SALEM, Ore. — A bill to rework Measure 110 received a green light from the Oregon Legislature's special Joint Committee on Addiction and Community Safety Response Tuesday evening, passing the committee on a 10-2 vote that sends House Bill 4002 on to be considered by the full Oregon House and Senate. The 2024 legislative session ends March 10.
The much-anticipated proposal from the special committee quietly emerged at the end of last week after days of mounting murmurs in Salem of a bipartisan deal on a drug policy bill.
The bill originates with Democrats on the committee — Republicans came out with their own bill before the legislative session began early this month. In both cases, lawmakers looked to roll back the drug decriminalization that Measure 110 introduced while bolstering access to addiction treatment services, although their methods for doing so varied widely.
Amendments to HB 4002 ultimately passed by the committee represent some capitulation from Democrats to demands from across the aisle that penalties for simple drug possession not only return, but come with enough of a potential jail sentence to encourage drug treatment as an alternative.
What would the bill change?
Under the amended bill, simple drug possession would become a new type of crime, a "drug enforcement misdemeanor." Someone convicted of this crime would initially get probation for a maximum of 18 months — not jail. But if the person then violated their probation, they could be sanctioned with a jail sentence up to 30 days. For a more serious violation, the court could revoke probation and hand the person a six-month jail sentence.
Even after getting sent to jail on the probation violation or revocation, someone convicted of possession could secure early release to attend either inpatient or outpatient drug treatment. Violating the terms of that release would likely result in a return to jail for the remainder of the original six-month jail sentence.
"We are providing clarity to our drug delivery laws to make sure law enforcement and district attorneys have the tools they need to prosecute people who are essentially profiting off the addiction of others," said Rep. Jason Kropf (D-Bend), who co-chairs the committee. "And yes, we are proposing to make the possession of drugs like fentanyl and heroin and methamphetamine and crime again, but really with a completely new approach — a treatment-first approach, a rehabilitative approach to criminal justice."
Originally, Democrats had proposed something called a "deflection program," so people caught in possession could avoid arrest and conviction entirely. That involves law enforcement working with behavioral health programs to connect drug users with "community-based pathways to treatment, recovery support services, housing, case management or other services" — but the particulars are vague enough that these programs could look completely different by locale.
Under the proposed amendments, deflection programs would be entirely optional for law enforcement agencies and district attorneys; they are simply "encouraged to" participate. Prior to the amendment, deflection programs were mandatory and represented the core of Democrats' proposal for drug recriminalization.
Already, 23 of Oregon's 36 counties have expressed interest in creating a deflection program.
"How do we give our law enforcement officers the tools they need to immediately, sort of, seize and confiscate drugs but make a connection to treatment?" Kropf continued. "We're going to hear about how 23 counties are partnering in their local communities, law enforcement, behavioral health folks to offer off-ramps (from) the criminal justice system to people who are caught in possession of dangerous drugs."
Of course, recriminalization of drug possession is just one part of the lengthy bill and proposed amendments. It would also adjust state law in response to court decisions that have made it more difficult for law enforcement to prove that someone is dealing drugs — the "clarity" that Kropf referenced — and would increase jail sentences for dealers who sell drugs near parks, treatment centers and homeless shelters.
The bill includes a number of other provisions to either provide funding or study gaps in access to treatment, especially for Oregon youth.
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Does the bill have support?
In a joint statement, the League of Oregon Cities, the Oregon Chiefs of Police, the Oregon District Attorneys Association, the Oregon State Sheriffs' Association, the Oregon Coalition of Police and Sheriffs, and the Association of Oregon Counties all endorsed the amendments to HB 4002, saying they align state drug policy with "public sentiment" and the input of their members.
"As law enforcement leaders, we understand that addressing Oregon’s profound addiction and overdose crisis demands a comprehensive strategy, significant resources and real solutions,” said Matt Scales, McMinnville Police Chief and president of the Oregon Chiefs of Police. “We applaud the Legislature for working collaboratively to craft bipartisan legislation that combines vital tools for law enforcement with significant drug treatment resources to compassionately help those struggling with addiction. We believe this important legislation prioritizes the safety of our communities while offering real hope for those suffering with addiction.”
