It will be a crime to possess fentanyl in Oregon again. Here’s what to expect next

Oregon will enter a new era for drug crimes starting this fall.

The state’s controversial experiment with drug decriminalization turned out to be relatively brief, ending not with another ballot measure but a bipartisan vote in the Legislature during the short session that ended Thursday.

Gov. Tina Kotek said she will sign House Bill 4002.

The bill covers a lot of ground. For instance, it makes it easier to prosecute drug dealing and to get medications like buprenorphine to treat opioid addiction.

Here’s a closer look at the new landscape for drug possession, prosecutions and treatment in Oregon -- and what the state’s first-in-the-nation experience means for the future of the drug decriminalization movement.

Did HB 4002 repeal Measure 110?

Yes and no.

Voters approved Measure 110 in 2020. It made two major changes: Minor possession of street drugs including fentanyl, heroin and methamphetamine became a non-criminal violation on par with a traffic ticket and the state directed millions of dollars in cannabis tax revenue to treatment and related services.

HB 4002 rolled back only the decriminalization aspect of Oregon’s landmark law, leaving the funding system it created alone.

What does HB 4002 do?

By far HB 4002′s most debated and controversial provision makes it a crime to possess small amounts of street drugs.

That means people found with fentanyl pills and other hard drugs can be charged with a misdemeanor.

The bill, however, carries an important asterisk.

Local governments, police and prosecutors have the option to create what are known as deflection programs, in essence allowing people found with small amounts of drugs to avoid the potential of arrest, prosecution and jail.

It remains unclear how those programs will work and what successful completion will look like.

What happens next?

The bill awaits Kotek’s signature.

In a statement issued Thursday, she said she will focus on its implementation.

“House Bill 4002 will require persistent action and commitment from state and local government to uphold the intent that the legislature put forward: to balance treatment for individuals struggling with addiction and accountability,” she said.

When will it go into effect?

The changes to the criminal code start Sept. 1.

How will drug possession cases change?

Under the current law, police in Oregon can only cite people for minor possession of street drugs. Citations come with the option to pay a $100 fine — or call a helpline for a substance abuse screening in exchange for waiving their citation. Few people do either.

Under HB 4002, drug possession would become a misdemeanor crime with a potential punishment of up to 180 days in jail.

How will deflection work?

It is not entirely clear.

The bill does not include a blueprint for deflection, leaving it to each county to figure out.

An earlier version of HB 4002 mandated that people found with drugs be given a chance to avoid arrest or jail by entering a deflection program, but local governments and police balked. They argued the proposal’s deflection requirements were too minimal and not every county had the resources to effectively operate such programs.

The final version of the bill made deflection optional.

About two dozen counties, including those in the Portland metro area, signed letters committing to the approach, though it remains unclear how it will look county to county.

The idea is for police to direct people with drug problems away from the criminal justice system, specifically jail, and into treatment by connecting them with substance abuse disorder screenings and resources.

Police, in essence, become an entry point for people to get help – with the prospect of prosecution, conviction and jail time serving as incentives to move people toward treatment.

Prosecutors say they see the system working like this: Police will issue misdemeanor citations to people with a small amount of street drugs and order them to appear in court at a later date.

Depending on a county’s resources, police may offer the person immediate help. Or they’ll be steered toward treatment when they show up in court.

If the person follows through, the citation would be dropped.

Under HB 4002, the state is required to track data on deflections and their outcomes

What are counties saying about deflection?

“The work we’ve done up until this point in time has been the design phase, where we’ve created the plans for what the law will be,” said Washington County District Attorney Kevin Barton, who supported the bill.

“Now we’ve got to build the airplane and on Sept. 1, the airplane has to fly,” he said.

He said consistency among police agencies within counties will be key. The Legislature’s plan funds county-level deflection coordinators.

“How do we make it so officers in Sherwood are making decisions consistent with officers in Forest Grove and everywhere in between?” he said.

The bill does not say what it means for someone to successfully complete a deflection program.

“Defining success by anything other than actual engagement in treatment will be a failure to achieve the goal,” Barton said. “If we don’t do that, if any deflection program doesn’t do that, I would say that it’s falling short of what needs to happen.”

Clackamas County District Attorney John Wentworth said he expects to expand the county’s specialty court, which currently handles cases typically involving offenses linked to homelessness.

He said he will encourage Clackamas County police agencies to “take advantage of deflection even if it’s someone they are very familiar with” because of their chronic drug use.

“But you are not going to offer it every single time to every single person,” he said.

Some people may unsuccessfully cycle through deflection without improvement. In those cases, authorities may opt to make an arrest and move people “straight into the criminal justice system,” he said.

And some counties may opt not to adopt deflection at all. In those cases, people would face arrest or a misdemeanor citation with an order to appear in court at a future date -- but without the offer of treatment involved in the deflection approach.

