Oregon legislative committee proposes restoring penalties for drug possession

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Oregon lawmakers have proposed expanding addiction treatment coupled with reinstating criminal penalties for possession of small amounts of specified drugs.

The latter recommendation from a joint House-Senate committee, which on Tuesday, Jan. 23, released its framework for legislation in the 2024 session, already is drawing criticism from two sides.

Treatment advocates say that the proposal reverses what voters approved in a 2020 ballot measure, which removed penalties in favor of citations and the option for treatment. Law enforcement advocates say the proposal does not go far enough and lawmakers should impose even stricter penalties to prod people into treatment.

But the Democratic co-chairs — Sen. Kate Lieber of Beaverton and Rep. Jason Kropf of Bend, both former prosecutors who became legislators three years ago — say they tried to accommodate both sides.

“We really tried to thread the needle and make sure we listened to each side and what their needs are,” Lieber told reporters afterward.

“I think we should not criminalize addiction. We have to have all the tools to address what is happening on our streets in Oregon. We did remove a (penalty) tool, and we are simply giving the tool back to abate those situations. We try to balance that with what we know: People should have a behavioral health door that should be presented to them for these low levels of drug use.”

Lieber said lawmakers also will have to add money to the state budget in the middle of the two-year cycle. Gov. Tina Kotek has proposed $500 million to jump-start housing production and $100 million more for shelters, eviction prevention and emergency rental assistance, but nothing for expanded treatment. However, Kotek said on Jan. 9 she is willing to support what lawmakers come up with to deal with addiction treatment and drug enforcement.

“It is a priority for this session, just as housing is,” Lieber said of the pending budget additions, which have not been totaled up.

Kropf also said the key to resolving Oregon’s addiction crisis is to link people with treatment.

“When you look at the entirety of the framework and the investments we are going to be able to make, we are taking a view of the treatment infrastructure we need so there are multiple pathways for people to get from crisis to stability,” he said. “There is going to be a role for law enforcement to play in this — and there is going to be a role for public and behavioral health.”

The proposal calls for possession of small amounts of specified drugs — cocaine, fentanyl, heroin, methamphetamine and MDMA (known as Ecstasy) — to be punishable once again by maximums of 30 days in jail and a $1,250 fine. That’s a Class C misdemeanor. People arrested on possession charges would have the option to request “deflection,” a concept similar to the longstanding program of diversion for drunken-driving suspects. Completion would result in a dismissal of charges.

Measure 110 never decriminalized possession of all drugs, although critics said that was the message sent to the public when voters passed it by 58%.

Marijuana is not affected. Oregon voters approved a 2014 ballot measure that legalized cannabis for adult use, though it specifically bars public use.

Arguments about penalties

Oregonians for Safety and Recovery, a coalition of treatment providers and others, say the proposal is still a step backward.

“Treating the tens-of-thousands of Oregonians suffering from addiction as criminals is pointless, irresponsible and profoundly wasteful,” said Andy Ko, executive director of the Partnership for Safety and Justice. “Regressive policies of the past half-century too often elevated punishment as if it were health care. We need an honest response to the health crisis we face.”

But a coalition of law enforcement and business groups say they want maximum penalties of one year in jail and a $6,250 fine — a Class A misdemeanor.

“It’s good that legislative leaders are listening to Oregonians and moving to fix the failures of Measure 110,” Max Williams, a former director of the Oregon Department of Corrections and a former state representative, said in a statement for the coalition. “But anything short of reclassifying deadly drugs as a Class A misdemeanor crime will be inadequate to effectively steer more people into more treatment more quickly.”

The coalition is readying potential ballot measures for the 2024 general election on Nov. 5. If it moves forward, initiative petition signatures are due in July.

Other aspects

Lawmakers also propose to expand medication-assisted treatment, increase state grants for mental health and addiction treatment programs, and remove barriers to treatment and people undergoing treatment.

“We have got to do better with our continuum of care,” Lieber said. “We have underfunded treatment for many years.”

The proposal will be incorporated into House Bill 4002, although most of its concepts have not yet been written into the bill. Oregon’s 2024 session starts Feb. 5 and must end by March 10.

Senate Republican Leader Tim Knopp of Bend, who sits on the committee, said he favors the tougher penalties for drug possession advocated by law enforcement. He also said he favors enhanced penalties for fentanyl, an opioid that is deadly even in small amounts.

The proposal does include enhanced penalties for drug sales in public parks and within 500 feet of transitional shelters and treatment centers. It also would allow sobering centers and others to hold someone for 72 hours, rather than the usual 48 hours, if fentanyl is involved.

The proposal also would write into state law a standard for possession of a large quantity of drugs as sufficient to prove an attempted transfer to others, which brings stricter penalties for dealing. A 1977 law was interpreted that way in 1988 by the Oregon Court of Appeals. But in 2021, the court concluded in a case originating in Tigard that that it was a “substantial step,” but police needed to do more. The Supreme Court upheld the new interpretation last year, although the justices said lawmakers could write any change into law.

Kropf said: “We are going to make a clarification to our delivery statutes to make sure that someone who possesses drugs with the intent to sell those drugs can be arrested and prosecuted by law enforcement.”

Kropf acknowledged that reimposing criminal penalties for specified drugs could add to the burdens posed by Oregon’s current shortage of public defenders. But he said the option of “deflection” to treatment may alleviate that concern.

“We are hopeful that people will take advantage of this opportunity, that this will create avenues for people to meet the case manager who will really help them and not overburden the court system,” he said.



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