Oregon House and Senate to Vote on HB 4002 to Re-criminalizing Drug Possession

PATRICK T. FALLON

After decriminalizing drug possession in 2020, Oregon is now looking at a way to amend how the state handles drug possession. A bill with intentions of recriminalizing minor drug possession now heads to the House and Senate after passing out of a committee with 10-2 bipartisan support. The reason for this recriminalization is because many citizens in Oregon believe that the decriminalization has been worse for the state. Rep. Andrea Valderrama, D-Portland, and Sen. Floyd Prozanski, D-Eugene were the two to vote no.

“The disproportionate impact on my communities is ultimately too concerning for me to support the bill,” Rep. Andrea Valderrama said.

 An Oregon Criminal Justice Commission analysis estimated that there will be more than 2,200 criminal convictions for drug possession each year after the passing of this current bill. Black Oregonians would likely be statistically higher from the results of the analysis compared to the percentage of their population. 

A study created from the opinion of a Commission on a site with left-leaning ideology suggests that in the 2,220 additional crime convictions, 103 of them would involve Black people. The analysis found that the number should not be more than 74 to be consistent with white Oregonians. 

This is still a significantly lower number than pre-Measure 110 statistics when the number for Black people was incredibly statistically higher in drug possession convictions with numbers about five times higher than the predicted 103. 

The study also sees similar racial disparities for Latinos. Most sentences for drug possession are around 25 months, while Latinos get on average three months longer.  

Rep. Jason Kropf, D-Bend, co-chair of the committee for the bill, addressed Valderrama’s concerns and the concerns of others by pledging a commitment to ensuring there are no racial disparities in the criminal justice system for drug possessions.

Prozanski, also voted no, even though he supported most of the bill because he thinks the bill moved too quickly. He believes there was little proof that treatment services are in place to support the system that HB 4002 wants. He also thinks the state’s court system is strained and not likely to have the ability to absorb additional criminal defendants. 

“[The voters] didn’t want us to use a sledgehammer to put in a finishing nail. They wanted us to fix Measure 110,” Prozanski said.

The recriminalization for drug possession stems from criticisms of Measure 100, which decriminalized drug possession. Criticism grew after the increase in deaths from opioids in the state and from fentanyl use. A part of the concern is from 10 children who overdosed between June and September with the prime suspect being fentanyl. Half of these children passed away.

Addiction and homelessness caused from fentanyl addictions and people seen shooting the drug up at all times of the day also contributes to the criticism.

HB 4002 changes getting caught with more intense drugs from being punishable by a ticket to now being a misdemeanor punishable with up to six months in jail. According to Democrats, the bill has an option for people to decide to go to a treatment center instead of criminal consequences, in which the records will be expunged. 

The bill also specifies that those convicted of drug possession will not get immediate jail time but will be under probation, if probation is violated then they will be jailed for up to six months. Someone could be released from jail to participate in drug treatment. 

The bill encourages counties to create a type of “deflection system.” As of Monday, Feb. 26, a majority of 23 of the 36 counties in Oregon have shown interest in creating these systems. The bill does not specify how the counties create and enact the deflection programs and each county will have their way of handling it. The treatment programs will inevitably end up changing on a county-by-county basis. 

There is a provision to allow the district attorney to argue before a judge for arrestees they do not believe are a candidate for diversion. This would mean the arrestee on a probation agreement does not serve the needs of the person or the welfare of the county.  

The Oregon Criminal Justice Commission analysis speaks on this, estimating that about 3,100 people would participate in diversion treatments with only about half completing the requirements to avoid conviction. Some citizens believe that the state should make it mandatory for those dealing with drugs to go through the diversion or rehabilitation treatments to avoid people not completing the requirements.

The bill was created by Democrats and is a bipartisan effort with compromises consisting of the bill’s consequences being harsher than the original proposal. These concessions allowed for more support from law enforcement, local governments, and Republicans.

Progressive Advocacy Groups are upset and believe that this bill is a return of the war on drugs and that the bill will disproportionately affect people of color however those who have created the bill say they will work to ensure this is not the case.  

The bill addresses more than just recriminalizing drug possession. The bill has intentions to expand access to medications to treat opioid withdrawal, funding for new behavioral health services, and help jails initiate drug treatment programs. Prosecutors will be given more latitude when it comes to seeking criminal convictions for drug dealers.

Lawmakers proposed $211 million in spending to implement the bill. This budget would be used to create new treatment projects, courts that specifically address drug use, county addiction programs, probation officers, and more.

