Oregon Law Recriminalizing Simple Drug Possession Takes Effect On Sunday

A state analysis suggests that 226 people annually could end up in jail for low-level possession, with a disproportionate impact on people of color.

By Ben Botkin, Oregon Capital Chronicle

Oregon is about to embark on a new experiment as it seeks to stem the tide of fentanyl overdoses across the state.

Starting Sunday, 14 counties in Oregon will start deflection programs that are intended to help people enter recovery and avoid criminal charges and jail. The timing of the programs coincides with the start of a new misdemeanor penalty for low-level drug possession.

Both are the product of House Bill 4002, which state lawmakers passed this year after fentanyl overdoses killed about 1,400 Oregonians in 2023, up from 280 in 2019. The bill recriminalizes possession of small amounts of drugs, while prioritizing recovery instead of jail time.

The bill allows—but does not require—counties to set up programs to help people avoid criminal charges and get help, whether through treatment or other recovery services. The programs require law enforcement, community mental health providers and prosecutors to work together for the best response. Under the law, people who don’t have access to the programs or decline them will be offered treatment and the expungement of their charges if the case goes to court.

So far, officials in 28 of Oregon’s 36 counties intend to start new programs. Of those, 14 will start by September 1, while the others will launch later this year or early next year, grant applications filed with the Oregon Criminal Justice Commission show.

The new law unwinds part of Measure 110, which voters passed in 2020. That measure decriminalized low-level drug possession and put a system of $100 citations in place to encourage people to seek help. But law enforcement said the citation system lacked teeth and failed to motivate people to enter treatment.

The new law didn’t entirely undo Measure 110. It preserves the provision to put a share of cannabis revenue toward addiction programs and services, including peer mentors, harm reduction and housing services.

In the upcoming months, lawmakers, prosecutors and treatment providers will closely watch the impact of the approach each county takes.

“We know this is going to be a period of innovation and experimentation,” Rep. Jason Kropf (D-Bend), a chief sponsor of the bill, said in an interview.

Different counties, different approaches

Each county is charting its own path.

In Multnomah County, Oregon’s largest, officials plan to launch a mobile response with outreach workers as its deflection center opening is delayed, the Oregonian reported. Portland police officers have the discretion to cite and book people for low-level possession.

In Deschutes County, police will be able to take people to an existing 24/7 drop-in crisis stabilization center rather than jail.

In Washington County, police in Hillsboro and Beaverton will summon outreach workers to encourage people with drugs to enter a treatment program. Elsewhere in the county, police will give them a citation and court date with information about how to avoid charges.

In Clatsop County, officials will offer people tailored treatment that can include counseling, medication and group activities depending on their needs. Along the journey, people will have the opportunity to get gift cards to continue to participate.

In Marion County, officials are building upon its existing Law Enforcement Assisted Diversion program, or LEAD, which already diverts people away from jail for low-level crimes, like vandalism, so they can get treatment.

Regardless of the approach, the goal remains the same: help people move away from drugs while avoiding criminal charges and jail.

But there are caveats: Counties that have deflection programs are not required to offer it to every person who is arrested or cited for misdemeanor drug possession. Counties also have the discretion to limit the services and decide how often to offer second chances to past participants who relapse.

This also means that more people are likely to enter jails, compared to the past, even as others enter new deflection programs. A state analysis suggests that 226 people annually could end up in jail for low-level possession, with a disproportionate impact on people of color.

It’s better for the new programs to be selective rather than accept everyone and lack the means to care for them, said Dr. Dan Hoover, an assistant professor of medicine at Oregon Health & Science University’s School of Medicine. Through an OHSU contract with the Oregon Criminal Justice Commission, Hoover is providing technical assistance on a project to help local deflection programs be successful.

“You are going to have some counties that have a narrower criteria to enter the program than others, and that may be really wise, just thinking about what the capacity is to take people in and give them something useful,” Hoover said in an interview. “We don’t want to take so many people into a deflection program that we can’t offer them something useful when it comes to those services or substance use disorder care.”

Gauging success

From county to county, there will be differences in how people can enter deflection programs—and what the requirements are to successfully finish.

In Washington County, a person will get a court date set for one week after the officer cites them. During that one-week period, they can still sign up for treatment and avoid the court system entirely.

Washington County District Attorney Kevin Barton said officials wanted to have a tighter timeline than the typical 30-day period people have to show up for their first court appearance. The seven-day period can speed up the process and get the person into treatment sooner, Barton said.

If the person does not enter the treatment program before the court date, the county plans to set up a table in the courthouse and encourage people to sign up for treatment before their first hearing.

