Oregon’s first-in-the-nation experiment with decriminalizing drugs will expire on Sunday as a new law taking effect will once again make it a crime to possess small amounts of hard drugs.
The new recriminalization law, HB4002, will give those caught with illicit drugs – including fentanyl, heroin and meth – the choice to either be charged with possession or treatment, which includes completing a behavioral health program and participating in a “deflection program” to avoid fines.
Personal-use possession would be a misdemeanor punishable by up to six months in jail. It aims to make it easier for police to crack down on drug use in public and introduced harsher penalties for selling drugs near places such as parks.
The recriminalization law encourages, but does not mandate, counties to create treatment alternatives to divert people from the criminal justice system and toward addiction and mental health services.
Backers of the law say this allows counties to develop programs based on their resources, while opponents say it may create a confusing and inequitable patchwork of policy.
“The criteria is very narrow to meet deflection: no other charges, no warrants, no violent behavior, medically stable,” said Portland police chief Bob Day.
If a person meets the requirements for deflection, officers will call the county’s deflection dispatch line to provide basic information, determine eligibility and connect them to a mobile behavioral health outreach team that will have 30 minutes to make contact.
“If the behavioral health people cannot be there within 30 minutes, we’re going to go to jail. We’re not able to just wait around,” Day said. “There is certainly a lack of equity in that. But I would argue that it’s not necessarily common. I’m not saying it’s right.”
So far, 28 of the state’s 36 counties have applied for grants to fund deflection programs, according to the Oregon Criminal Justice Commission. The commission is set to disburse more than $20m in such grants roughly over the course of the next year.
Supporters of decriminalization say treatment is more effective than jail in helping people overcome addiction and that the decades-long approach of arresting people for possessing and using drugs has not worked.
The Democratic-controlled legislature passed the recriminalization law in March, overhauling a measure approved by 58% of voters in 2020 that made possessing illicit drugs like heroin punishable by a ticket and a maximum $100 fine.
The measure directed hundreds of millions of dollars in cannabis tax revenue toward addiction services, but the money was slow to get out the door at a time when the fentanyl crisis was causing a spike in deadly overdoses and when health officials – grappling with the Covid pandemic – were struggling to stand up the new treatment system, state auditors found.
Oregon house Republican minority leader Jeff Helfrich voted for the law but said he was concerned that counties did not have enough time to set up their programs.
“Unfortunately, I think we’re kind of setting people up for failure,” he said.
Multnomah county, the state’s most populous and home to Portland, plans to open a temporary center in October where police can drop off people who weren’t committing any other crime but drug possession. There, nurses and outreach workers will assess people and refer them for treatment. Until then, county mental health workers will respond to law enforcement in the field to help connect people with services, but people could still go to jail due to a variety of factors, including if those workers take longer than half an hour to respond, officials said.
In other counties, however, people with drugs who are also suspected of low-level public order offenses such as trespass will be eligible for deflection. Many counties plan to hold off on filing drug possession charges while people are completing programs.
The differences in deflection programs county to county are a concern, said Kellen Russoniello, the director of public health at the Drug Policy Alliance.
“It’s going to be this very complicated system, where essentially people who use drugs won’t know their rights and what to expect because it’s different in every single county,” he said. “Whether or not you are connected to services or you are just churned through the system will depend very heavily on where you happen to be in the state.”
Russoniello also said a potential influx of new drug cases could further strain Oregon’s legal system, which is already struggling with a critical public defender shortage, and that he thinks the focus should be on ramping up treatment capacity.
“We really need to focus on having the services available for folks if any of these deflection programs are going to be successful,” he said.
Over the past four years, Oregon lawmakers have invested more than $1.5bn to expand treatment capacity, according to a recent report from the Oregon health authority. While that has funded more than 350 new beds that are scheduled to be available next year, the report found that the state still needs as many as 3,700 beds to close gaps and meet future demand.
One of the law’s key drafters, Democratic state representative Jason Kropf, said each county has unique challenges and resources and that lawmakers will be monitoring “what’s working in different parts of the state.”
“I have optimism and I have hope,” he said. “I’m also realistic that we have a lot of work ahead of us.”
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