Drug decriminalization stumbled in Oregon. Other states are taking note.

PORTLAND, Ore. — Just before Portland’s city council approved a ban on public drug use last week, Mayor Ted Wheeler described what he’d observed on his way to work that afternoon: “The last time I saw somebody consuming what I believe to be fentanyl publicly on our streets was less than five minutes ago, three blocks from City Hall,” the Democrat said.

The Portland ban, approved unanimously but subject to legislative approval, was the latest repudiation of the state’s recent, groundbreaking approach to drug use.

Oregon voters in 2020 passed Measure 110, a first-in-the-nation law decriminalizing the possession of small amounts of controlled substances such as heroin, methamphetamines, cocaine and fentanyl.

Three years later, public drug use has wearied even the most tolerant of Oregonians. In recent months, Portland has reeled from a record number of opioid overdoses, bad press and a drop in convention and hotel bookings linked to the perception that the city is disorderly and unsafe.

Now, the Oregon law faces significant overhaul or repeal, a prospect likely to slow movements in other states to treat addiction as a public health matter, not a criminal one.

“If we don’t figure out how to get this right, efforts to try this approach in other states probably don’t launch,” said Oregon state Rep. Rob Nosse, a Democrat from Portland who worked on implementation of Measure 110 and who continues to support it.

What went wrong? A state audit found that the law’s rollout was beset by bureaucratic fumbles and a short implementation timeline; a study also has shown the measure’s civil ticketing approach had tepid law enforcement support. More critically, it coincided with a national fentanyl crisis that overwhelmed the country — not just Oregon — with a cheap, addictive and deadly drug.

The measure also took effect during a long-standing homelessness crisis in Oregon and other West Coast states that made public drug use more visible — and discomfiting — in neighborhoods where people live on the streets. It’s particularly problematic in Portland, Oregon’s biggest city, where high rates of commercial property vacancies have hollowed out some downtown sectors.

“People think that Measure 110 has been harmful to Oregon,” said pollster John Horvick of DHM Research, who conducted surveys this spring that found 6 in 10 voters think it has made drug addiction, homelessness and crime worse in Oregon. “That’s really clear. There’s no doubt that that’s where the majority of people are.”

An even more recent poll in Oregon found that 64% of voters want to repeal portions of the measure, including possibly bringing back criminal penalties for possession, and 56% support repealing it entirely. The poll, conducted by Emerson College Polling, was commissioned by the Foundation for Drug Policy Solutions, an Alexandria, Virginia-based organization that opposes decriminalization nationally.

Several rural Oregon counties, but also suburban Clackamas County adjacent to Portland, are considering non-binding advisory ballot measures during the May 2024 election to ask voters whether they think Measure 110 should be repealed.

A group of prominent civic leaders, led by the state’s former head of the Department of Corrections, Max Williams, is pressuring state lawmakers to re-criminalize possession of small amounts of controlled substances, even as they maintain funding for detox and recovery services. It’s an approach Williams and others have dubbed “amend, not end,” but it comes with an implicit threat: If the legislature fails to make timely changes to Measure 110, they’ll ask voters to repeal it in 2024.

Republican state Rep. Jeff Helfrich, a former Portland police officer, argues that without the threat of criminal conviction or prison, there’s no incentive for people with substance use disorders to stop using.

“I am all about let’s get people help, let’s get ’em what they need,” said Helfrich, who represents Hood River, a community about an hour to the east of Portland. “But you have to deter the behavior at some point. And how do you deter that behavior? That’s the million-dollar question.”

Many specialists who work in recovery, though, say reverting to a punitive system to treat addiction won’t get people sober or keep users from overdosing. That’s what they’ve learned in a decade of experience providing service to thousands of opioid users, said Joe Bazeghi, director of engagement at Recovery Works NW, which recently unveiled the first new detox center in the state to open with Measure 110 money.

The 16-bed facility in Portland is expected to serve at least 1,200 people a year, in particular those addicted to fentanyl. People can spend about five days under medically supervised detox before being offered a transition to alcohol and drug treatment and supported housing, Bazeghi said.

“What we know across the board is that when treatment is voluntarily engaged with, outcomes are better,” Bazeghi said. “And we can say that from experience, and we can say that across all our disciplines. That will be the docs, that will be the therapists, that will be the counselors, the peers, the case managers. Everybody backs that up.”

Other states reconsider

Just to the north in Washington, lawmakers this year raised the state’s penalty for drug possession to a gross misdemeanor. It’s a harsher classification than a misdemeanor, but not a felony. They also criminalized public drug use.

Both actions were in response to a 2021 Washington Supreme Court decision that found the state’s felony drug possession law unconstitutional; a temporary law passed after the ruling lowered felony offenses to misdemeanors. People found in violation while the law was a misdemeanor had to be referred twice to treatment before they could be charged with possession of a controlled substance.

The reaction to Washington’s brief experiment with lesser penalties for possession of a controlled substance proved too politically fraught, said Alison Holcomb, the director of political strategies for ACLU Washington, which supports decriminalization. Donors who had supported a statewide ballot measure similar to Oregon’s were spooked by the backlash, Holcomb said.

