As addiction crisis worsens, Oregon lawmakers consider ‘hammer’ for dealers

Oregon lawmakers spent the 2023 legislative session nibbling at the edges of the state’s addiction crisis — then many returned home to find streets lined with open drug use, soaring overdoses and polling that makes clear voters are fed up.

Now top Democrats have concluded far more urgent action is needed.

As lawmakers prepare for the month-long session that begins in February, the question of how to limit easy access to fentanyl while better assisting Oregonians caught up in addiction is the most pressing riddle in Salem.

The answers will come in part from a special committee announced last week, and given a mandate to “seek comprehensive solutions to the drug and addiction crisis.”

At least one solution the committee might consider is clear: Making it far easier to convict people for dealing drugs.

“I’m trying to understand what is the thing that we need to give officers to shut down these open-air drug markets,” said Senate Majority Leader Kate Lieber, D-Portland, co-chair of the new Committee on Addiction and Community Safety Response. “What’s happening right now in Portland — in Oregon — is unacceptable, and we have to send the message that it’s no longer acceptable to be a drug dealer here in the state of Oregon.”

Recently, Lieber has been talking up a concept long advocated by Republican lawmakers and Oregon district attorneys.

In 2021, the Oregon Court of Appeals issued a ruling that upended more than three decades of precedent on how the crime of “delivering a controlled substance” was defined under state law. With the move, police and prosecutors suddenly faced a higher bar to convict people of dealing illicit drugs, and say they now have to settle for possession charges that carry more lenient punishments.

The appeals court opinion became the law of the land on Thursday when it was upheld by the Oregon Supreme Court.

Lawmakers can’t alter that legal reasoning, but they can change state law. And after unsuccessfully pushing a bill to counter the decision two years in a row, Oregon prosecutors now feel the wind at their backs — even as defense attorneys and criminal justice reformers protest.

“What we need to do in order to stop trafficking behavior is the system needs to be a hammer,” said Kevin Barton, the Washington County district attorney. “We don’t have a hammer anymore.”

The beginning of ‘Boyd’

In 1986, a Portland woman named Joycelyn Boyd was arrested with 23 small bags of heroin and admitted to police that she intended to sell them. Police hadn’t witnessed her selling the drugs, but the evidence led prosecutors to charge Boyd with delivery of a controlled substance — drug dealing — anyway.

Boyd was convicted, and she appealed. The Oregon Court of Appeals agreed with prosecutors that the mere fact police hadn’t seen Boyd in the act of selling was immaterial, since her intent to do so was clear from the individual baggies.

The 1988 ruling was the birth of what’s since become known in Oregon as a “Boyd delivery.” For 34 years it meant that police and DAs around the state could convict suspected drug dealers of dealing — not just possession or attempted dealing — merely for catching them with an incriminating stash.

Prosecutions based on the Boyd decision were popular. The Oregon Justice Resource Center, which opposes the practice, recently commissioned an analysis that looked at a sampling of drug delivery cases. It suggested Boyd deliveries were involved in roughly half of those cases from 1990 to 2021.

“Certainly it’s easier to prosecute people for delivery when you’re not actually having to prove they have committed the crime of delivery,” said Malori Maloney, an attorney with the OJRC. “But there’s a fundamental unfairness.”

And as the state Supreme Court has now confirmed, it wasn’t legal.

In 2021, appeals court judges revisited the Boyd decision while considering another case, this one involving a man named Brian G. Hubbell who was caught with fentanyl separated into discrete packages. And this time, judges reached a far different conclusion. They tore into the 1988 decision as “not just wrong but plainly wrong,” determining that Boyd deliveries should never have been allowed under the law.

In the wake of the so-called Hubbell decision, police and prosecutors say it has become unreasonably tough to convict people for dealing.

Rather than filing a delivery charge after, for instance, finding someone with drugs in a traffic stop, police now need to put in the effort to catch a dealer making a sale. That level of police work is particularly challenging for law enforcement agencies as they grapple with staffing challenges, they say.

“They have to go the extra step of either allowing the drugs to be delivered… or put a confidential informant or an undercover detective on the receiving end,” said Marcia Harnden, police chief in the city of Albany. “We get slowed down.”

