Oregon’s pioneering drug law raises more questions than answers in early months

In February, Oregon rolled out a nation-leading experiment in its approach to drug use.

After decades of punishing users with arrest and potential jail time — an expensive approach that produced inequitable outcomes for people of color — voters last year decided low-level drug possession should no longer be a crime.

It was a dramatic step sold with a promise: By treating addiction as a public health issue, the state could steer users to an improved array of treatment options without the harsh penalties and far-reaching impacts of a criminal record.

But eight months in, a big part of the system is not living up to the sales pitch.

Law enforcement agencies in many parts of the state have had little appetite to use a key component of Measure 110, a violation akin to a traffic ticket that can be dismissed if users call a hotline that can help them access treatment.

And when police do hand out tickets, they’re often simply ignored.

Of 978 cases that had come before circuit court judges as of Oct. 1, more than three-fifths of defendants failed to show up for their scheduled court appearance. Similar stats have emerged in municipal courts that have also handled the new violations, OPB found.

More troubling for Measure 110′s intentions, phones are sitting quiet at the special hotline designed to steer drug users toward professional treatment that might help them beat an addiction. The line has received, on average, fewer than two calls a week from people who’ve received tickets. According to the circuit courts, defendants have leveraged a phone call to have their case dismissed just seven times — less than one tenth of one percent of cases that had made it before judges as of Oct. 1.

“I think it begs the question: Are the citizens getting what they were promised in terms of what this measure would do?” said Reginald Richardson Sr., executive director of the state’s Alcohol and Drug Policy Commission, the state agency tasked with improving Oregon’s approach to substance abuse treatment and prevention.. “I think the answer is a resounding, ‘Not yet.’”

As Richardson suggests, the early figures don’t mean M110 will flop. The use of police to point people toward treatment is just one piece of the law. Supporters say the change voters approved nearly a year ago will improve access to addiction services regardless of a user’s interactions with law enforcement.

Still, as the state works to finalize plans for what the treatment landscape created by Measure 110 should look like going forward, the early stats cast some doubt about whether the tickets created under the measure can play a meaningful part of the solution, or are doomed to fail.

“Potentially the most important metric here — aside from decriminalization and taking stigma away — is, ‘Are we getting people help?’” said Dwight Holton, CEO of Lines For Life, the nonprofit that offers screenings to people who get tickets for drug possession. “The answer so far is no. Not in any great numbers.”

Missed court dates and spotty enforcement

Backed with big money from national groups, and facing comparatively meager opposition, Measure 110 passed with more than 58% of the vote last year and launched Oregon into a bold new era.

While the proposal’s approach is not unique on the world stage, it’s a novel step in a country with a history of strict drug prohibition. For the New York-based Drug Policy Alliance and likeminded supporters of drug decriminalization, Oregon was to be a proving ground that the idea could work in the United States.

The new law eliminated the possibility of arrest or jail simply for possessing small amounts of drugs like heroin, cocaine, and ecstasy. Low-level possession is now an administrative violation, punishable by a maximum $100 fine.

Even that penalty is optional. If defendants want to avoid it, they can call the hotline run by Lines For Life and receive a brief “health screening.” The calls include inquiries about a person’s background and drug use, steer them toward treatment in their area, and offer ongoing case management. Once complete, defendants get a certificate they can bring to court to dismiss their ticket.

Backers of Measure 110 held up this process as a key advantage.

“People will no longer be arrested and put in jail simply for possession of small amounts of drugs,” a group that helped pass the measure touts on its website. “Instead, they will receive a health assessment and be connected to the right treatment and recovery services, including housing assistance, to help them get their lives back on track.”

But that process, it appears, is being largely ignored by law enforcement and defendants alike. Police officers are giving out fewer citations for drug offenses than the arrests they used to make, and defendants aren’t taking advantage of the help for drug use or addiction that backers of M110 had envisioned.

It’s hard to gather definitive stats on how many of Measure 110′s new “class E” drug possession violations have been filed since the law took effect Feb 1. A big challenge: Tickets have been filed in a wide variety of venues, including state-managed circuit courts and municipal courts in cities like Lake Oswego and Medford.