“The first impact that we saw was the funders, but then we also saw in the primary and general election in 2022 these narratives being leveraged by candidates,” she said. “Candidates that were looking for easy wins on 1980s, tough-on-crime, War on Drugs rhetoric, were explaining or were arguing that it would be a disaster for Washington to move in the direction of decriminalization.”

Maine lawmakers and policy experts have been watching Oregon carefully. There, the legislature considered but failed in 2021 to pass a bill similar to Oregon’s measure that would turn minor drug possession into civil fines. Winifred Tate, director of the Maine Drug Policy Lab at Colby College, said she’s hopeful discussions will continue. Maine is a small place, Tate said, with people who are committed to addressing its addiction and overdose crises.

“People know each other and have deep relationships,” she said. “That creates opportunities for political change that might be harder on a bigger scale.”

Yet many in Maine are split on whether to move forward with a health care or law enforcement approach to future drug policy. Those fissures have emerged in discussions about how to spend a $235 million settlement with the drug companies that contributed to the opioid crisis.

The quandaries are similar in California, Colorado, Massachusetts and other states considering decriminalization or other approaches aimed at reducing overdoses, including supervised injection sites. Colorado lawmakers considered but ultimately didn’t advance a bill allowing supervised drug use in some cities. And in California last year, Democratic Gov. Gavin Newsom vetoed a pilot program to reduce overdoses that would have allowed supervised injection sites.

Oregon’s path

Oregon laid out its shortcomings in a state audit released earlier this year that described the launch of Measure 110 as “beset by delays and public friction” that could have been addressed with more proactive management by the Oregon Health Authority. Oregon health officials have acknowledged they were slow to roll out the initial $300 million for Behavioral Health Resource Networks, the treatment and recovery services established in each Oregon county to help fill gaps in addiction services.

The audit also pointed out that the measure had “unrealistic timelines” for implementation. The law decriminalizing possession took effect just three months after the election, before detox and recovery networks were fully built out. It was “a very ambitious timeline,” acknowledged Kellen Russoniello, a senior policy counsel at the Drug Policy Alliance, the New York-based advocacy group behind the ballot measure.

Police in much of the state also were slow to issue civil tickets, which fine drug users up to $100 unless they call an addiction services hotline to have the penalty waived. A study conducted by researchers at Portland State University found that police are skeptical of Measure 110′s ability to motivate people to voluntarily seek treatment. As a result, they’re less willing to hand out citations, said Christopher Campbell, a co-author of the study, and an associate professor in the Department of Criminology and Criminal Justice at the school.

“We spoke to one officer from an urban sheriff’s office and they said that they believe Measure 110 took away the system’s ability to help people recognize rock bottom and kickstart a new life void of drug use,” Campbell said. “So this, along with many other reasons, leaves officers feeling like giving out that citation really isn’t worth their time.”

In 2020 when Oregon voters approved the measure, the state had the second-highest rate of substance use disorder in the nation and was ranked last in providing access to addiction treatment. Fatal overdoses were on the rise.

The status quo wasn’t working and voters knew it, said Tera Hurst, executive director of Health Justice Recovery Alliance, a coalition of organizations working to defend the new law.

“It wasn’t an accident that they overwhelmingly said: ‘No, we believe that addiction is a health care issue. We don’t want to send people to jail and we don’t want to waste our money on that, and it doesn’t work,’” Hurst said.

Hurst notes that since Measure 110 passed, thousands of people are getting help with substance use disorders. In the Portland area alone, 41 organizations received $59 million to ramp up treatment, recovery and peer support programs. Other more rural parts of the state are seeing similar levels of resources, she said, many for the first time.

“There’s more outreach, there’s more drop-in centers, there’s more housing,” Hurst said. “If you stay in the bubble of everything’s awful, you miss all the good that’s happening around.”

So far, Oregon lawmakers have resisted calls to repeal the measure, although they did pass a bipartisan law this year making it a misdemeanor to possess 1 gram or more of fentanyl or five or more pills. Other states slammed by the fentanyl crisis toughened laws around the drug, too, according to the National Conference of State Legislatures. At least 103 laws were enacted, including those that harden penalties for possession and distribution.

This fall, some Oregon lawmakers will travel overseas to Portugal to see how officials there have managed more than two decades of decriminalization. “This will give us a greater understanding of what trials and tribulations Portugal went through over their journey,” said Democratic state Sen. Floyd Prozanski, a municipal prosecutor who chairs the Senate Judiciary Committee.

Advocates continue to plead for more time, saying that such a massive societal shift in how Americans consider addiction requires more time to take hold. And no state is immune from discussions on how to address an epidemic of opioid-related deaths. Accidental overdoses are now the No. 1 cause of death for young people in 37 states.

“I’m not going to say this has been a pretty rollout,” Hurst said, “but I don’t know that I’ve ever really heard of any new, transformational law going into effect without a lot of bumps.”

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