Oregon’s new drug penalties would mean surge in convictions, jail stints, state estimates suggest

The number of people who receive criminal convictions under a new drug possession law passed by Oregon lawmakers last week wouldn’t be all that different from the years before voters decriminalized drugs, according to the state’s own estimates.

State legislators voted overwhelmingly to roll back the drug decriminalization effort created when voters approved Ballot Measure 110 in 2020. While lawmakers have emphasized that House Bill 4002 prioritizes treatment over criminal consequences, the law is estimated to result in 1,333 new convictions every year among people whose only criminal charge is possessing a small amount of an illicit drug such as fentanyl, heroin, methamphetamine or cocaine, according to the Oregon Criminal Justice Commission.

That’s a 16% drop from the average number of yearly convictions in 2018 and 2019, the two years in which Oregon had drug possession misdemeanor charges before voters passed Ballot Measure 110.

While only an estimate based on past practice, the Criminal Justice Commission analysis offers the best picture policymakers have about how the decision to step back from Measure 110 and create a new misdemeanor charge could affect the state’s criminal justice system. The numbers suggest that the system envisioned under HB 4002 — in which drug users can avoid criminal consequences by participating in treatment — will only go so far.

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For instance, the Criminal Justice Commission estimates that 533 people per year could receive jail sentences after having their probation for a drug charge revoked. While the commission notes some of those could also be served in a treatment facility, Oregon has not been able to provide treatment to everyone who wants it.

The commission, a nonpartisan state agency under the governor’s supervision, produced the estimates to help lawmakers understand the potential budget implications of the new law. OPB interviewed analysts at the agency and requested additional public records to delve further into those numbers.

Democratic lawmakers who crafted the legislation have said they’re trying to strike a careful balance.

“I don’t want to criminalize addiction,” Senate Majority Leader Kate Lieber, a Democrat who represents Portland, told OPB before the legislative session. “It’s not good for anybody.”

Rep. Jason Kropf, a Democrat from Bend who like Lieber is a former prosecutor, said the idea was to give law enforcement a tool, but that even police told him “we don’t want to take people to jail.”

A tricky balance

But state estimates, combined with previous studies of Oregon’s fentanyl crisis and the effects of Ballot Measure 110, suggest that lawmakers’ actions are likely to reintroduce jail time for addiction and exacerbate some racial disparities in the criminal justice system. At least for the time being, the policy would rely on the under-resourced treatment system that left many frustrated with the state’s pioneering drug law.

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Oregon became the only state in the country to decriminalize small amounts of hard drugs after voters approved Measure 110 in 2020. The initiative also allocated hundreds of millions of dollars to expand services for drug users.

But it took years for the state to allocate funds, which delayed projects and the expansion of addiction services many voters anticipated when they said yes to a less punitive approach to illicit drugs.

Under HB 4002, which still needs Gov. Tina Kotek’s signature, Oregon would still have among the nation’s most liberal drug laws. The commission predicts the system lawmakers designed will result in some drug users successfully avoiding a conviction by accepting treatment in some form. But they offer little hope that an already overburdened criminal justice system won’t see an influx of new cases.

The impacts of that onrush are uncertain. Oregon is suffering a dearth of public defenders, as the state has consistently failed to provide lawyers for everyone charged with crimes — a violation of both the state and federal constitutions.

Public defense officials have predicted people charged with drug possession under the envisioned new system could languish without an attorney, stretching their cases on for more than a year. Judges have said people charged with drug possession might instead have their cases dismissed because there is no attorney to represent them.

“We’re basically following a similar path with what happened with Measure 110,” Sen. Floyd Prozanski, a Eugene Democrat who voted against HB 4002, said last week during a committee hearing. “We’re accelerating everything so quickly, to try to get something out without thinking and even learning from the past three years, since Measure 110 passed by the voters.”

Related: Measure 110 forced Oregon to build a new addiction services model

For much of the past three years, Measure 110 has been blamed for a spike in fatal overdoses and a worsening homeless crisis.

One study that looked at the first year of decriminalization found Measure 110 did not lead to a rise in fatal overdoses in Oregon. An earlier study did find a link, but other addiction researchers have noted that work did not consider the impact of fentanyl.

The synthetic opioid showed up in Oregon’s drug supply at practically the same time voters passed the drug measure, according to Brandon del Pozo, a former police officer who is now an assistant professor of medicine at Brown University, where he researches substance use and the overdose crisis.

“You were not the only state in America to have, at some terrible point in your history, a huge jump in overdose deaths,” del Pozo said in January during a presentation in Salem. “That happens in a lot of states. It takes this precipitous rise, almost like a rocket ship taking off. When you look at the fentanyl model in those states’ drug supply, you see the same thing.”

The criminal justice system is not a strong pipeline for treatment, according to Christopher Campbell, an associate professor of criminology and criminal justice at Portland State University. Research shows that people have to want to change, rather than being forced into recovery, he said.

“County jails are notorious for not having much treatment, if at all,” Campbell said. “How do you have a punishment facility that must also balance this rehabilitation and effort to transition you back to the community in a safe and productive way? Historically, prisons and jails are just not really set up to do that.”

Lawmakers believe the bill they passed last week will change that. The system created by HB 4002 is complex; people found with drugs can be charged with a crime, but there will be multiple paths they might take to avoid conviction. Lawmakers have envisioned a “deflection” system that is meant to be a major step in that direction. Under the proposal, counties that choose to participate would create a way for police to route people caught with drugs to service providers, rather than to jail and the courts system.

