Oregon legislators have passed a bill that adds new mandatory minimum sentences for fentanyl manufacture and delivery, and creates a new statute for all fentanyl penalties—including possession—separate from the one that governs other controlled substances. If Governor Tina Kotek (D) signs it, which she will, the new law goes into effect immediately.
Senate Bill 236 was approved on its third reading by House representatives on June 24, after clearing the Senate earlier in the month. One senator and 16 representatives did not vote, but no one voted against the bill, nor does it appear that anyone testified against it at any point during the legislative session.
In addition to the fentanyl penalties, the bill adds or modifies several other provisions to state drug law. These include access to medications for opioid use disorder (MOUD) by pharmacists, as well as in county correctional facilities that may not have had access to the state grant program covering jail-based MOUD.
SB 236 classifies possession of substances containing fentanyl or fentanyl analogs as a misdemeanor, punishable with a probation term of up to 18 months. If someone requests jail time instead, the court has the option of imposing a sentence of up to 180 days.
Possession jumps from a Class A misdemeanor to a Class C felony if the amount is over 5 grams, or if it’s determined to be “commercial” possession. The latter could happen a few different ways—for example, someone could be prosecuted for commercial possession even if they’re found with only 3 grams of fentanyl, but also with $300 cash and “stolen property.” Class C felonies can be punished with up to five years in prison.
Fentanyl delivery, meanwhile, is a Class B felony, which in Oregon carries a maximum prison term of 10 years. Delivery to anyone under 18, or within 1,000 feet of a school, is a Class A felony punishable by up to 20 years. It’s difficult to live in an urban area and not be within 1,000 feet of a school.
“We want to say to the folks who want to sell, we want to make it really uncomfortable for you to sell in Portland and to sell in the state of Oregon,” Kotek told KOIN in February 2024. “We don’t want you here. Get out of our state and we’re going to make it as hard as possible for you to be here.”
In April 2024 Kotek signed House Bill 4002, which rolled back the historic decriminalization Measure 110; the latter had faced immense law enforcement-driven backlash in the three years since it was enacted. SB 236 also modifies provisions of HB 4002 related to the state’s jail-diversion program, to bring it into alignment with the new changes.
Jail-diversion programs are often presented as compassionate, rational alternatives to the drug war that approach substance use disorder as a public health issue rather than a criminal-legal one. But what they effectively do is impose mandatory abstinence on low-income drug users for extended periods of time, much longer than their jail sentence would have been, with the constant threat of incarceration hanging over their head.
Under the Oregon Behavioral Health Deflection Program, probation violations can result in jail time, but no more than 30 days, and always with the option for early release into a treatment facility. If that sounds like a way better deal than 180 days in jail, it’s important to understand that the 30-day cap on jail time just refers to the portion of probation that can be served in jail; it’s separate from the 180 days people are threatened with if probation is revoked. And the 18 months of probation just refers to the length of the initial term. For people who “fail” a random drug test, or are otherwise unable to meet the conditions of their supervision, the courts can keep extending their probation for up to five years. As long as that’s what they want, of course.
After a couple of years of cycling through jail for a few days at a time, knowing that at any point probation could be revoked anyway, you can see why someone might just opt for the six-month maximum to get it over with. A judge could always decide to impose something shorter than the max, of course. But they’re not going to. Why would they, when the person they’re sentencing is refusing treatment?
Top image via Mono County, California. Inset graphic via Portland Public Schools.
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