On Friday, the Oregon Senate passed House Bill 4002, which now heads to Governor Tina Kotek. Under the proposal, people caught with small amounts of illicit drugs like fentanyl could face jail time. HB 4002 also creates new addiction service facilities. OPB political reporter Dirk VanderHart joins us with details.
Note: This transcript was computer generated and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Three and a half years ago, Oregonians voted overwhelmingly to do something no other state had ever done. They decriminalized the possession of all drugs. Then came fentanyl in Oregon and skyrocketing overdose rates, and a big public backlash against the very policy that voters had put into law. Last week, lawmakers responded. Large majorities in both chambers passed a bill to recriminalize the possession of drugs like fentanyl and meth. It now goes to Governor Tina Kotek’s desk. Dirk VanderHart joins us once again to talk about what this bill would actually do. Dirk, welcome back.
Dirk VanderHart: Great to be here, Dave.
Miller: As we’ve talked about before, Democrats and Republicans started with different ideas about recriminalization and different penalties for newly recriminalized simple possession. Democrats said it should be a month in jail when they arrived for this short session. Republicans said almost a year. Where did they end up?
VanderHart: They met basically right in the middle. Lawmakers opted to create what is known as an unclassified misdemeanor, meaning they were able to lay out the specific penalties they wanted rather than falling into some sort of preordained crime category. And what they wound up doing is giving this new drug possession charge an upper limit of six months in jail. So, as I say, just about in the middle of the two proposals, but both sides also say they want to give people plenty of opportunities to avoid serving jail sentences if possible. As an example, jail would not be an option if you plead guilty and are being sentenced straight away; it could only be a penalty if you violated your probation. And there are expected to be options for people to avoid a conviction altogether if they agree to accept treatment.
Miller: How would these deferrals or diversions actually work?
VanderHart: This is a complicated system, so let me lay out a couple of things. There are a number of paths created by this law. The first is a concept lawmakers have called deflection. It envisions a system where people caught with drugs are routed to social services or treatment providers right away, rather than having a criminal case proceed against them. In an early version of the bill, these programs were mandatory, meaning every county would have to create one, but Democrats backed off of that so now it’s a voluntary thing.
Even so, I think we have 23 counties representing the vast majority of the state’s population who have said they’re interested in doing something like that, so that’s an option even before someone is charged. There is also something built into the bill that says when someone is charged with drug possession that they are eligible to have their charge dropped if they meet some criteria set by the courts, for instance, treatment. So that is another possibility. And then even if someone is convicted and violates their probation and is sent to jail, they could actually be released in order to attend treatment. I think there are a lot of questions about how this all works in practice, but that is theoretically how it works.
Miller: What stood out to you in the estimate about this bill’s impact that was provided by the state’s own Criminal Justice Commission (CJC)? I mean, what did they say this bill was going to do?
VanderHart: The CJC is an entity that is often tasked with this. If there’s a new crime, they try to make their best estimates of what it means. I think what stood out to me is that this approach feels very unproven right now. There is obviously still a lot of support in Oregon for trying to connect people with treatment rather than sending them to jail. That was the big idea behind Measure 110. That has very much been the message touted by Democrats who wrote House Bill 4002.
But the best numbers we have of what that bill might look like suggests that even with those intentions and all the things I just talked about, the state is still gonna see a fairly large amount of people routed through the criminal justice system. We recently dug into the numbers behind these estimates and found that the Criminal Justice Commission expects more than 1,300 people to be convicted every year, whose only charge is this new possession crime that lawmakers are creating. That is a bit lower than Oregon saw when we used to have criminal penalties pre-Measure 110 but it’s not that big of a drop off. And I think that suggests Oregon is really about to see a lot of new criminal cases emerge that the court system is probably not prepared to handle right now.
Miller: And it’s striking because the supporters, so many of them, said we’re not going back to the old ways. This is not about recriminalization. This is just about a way to get people into treatment. The Justice Commission really seemed to say that, in a lot of ways, this is going to be a return, numbers-wise, to what we saw before. But...
VanderHart: Let me just caveat that...
Miller: Please do.
VanderHart: They are essentially basing this on a lot of the way the pre-Measure 110 system worked. I don’t think we can attribute oracle status to the CJC. This is the best data we have and the best data lawmakers have about what might happen. I think we are trying some new stuff. So I just want to put that caveat out.
Miller: I appreciate that clarification. These bills passed with really lopsided bipartisan majorities. There’s 51 to 7 in the House, 21 to 8 in the Senate. The “nay” votes were bipartisan as well. What did you hear from Republicans and Democrats who said no?