Which counties have not yet submitted signed statements agreeing to offer deflection programs?

Coos, Douglas, Jefferson, Lake, Lincoln, Polk, Linn, Sherman, Tillamook, Union, Wallowa, Wheeler and Yamhill. Counties may continue to sign up on a “rolling basis,” according to a spokesperson for Senate Majority Leader Kate Lieber, an architect of the HB 4002.

How many drug possession cases are expected as a result of the anticipated change?

State analysts expect an increase of about 3,200 law enforcement encounters as a result of change in the drug possession law.

The Oregon Criminal Justice Commission, which tracks criminal justice trends, arrived at the estimate based on 2019 data before voters passed Measure 110.

The commission expects about 1,200 people to successfully complete county-level deflection programs.

The rest will face a range of consequences, including arrest, conviction, probation or jail time. The commission estimates average jail sentences of about three months for those who end up in custody for probation violations.

Who will pay for these programs?

The Legislature passed a separate bill authorizing $211 million in general fund spending for deflection programs, as well as a list of other services.

The bill includes: $85.4 million on “shovel ready” projects to address treatment and service gaps; $7.5 million to provide services for people accused of crimes but who have been deemed unable to assist in their own defense; $10 million for jail-based treatment of opioid addiction; about $9 million in behavioral health workforce training; about $2 million for substance abuse prevention; $12 million for specialty courts and $12 million to increase ranks of public defenders.

The bill earmarks more than $30 million for county-based diversion programs.

Does the bill make it easier to treat opioid addiction?

Yes.

HB 4002 provides greater access to medications, like buprenorphine, used to treat opioid addiction. It requires health insurers to reimburse the cost of refills for medications used to treat addiction, and it allows pharmacists to dispense early refills of those medications.

It also sets aside $10 million to boost access to those drugs in Oregon jails.

People recently released from prison face significantly higher risks of opioid overdose -- 10 times higher than the general public, according to research published last year in the Journal of Substance Use and Addiction Treatment. Yet access to medications to treat addiction has been inconsistent in Oregon jails.

Nationally, an increasing number of states are introducing or expanding treatment that involves medication for incarcerated people who are addicted to opioids. Rhode Island, the first to offer the treatment in 2016, saw a significant drop in fatal overdoses the following year among prisoners who had been recently released, according to JAMA Psychiatry.

How does the bill address drug dealing?

The bill set out to address legal issues raised by a 2021 Oregon Court of Appeals ruling that instituted a new standard to convict someone on drug dealing allegations.

The court ruled in a case known as State. v. Hubbell that people suspected of planning to deliver drugs in the future could be accused only of attempted delivery -- a charge that carries a shorter sentence than actual delivery.

“The (court) said if they just have a lot of drugs and (police) have a vague sense they will probably deliver it at some point, that’s not a delivery, that’s an attempted delivery,” said criminal defense attorney Ryan Scott.

The ruling’s effect was immediate and dramatic: An analysis by the Oregon Criminal Justice Commission found a substantial decrease in convictions. Between 2015 and 2017, the state reported an average of 163 delivery convictions per year. In 2022, one year after the ruling, the state reported 28.

HB 4002 in essence erased the distinction between attempted drug dealing and actual delivery “so that they are now all delivery,” Scott said.

The bill effectively reinstates the legal standards that existed before the court ruling by expanding the definition of drug dealing to include possession of a controlled substance with the intent to deliver it. It does not require an intent to sell.

And the bill adds the prospect of a longer sentence for selling drugs within 500 feet of a substance abuse treatment facility or homeless shelter or within 30 feet of a park.

Oregon lacks public defenders already. How will these changes impact the public defense crisis?

It’s likely to compound the problem, according to the Oregon Public Defense Commission, which manages the state’s public defense system.

Even with the infusion of additional funding from the Legislature during the short session, the commission predicts it will need dozens more lawyers to accommodate the increase in drug possession and delivery cases.

Nearly 90% of people who already lack lawyers are accused of low-level felonies and misdemeanors, according to the Oregon Judicial Department.

Most of those accused of the new drug possession and dealing crimes are likely to join their ranks, the public defense commission estimates.

What did the Legislature do to address substance abuse prevention, especially among youths?

Young people in Oregon suffer from substance abuse disorders at rates higher than the national average, according to a 2023 report issued by the Oregon Health Authority. The report noted that overdoses increased for youths between ages 10 and 17 and for young adults between 18 and 24.

Among young adults, unintentional overdose deaths increased from about 40 in 2017 to nearly 75 in 2021, an increase of more than 75%, according to the report. Initial data for 2022, the latest available, suggests another increase, the report noted.

A separate analysis done in 2022 by OHSU-PSU School of Public Health researchers urged Oregon to make “significant investments” in prevention to support youths and families.

