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Committee passes controversial bill that would unwind Measure 110

Oregon lawmakers on the joint addiction committee on Tuesday evening voted for a proposal to backtrack on Measure 110 and reshape the state’s approach to the drug addiction and overdose crisis after months of planning and an intensive three weeks of debate and reworking the proposal.

The committee’s bipartisan 10-2 vote to send the bill to the House came after wrenching testimony in a series of hours-long meetings by family members who lost loved ones to fentanyl as well as opposition from civil rights advocates and public defense attorneys. To become law, the bill needs to pass the House and Senate and be signed by Gov. Tina Kotek.

Democrats, who control the Legislature, say they have enough support for it to pass.

House Bill 4002 would put in place a new misdemeanor charge for drug possession, a move intended to motivate people to enter treatment with an estimated $211 million in funding for courts, community mental health providers, treatment programs, new “shovel-ready treatment facilities” and other clinics and services. The bill’s intention is to help people avoid criminal charges and keep them out of jail unless they violate their probation.

Lawmakers are determined to pass legislation addressing Oregon’s addiction crisis this session, which ends on or before Sunday, March 10. 

“I’m going to leave here with the belief that we can tackle the addiction crisis in this state.”

–State Rep. Jason Kropf

The proposal has support and opposition.

Cities, police and district attorneys are on board with the latest version of the Democrat-backed proposal, which would make drug possession a misdemeanor, with the goals of funding and starting addiction programs that defendants could participate in to avoid jail time. 

But the ACLU of Oregon and other civil rights groups warn that the bill would set back the state’s progress and unfairly impact Oregonians in communities of color who are more likely to be stopped and frisked by police and end up in jail. 

Democratic lawmakers said the proposal aims to address addiction as a public health crisis, while also giving police the ability to arrest people and offer them a “deflection” or diversion program to keep communities safe.

“We know that we have to take action,” Senate Majority Leader Kate Lieber, D-Beaverton and a co-chair of the Joint Committee on Addiction and Community Safety Response said during a meeting on Monday that lasted more than four hours. “We have a goal to get people into treatment and recovery and not jail. And we agree that the current system, the way it is set up, is not working and we need to give providers and law enforcement the tools they need to keep people safe and save lives.”

The bill would unwind a key provision of the voter-passed Measure 110, which decriminalized possession of small amounts of hard drugs and enact a system of $100 citations that a person could avoid if they obtained a health assessment. The bill would keep intact the measure’s provision that puts a share of cannabis revenue toward addiction services and programs.

Police have said the citation system that’s been in place has been faulty and lacked teeth to motivate drug users toward treatment. 

The bill would create an unclassified misdemeanor that would carry potential jail time of up to 30 days for probation violations or up to 180 days when a defendant’s probation is revoked. But they could get an early release from jail if they entered inpatient or outpatient treatment.

Suspects caught with illegal drugs for their own use would be offered a chance to enter a deflection program to avoid jail and a record. 

The proposal would give counties the option to build their own deflection programs instead of making them mandatory statewide.

Rep. Jason Kropf, D-Bend and the committee’s co-chair, said the bill would change Oregon’s system – not simply move the state back to the one that existed before voters passed Measure 110 in 2020, decriminalizing drugs. Kropf, a former Deschutes County prosecutor, teared up when he recounted the testimony of Oregonians.

“People have lost family members,” he said, pausing with emotion. 

Kropf said he’s committed to working hard to address disparities in the system.  

“I’m going to leave here with the belief that we can tackle the addiction crisis in this state,” Kropf said.

Sen. Floyd Prozanski, D-Eugene, and Rep. Andrea Valderrama, D-Portland, opposed the bill. Prozanski said he’s concerned because the state already lacks public defenders for people who cannot afford an attorney, with people sitting in jail without representation.

“I cannot see how we’re moving forward when we don’t have the infrastructure in place,” Prozanski said.

Republicans unsuccessfully tried to introduce amendments that would have changed the bill with longer jail sentences and different paths for treatment. Also on Tuesday, the House Republicans tried and failed to get their alternative proposal on stepping up punishment, House Bill 4036, on the floor for a vote.

In the end, Republicans who fought for tougher misdemeanor penalties recognized that a compromise is better than nothing. 

“I think everyone would like to see something a little bit different, but I think overall we’re moving in the right direction,” Senate Minority Leader Tim Knopp, R-Bend, said before the vote.

