State reverses decision, OK’s money for Clackamas County’s drug program

State officials have reversed course and voted to fully fund a Clackamas County initiative meant to offer people drug treatment, outside the criminal justice system.

Less than two weeks ago, the same Oregon grant committee rejected the county’s $1 million program over concerns it too closely resembled a process for someone charged with a crime.

The decision comes weeks before a new state law goes into effect that will recriminalize possession of drugs such as fentanyl and methamphetamine and allow police to arrest and charge people with misdemeanor drug possession. The new law kicks in Sept. 1.

While Monday’s debate before the Criminal Justice Commission’s IMPACTS grant committee was about whether to reconsider a relatively small amount of money, the back and forth illustrated disagreements among key stakeholders about a central part of Oregon’s new state law known as deflection.

As part of the state’s larger effort to direct people towards treatment, lawmakers set aside $20 million to help counties create and fund deflection programs: collaborations between behavioral health providers and police aimed at keeping people with substance use disorders out of the justice system. At the same time, the new law allows prosecutors to criminally charge people with drug possession.

The funds are administered by the Criminal Justice Commission, and county applications are reviewed by a committee made up of public defenders, health officials, law enforcement leaders and others. Their job is to review the applications and ensure that county plans follow the statute.

The debate and controversy surrounding Clackamas County’s program centered around what the state Legislature meant by deflection when it passed House Bill 4002 this spring. In the process, it rolled back key parts of Ballot Measure 110, Oregon’s drug decriminalization law.

Clackamas County planned to refer people cited for drug possession to the county’s community court, which deals with low-level charges. It includes a judge and prosecutors. But it’s a model that brings in nonprofits and county programs to help people charged with crimes access services such as housing and food, drug treatment and jobs.

When the grant committee initially rejected the county’s request for funding on Aug. 1, committee members said it was because Clackamas County’s program wouldn’t actually deflect people from the justice system.

“It’s really about the definition of ‘deflection,’” Paul Solomon, chair of the Oregon Criminal Justice Commission and a member of the grant committee, said during the Aug. 1 meeting. “It’s our understanding based on the reading of the state law that his program resembles diversion and not deflection.”

Diversion programs, such as drug courts, are part of the criminal justice system. They allow for charges to be dismissed if people complete treatment and meet other requirements.

During Monday’s meeting, the grant committee reconsidered Clackamas County’s application, which, among other things, would fund two positions in the district attorney’s office.

“The use of the term ‘defendant’ throughout the application by nature of its definition implied that the person is in the court process, and therefore in my mind had not been deflected,” said Janie Gullickson, executive director of the nonprofit Mental Health and Addiction Association of Oregon.

Sen. Sara Gelser Blouin, D-Corvallis, added: “I do have some concerns when I just think about deflection, and this feeling much more diversion-like.”

Later, Samantha Byers, director of Adult Behavioral Health at the Oregon Health Authority, took exception with the fact that Clackamas would be the only county in the state that directs people to a court system as part of the county’s proposed deflection program.

“The population being served may be houseless, maybe under the influence, without a calendar, without a phone,” Byers said. “It would be challenging for me to call this deflection when the person is actually called to court first.”

The Clackamas County District Attorney’s office is running the deflection program. District Attorney John Wentworth, who attended Monday’s meeting, answered questions while also defending his proposal. He acknowledged the use of the term defendant was “a fair critique of our application” and would be corrected in the future.

But Wentworth said he was frustrated with the conversation and that somehow Clackamas County had “conflated” diversion with deflection. He said the county’s program met the state’s definition and that people would only be required to show up to court if they couldn’t be reached earlier.

“Our goal is to have contact with them before they even have that court appearance,” Wentworth said, but also said when a police officer cites someone they have to give them a place to go.

“For us, that is a court facility,” Wentworth said. “We know this is an experiment. And I know I will be stealing good ideas from other counties, and they will be stealing ideas from me, both on what to do and what not to do.”

He also criticized the grant committee. He said someone who may not succeed under deflection could still receive the help they need.

“This discussion sounds like the criminal justice system is a failure,” Wentworth said. “It is not. It provides an additional tool for folks to get the treatment they need.”

Rep. Jason Kropf, D-Bend, a former prosecutor who co-sponsored House Bill 4002, told the committee the goal from the beginning was to connect people with treatment and avoid formal prosecution.

“We knew these programs would look different — and I think we actually encouraged it,” Kropf said. “We viewed this as a period of innovation and experimentation.”

Ultimately, the grant committee voted to approve funding for Clackamas County, though members said they would only fund one of the two positions in the DA’s office. The county will have to come back to tell the committee this fall what it will spend that money on instead. Byers was the only no-vote.

Towards the end of the meeting, Lane County Circuit Court Judge Suzanne Chanti said the Legislature wasn’t as clear as it needed to be about what it meant by ‘deflection.’

“There’s a disagreement about what that definition means,” Chanti said. “That’s the conundrum we’re in. What did it intend? Because it’s not as clear as would’ve been helpful for us.”