Oregon is recriminalizing drugs and tackling the reform movement
Three years ago, when Oregon voters approved a landmark plan to decriminalize hard drugs, advocates seeking to end the incarceration of drug users believed they were on the brink of a revolution that would soon spread across the country.
But even as the state’s landmark law took effect in 2021, the scourge of fentanyl increased. Overdoses soared as the state stumbled in its efforts to fund improved treatment programs. And while many other city centers emerged from the dark days of the pandemic, Portland continued to struggle, with scenes of drugs and despair.
Lately, even some liberal politicians who had embraced a new approach to drugs have supported an end to the experiment. On Friday, a bill that would reimpose criminal penalties for possession of certain drugs passed the state Legislature, joining Gov. Tina Kotek, who has expressed alarm about open drug use and helped craft a plan to prohibit such activities.
“It’s clear that we have to do something to try to adjust what’s happening in our communities,” Sen. Chris Gorsek, a Democrat who had supported decriminalization, said in an interview. Soon after, senators took the floor, with some telling stories about the impact of addiction and overdoses on their own loved ones. They passed the measure by a margin of 21-8.
The abrupt rollback is a devastating turn for decriminalization advocates, who say the high number of overdose deaths stems from a confluence of factors and failures largely unrelated to the law. They have warned of a return to a “war on drugs” strategy and urged the Legislature to invest in affordable housing and drug treatment options instead.
“This Legislature has not passed any real solutions,” said Sandy Chung, executive director of the American Civil Liberties Union of Oregon. “This is about politics and political theater.”
In recent decades, states across the country have taken steps to legalize medical and recreational marijuana. But no state other than Oregon had moved to eliminate criminal penalties for possession of hard drugs like fentanyl, heroin and methamphetamine.
Oregon’s decriminalization initiative, known as Measure 110, was driven by growing concerns that drug laws disproportionately incarcerate people of color and punish those in need of addiction treatment. Under the measure, which was approved by 58 percent of voters, people found in possession of small amounts of hard drugs would face a $100 fine, which could be avoided by completing a health assessment.
But when law enforcement began handing out tickets, officials found that few people opted for a health assessment, and the state stumbled in distributing funds to expand the availability of treatment options.
Meanwhile, fentanyl flooded the region. In downtown Portland, streets already barren due to the pandemic felt threatening, with people openly using drugs or expressing themselves in crisis.
Overdose deaths skyrocketed. From September 2022 to September 2023, deaths in the state rose by an estimated 42 percent – the highest increase in the country, according to the Centers for Disease Control and Prevention. (The death rate nationwide is up 2 percent.) Since the beginning of 2020, Portland’s Multnomah County has recorded more overdose deaths than Covid-19 deaths.
Decriminalization advocates pointed to research showing no link between the law changes and rising overdose deaths the first year of implementation. Instead, they argued, the crisis was rooted in the abundance of fentanyl, a lack of social services, the lingering effects of the pandemic and, especially in Portland, widespread homelessness, all factors that appeared to exacerbate dangerous drug use.
But the tide of public opinion was already turning.
The Drug Policy Alliance, a nonprofit that spent millions in support of the 2020 decriminalization effort, envisioned Measure 110 as the start of a series of similar campaigns in states such as Washington, Vermont, Maine and California.
But over time, and as images of public drug use and widespread deaths continued to emerge from Portland, Washington state’s initiative stalled and failed to make it onto the ballot. Also, no other state has proposed a decriminalization plan. On the contrary, California could vote this year on an initiative that would increase penalties for drug possession and trafficking. Had Oregon lawmakers not introduced the bill Friday, a proposed new ballot initiative — backed in part by Nike co-founder Phil Knight — would have sought to recriminalize drugs.
“For me, it has been incredibly frustrating to have this momentum on our side and then have these external factors change the winds so significantly,” said Lindsay LaSalle, director of policy at the Drug Policy Alliance.
The debate in the House of Representatives this week became emotional at times, as lawmakers shared stories of addiction and fatal overdoses in their own families. The measure passed the House of Representatives by a wide margin on Thursday, although some Republicans opposed it as still too lenient on drug users, and some Democrats expressed other concerns.
“It is an unacceptable compromise that we know will have disparities that impact Oregonians of color,” said Jennifer Parrish Taylor, director of advocacy and public policy at the Urban League of Portland.
The plan approved by lawmakers creates a new offense of possession, which could result in jail sentences of up to 180 days. But the language focuses on a range of cases that lawmakers hope will fall out of the criminal justice system.
The measure encourages the expansion of local programs so law enforcement can choose to take someone directly to a treatment provider instead of to jail. Those who do go through the courts can request probation and full treatment to have the charges dismissed. Those who do not complete treatment may be sentenced to a longer probation period. If that fails, the person could be sentenced to 30 days in jail instead, which could focus on treatment. Further violations may result in a longer prison sentence, with the possibility of parole for treatment.
Lawmakers have added a range of other measures, including funding for mental health and substance abuse programs and policies that make it easier for people to access withdrawal medications.
Kate Lieber, the Democratic majority leader in the Senate and a key architect of the new plans, said the approach is unique — the result of difficult negotiations between Republicans who wanted to reinstate penalties and Democrats who wanted to prioritize treatment.
“I cannot emphasize enough: doing nothing is not an option,” Ms. Lieber told her colleagues on Friday, urging them to support the changes. “Our current response to the drug crisis is not working.”
Several prominent Democrats have expressed support for a rollback, including Mike Schmidt, a progressive prosecutor in the Portland area. After the decriminalization initiative passed in 2020, Mr. Schmidt implemented its provisions early, saying it was time to move past “failed practices” and “focus our limited law enforcement resources on high-level commercial drug crimes.”
But he has reassessed his position, he said in an interview this week. The proliferation of fentanyl requires a new approach that treats addiction as a health problem while holding people accountable, he said. Open drug use downtown and near parks and schools makes people feel unsafe, Mr. Schmidt said.
“We’ve been hearing from constituents for a while that this has been really harmful to our community and to our streets,” he said.
Mr. Schmidt said the new bill still prioritizes treatment and uses prison as a last resort. That, he said, could eventually become the model Oregon offers to states across the country.