That changed recently, after lawmakers passed a bill requiring possession tickets to be filed in state-run circuit courts. But until that bill was signed by Gov. Kate Brown on July 19, violations found their way into a wide variety of smaller courts around the state.

In Beaverton, defendants in nearly 75% of 49 filed violations did not show up to a court date.

View an expanded chart that shows drug possession violations issued by additional Oregon law enforcement agencies here.

In Clackamas County Justice Court, 85% of defendants failed to appear in 53 filed cases, the court said. Just one person offered proof they had called the state-run hotline.

In Medford, where police have been keen to hand out possession tickets, the municipal court says defendants in more than 60% of nearly 200 violations did not attend their hearing.

The most comprehensive data on Measure 110 violations comes from the Oregon Judicial Department, which keeps monthly tallies of cases filed in each of 27 circuit court districts around the state. Its latest numbers show huge variables in which jurisdictions are using violations.

In Josephine County, Grants Pass police have been more aggressive than any other local police department in issuing tickets. Police Chief Warren Hensman says he’s made continuing drug enforcement a priority, despite misgivings about whether tickets will actually help.

“Instead of taking people to jail, we issue a citation,” Hensman, who oversees a force of 56 officers, said in July. “As far as we’re concerned the only thing that’s changed is the crime category.”

The Grants Pass police department had issued 231 tickets under Measure 110 as of Oct. 1, likely making Josephine County, the state’s 12th most populous county, the epicenter for using the new law.

Deschutes County, with more than twice the population of Josephine County, saw 67 cases during that same eight-month period. And Multnomah County, by far the state’s most populous, saw just 55 cases split between four law enforcement agencies.

The divide speaks to sharp differences in how law enforcement agencies have embraced -- or declined to embrace -- the new law. Besides Grants Pass police, an OPB analysis suggests Oregon State Police and Medford police have also used the new law regularly, logging 248 and 212 citations, respectively as of Oct. 1..

No other law enforcement agency in the state appears close, according to the courts that OPB surveyed. Corvallis Police, the agency that issued the fourth-most citations, had just 80. Portland police had filed 46 citations as of Oct 1., according to the Oregon Judicial Department.

‘We have no hammer’

All told, the numbers show law enforcement agencies are tapping the new tickets created under Measure 110 far less often than they arrested people for low-level drug possession before the law passed. Without criminal charges -- and the stepped-up consequences they believe helps push people to change -- many officers appear to be turning their attention elsewhere.

According to the Oregon Criminal Justice Commission, the state logged more than 8,800 arrests for possession of a controlled substance in fiscal year 2019. That number includes arrests for felony possession, which involves possession of higher amounts of drugs and remains a crime. Even so, the relatively paltry number of drug possession tickets issued this year suggests a steep drop off now that possession is not an arrestable offense.

The reasons are not completely clear, and complicated by policing strategies that have shifted amid COVID-19 and calls for change after the murder of George Floyd.

Several people told OPB that officers are loath to take the time to write tickets and log evidence when there’s no mechanism for the courts to force defendants into treatment. Some suggested officers worry it is not worth issuing a violation if it means coming into contact with hazardous substances like fentanyl. (The purported risk of overdosing on fentanyl, a potent opioid, via skin contact is often overstated, experts have said.)

“We have no hammer,” said Josephine County Sheriff Dave Daniel, whose deputies had not issued a single class E violation as of Oct. 1, according to circuit court records. “What does that do for law enforcement to focus on those violations right now? We can look for car thefts, burglaries, assaults, and those sorts of things.”

Portland police have had little appetite to ticket people for drug possession, though they’ve stepped up their usage in recent months. As of July, the Portland Police Bureau had issued just seven tickets under Measure 110, according to court data. A little more than two months later, the bureau had issued 46.

“I don’t find it surprising when you consider that we are not the police department we used to be, and some services we used to provide are not happening anymore,” Portland Police Sgt. Kevin Allen wrote in July in response to questions from OPB. “We have been saying for many months that we are severely understaffed. The Police Bureau is the smallest it has been in modern times, with fewer sworn members than any time in anyone’s memory.”