VanderHart: These seem to be the lawmakers who weren’t inclined to compromise on this, for whatever reasons. In some cases, I think the Republicans who opposed this bill actually spoke highly of what it would or what it might do, but they were still in the space that they wanted to see that year in jail that we talked about. They wanted a more complete repeal of Measure 110 and not this negotiated repeal or negotiated pare back.
The Democrats who opposed the bill did so largely because of major worries about reintroducing criminal penalties. I think they agreed with some of the advocacy groups that have raised the likelihood that People of Color would be impacted disproportionately. Some said they could have supported a bill that contained a sunset clause that eliminated this new criminal penalty after a set period of time. That didn’t happen, so we saw some of those Democrats going the “no” route.
Miller: A week and a half ago a group of civil rights and racial justice groups called for a racial equity impact statement for this bill, and legislative leaders agreed; they said, “Yes, we’ll do that.” Whatever happened with that?
VanderHart: They ordered it up and it emerged, and it includes some of the data you and I talked about from the Criminal Justice Commission. But it had a notable finding on this, which is that the CJC expects that Black Oregonians will be convicted of this new drug possession crime at disproportionately high levels. The CJC’s numbers predict that Black people will account for 4.6% of convictions of this crime every year - even though they are about 2.3% of the state’s population. That is something that certainly gave lawmakers pause. Many have said they are committed to tracking the data behind how the law is actually enforced and practiced to see if this prediction comes to pass, and that they are committed to making any changes necessary moving forward to eliminate that.
Miller: The recriminalization piece of the two bills that lawmakers passed last week have gotten the most attention. That’s what I’ve been focusing on so far. But what are the other provisions, what else is going to happen, especially in terms of new money that lawmakers also approved?
VanderHart: We do not have time to go over this whole bill. It is a very large bill. But, among the things that it would do, it would make it easier to convict drug dealers and to seek stiffer penalties if they are dealing near parks or homeless shelters or treatment centers. It would make it easier to access medications that treat opioid withdrawals, and as you say, there’s a lot of money in the bill.
There’s around $211 million that was spent in the form of a companion budget bill. It includes money to expand treatment services, to pay for more public defenders, to set up those deflection programs we were talking about earlier, and a lot more. As I say, far too much to detail on air, but it is a very expensive bill.
Miller: Governor Tina Kotek has not specifically said whether or not she’ll sign this bill. But what has she said in terms of the broad contours of how she is approaching the potential end of Measure 110?
VanderHart: I think it is clear she is open to it and that is a change. The governor ran in 2022 on the notion that Measure 110 shouldn’t be rolled back, that it needed more time to be allowed to work. But, like a lot of other Democrats, she’s come to a different conclusion now. She’s indicated, right before the session, actually, that she would be willing to sign a bill that recriminalizes drug possession. But she said that the bill would have to include a balance that also helped connect people to treatment. I think this bill is supposed to do that. I think she is widely expected to sign this.
Miller: How does the possibility of a more punitive ballot measure play into her decision-making?
VanderHart: I think significantly. If you talk to Democrats in the Capitol, they will be pretty upfront that they were inspired or maybe forced to pass this bill because they were really worried that a ballot measure that would enact more drastic changes would pass instead. That proposal has backing from some of the state’s richest people. It is being led by a former head of the State Department of Corrections. And it has, I think, really proved a major catalyst toward moving House Bill 4002 forward. As a result, if this is signed by the governor as we expect it, it looks like the ballot measure will be withdrawn.
Miller: So let’s assume that the governor does sign this into law. What’s the timing of this? I mean, when might police start to arrest people once again for possession?
VanderHart: The bill has an emergency clause, which means it takes effect upon passage, but that actually doesn’t apply to the actual recriminalization piece. That would kick in on September first, and theoretically that would give enough time for counties to get ready to make the law work, to set up those deflection programs we talked about, to make sure that they are ready to handle a new influx of criminal cases or anything else.
What I’m wondering is when the governor might have to sign it. And that’s because there’s a very odd timing piece here, where if the legislature stays in session until Sunday - as they could - she will have to sign it this week. If they adjourn earlier, she might have an extra 30 days to decide. So we might be left hanging here for a while, depending on how this plays out this next week.
Miller: Dirk, thanks very much.
VanderHart: My pleasure, Dave.
Miller: Dirk VanderHart is an OPB political reporter.
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