Oregon Democrats agree to stronger criminal penalties for drug possession

Oregon Democrats would enact stiffer potential criminal penalties for drug possession than they initially planned, under a negotiated bill that could get a hearing as early as Friday.

In a bid to win support for their wide-ranging proposal to address the state’s addiction crisis, top Democrats have now agreed to allow jail sentences of up to 180 days for people caught with small amounts of drugs like fentanyl, meth and heroin. The party had insisted for weeks that 30 days was more practical, but that idea prompted fierce pushback from Republicans, law enforcement and municipal governments.

A new version of Democrats’ House Bill 4002 — expected to be released in coming days — also weakens a provision that would have required police to offer to connect people caught with drugs to treatment rather than bringing them to jail.

That “mandatory deflection” was designed to give drug users a choice to avoid a criminal charge. But under the most recent version of the bill, it’s only optional.

In exchange for the changes, Sen. Kate Lieber, D-Portland, and Rep. Jason Kropf, D-Bend, said Wednesday they expect HB 4002 will find enough support among both parties to pass. And with new buy-in from law enforcement, they hope to defuse a potential ballot measure that proposes a more-severe rollback of the state’s three-year-old drug decriminalization law.

“We’ve continued to listen to people,” said Lieber, a former prosecutor, who has helped lead the legislative effort to address addiction. “We wanted to have a treatment-first plan but we also realized that we needed law enforcement buy-in. Inaction was not an option.”

The Oregonian/OregonLive first reported on the changes. Details of the plan were already being met with disappointment and anger Wednesday from advocacy groups that have urged lawmakers not to end the drug decriminalization policies ushered in by 2020′s Measure 110. Some of those groups said they’d been frozen out of discussions as Lieber, Kropf and House Speaker Dan Rayfield, D-Corvallis, negotiated terms with Republicans and representatives from law enforcement, cities and counties.

“From the beginning, our organizations were excluded from your meetings,” read a letter sent Wednesday to the three lawmakers from Oregonians for Safety and Recovery, a coalition that has urged lawmakers not to recriminalize drug possession. “Even when we were in your rooms and public hearings, our presence, our voices, and our pain for our communities was tokenized, managed, and marginalized.”

Much about House Bill 4002 will remain unchanged, according to Lieber and Kropf. The sprawling bill looks to expand access to medications that can ease opioid withdrawal while bolstering addiction services around the state. It would also make it easier to convict drug dealers, and introduce stepped-up penalties for people dealing near homeless shelters, treatment facilities or parks.

But Kropf and Lieber have offered concessions to law enforcement groups and other critics on the most controversial pieces of their proposal: how severe the crime of drug possession should be, and how best to steer users toward treatment.

As introduced, HB 4002 would have made illicit drug possession a Class C misdemeanor, punishable by 30 days in jail. The idea faced blowback from police, district attorneys, cities and counties, who insisted a Class A misdemeanor, punishable by up to a year, would be more effective. It was excoriated by groups who say reintroducing criminal penalties will be profoundly harmful.

As OPB reported last week, lawmakers eventually gravitated toward creating their own “unclassified” misdemeanor.

Kropf and Lieber said the crime they came up with included newly lenient provisions, despite carrying a longer maximum jail term. They emphasized that people could avoid a criminal record by completing treatment and that, upon conviction, a person could not receive immediate jail time. That’s less stringent than Democrats’ initial proposal, which carried a possible 15-day sentence upon conviction.

Defendants could be put in jail for violating their probation, and face up to six months in jail if that probation is revoked. Even then, Kropf said, they could be released in order to participate in either an inpatient or outpatient treatment program.

“If the judge revokes your probation, sentences you to jail, there’s still another opportunity for you to be released from jail and engage in treatment or continue to engage in treatment,” Kropf said in an interview.

People convicted of possession would have the crime expunged from their record after three years. The possible penalties would not kick in until September, Lieber and Kropf said, offering counties an opportunity to stand up new treatment services.

Democrats also walked back a key piece of their initial proposal to win over critics: the “mandatory deflection” provision that they hoped would result in people accepting treatment rather than being taken to jail. Instead, counties now have the option of setting up a system where they route people to treatment before an arrest.

Kropf and Lieber said Wednesday district attorneys in more than a dozen counties have agreed to pursue such a system. The lawmakers did not specify what those counties are, but people with knowledge of discussions said they include: Baker, Benton, Clackamas, Deschutes, Gilliam, Hood River, Jackson, Josephine, Lane, Marion, Multnomah, Sherman, Wasco and Washington.

“We think we’re going to represent about 80% of the population,” Kropf said. “We are encouraging law enforcement and behavioral health to work together to help solve this problem in their local communities.”

Kropf and Lieber suggested Wednesday the concessions were necessary to secure support from law enforcement that will be needed for any system to work. But they acknowledged the prospect of new criminal penalties has not been welcomed in all corners of the justice system.

Faced with a severe shortage in their ranks, public defenders say they will not be able to represent many of those who are arrested with drugs, creating the likelihood those cases are dismissed or languish.

“Those defendants would likely be placed on an unrepresented persons list, and we estimate that their cases would take between 18 to 36 months from the time of their arrest to be resolved,” Jennifer Nash, a Corvallis lawyer and chair of the Oregon Public Defense Commission, told lawmakers earlier this month.

Lieber said Wednesday that HB 4002 was necessary, despite those difficulties.

“That is something that we are going to have to work through, but I’m not going to legislate for the moment that we’re in,” she said. “We need to legislate for beyond that moment. And we are going to continue to work with the court system and the public defenders and quite frankly, the rest of the system to make sure that they’ve got the investments that they need.”

The most serious pushback has come from the coalition of groups that oppose any return to how drugs were handled before Measure 110. Oregonians for Safety and Recovery said in a statement Wednesday that its members had declined an invitation from Rayfield, Lieber and Kropf “to be briefed on the harmful recriminalization of addiction that the Joint Committee is preparing to roll out” after being kept out of earlier meetings.

“Time and time again the lived experiences of people who would be most harmed by criminalization was ignored, " the statement said. “Time and time again, the evidence that recriminalization of addiction is a failure has been ignored.”

Lawmakers, meanwhile, have argued legal changes are likely coming one way or another, and that they should be in the driver’s seat.

A coalition backed by Oregon billionaires and helmed by a former Department of Corrections head has put forward a ballot measure that would create more serious criminal consequences than Democrats have now agreed to.

Polling suggests that Oregonians have grown disenchanted with the state’s permissive drug policy, and could be inclined to pass it in November.