At roughly 550 officers, Portland police still far outnumber other law enforcement agencies around the state. But the city is also grappling with surging gun violence and other crimes that take precedence over low-level drug possession. “Taking the time to write out these citations and fill out the appropriate paperwork is simply not a priority when there are so many other demands on their time,” Allen wrote.

The sentiment is shared by others, says Jim Ferraris, a former chief of the Woodburn Police Department who worked to shape Oregon’s new law when he was president of the Oregon Association Chiefs of Police.

“If a law enforcement agency head has a stack of uninvestigated felony crimes, it’s a pretty tough bill to fill to think that law enforcement executive is going to divert resources to issuing $100 tickets that don’t appear to have an impact,” Ferraris said.

Measure 110, he added, “was sold as treatment. It was a facade.”

The offer to help is there, but many don’t take it

In fact, the kind of robust treatment Ferraris and other skeptical law enforcement types are calling for is supposed to be on the way. Measure 110 will steer tens of millions of dollars toward more substance abuse treatment options around the state, most of that money derived from taxes on cannabis.

The state has already spent more than $30 million to help stabilize services. But the process of building up networks that can provide treatment, housing assistance, peer support and an array of other services to drug users throughout the state won’t begin in earnest until next year.

In the meantime, the Oregon Health Authority has contracted with Lines For Life, the Portland agency that runs hotlines to address substance abuse, suicidal thoughts, senior loneliness and more. The organization has created a special number to accept calls related to Measure 110, and has distributed tens of thousands of cards around the state that law enforcement officers are supposed to distribute when they issue a ticket.

“Received a citation for drug possession?” the cards read. “You can avoid paying the $100 fine by completing a free health screening with Lines for Life.”

Police leaders like Hensman and Medford Police Chief Scott Clauson say their officers always provide the hotline number when handing out possession tickets. If that’s true, they’re not having much effect.

According to Holton, the Lines for Life CEO, the hotline had completed 51 screenings as of Oct 13. It had received nearly as many hang ups: 37.

Discussing the hotline’s relative disuse this summer, Holton said the situation posed concerns but that future tweaks — for instance, ensuring that every ticket issued for drug possession has the hotline number printed on it — could lead to major improvement. But by mid-October, his worries had grown.

Grants Pass police, Holton noted, already include a hotline number on their tickets, and have issued more than almost any other agency. But calls trickle in from Grants Pass at about the same rate as other areas.

“If people are being given the right numbers and not calling us,” Holton said, “that suggests a systemic problem.”

‘A really big system shift’

Tera Hurst says the early numbers coming from Measure 110 don’t reflect what the law will ultimately offer Oregonians. She also says they might be a partial sign of success.

As executive director of the Oregon Health Justice Recovery Alliance, Hurst helped advocate for Measure 110′s passage. Her organization has also played a role in hashing out the details of how the law is rolled out, negotiating changes passed by lawmakers and applying pressure to ensure the state is living up to the funding voters approved.

“I think we have to be really careful to keep reminding ourselves that this is a really big system shift,” Hurst said in July. “Early numbers are just that.”

Hurst says the uneven citation numbers and lack of hotline calls point to a need to get police to better understand the law. She believes officers will begin to hand out referrals to the state’s hotline, and will grow more comfortable pointing people toward recovery, once they receive more training and see the new options for substance abuse treatment the law creates.

“The more the services and access to services grow, the more law enforcement is able to experience handing somebody a phone number and that person actually utilizing and accessing services,” she said “That would ultimately start creating this help model cycle.”

But Hurst also says the sharp reduction in drug enforcement — even for a noncriminal citation — is itself a partial victory.

“We’re not talking about the people who didn’t get pulled over and who don’t have barriers now on their record” she said. “You’re not talking about what, unfortunately, turns into a lot of deadly cases when law enforcement and people of color have contact.”

For Hurst and other advocates, a key promise of Measure 110 is the expansion of services to all Oregonians, not just those stopped by police.

