Oregon Is Recriminalizing Drugs, Dealing Setback to Reform Movement

Three years ago, when Oregon voters approved a pioneering plan to decriminalize hard drugs, advocates looking to halt the jailing of drug users believed they were on the edge of a revolution that would soon sweep across the country.

But even as the state’s landmark law took effect in 2021, the scourge of fentanyl was taking hold. Overdoses soared as the state stumbled in its efforts to fund enhanced treatment programs. And while many other downtowns emerged from the dark days of the pandemic, Portland continued to struggle, with scenes of drugs and despair.

Lately, even some of the liberal politicians who had embraced a new approach to drugs have supported an end to the experiment. On Friday, a bill that will reimpose criminal penalties for possession of some drugs won final passage in the State Legislature and was headed next to Gov. Tina Kotek, who has expressed alarm about open drug use and helped broker a plan to ban such activity.

“It’s clear that we must do something to try and adjust what’s going on out in our communities,” State Senator Chris Gorsek, a Democrat who had supported decriminalization, said in an interview. Soon after, senators took the floor, with some sharing stories of how addictions and overdoses had impacted their own loved ones. They passed the measure by a 21-8 margin.

The abrupt rollback is a devastating turn for decriminalization proponents who say the large number of overdose deaths stems from a confluence of factors and failures largely unrelated to the law. They have warned against returning to a “war on drugs” strategy and have urged the Legislature to instead invest in affordable housing and drug treatment options.

“This Legislature did not pass real solutions,” said Sandy Chung, the 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 moved to legalize medical and recreational marijuana. But no state other than Oregon had taken the step of removing criminal penalties for possessing hard drugs such as fentanyl, heroin and methamphetamine.

Oregon’s decriminalization initiative, known as Measure 110, was driven by growing concern that drug laws were disproportionately incarcerating people of color and punishing people 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 be given a $100 citation that could be avoided by taking a health assessment.

But as law enforcement began handing out tickets, officials found that few people were opting for a health assessment, and the state stumbled in distributing funds to expand the availability of treatment options.

Meanwhile, fentanyl was flooding the region. In Portland’s downtown, streets already barren as a result of the pandemic felt threatening, with people using drugs openly or acting out in crisis.

Overdose deaths skyrocketed. From September 2022 to September 2023, deaths in the state rose an estimated 42 percent — the highest increase in the country, according to the Centers for Disease Control and Prevention. (The fatality rate nationwide went up 2 percent.) Since the start of 2020, Portland’s Multnomah County has recorded more overdose deaths than Covid-19 deaths.

Decriminalization advocates pointed to research that found no link between the legal changes and rising overdose deaths over 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 tended to exacerbate dangerous drug use.

But the tide of public opinion was already turning.

The Drug Policy Alliance, a nonprofit that spent millions to support the 2020 decriminalization effort, had envisioned Measure 110 as the start of a series of similar campaigns in states like Washington, Vermont, Maine and California.

But over time, and as images of public drug use and widespread deaths continued to emerge from Portland, the Washington State initiative stalled and did not make it on the ballot. Nor did any other state advance a decriminalization plan. To the contrary, California may vote on an initiative this year that would increase penalties for drug possession and dealing. In Oregon, if lawmakers had not advanced the bill on Friday, a proposed new ballot initiative — backed in part by the Nike co-founder Phil Knight — would have sought to criminalize drugs once again.

“For me it has been incredibly frustrating to have this momentum on our side and then have these external factors so significantly shift the winds,” said Lindsay LaSalle, managing director of policy at the Drug Policy Alliance.

The debate in the Legislature this week became emotional at times, as legislators shared stories of addiction and fatal overdoses in their own families. The measure passed by a wide margin in the House on Thursday, although some Republicans opposed it for being still too lenient on drug users and some Democrats raised other concerns.

“It is an unacceptable compromise where we know there will be 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 misdemeanor crime of possession, which could result in jail sentences of 180 days. But the language focuses on a series of what lawmakers hope will be offramps from the criminal justice system.

The measure encourages the expansion of local programs so that law enforcement can choose to take someone directly to a treatment provider instead of jail. Those who do go through court can request probation and complete treatment to have charges dismissed. Those who do not complete the treatment can be sentenced to a more extended probation. If that fails, the person could face, instead of jail, a 30-day sentence that could be focused on treatment. Further violations could lead to a longer jail sentence, with the option of early release to treatment.

Lawmakers have added a range of other measures, including funding for mental health and substance abuse programs and policies making it easier for people to get access to withdrawal medications.

Kate Lieber, the State Senate’s Democratic majority leader and a key architect of the new plans, said the approach is unique — the product of difficult negotiations between Republicans who wanted to restore penalties and Democrats who wanted to prioritize treatment.

“I cannot stress enough: Inaction is not an option,” Ms. Lieber told her colleagues on Friday in 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” to “focus our limited law enforcement resources to target high-level, commercial drug offenses.”

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 issue while holding people accountable, he said. The open drug use downtown and near parks and schools has made people feel unsafe, Mr. Schmidt said.

“We have been hearing from constituents for a while that this has been really detrimental to our community and to our streets,” he said.

Mr. Schmidt said the new bill still prioritizes treatment and uses jail as a last resort. That, he said, could ultimately become the model Oregon offers to states around the country.