The wide-ranging proposal has a current estimated cost of $211 million, which includes funding for new programs, residential treatment facilities, clinics, special court programs and medication in jails. 

Here’s a look at what all sides have been saying.

Opposition from ACLU and others

The ACLU of Oregon, Latino Network and Urban League of Portland pushed hard against the proposal on Monday, demanding that lawmakers not cave to the wishes of law enforcement and cities.

Sandy Chung, executive director of the ACLU of Oregon, called it “step backwards.”

“The ACLU of Oregon urges you to vote for an Oregon filled with healing and thriving communities, not more jails and prisons,” Chung said.

In a press conference, Chung outlined a variety of concerns, such as the maximum jail time of 180 days if probation is revoked, as well as missed court appearances also stretching jail time out with failure to appear charges that can carry up to nearly a year in jail. 

The group, and others, said the bill could leave too much discretion in the hands of police and prosecutors about whether to use deflection programs.

“Lawmakers are making many false promises,” Chung said. “This bill will likely send thousands of people to jail.”

An analysis of the bill by the Oregon Criminal Justice Commission, a state agency that studies and tracks criminal justice policies,  estimates that under the bill, the state of Oregon would have nearly 2,300 misdemeanor drug convictions annually when accounting for people who wouldn’t have the option of entering a deflection program, would fail the program or wouldn’t be eligible. Of those, the state estimates about 83% would be white. 

Nevertheless, the study predicted a racial disparity,  with a disproportionate number of Black people convicted than whites. 

That study also estimates 226 jail beds would be filled with people whose probation would be revoked if the measure were fully in effect, the report found.

Jails aren’t the only part of the system that would have to make changes.

Public defenders, who represent people in court who cannot afford an attorney, warned that they are already stretched too far and would need more personnel and resources to keep up.

The Oregon Public Defense Commission, which runs the state’s public defender system, has told lawmakers that the state lacks representation for about 3,000 defendants. This means additional defendants could also lack a public defender, the commission said in a letter.

Lawmakers also got pushback from Carl Macpherson, executive director of the Metropolitan Public Defender, which provides public defense services in the Portland area. 

He warned lawmakers that there’s already a lack of treatment programs and urged them to focus more on treatment, housing and education.

“There’s nowhere to deflect people to,” he said.

Chris O’Conner, another public defense lawyer, was even more blunt. He warned the bill would be a failure and that decades from now an academic will be researching why Oregon’s system failed. Peering into his computer, he told the future researcher:  “You found it. This was the reason. We tried to warn them.”

Counties, law enforcement support proposal

Twenty-three out of Oregon’s 36 counties have signaled a desire to participate in the new programs and work with law enforcement and behavioral health providers to set up new programs. They represent more than 80% of the state’s population.

Counties that have signed on, stretching from urban Portland to rural counties, could seek state grants for the programs, which lawmakers have promised to fund. The estimated available funding is $30.5 million, which would go to counties and community mental health programs, which contract with counties.

State organizations representing district attorneys, police chiefs and sheriffs said they support the latest version of the proposal, along with the League of Oregon Cities. 

“What we have seen over the last few years as fentanyl has hit the West Coast is unacceptable, and we need to take action to help those struggling with addiction,” Multnomah County District Attorney Michael Schmidt told lawmakers. “In Portland, we see open use of hard drugs on our streets – in front of our businesses, our parks, and our schools. We absolutely cannot continue to tolerate this.”

The proposal would provide the community support that Measure 110 did not, said Daniel Primus, Umatilla County district attorney and the president of the Oregon District Attorneys Association.

“The amendment makes it clear that Oregon is not open for business to drug dealers,” Primus said.

Sheriffs and police organizations also support the measure. Hood River Sheriff Matt English, speaking for the Oregon State Sheriffs’ Association, called the bill a “true partnership” that would provide accountability and offer pathways to treatment and, for those who ended up in jail, addiction medication. The proposal would put $10 million toward medication and treatment in jails.

Another police official urged lawmakers to weigh the widespread impact of the overdose crisis.

“Oregon’s drug addiction and fentanyl overdose crisis is destroying lives, devastating families and eroding the safety and livability of our communities,” said Matt Scales, McMinnville’s police chief and president of the Oregon Association of Chiefs of Police. “There isn’t a community anywhere in the state that isn’t significantly impacted by the crisis.”

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