In addition to the $211 million for HB 4002, lawmakers would like $800,000 for the state to spend on creating a plan in order to properly address mental health and addiction in youths. 

Rep. Kropf believes that the bill will help the police confiscate drugs in Oregon without sending people immediately to jail. 

House Republican Leader Jeff Helfrich said: “Throughout this session, House Republicans have stood strong alongside law enforcement and district attorneys to resolve the Measure 110 crisis. Part of that solution absolutely must include recriminalizing drugs. Our members will review the bill text when it becomes available to ensure that this proposal achieves our goals of restoring criminal justice accountability and providing support to Oregonians struggling with addictions.”

Measure 110

Measure 110 was on the ballot for the 2020 election and was passed with 58.46% of the vote, losing primarily in the rural counties. This was a first-in-the-national law to decriminalize drugs.

The measure re-classified drug possession offenses: heroin, cocaine, and methamphetamines were changed from a Class A misdemeanor to a Class E violation, the consequences being a $100 fine or completed health assessment. Health assessments must be completed within 45 days of the violation through an addiction recovery center. The assessment must include substance use disorder screening by a certified alcohol and drug counselor. 

Marijuana tax money is used to fund drug treatment programs throughout the state. When Measure 110 passed, the first marijuana funds were $11.25 million per quarter in 2021, throughout the last two years, it has increased to $222 million for the measures drug treatment funding.

There has been a push from local governments to lessen the amount going into drug treatment funding and increase their funding.  

Those who manufacture or distribute illegal drugs are still subject to criminal penalties.

What Voters Currently Want

As of April 2023, more than 6 in 10 voters in Oregon believe that Measure 110 has made drug addiction, homelessness, and crime worse. With a majority of voters believing that it has overall been bad for Oregon. 

63% of voters support bringing back criminal penalties for drug possession but also using cannabis taxes to fund drug intervention programs. 

Many Oregon voters believe that the cause of homelessness is drug addiction and mental health problems and not the lack of access to affordable housing.

Voters are also more in favor of repealing Measure 110 when informed of the struggle the state has had to create stand-up drug treatment during the time that drug overdoses and criminal activity associated with drugs has gotten worse. 

This study was conducted by DHM Research with 500 voters in Oregon answering an online poll from April 24, 2023 - April 30, 2023. There were quotas used to ensure the statistics of those participating matched the demographic of Oregon. There is a margin of error of ±4.4%, which is 0.4% higher than the usual acceptable margin of error. 

The Potential Effects of Measure 110

The current studies and analysis on Measure 110 that do not necessarily prove anything for either side, but are used as arguments in the debate to recriminalize drugs in Oregon:

Researchers at NYU, the Network for Public Health Law and the Centers for Disease Control concluded that Measure 110 did not lead to increased drug use or drug overdoses. This proves the common idea that Oregon’s drug narrative is unique in the country and the blame is decriminalization.

The study looked at the drug prevention efforts in 13 states that had similar overdose rates as Oregon in the three years before Measure 110 went into effect. The numbers were compared to overdose rates in the first year after decriminalization in Oregon to the numbers in the 13 states. 

The conclusion was that overdoses went up everywhere and they did not go up more in Oregon after Measure 110. Oregon remained consistent in increasing overdose deaths as the rest of the country. 

The study only looked at fatal overdoses since the statistics are more reliable than nonfatal overdose statistics, which the number can be difficult to accurately collect. Fatal overdose statistics are easier to obtain because the state does a decent job at collecting the data and sending it to the CDC who also does data collection and then cleans up the numbers, according to the study’s senior investigator, Corey Davis. 

Davis believes that there is a chance the decriminalization made those in need of help more comfortable to call 911, which leads to an increase in reported non-fatal overdoses, but the numbers are not reliable.

Another study by the Journal of Health Economics has different data, believing that the decriminalization has led to 182 additional deaths, a 23% increase of unintentional drug overdose deaths in Oregon. 

Some argue violent crime went up in Oregon since Measure 110 was passed while the average of the United States went down.

While others believe what a study by NYU concluded: Measure 110 reduced the number of arrests for drug possession but did not lead to an increase in violent crime arrests. This study looked at arrest rates for curfew violations, loitering, vagrancy, trespassing, and disorderly conduct. The study said the arrest for the previous categories increased but there is no evidence to correlate the increase with Measure 110.

There is a correlation with individuals who have encountered the corrections system or the hospital system to have increased chances of a fatal overdose.

The bill will be in the House in the next few weeks and if passed, moved to the Senate.