Oregon lawmakers floating a plan to make low-level drug possession a crime once again

By DIRK VANDERHART/Oregon Public Broadcasting

Oregon lawmakers are considering introducing a bill to make possession of small amounts of drugs a low-level crime in the state, a move that would weaken a major piece of 2020′s ballot measure 110.

As the Legislature prepares to convene Feb. 5, two Democrats with a central role in the state’s response to the addiction crisis — Sen. Kate Lieber of Portland, and Rep. Jason Kropf of Bend — have been meeting with stakeholder groups to preview what their approach could look like.

One possibility stands out: Reinstituting criminal penalties for possession of a controlled substance by making the offense a class C misdemeanor, the state’s least serious crime classification.

It’s a step some Democrats hope will create more leverage to convince drug users to seek help. Under Measure 110, police around the state can issue tickets to people caught in possession of small amounts of drugs like fentanyl and methamphetamine. But there are no legal consequences if those tickets are ignored, and a state hotline created to steer users toward treatment is used so infrequently that auditors recently found the service was costing the state around $7,000 per call.

A concept Lieber and Kropf are working up would offer multiple off-ramps for people caught with drugs to avoid criminal penalties, according to a legislative staffer with knowledge of the proposal. The staffer requested confidentiality, granted by OPB, because the proposal hasn’t been made public.

Upon being discovered with drugs, they could opt to be brought to a service provider instead of jail, an arrangement that would look something like Seattle’s law enforcement assisted diversion, or LEAD, program. Even if charges were filed, there would be opportunities for a person to seek help via options like treatment court in order to avoid a conviction, the staffer said, and lawmakers are hoping to create a way for anyone actually convicted of possession to get the crime expunged.

Encourage treatment?

By creating possible criminal penalties, while offering ample leeway for offenders who seek help, those advocating for recriminalization say Oregon can create more incentive for people to enter treatment. Police have also argued criminal penalties will give them the opportunity to confiscate small amounts of drugs when they find them, an option they don’t currently have. A class C misdemeanor is punishable by up to 30 days in jail and a fine of as much as $1,250.

The idea of using criminal consequences to steer people to treatment is panned by decriminalization advocates, but has support beyond criminal justice circles.

The proposal being considered by Democrats is an attempt to find a middle ground between both sides of the debate over drug decriminalization, and so is likely to be panned by both sides.

Treatment providers and criminal justice reform advocates strongly oppose rolling back Measure 110. After The Oregonian/OregonLive first reported news of the proposal Wednesday, a coalition of advocacy organizations released a statement signaling they would pressure lawmakers to abandon the idea.

“Any action by the Oregon legislature that criminalizes addiction would be cruel, harmful, and a failure of leadership,” said the statement, released on behalf of the American Civil Liberties Union of Oregon, Health Justice Recovery Alliance, Drug Policy Alliance, Partnership for Safety and Justice and other groups that support Measure 110. “We cannot regress back to the failed war on drug tactics that harm Black, brown, and poor people and make drug addiction, overdose deaths, and homelessness more difficult and expensive to solve.”

Law enforcement agencies are expected to oppose the misdemeanor proposal on the grounds that it is too lenient. In a November legislative hearing, advocates for police departments, sheriff’s offices and prosecutors argued that possession of a controlled substance should be made a more-serious class A misdemeanor in order to give them enough of a hammer to spur offenders to seek treatment.

“We don’t believe a return to incarceration is the answer,” Hermiston Police Chief Jason Edmiston said at the hearing, “but restoring a [class] A misdemeanor for possession with diversion opportunities is critically important.”

Voters approved Measure 110 with more than 58% of the vote in 2020, signaling a belief that Oregon should treat addiction as a public health problem, not a crime.

But polling suggests voters are not happy with the decision three years later, as a flood of cheap fentanyl has increased overdose deaths, public drug use has gone unchecked on city streets, and hundreds of millions of dollars meant to step up addiction services has been slow to turn the tide.

In response, a coalition of deep-pocketed Oregonians have begun a ballot measure campaign that could ask voters to recriminalize drug possession in November.

And legislative leaders have made grappling with the addiction crisis a focus of this year’s 35-day legislative session. A special committee — made up of lawmakers in both chambers and chaired by Kropf and Lieber — will lead that discussion.

What a package of proposals from that committee will ultimately contain is still unclear, though Lieber and Kropf told public safety lobbyists this week it will include measures to ban public drug use and make it easier to convict people of dealing drugs. Lawmakers also might take up stepped-up penalties for people who deal drugs near parks or treatment centers, according to a person briefed by Kropf and Lieber.