“That’s incredibly powerful, and we’re not there yet,” she said.

Hurst has plenty of allies. The Drug Policy Alliance, a national group that bankrolled much of the Measure 110 campaign, argues the most vital impact of Measure 110 was reducing criminal sentences that can produce far-reaching racial disparities.

“I don’t think we’re too much concerned with there not being a lot of citations issued,” spokesman Matt Sutton said. “We wanted to reduce the criminalization element.”

Sutton said that focusing on policies that seek to steer people toward treatment with the threat of a financial penalty are misguided. He believes a compulsory system — even if it’s with a fairly toothless $100 ticket — is not the best approach.

“The people who are upset about this or complaining about it...they want people to be forced into treatment,” he said. “If people aren’t ready for it, they aren’t ready for it. What we want is for the services to be available when they are ready for it.”

Just when those services might be available is not clear.

Under Measure 110, an “oversight and accountability council” has been meeting regularly to figure out how to dole out the hundreds of millions of dollars toward addressing drug use. A key piece of that work is creating so-called Behavioral Health Resource Networks — or BHRNs, pronounced “burns” — that will offer a range of services to users in each of Oregon’s 36 counties.

But the process for getting those networks up and running takes time, and the oversight council has yet to receive proposals for how they might look in each county. The state is supposed to release money for BHRNs by the end of the year, but it’s not clear how soon the promise of robust care to all Oregonians might be achieved.

In the meantime, Oregonians are stuck with a system that has long failed to offer enough access to treatment services, in a state with among the highest rates of drug and alcohol use.

“For 25 years, my entire career, we’ve lingered in the bottom 10 states for access [to care] and always been in the top 10 for need,” said Heather Jefferis, executive director of the Oregon Council for Behavioral Health, which lobbies on behalf of treatment providers. “That’s been our story. That’s where we started.”

Jefferis says the state’s challenges have roots in behavioral health issues like addiction carrying negative stigma in ways routine physical health issues don’t. As a result, she says the state’s system for treating addiction and mental illness has been split from other kinds of health care, and chronically underemphasized and underfunded.

Those challenges have only grown during the COVID-19 pandemic, with treatment providers reporting high rates of burnout among staff.

After surveying its members earlier this year, Jefferis’s organization arrived at a dire conclusion about the state of the industry: “Covid stress, non-competitive wages/benefits and growing competitive wage market outside of our sector have caused our previous workforce crisis to move into a catastrophic exodus.”

For Jefferis and others, the funding promised by Measure 110 is a source of hope that Oregon could be on the verge of progress at long last.

‘Where is the baton being passed?’

Still, some treatment providers question whether Oregon is really ready to replace its existing, failing system with another option, or rushing unwisely into uncharted ground. In fact, the measure’s most forceful opposition last year came not from law-and-order types, but from people who agree with the thrust of Measure 110, but not its specifics.

“I thought this ticket model was just a horrible idea and a huge waste of time and money,” said Tony Vezina, executive director of 4th Dimension Recovery Center and chair of the state’s Alcohol and Drug Policy Commission. “If you talk to people in recovery, not all of them but a lot of people will say, ‘The criminal justice system saved my life.’”

Vezina is a recovering heroin and meth addict who says he agrees there are better, less harmful ways to steer people to treatment than the criminal justice system. But he doesn’t see them emerging under Measure 110 as things stand.

“It doesn’t look like people are calling the number right now; that’s part of the story,” he said. “The bigger story no one’s talking about is: If Oregon voters have decided that the health care system should be dealing with this problem, and we’re taking away the criminal justice system’s participation, where is the baton being passed?”

Richardson, the executive director of the Alcohol and Drug Policy Commission, agrees. He has frequently found himself wrestling with the complicated reality of Measure 110: It’s a hopeful step away from an often damaging criminal justice system, at a time Oregon is perhaps still unprepared to take that step safely.

“I’m in two camps at the same time,” Richardson said. “As an African American man, I don’t want more policing any time, any way. Yet I know I have colleagues who would not be alive without going to jail. There is for some people no rock bottom. For some people, they are going to die unless that intervention is there.”