The Oregon Health Authority says the state has 85 licensed residential treatment beds at four centers for youths experiencing substance abuse addiction. But only 28 were occupied as of March 2 “due to primarily workforce challenges,” an agency spokesperson said Friday.

During the short session, the Legislature set aside about $8 million for two treatment centers that serve youths and about $700,000 for youth recovery housing, according to legislative staff and the Oregon Health Authority. It is not clear how many beds the funding will help create.

One of the centers, Parrott Creek Child and Family Services, will use the funding for a 40-bed youth residential treatment center in Clackamas County. Simon Fulford, the organization’s executive director, said as many as 24 beds will be for substance use treatment and the rest for youths struggling with behavioral health needs.

A spokesperson for the Oregon Health Authority said on Friday the agency does not know how many inpatient or outpatient treatment slots are needed to adequately serve youths experiencing addiction.

Treatment providers say the state doesn’t have enough and those wanting help often confront waiting lists. Fulford said “it’s very easy to lose that moment” when someone decides they want help.

“You’ve got them in a place where they want to get better, they want to access treatment and if you turn around and say hold that thought for a month or two or three, you will lose them,” Fulford said. “The addiction is too strong.”

Lawmakers also set aside $810,000 to study how to serve youths coping with addiction. The money will go toward program and research analysts and a public affairs specialist.

The Legislature also approved $2 million for K-12 fentanyl education and a social media campaign on the dangers of synthetic opioid use.

Will the helpline set up under Measure 110 continue?

Yes.

The helpline was created under Measure 110 as a resource for people suffering from addiction to get help. It gets few calls.

The Oregon Health Authority last year hired Health Resources in Action, a Boston-based nonprofit focused on public health, for up to $2.7 million to operate the line. The line remains vastly underused.

A spokesperson for the health authority said it will continue to operate.

(Here is the number to call if you are cited for drug possession under Measure 110: 833-975-0505; Anyone wanting drug and alcohol treatment resources may call 800-923-4357.)

Will the bill affect racial and ethnic disparities in the criminal justice system?

Most likely, yes.

The Oregon Criminal Justice Commission predicts racial disparities would result from the enforcement of both the new drug possession and drug dealing provisions and that Black people would be convicted at slightly higher rates for both crimes.

The analysis noted that the disparities for drug possession convictions are expected to be smaller than those that existed in the years before Measure 110 when Black people were “overrepresented for convictions of possession at a rate that is five times higher than what we predict will result” from HB 4002. The analysis didn’t predict a similar disparity for Latino people.

However, the report looked at prison sentences for all drug dealing convictions in 2018 and 2019 and found that most fell around 25 months – except for Latino people, whose sentences are on average nearly three months longer than any other racial or ethnic group.

What’s left of Measure 110?

A lot, it turns out.

The funding that came with the law remains in place and is separate from the money the Legislature set aside during the recent short session for treatment and other programs.

“Without that our system would be in much worse shape,” said Tera Hurst, executive director of the Oregon Health Justice Recovery Alliance. The group supported Measure 110′s implementation.

“We do still have a significant part of Measure 110 still intact,” she said.

The first round of grants went out in the 2021-2023 biennium and totaled about $300 million. Another round went out in 2023-2024, totaling about $200 million.

She said she expects the state to spend up to $300 million per biennium going forward.

According to the Oregon Health Authority, peer services tops all other categories of Measure 110 spending, including treatment. Those programs focus on people who have recovered from addiction who work in outreach and elsewhere to connect with people in the midst of addiction.

What’s next for the national decriminalization movement?

Measure 110 was funded largely by outside interests, including a hefty boost from the Drug Policy Alliance, a New York-based organization that advocates for drug decriminalization.

The group spent an estimated $5 million on the successful 2020 campaign and its lobbyists worked during the short session to preserve the measure.

Kellen Russoniello, senior policy counsel for the alliance, said drug laws are “ingrained in the American psyche” with support for abstinence-only approaches dating to the time of the Puritans.

Nationally, tougher penalties for drug-related crimes are regaining traction. This month, San Francisco voters backed a ballot measure requiring substance abuse treatment for adult welfare recipients who use illicit substances.

“This is really stuff out of the war on drugs playbook,” Russoniello said.

Oregon was a closely watched experiment that offered important lessons for the movement, he said.

He said carrying such a significant policy requires time. Its benefits -- fewer arrests and money for services that help people coping with addiction -- have gone overlooked, he said.

For now, Oregon serves as less of a roadmap than a cautionary tale for the decriminalization effort.

“For the movement, this is more about what can we learn from this,” he said. “I don’t think anybody is saying this is the end. This is a detour.”

-- Noelle Crombie is an enterprise reporter with a focus on criminal justice. Reach her at 503-276-7184; ncrombie@oregonian.

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