Brian Pacheco, [email protected]
Portland, OR – On September 1, H.B. 4002, which reinstates criminal penalties for drug possession in Oregon, goes into effect. The law marks Oregon’s return to the broken, racist system of cycling people in and out of jail without connection to accessible addiction services or voluntary treatment. This effectively treats addiction and the overdose crisis as criminal problems, not health issues.
Key takeaways:
In 2020, Oregon voters overwhelmingly approved Measure 110, which decriminalized possession of small amounts of drugs while allocating to-date $500 million from marijuana tax revenue and an additional $39 million from law enforcement savings to expand substance use disorder treatment, recovery services, housing services, and more. This funding resulted in dramatic increases in the number of clients accessing services. Since the beginning of Measure 110 funding, client counts have increased by: 205% for substance use disorder treatment, 256% for peer support services, 167% for harm reduction services, 317% for housing services, and 573% for supported employment services.
However, instead of addressing the urgent, longstanding issues of homelessness, public suffering, and an inadequate health infrastructure (issues that cities and states across the country were also struggling with in the years following the pandemic), Oregon leaders scapegoated Measure 110. The push to overturn Measure 110 was predicated on unsubstantiated claims that the law had negatively impacted the overdose crisis and public safety, despite research that showed it did not increase overdose or crime.
“Make no mistake, H.B. 4002 is taken from the same drug war playbook that has failed us for decades: cycle people in and out of jails, spend more resources on law enforcement that could go towards services people need, and saddle people – especially people of color – with criminal records that act as barriers to housing, employment, benefits, and education for the rest of their lives,” said Lindsay LaSalle, Managing Director of Policy at the Drug Policy Alliance. “The people of Oregon were sold a false bill of goods when corporate interests and drug war defenders, including the former chief of Oregon’s prisons, told them that recriminalizing drugs and forcing treatment would solve the conditions that they were rightfully concerned about such as public suffering, homelessness, and overdose.
“But criminalization and forced treatment do not address why people are struggling — housing is unavailable, treatment is expensive and inaccessible, and many urgently need medical and social services. A return to criminalization means that instead of connections to services or treatment, people struggling with substance use will be forced into an ill-equipped, complicated criminal legal system with a shortage of public defenders. They will likely return to the street in worse shape under the same circumstances and likely get arrested again. The people of Oregon deserve leaders that prioritize public health and safety over political convenience. We must refocus on investing in the services and supports that our communities need to thrive,” added LaSalle.
H.B. 4002 makes possession of small quantities of drugs a misdemeanor punishable by up to 180 days in jail. The new law encourages counties to establish “deflection” programs that offer health services in lieu of arrest and prosecution. However, deflection is optional, at the discretion of law enforcement, and counties are free to determine the parameters of their program if they choose to have one. Only 28 of Oregon’s 36 counties have sought state funding to implement a deflection program. In the counties that have begun preparation, most will not ready by September 1. In the remaining eight counties, there will likely be no deflection option. The most likely outcome is that people will be arrested and processed through the court system for drug possession without meaningful connection to addiction services—in direct contradiction to the model that lawmakers promised Oregonians.
H.B. 4002 is a return to the failed approach of law enforcement and the criminal legal system as the primary response to people struggling with substance use disorder, instead of health professionals and service providers. Research shows that people who are arrested and incarcerated are more than 27 times more likely to die from a drug overdose when they leave jail or prison. Forced treatment increases overdose risk—research has found that people who were involuntarily committed were more than twice as likely to experience a fatal overdose as those who completed voluntary treatment. Arresting people for drug possession also perpetuates racial disparities. Portland, for example, arrests and incarcerates Black people at a per capita rate 4.3 times higher than white people, the fifth worst in the country.
“Understanding how these new criminalization policies will impact Latinx and Black youth is our highest priority,” said Mercedes Elizalde, Director of Advocacy at Latino Network. “Youth who are being trafficked, abused or manipulated into use or distribution could be subject to the harshest penalties while also not qualifying for deflection programs even where they do exist. The underlying structure of the deflection programs appear to require adults and youth to waive their medical privacy rights, both HIPAA and 42 CFR P2, in order to avoid jail.
These challenges are made worse by the ongoing public defender shortage in Oregon, where there are less than one-third of the public defenders needed to provide constitutionally adequate defense to people facing criminal charges. Currently, courts routinely dismiss cases due to lack of defense attorneys. H.B. 4002 will further overburden public defender caseloads and result in people arrested for drug possession having their case dismissed due to lack of a defense attorney. This further increases the likelihood that connections to services or treatment will not be made, and instead people will be cycled in and out of jail and back onto the streets.
“By recriminalizing low level possession, Oregon will exacerbate the unrepresented crisis, increase racial and ethnic disparities within the system, and funnel more money into the criminal system and away from treatment resources,” said Grant Hartley, Multnomah County Director for the Metropolitan Public Defenders. “These new possession cases will overload an already overburdened criminal legal system, crowding our jails, filling our court dockets, and adding to the backlog of individuals stuck in our system without a public defender, which as of August 23, was nearly 3,500 individuals. This will undoubtedly lead to an increase in discriminatory policing and exacerbate the racial and socio-economic disparities that plague our criminal system. Oregon still suffers a tremendous dearth of treatment services, and every dollar that it gives to the criminal system, which has failed for decades to engage individuals in treatment through the prosecution of low-level possession, is a dollar not invested in these necessary services.”
“We must not lose sight of our shared goal to create a system of care that works for everyone,” said Joe Bazeghi of Recovery Works NW. “In just one year of having our new facility up and running, we’ve provided medical detox to over 1,000 people. That wouldn’t have been possible without Measure 110. With the Police-Provider Connection Project, we have a successful deflection model already that needs resources to scale up; let’s build upon what we know works rather than doubling down on failed policies.”
“Lawmakers promised that people using drugs would be immediately connected to care and avoid the criminal justice system. That’s not what is being implemented on the ground,” said Tera Hurst, Executive Director of the Health Justice Recovery Alliance. “We can’t arrest our way out of the overdose crisis. We all agree that addiction is a healthcare issue, and therefore should be treated as one. People having to wait for a court date to get care is only going to result in more tragic and senseless deaths. Our communities deserve serious solutions – not a slush fund for more prosecutors.”
Public suffering is a homelessness issue that requires more housing, humane shelter, and immediate connections to care. Evidence shows Oregon’s elevated overdose deaths were part of a national trend driven by fentanyl permeating the drug supply, not a reduction in arrests and incarceration. Public health approaches, not criminal ones, are needed to effectively address the overdose crisis and public suffering in Oregon and across the U.S.
Resources:
Oregon’s Measure 110: What Really Happened
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About the Drug Policy Alliance (DPA)
The Drug Policy Alliance is the leading organization in the U.S. working to end the drug war, repair its harms, and build a non-punitive, equitable, and regulated drug market. We envision a world that embraces the full humanity of people, regardless of their relationship to drugs. We advocate that the regulation of drugs be grounded in evidence, health, equity, and human rights. In collaboration with other movements and at every policy level, we change laws, advance justice, and save lives. Learn more at drugpolicy.org.