A successful participant will need to engage in treatment for six months and appear committed to continuing treatment, Barton said.

“It’s sort of like that moment when you’re teaching a kid how to ride a bike, and you’re going to let go,” Barton said. “You only let go if you think there’s a pretty good chance they’re going to keep pedaling. You don’t let go if you know they’re going to fall. So if we know someone’s going to fall at the end of six months, then we’re going to consider that not successful.”

Washington County’s program also takes into account that recovery is a lifelong process. As a result, success is not based upon whether a person demonstrates their sobriety and passes drug tests.

“Relapse can be part of recovery,” Barton said. “So if we had a clean and sober requirement in six months, that’s really not an attainable standard. In reality, that’s not going to happen.”

That approach developed after input from recovery providers.

“The goal of deflection is to get people engaged meaningfully in treatment,” Barton said. “It’s not to solve all of life’s problems.”

Clatsop County program

In Clatsop County, officials will offer several potential pathways toward recovery. During regular business hours a worker in the program will go meet the person who was stopped by police. A police officer could also take that person to one of two clinics. And if an officer cites the person, they will have 72 hours to contact the program.

During that period, outreach workers will try and get in touch.

“We’re going to be looking to do outreach to them and say, ‘Hey, we’re just here to help you get engaged and get you enrolled in the program,’” said Rick Martinez, program manager for the recovery services team at Clatsop Behavioral Healthcare, the county’s community mental health provider.

At this point, he said, it’s unclear how many people they will serve when the program launches.

“Are we going to have five clients the first month, or are we going to have 50?” Martinez said. “We just don’t know yet.”

Amy Baker, executive director of Clatsop Behavioral Healthcare, said officials will consider that people who engage in treatment for 90 days have succeeded, though officials will take into account a person’s circumstances and their progress.

Like Washington County, officials will not expect complete abstinence but their goal is to help people make headway, Baker said.

“The goal of this program really is to help people and get them treatment, not to punish them for having a substance use disorder,” Baker said.

Incentives planned for participants

Clatsop County will use simple rewards to lure participants into treatment, like gift cards and T-shirts.

“We’re going to allow them to choose what prizes are available to pick, and then they’ll have opportunities to win those prizes,” Martinez said. “So everyone coming through is going to be receiving some type of recognition and some type of award for being here with us.”

Clatsop Behavioral Healthcare has tried incentives before and found they motivate people to show up for group activities.

“We saw their attendance increase, their timeliness increase,” Martinez said. “We had clients showing up before the facilitator. They were 30 minutes early for a group, and that doesn’t happen in regular programming. They were more engaged. They were doing homework.”

Baker said the investment is better than the alternative.

“From my perspective, it’s money well spent,” Baker said. “I would rather do that than the cost of them going through an expensive criminal justice system.”

Needs outpace resources

Lawmakers allocated nearly $20 million to counties for the programs as part of a $211 million package of related services, such as recovery houses, residential treatment facilities and medication treatment for jails.

That $20 million is not enough, county officials said with so much demand.

Washington County, which has a population of more than 600,000 people, will receive $1.34 million for its new deflection program. But Barton, the county’s district attorney, has said officials would need millions more to build and run the most effective programs, which means they’ve had to curtail costs. That’s why outreach workers will only go to police calls in Hillsboro and Beaverton.

“The Legislature, I think, was building a complex, complicated machine,” Barton said. “And it makes sense that out the gate, there’s going to be some things that they missed in the short session, because it was a really, finite amount of time.”

Opponents of recriminalization agree the state needs to do more.

Jason Renaud, the board secretary of the Mental Health Association of Portland, said the bill criminalizes mental illness and addiction without meeting the pent-up demand for services.

“What we need is medical detoxification, inpatient addiction treatment without barriers, without six-week waiting lists or six month waiting lists,” he said. “We need housing for people in their early recovery from addiction. Those are the things that we need, but those are the things that have been on the table for years.”

Kropf, the Bend Democrat behind the new law, said discussions about how to fund behavioral health and addiction treatment will continue in the next session.

Long-term future

Lawmakers and local officials anticipate that the Legislature will tweak the law after they get feedback about how the programs roll out.

Kropf said lawmakers will get data about the programs and people who go through deflection programs, go through the court system and on those who complete and fail treatment.

“We’ll be able to look at those populations of people and see how successful these different approaches have been—hopefully in moving people from a period of instability in their life to more stability,” he said.

In each participating county, there likely will be lessons learned that will guide the work forward, Kropf said.

This story was first published by Oregon Capital Chronicle.

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