On March 1, Oregon legislators approved a bill to recriminalize drug possession, undoing the historic Measure 110 enacted by voters in 2020. House Bill 4002 was passed out of the Oregon State Senate by a vote of 21-8, having advanced out of the House by a vote of 51-7 one day earlier.
Governor Tina Kotek (D) appears likely to sign it into law, in which case the new penalties would take effect on September 1. For the most part, as Measure 110 has been increasingly targeted by political attacks, Kotek has declined to take a public stance on prospective recriminalization. But recently she expressed support for such legislation if it included wider-ranging provisions than recrim alone.
“I want to see a proposal that answers a set of questions,” Kotek said at a January 31 press conference, according to Oregon Public Broadcasting. “One piece will be criminalization, but if we just look at criminalization in isolation, I think it’s missing the point. So my question is going to be … what else are you going to do different to make sure we have better outcomes?”
Under Measure 110, those accused of possession of small quantities of drugs were purportedly given the number to a treatment hotline they could call to receive a screening in lieu of a $100 fine, but in three years it received very few calls.
Measure 110 was associated with a reduction in drug possession arrests. But it’s become a scapegoat for Oregon’s rising overdose rate, despite no evidence showing any causal relationship between the two.
In 2022, Kotek campaigned on the idea that we shouldn’t make any hasty decisions about Measure 110 while we were still waiting to see the impact of new treatment centers. The implication that she’d sign a bill with sufficient emphasis on treatment would mean she’s likely to sign HB 4002, which purports to be first and foremost about treatment, rather than criminalization.
“The measure removes barriers and establishes programs and policies aimed at improving access to substance use disorder (SUD) treatment,” reads a legislative summary of the bill. “It also establishes a criminal justice framework for possession or delivery of controlled substances designed to encourage treatment over penalties such as jail or probation.”
Notably, HB 4002 specifically stipulates that delivery of a controlled substance within 500 feet of a shelter, 500 feet of a treatment center, or 30 feet of a public park be considered more serious than the same conviction elsewhere. It “[i]ncreases presumptive sentences when unlawful delivery of a controlled substance occurs in [those] locations.”
The six-month jail sentence is there to pressure people into opting for 18 months of probation.
Personal possession of drugs including cocaine, fentanyl, heroin, MDMA and methamphetamine would be a Class A misdemeanor under the new law. HB 4002 has been widely reported as penalizing misdemeanor possession with a maximum of six months in jail, which is technically true but belies what the bill is actually here to do, which is trap people in the criminal-legal system for a lot longer.
The jail stint can only be imposed “upon the request of the defendant.” The function of penalizing possession with jail time is to pressure people into requesting the alternative, which is up to 18 months of supervised probation. We can presume that that telling the court you don’t want probation is likely to elicit the maximum jail sentence of six months.
Of course, the bill stipulates that “[u]pon a finding that the person on probation has violated a condition of probation imposed under this section, the court may impose a sanction.” That’s when you go to jail—unless of course you’d like to get treatment.
Per HB 4002, you could be released into one of the state’s deflection programs, if there’s room. The bill defines such a program as a collaboration “between law enforcement agencies and behavioral health entities that assists individuals who may have substance use disorder.” The state would also establish the Oregon Behavioral Health Deflection Program to award grants accordingly.
Notwithstanding the fact that “assists” describes help given freely and the word they’re looking for is “coerces,” once the court assists someone into treatment they’re eligible to have their record sealed after they complete the program. Until that time, the court can still send them to jail at any point should they violate the conditions of their new agreement, as determined by their county community corrections agency.
Photograph via Hillsboro, Oregon