So far, at least 23 counties — accounting for the vast majority of Oregon’s population — have signaled interest. But what kind of policies they might create is unknown, hinging partly on state funding.

Despite the uncertainty, state analysts have attempted to predict how many people around the state will use deflection to successfully avoid criminal penalties. By cribbing arrest data from 2019, and assuming that half the people offered “deflection” would succeed, the agency estimated some 1,269 Oregonians a year will be found with drugs but emerge without any charge ever filed against them for drug possession.

Other pathways

Under HB 4002, anyone who is not successful in deflection is still eligible for what’s known as a conditional discharge. That means that in exchange for satisfying requirements from the court — such as completing drug treatment — a person could have their case dropped without a conviction appearing on their record.

Though defendants with only a possession charge are eligible for a conditional discharge under HB 4002, state analysts aren’t counting on most of them being offered the option. The commission noted that just 18% of drug possession cases were offered a chance to dodge conviction via this path in 2019.

That year, Multnomah County gave 292 people with drug possession cases conditional discharge, according to state data. In Washington County, zero defendants got conditional discharge. That was also true in other large counties, like Clackamas and Marion.

Under HB 4002, the Criminal Justice Commission expects about a quarter of people who are charged with misdemeanor drug possession to receive conditional discharge. It assumed a modestly higher number than past years because of the emphasis by lawmakers on providing “off ramps” into treatment.

Historical trends suggest just half of those who are offered conditional discharge will be successful. Those who fail would be convicted.

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All told, when cases that include other misdemeanor charges are lumped in, the state expects more than 2,200 criminal convictions a year that include low-level drug possession. Of those, the estimate suggests 1,333 new people would be convicted solely of the misdemeanor charge lawmakers want to create.

There’s no perfect way to make direct comparisons between the system envisioned under HB 4002 and previous years, when legal definitions were different. But policymakers used the same estimates to shape policy and determine costs as their best guess to understand changes to Oregon’s drug laws.

Kropf has suggested that the bill could partly avoid exacerbating an ongoing public defense crisis because of its emphasis on deflecting drug users before charges are ever filed.

“We are sensitive to what’s happening in our courts system and what’s happening in our public defense system,” he said in late January. “At the same time, we are trying to make connections for folks who are caught with small amounts of drugs to a treatment provider.”

Kropf and Lieber, who co-authored the bill, have made a concession in the weeks since. After backlash from some local governments, they allowed counties to opt in to creating a deflection system.

And even with most counties saying they will do so, plenty of people are still headed to the courts system. That hasn’t been much of a concern to prosecutors, who’ve insisted criminal penalties are necessary. “These are the same charges and types of cases that the court system was able to handle three years ago,” said Washington County District Attorney Kevin Barton, who has been helping lead the charge for a ballot measure that would roll back much of Measure 110. “We’re basically talking about reabsorbing what we did absorb.”

Barton argued that it’s not wholly accurate to describe new cases generated by HB 4002 as additions to the criminal justice system. He believes some of the people charged for possession would face criminal charges for other things.

“If we wait and don’t address addiction, that often will still show up in our system but in the form of other types of charges,” Barton said.

Barton and others pushing the ballot measure to repeal much of Measure 110 have agreed to back off if Kotek signs HB 4002.

“I think it’s a really, really good bill,” Barton added. “It will be good public policy that will help people.”

Public defense worries

Critics of recriminalizing drugs, meanwhile, say the complex provisions designed to offer drug users leniency under HB 4002 are going to snarl the courts for years to come. The Oregon Public Defense Commission has requested $29 million it says will be necessary to hire new attorneys to take on the additional caseload.

”There’s no county probation agency or circuit court in Oregon that can handle the hundreds of new cases that will come from this,” Chris O’Connor, a public defender in Multnomah County, testified in a Feb. 26 hearing. “It’s a mess.”

And if enforcement mirrors trends that held before Oregonians decriminalized drug possession, officials estimate that 4.6% of those convicted of the new crime every year will be Black, roughly double their 2.3% proportion of the state’s population.

“By prioritizing punitive measures over equitable access to treatment, HB 4002 perpetuates systemic injustice,” Gloria Ochoa-Sandoval, policy director for the nonprofit political advocacy organization Unite Oregon, said in a statement. “It joins a regrettable list of bills prioritizing political interests over the well-being of Oregon’s most vulnerable populations.”

Commission analysts have said the expected racial disparities are lower than the state might have seen before drug policy changes that passed in 2017.

Still, lawmakers say they are concerned about disparities arising from HB 4002, and that they plan to stay vigilant. The bill tasks the commission with tracking data about which racial and ethnic demographics are being charged with drug possession.

“You have our commitment to continue to work in this space to make sure we do not have racial disparities in our criminal justice system for this charge or other charges,” Kropf said on the floor of the Oregon House last week.

The assurance was not enough to win over some lawmakers.

“House Bill 4002 still lacks the needed equity lens and the deep insight needed for lasting change,” Rep. Travis Nelson, a Portland Democrat who is Black, said on the House floor. “This bill does not speak to the many concerns that so many people in our community are speaking up about.”

OPB’s Tony Schick contributed reporting.