In Multnomah County, District Attorney Mike Schmidt’s office says it has seen a 75% reduction in referrals of drug delivery cases in recent years, though it is careful not to blame Hubbell alone.

“Anyone who attributes it to only one thing is coming in with an agenda,” said Aaron Knott, Schmidt’s policy director. “But when you ask prosecutors what has complicated the prosecution of particularly high quantity levels of drugs …the number one thing they point to is the Hubbell decision.”

Under the new legal landscape, prosecutors are still able to charge people arrested with significant amounts of drugs with possession or attempted delivery. But they argue the penalties — even for felony charges — are often easy to reduce down to probation or a limited prison stay.

“We can come into contact with defendants who are in possession of really troubling amounts of drugs, and the best we can do is possession of a controlled substance,” Knott said. “We all know that those drugs are being dealt.”

A new urgency

Prosecutors have worked to roll back the Hubbell decision for years.

In each of the last two legislative sessions, the Oregon District Attorneys Association has found Republican lawmakers to sponsor a bill that would tweak the criminal code and allow prosecutors to file cases based on Boyd deliveries again. But with the matter still making its way through the courts, they found Democrats unreceptive.

“That was not allowed to get through two sessions in a row,” said state Rep. Lily Morgan, R-Grants Pass, who sponsored one such bill. “The legislative fix should move forward.”

Suddenly influential Democrats appear to agree. Lieber and her co-chair on the new addiction committee, Rep. Jason Kropf, D-Bend, plan to seriously look into the matter.

“I want to see us have that treatment infrastructure so that everybody who’s in crisis can get help,” Kropf said. “We also have to make sure we are addressing the impacts on public safety when it comes to addiction.”

The debate has caught the attention of Gov. Tina Kotek, too. While announcing she would redirect Oregon State Police to combat drug dealing in Portland last week, the governor nodded to reversing the Hubbell decision as a possible next step.

The discussion that emerges next year will be far broader than the Hubbell case.

Lawmakers are taking on addiction as a coalition of well-heeled Portlanders float a ballot measure that would reverse the drug decriminalization experiment launched by 2020′s Measure 110, mandate treatment for users, and even codify Boyd deliveries into law. That measure could hang heavily over the upcoming session, as could polling that suggests voters regret decriminalization.

Related: VIDEO | Oregon Measure 110 explained

Lieber and Kotek have both mentioned proposals to prohibit drug use in public — a change that the City of Portland has clamored for recently. Prosecutors, feeling political momentum for the first time in years, could use the current crisis to press for even steeper penalties for dealers and stronger consequences for people repeatedly caught with small amounts of drugs.

Republicans like Morgan see those discussions as overdue. While GOP lawmakers called for recriminalizing drugs during this year’s session, Democrats dismissed that possibility and were generally leery of making big changes to Measure 110. The party did support a bill streamlining the process for paying drug treatment organizations, and closed a loophole in state law that made it impossible to file a misdemeanor charge for fentanyl possession.

“We were told that nothing changing Ballot Measure 110 would have been considered” during the session, said Morgan, the lone Republican lawmaker traveling to Portugal later this month as part of a group of Oregon officials looking into that country’s experience with drug decriminalization. “They wanted to allow more time for the programs to be implemented.”

But if Democratic lawmakers are newly receptive to cracking down on drug sales, they can expect plenty of pushback.

Defense attorneys warn that reverting to the old ways of prosecuting dealers risks falling back on drug war policies that had disastrous outcomes for communities of color.

“If we’re not careful in how we amend Oregon law, we risk inadvertently scooping up people who suffer from addiction and sell small amounts of drugs and treat them the same as cartels,” said Mae Lee Browning, a lobbyist for the Oregon Criminal Defense Lawyers Association, who called Oregon’s use of “Boyd deliveries” a national anomaly.

Lieber, Kropf and other lawmakers say they’re sensitive to such critiques and want to prioritize getting addicts into treatment.

“I’m super interested in getting accountability in the public health side of the system,” said Lieber.

But she’s also focused on daily chaos increasingly being documented in Portland — whether in a harrowing narrative in the New York Times or a story about a mass overdose in a city park.

“People have a right to be able to walk down the street and not have an open-air drug market in their backyard.”