After rolling back Ballot Measure 110, Oregon’s drug recriminalization plans come into focus

Oregon will soon end its nearly four-year experiment with drug decriminalization. Beginning Sept. 1, possession of small amounts of drugs will again be a misdemeanor crime.

A key part of the change is a new state law that encourages police to connect drug users to treatment without charging them with crimes. The process is known as deflection, which allows the state to maintain some aspects of the public health priority Ballot Measure 110 placed on addiction, even as many Oregonians pushed for greater accountability and criminal penalties. It was also crucial in getting lawmakers on board with recriminalization.

Interviews, testimony at public meetings and county grant applications obtained by OPB through public records requests show how people caught with small amounts of drugs are treated will vary wildly depending on where they are.

For all their attention, what’s become clear: most deflection programs will likely be narrow in scope and small in size, at least initially.

OPB also found:

• Twenty-eight of Oregon’s 36 counties have applied for the $20 million in grant funds the Legislature set aside to pay for deflection programs.
• Of those, 14 counties will be ready to go on Sept. 1, when drug possession is once again criminalized, according to their applications. Others say it could be months before their deflection programs are up and running.
• Eligibility for deflection programs varies widely, and some counties are limiting the number of times people can access their programs.
• Eighteen counties will only allow people charged with misdemeanor drug possession to enter deflection, and won’t consider other low-level, public disorder crimes that can be associated with addiction.
• County applications illustrate broad differences in when and how police, prosecutors and health providers will engage with people using drugs. For example, in Multnomah County, people will be arrested and transported to a deflection center, once it opens. Meanwhile, Clackamas County plans to cite people using drugs and order them to show up to its community court to access deflection.
• Even though the programs are shaping up to be small right now, they could still overwhelm the state’s treatment options.

Possession charges only

When deflection programs first launch in counties that are building them out, more than half plan to strictly limit eligibility to those people who get charged with possessing small amounts of drugs, like fentanyl, for personal use, which would be a misdemeanor. Those decisions are likely to result in programs that are small.

Backers say that’s largely by design.

“Police are going to do things that work and they’re going to stop doing things really rapidly if they don’t work,” said state Sen. Kate Lieber, D-Portland, who co-sponsored House Bill 4002. That’s the legislation lawmakers overwhelmingly passed this year to roll back Ballot Measure 110 after many voters soured on drug decriminalization.

“If the county only believes that they can do this little tiny narrow thing to begin with, that’s what they should do, what they should make successful.”

If it works, Lieber said, counties “are going to expand it.”

Nine counties — all outside the Portland metro area — plan to consider deflection eligibility more broadly when their programs launch. Those counties will consider people charged not only with misdemeanor drug possession, but also other low-level offenses typically associated with drug use, such as trespassing.

For those counties pursuing a possession-only deflection program, it’s unclear at this point how many people in the state would be eligible overall.

Under the current system, police issue citations for drug use and possession, which drug users are supposed to resolve by calling a hotline. From when Measure 110 went into effect on Feb. 1, 2021, to July 31, 2024, police issued more than 9,700 citations for drug possession, according to the Oregon Judicial Department. More than 1,200 people have multiple citations.

According to the Judicial Department, 9% of cases with a Measure 110 citation also have other violations associated with that case, like driving with a suspended license. Just 1% have a felony or misdemeanor charge, typically driving under the influence or dealing a controlled substance.

But using Measure 110 citations to estimate the number of people who might be eligible for deflection is also problematic. They’re likely an undercount of potential deflection participants because police have been repeatedly criticized for not writing enough Measure 110 citations. With several counties issuing only a few hundred citations over the three-and-a-half years.

Different approaches, county by county

Drug users eligible for deflection in one county may be ineligible in another and even face a higher likelihood of jail time.

There are also different standards from county to county for what success looks like, who will run deflection programs, and how people access the program in the first place.

For example, Lane County officials plan to have law enforcement determine if an individual is eligible for deflection and make contact with a peer navigator to facilitate their transfer into treatment, according to the county’s application to the state. Lane County won’t be up and running until October and still needs time to staff up.

“As we envision this at this point, our peer navigators will meet law enforcement and the offender on the scene, make that initial contact with them,” said District Attorney Chris Parosa.

He said after making that initial connection, peer navigators will set up another appointment to start to match a person’s needs to the treatment and other available resources. He said that could change as the county gets additional resources for drug treatment.

”Maybe when the stabilization center comes online later on down the road, we will actually have a place that we can immediately and affirmatively take them ‘night one’ to begin the process right from the scene,” Parosa said. “But we don’t have that now.”

Meanwhile, in Multnomah County, the only way to get into deflection for now is through an interaction with law enforcement. The plan is for police to arrest drug users for misdemeanor possession and take them to the county’s new deflection center in inner Southeast Portland.

“They’ll be under arrest, so we can take them to the deflection center, we can take them to jail, wherever we need to transport them to,” Portland Police Chief Bob Day said during a news conference in late July. “The officers are still going to be writing reports. They’re still going to be collecting evidence. We’re going to be doing all of this as if it was somebody that was going to jail. So there will be documentation of all that.”

However, county officials announced Aug. 19 that the center would be delayed until mid to late October while the nonprofit the county is contracting with to run the site hires and trains staff. Until then, Multnomah County will offer mobile outreach, using peer support and behavioral health staff in partnership with law enforcement to respond in the field.

Counties are also taking different approaches when it comes to who is in charge of deflection. Like all other elements of their programs, counties were largely left to figure that out on their own.

Each county has a deflection coordinator. Where that position is housed varies widely. In Jackson County, the program coordinator works in the county’s mental health department. In Hood River, the coordinator works in the county sheriff’s office.