These groups had originally favored a bill more in line with Republicans' pre-session proposal, which would have made drug possession a Class A misdemeanor; one step below a felony crime.
But a statement from Oregon House Republicans was ambivalent about the amendments to HB 4002, offering nothing that could be perceived as a clear bipartisan endorsement.
“House Republicans stand today where we’ve always stood: On the side of Oregonians who want to end Measure 110. As of today, the proposal before the legislature is far from a perfect solution, but that is unsurprising given that the majority party is beholden to radical pro-drug special interest groups," said House Republican Leader Jeff Helfrich (R-Hood River). "We need a solution that works for Oregonians, and much can be done to strengthen this proposal with the time remaining in this session. We hope that our Democrat colleagues will prioritize the demands of the people of Oregon and continue negotiating with us to provide the structural reforms needed to truly solve the Measure 110 crisis."
Meanwhile, groups that broadly support Measure 110 — many of whom felt that the original version of HB 4002 was a step backward — were livid at the amendments. On Monday, representatives from the Urban League of Portland, the Latino Network and the ACLU of Oregon held a news conference to criticize the proposal.
"Already HB 4002 is being touted as a compromise, but at the cost to whom?" said Jennifer Parrish Taylor of the Urban League of Portland. "Democratic leadership and Republican proponents of the measure have succeeded in building a slightly larger and shinier cage for those who will be collateral of the criminal provisions of House Bill 4002, which will cause unconscionable harm and lasting violence to communities of color and other Oregonians experiencing drug addiction."
Sandy Chung, executive director of the ACLU of Oregon, said that lawmakers had primarily listened to police, prosecutors, and the backers of a potential ballot measure that would have completely transfigured Measure 110.
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"Although Oregonians are demanding real solutions to addiction and homelessness, with House Bill 4002 ... lawmakers are making many false promises," Chung continued. "This bill will likely send thousands of people to jail for the low-level victimless crime of possessing a very small amount of a banned substance for personal use."
Mercedes Elizalde, director of advocacy for the Latino Network, said that the return of criminalization will inevitably bring in racial bias, resulting in unequal outcomes.
A group called the Oregon Criminal Justice Commission studied just this issue for lawmakers, and it did predict that the bill would result in more Black and brown individuals being convicted under the part of the bill that concerns alleged drug dealing.
According to the commission, this bill would result in about 2,200 new convictions. Of that number, they found 103 would be for Black or African American Oregonians. To be on par with white Oregonians, that number would need to be 74.
The commission pointed out that while there will be disparities in conviction outcomes, they are expected to be much smaller than they were prior to Measure 110. Back in 2015 and 2016, Black or African American people were overrepresented for convictions on drug possession at a rate that is five times higher than what they predict for HB 4002.
Public hearing for amendments
Public testimony on the amendments to HB 4002 was held Monday night at 5 p.m. Lawmakers heard arguments for and against the bill. Many who support the bill and its amendments said it's about saving lives.
Wanina Swortwood's granddaughter is fighting drug addiction.
"Measure 110 didn't cause her addiction but decriminalizing hard drugs, normalizing their use and acceptance didn't help," Swortwood said during public testimony.
Erin Martink's brother, Taylor, died after taking an oxycodone pill he didn't know was laced with fentanyl.
"We need to recriminalize possession of drugs because people are walking around with lethal items in their pockets similar to guns, but what's different about them is you have no idea that it's lethal until you're dead," Martink said.
Critics worry that not everyone will get a fair chance. Gloria Ochoa-Sandoval is with Unite Oregon, a nonprofit focused on a multicultural movement for justice.
"The reality is that we are trying to fight racial biases in the program and that alone is already allowing for greater opportunity for counties that have engaged in racial biased interaction with community members to initially choose criminalization," Ochoa-Sandoval said.