Oregon’s drug decriminalization experiment appears dead

Oregon’s pioneering drug decriminalization experiment is dead. At least if state lawmakers get their way.

The Oregon Senate on Friday passed House Bill 4002 on a 21-8 vote, with support from both Democrats and Republicans. It now heads to the desk of Gov. Tina Kotek, who has declined to say whether she supports the bill, but has signaled she is open to reintroducing penalties for drug possession.

HB 4002 would upend a voter-approved decriminalization policy that has been in place for three years. Under the bill anyone caught with small amounts of illicit drugs like meth or fentanyl could face up to six months in jail. The bill offers people options to pursue drug treatment rather than receiving criminal penalties, and allows people convicted of possession to have their record automatically expunged.

Despite those “off ramps,” the bill has been harshly criticized by advocates for drug decriminalization, who accuse lawmakers of retreating to a war on drugs that had particularly negative outcomes for people of color.

Among its many provisions, HB 4002 also expands access to medications used to treat opioid withdrawal, creates new addiction services facilities, and makes it easier for prosecutors to seek steep penalties for drug dealers.

“With this bill, we are doubling down on our commitment to make sure Oregonians have access to the treatment and care that they need,” said Senate Majority Leader Kate Lieber, D-Portland, who co-wrote the bill. Lieber argued HB 4002 will “be the start of real and transformative change for our justice system.”

Friday’s outcome came as no surprise. In the days since Democrats announced an amended version of the bill that met many demands from Republicans and law enforcement officials, there has been little doubt HB 4002 would cruise to passage.

That was reflected Thursday, when the state House approved the bill with a 51-7 vote. It was even more clear when senators voted to approve a $211 million funding package based on HB 4002 prior to taking up the bill itself. That package passed 27-3 in the 30-member Senate.

Still, the recriminalization proposal inspired debate — and emotional retelling of lawmakers’ first person experience with addiction in their lives.

Many lawmakers agreed that Oregon needed to take a step to address a growing addiction crisis, and that HB 4002 struck a balance for doing that.

“It didn’t appear at the beginning of this process that there was going to be a willingness to do what was necessary to begin to turn the tide,” said Senate Minority Leader Tim Knopp, R-Bend. “I’m glad to stand on the Senate floor today and report: Oregonians, you won.”

Knopp like many other Republican lawmakers has tied surging overdose deaths in Oregon directly to Measure 110.

“Measure 110 was not what Oregonians thought it was,” he said. “They were told that their family, their friends, were going to get treatment for addiction. And what it turned into was a free-for-all of public drug use, increased fentanyl, opioid overdose deaths increasing exponentially, and Oregon becoming seen as a national dumpster fire.”

That’s a perspective that has been disputed by some research that suggests that increased prevalence of fentanyl, not decriminalization, is largely to blame for many of the state’s woes.

Some supporters of HB 4002 were more measured in their support. Sen. Jeff Golden, D-Ashland, said he’s been urged by constituents not to support a return to the war on drugs. “So my support for this measure today is rooted in trust that it’s not a return to the war on drugs,” said Golden, adding that he’d advocate for changes if the law is found to have harmful effects. “I’ve given that vow to those in my district who are desperately afraid of what’s about to happen.”

Other Democrats said HB 4002 went too far.

Sen. Lew Frederick, a Portland Democrat and one of four Black senators, said he could not vote on a bill that he believes will be harmful for people of color.

“There are too many flaws for me to say yes,” said Frederick, after recounting the history of a drug war he said had been designed to target Black people. “I simply cannot have faith that there will be an equal compassionate treatment given the history of these official anti-drug efforts.”

Sens. Michael Dembrow, D-Portland, and Floyd Prozanski, both argued that Oregon was rushing out a law that is not ready — a mistake they said mirrored Oregon’s flawed implementation of Measure 110.

“The fundamental flaw with Ballot Measure 110 was that it decriminalized first and only slowly funded, designed and implemented the needed treatment programs,” said Dembrow, who said he worried about the impact of hundreds of additional criminal cases on an already strained courts system. “In its current form, there are just too many question marks around its potential to be effective, and particularly to be implemented in a fair and nondiscriminatory manner, around the state.”

Prozanski said he would have supported the bill if it came with a “sunset” provision that automatically ended criminal penalties for drug use after a certain amount of time.

“It’s very unfortunate, from my perspective, that we didn’t stay the course and address the open use of controlled substances on a short-term basis,” he said.

The final decision about the future of Oregon drug policy may fall to Kotek. The Democratic governor often refuses to indicate whether or not she’ll sign a given bill ahead of time, saying she needs to read the fine print before making a choice.

Kotek, however, has signaled she could support HB 4002. She said in January that she is open to signing a bill that would roll back decriminalization.

“I want to see a proposal that answers a set of questions,” Kotek said at the time. “One piece will be criminalization, but if we just look at criminalization in isolation, I think it’s missing the point. So my question is going to be … what else are you going to do different to make sure we have better outcomes?”

Kotek has more factors to weigh than just her own analysis of the bill. A coalition headed by a former head of the state corrections department has proposed a ballot measure that would more drastically roll back drug law.

That group signaled Thursday that it would stand down if Kotek signs HB 4002.

Under state law, when the Legislature is in session Kotek has five business days to decide whether to veto a bill, sign it, or let it pass into law without a signature. If the Legislature adjourns before that five days has elapsed, the governor must make her decision within 30 business days following adjournment.