FILE - Oregon Gov. Tina Kotek speaks during a signing ceremony in Washington, Feb. 23, 2024. Kotek on Monday signed House Bill 4002, which creates new criminal penalties for drug possession and expands funding for addiciton treatment, into law.
Susan Walsh / AP
Gov. Tina Kotek has made it official: Drug possession will soon be a crime once again in Oregon.
On Monday, Kotek signed House Bill 4002, which both expands funding for substance abuse treatment and makes possessing small amounts of hard drugs a misdemeanor beginning Sept. 1.
In a three-page signing letter, Kotek appeared to address the limitations and challenges of a law that gives individual counties sweeping power to design their own ways to implement the policy shift.
“Success of this policy framework hinges on the ability of implementing partners to commit to deep coordination at all levels,” Kotek writes. “Courts, Oregon State Police, local law enforcement, defense attorneys, district attorneys, and local behavioral health providers are all critical to these conversations and necessary partners to achieve the vision for this legislation.”
Kotek declined OPB’s interview request to discuss House Bill 4002.
The legislation passed the Oregon Legislature in February by wide margins. It rolls back a key provision of Ballot Measure 110, which decriminalized possession of small amounts of hard drugs such as cocaine, fentanyl and methamphetamine. Oregon voters approved Measure 110 in 2020.
“For what the Legislature came up with, it’s not where we were before Measure 110 — it’s a different approach,” Kotek told reporters during a news conference in March. “There are some people who believe that some connection with local law enforcement is a helpful motivator for some folks to get into treatment. I think what you see in the bill is an attempt to say if that is true, let’s make sure folks are getting to treatment.”
Lawmakers and the governor hope the legislation will get more people connected to treatment services. The new law allows drug users who come in contact with police to “deflect” from the justice system into treatment programs.
But the law allows for a county-by-county approach. That was a compromise lawmakers made to get law enforcement groups on board. Many Democrats had hoped to make diversion a requirement of the bill.
So far leaders in 23 of Oregon’s 36 counties have agreed to some kind of deflection program. The way it looks could be different in each county — and it could not exist at all in other parts of the state.
“It’s not enough to write the word ‘deflection’ in a bill, you actually have to create the apparatus and they did not create the apparatus or fund it,” said Sandy Chung of the ACLU of Oregon, which opposes the new law. “We’ll see whether the counties actually succeed in creating those programs.”
FILE - Outreach workers offer treatment services to a man, identified by law enforcement as wanting information on treatment for substance abuse disorders, in Portland, Ore., Dec. 13, 2023. The man decided he wasn’t ready for treatment, but did take the information. House Bill 4002 allows but does not require counties to create deflection programs for people to choose treatment instead of navigating the criminal justice system.
Kristyna Wentz-Graff / OPB
The Legislature and the governor agreed to a law that the state’s own estimates show will send hundreds of additional people to jail for misdemeanor drug possession. The Oregon Criminal Justice Commission expects Black Oregonians will be overrepresented in the legal system because of the move to recriminalize drug possession.
Kotek and lawmakers have expressed concerns about how to guard against disproportionate effects among people of color.
Criminalizing the possession of small amounts of drugs will take more public defense resources — something the governor addressed directly in her signing letter Monday. For years, Oregon has fallen short of its obligations under the U.S. and Oregon constitutions to provide defense attorneys to anyone charged with crimes who cannot afford a lawyer. Currently, more than 2,500 people charged with crimes do not have a public defender, according to the Oregon Judicial Department.
“We must acknowledge that Oregon’s number of unrepresented persons will likely increase due to House Bill 4002,” Kotek wrote.
One of Measure 110′s failings was a lack of training for law enforcement, especially because decriminalizing drugs was such a huge policy shift. An investigation by OPB and ProPublica found state leaders never funded or mandated training for law enforcement. The legislation passed this session also does not. But Kotek’s signing letter mentions a May 9 training symposium.
“My expectation is that there will be appropriate guidelines and training for law enforcement to understand what is now different, what that means for deflection,” Kotek said during the March news conference to mark the end of the 2024 legislative session. “That did not happen under Measure 110, and I think that’s why you didn’t see the violation pathway working as well as it could.”
Chung said she worries lawmakers have set up a dynamic in which the public safety system will be able to argue for more and more resources allocated for programs such as housing.
“That’s going to actually end up defunding things such as treatment,” Chung said. “The criminal justice system is a monster that takes up lots of money.”
Lane County District Attorney Patty Perlow said local officials are scrambling to figure out how to set up their diversion programs and apply to the state for funding. She said she’s not sure an unclassified misdemeanor charge is going to be severe enough to prompt people to enter treatment. .
“I hope they would,” Perlow said. “Misdemeanor possession charges may not be enough to get someone to change.”
Perlow said she’s not sure what she would consider as a metric for gauging the success of the new policy.
“If we could see a reduction in overdoses and overdose deaths, I’d take that as a win,” she said. “I would say something is working. What we have right now sure isn’t.”
New misdemeanor charges for drug possession go into effect on Sept. 1. People who don’t — or can’t — access treatment could face up to 180 days in custody. The legislation also allows for records to be sealed or expunged.