor to a Class E violation, a fine that doesn’t lead to further action or incarceration if the individual fails to pay it.

House Bill 4002 recriminalizes the possession of small amounts of illicit drugs, making it a misdemeanor and allowing those found to be in possession of controlled substances to be charged with a crime. These individuals have the option of avoiding conviction by seeking addiction treatment through what the legislation refers to as “deflection programs.” 

The bill also increases funding for community-based treatment programs and bars insurers from requiring prior authorization for substance use disorder medications. Additional provisions make it easier for people to access substance use disorder medications.

The League of Women Voters of Oregon testified in support of the bill, despite saying it was not its “first choice.” But the group said that failure to act in the Legislature could have meant an even harsher law being passed by voters in November.

“If the Legislature had not taken this action, there was going to be an initiative on the November ballot which would have made public possession of a controlled substance a Class A misdemeanor,” the group said.

“Conviction of a Class A misdemeanor would have carried a fine, a lengthier jail term, and a longer period of time until records could be expunged,” it added. “Given this alternative, the final version of HB4002 offered a compromise that the League could support.”

The Portland Metro Chamber, which also supported the rollback of Measure 110, said the growing use of fentanyl made the status quo untenable.

“To put it clearly, the explosion of the public use and open-air dealing of fentanyl is the single biggest problem facing downtown and the entire city of Portland,” Jon Isaacs, executive vice president of the chamber, said in his testimony.

But addiction experts say decriminalization is being unfairly scapegoated for other issues that were occurring in Oregon.

According to Hurst of the Health Justice Recovery Alliance, as cities in Oregon transitioned out of lockdown, the state was also “experiencing a 23 percent increase in homelessness and in street homelessness.”

“And so, people started equating decriminalization to everything that they saw that they didn’t like in society,” Hurst said.

“So, it became kind of a perfect scapegoat for the time,” she added.  

“The Oregon lawmakers have made drug decriminalization a scapegoat, really, for many failures over many decades. It’s a false promise of change,” said Kaltenbach, of the Drug Policy Alliance. 

Questions about outcomes 

Addiction experts don’t believe the state’s new approach will result in better outcomes for people who use drugs and struggle with addiction. 

Oregon law enforcement agencies are “encouraged” but not required to establish “deflection programs” that direct people suspected of, cited or arrested for unlawful possession of a controlled substance to treatment programs. This option would be practiced in lieu of pursuing a conviction.

Hurst said there could be real benefits to deflection programs but said she’s already witnessed three years of nonimplementation. She noted only 23 out of Oregon’s 36 counties have deflection programs.

“So, there’s no consistency or kind of baseline of what’s acceptable that the state is putting out. So that’s a problem. Just for like any good policymaking, you need to have at least some baseline,” Hurst said.

Kaltenbach characterized the deflection programs as “forced choice” programs, pressuring people to choose between treatment or conviction.

“The likely scenario really will be people will be arrested and then released back on the street without any connection to addiction services,” Kaltenbach said.

Kaltenbach emphasized that getting clean and sober is one aspect of treating addiction, but addressing basic needs should also be a priority.

“If someone is unhoused and living on the streets and their main concern is food or maybe they’re in, you know, precarious, sheltered position or they have kids — can they bring their kids to treatment?” Kaltenbach said.

“You know, maybe the first issues are really about those real basic needs of care first. And then maybe, maybe once they have a solid foundation, treatment is going to be successful.”

While experts are disappointed by what happened in Oregon, Kaltenbach sees it as more of a detour as more governments pursue public health-based approaches to drug use.

“We won’t back down until our communities are healthy,” she said. “And so this is not the end.”