Initially, Washington County District Attorney Kevin Barton was unsure whether they placed their coordinator in the best spot.

“We intentionally put our program coordinator in our health and human services department, not in the DA’s office, not in the sheriff’s office and not in community corrections,” he said. “I’ll just out myself. I, early on, wasn’t sure if that was the right place to put it.”

Barton said he’s fully behind the county’s approach now, but figuring out which county agency would lead the day-to-day operations was one of the many discussion points that took time to sort out. He said the goal is for the deflection team to have some flexibility and assess people in the program on an individual basis.

“

Relapse is part of recovery. The goal is to keep people engaged, to get them into treatment and to divert them away from the justice system”

— Washington County District Attorney Kevin Barton

Rep. Jason Kropf, D-Bend, a former prosecutor and co-sponsor of House Bill 4002, said lawmakers expected a “period of innovation and experimentation” with Oregon’s county-by-county approach towards deflection.

“We knew these programs would look different, and I think we actually encouraged it,” Kropf said during a Criminal Justice Commission meeting this month. “We wanted people struggling with addiction to be able to make a quicker connection to those services and have the opportunity to avoid formal prosecution if they were caught in the possession of drugs.”

Oregonians passed Ballot Measure 110 in November 2020, with 58% in support. Along with decriminalizing drugs, the measure promised to expand treatment and deal with substance use disorders in healthcare settings, largely cutting out the criminal justice system. In the last few years, overdose deaths have surged in Oregon, following a nationwide trend driven by the synthetic opioid fentanyl.

Backers of Measure 110 made the case that the criminal justice system had not only failed to address addiction but had made it worse — particularly for communities of color through the war on drugs. By design, it left law enforcement with a muted role in addressing people with substance use disorders.

But as the debate about recriminalizing drug possession reignited last year, law enforcement, prosecutors and their allies made the case that sidelining them has only made the drug crisis worse. Police and district attorneys played a significant role in making drug possession a crime once more.

Now, in some counties, they’re running the show.

“There’s tremendous pressure on DAs,” said Clackamas County District Attorney John Wentworth, who is also president of the Oregon District Attorneys Association.

“

Look, we just want people to not use drugs. That’s the goal. We’re just trying to make society better by having fewer people who are addicted, fewer people who are dying from overdoses.”

— Clackamas County District Attorney John Wentworth

No matter how the programs are set up, county leaders across the state say they feel pressure to make their deflection programs work.

“Good,” Lieber, who is also a former prosecutor, responded. “We need the entire system acting urgently. It’s that urgent.”

She said it’s going to take time for counties to get deflection programs up and running, and even longer to refine and expand them.

“There’s no magic about Sept. 1,” Lieber said. “But we are chasing the tsunami of fentanyl.”

More accountability, but will there be treatment?

At least for now, most county deflection programs are narrowly focused. But even though treatment capacity has expanded since Ballot Measure 110 passed, pushing even small numbers of people into recovery programs could leave some waiting or overwhelm the broader addiction treatment system.

Washington County, the state’s second most populous, estimates it will have capacity for 600 people per year in the initial deflection program, county officials told OPB. But the types of treatment available may not fit every participant’s needs.

Nick Ocón, division manager with Washington County Behavioral Health, said there is treatment capacity Monday through Friday, during normal business hours. But outside of that, the options are limited.

“Currently, in Washington County, there are no sobering resources,” Ocón said. “There is very limited residential treatments. There’s no publicly-funded withdrawal management.”

Those are things the county will have starting next year with a new sobering and treatment center.

“Even with this incredible development to our system of care, we know it’s not going to fulfill the entire capacity,” Ocón said. “Some of that higher level of care is just not available.”

Washington County’s limitations reflect a broader problem. A study released in February by the Oregon Health Authority found that the state needs to add 3,000 behavioral health beds — along with staff — to meet its needs, a process that will likely take multiple years and hundreds of millions of dollars to complete. A recent federal report projects a substantial shortage in mental health and addiction workers nationwide over the next decade.

Nearby, Multnomah County estimates between 300 - 800 people every year could enter its deflection program. Though the county acknowledges the program’s specifics could be in flux as newly-elected district attorney Nathan Vasquez takes over next year.

“Given inevitable elected leadership transitions, the County’s approach to coordination is building consensus for implementation September 1 as well as how to iterate and improve the program moving forward,” Multnomah County officials wrote in a grant application mid-July.

While much of the focus ahead of Sept. 1 has been on deflection, county officials note it’s just one tool available to get people treatment.

“We all recognize that addiction and recovery is not a one transaction exchange,” outgoing Multnomah County District Attorney Mike Schmidt said during a news conference in late July. “It will require multiple attempts at treatment.”

If deflection fails, Schmidt explained, House Bill 4002 lays out even more options. Drug users can go through a different process called conditional discharge, in which a person’s criminal charges get dismissed if they complete treatment. After that, prosecutors can pursue probation or even jail time as a last resort.

“

The bottom line is law enforcement needs tools to stop behavior that harms the community, and the goal needs to be to connect people with treatment and not incarceration”

— Multnomah County District Attorney Mike Schmidt

Ultimately, the goal is to get more people into treatment and reduce overdose deaths in the state. Everyone seems to agree that finding those solutions will require some trial and error, with Oregon’s approach to deflection likely to change as time goes on.

“We’ve been building the plane while it’s flying,” Ken Sanchagrin, executive director of the Criminal Justice Commission, said during a meeting this month. “And every county has their own rickety biplane that they’ve been building while it’s flying too. Most of them are not finished yet, so I don’t even know how we’re flying, but we’re trying.”