March 4, 2024

Experts Question Oregon Lawmakers’ Move to Recriminalize Drug Possession

If signed by Gov. Tina Kotek, the law is likely to be enforced unfairly, according to recent studies. And a provision requiring mandatory treatment instead of jail time will not apply on most Indigenous reservations in the state.

By

Underscore News + ICT
and Karina Brown

For once, lawmakers in Oregon are aligned: Democrats and Republicans passed a bipartisan bill March 1 to reintroduce criminal penalties for possession of small amounts of drugs like methamphetamines and fentanyl. If signed by Gov. Tina Kotek, the law will roll back the key provision of Measure 110 — a first-in-the-nation ballot measure approved by voters in 2020.

Experts who spoke with Underscore News / ICT say the law would lead to disproportionate arrests of Black people, while only people living on one of the state’s nine Indigenous reservations would have access to mandatory treatment instead of jail.

While lawmakers came to a compromise on the length of incarceration they want people to face for drug possession — up to six months — advocates say they haven’t heeded warnings that Black Oregonians will likely be arrested under the new law at rates higher than white people.

House Bill 4002 passed the Oregon Senate 21 - 8 after hours of discussion. Those opposed worried it could lead to inequities in how the law is applied, along with a return to a war on drugs approach.

“I consider the past anti-drug enforcement, the war, not only a bust but overly damaging to people of color because of the intentional enforcement by some authorities,” said Sen. Lew Frederick, D-Portland. “So, will 4002 give those already inclined to profile and use physical illegal force on Black people once again…a pass to harass people of color and criminalize them in numbers disproportionate to their presence in Oregon’s population?”

Sen. Frederick’s concerns were echoed by others who spoke — some who ultimately voted no and others, like Sen. Sara Gelser Blouin, D-Corvallis, who said she voted yes out of fear that the compromise bill was the only way to avoid a full repeal of Measure 110.

And one provision in House Bill 4002 means people living on all but one of the nine Indigenous reservations in Oregon won’t have mandatory access to treatment instead of jail. People arrested for the same crime in the state’s most populous counties, on the other hand, will automatically get the choice between treatment and jail.

The bill allows counties to decide whether police must offer treatment instead of incarceration. Twenty-three of Oregon’s 36 counties have opted to make the offer of treatment mandatory. But five of the counties that declined are located where reservations are — and three more reservations in Oregon are subject to tribal and federal law, not state law, which means neither this bill nor Measure 110 impacts them.

In a Racial and Ethnic Impact Statement released Feb. 26, the Oregon Criminal Justice Commission found that as a result of the policy, the state will see an additional 2,257 convictions for drug possession per year. The commission estimated that Black Oregonians would experience 4.6 percent of convictions under the new law — double the percentage of Oregonians who identify as Black.

While the impact statement did not show a disproportionate arrest rate for Indigenous people under the proposed law, previous studies have shown similar inequities. A 2015 study conducted by the Oregon Criminal Justice Commission found that Native Americans in the state were convicted of felony drug possession at five times the rate of white people.

Experts say the higher rate of conviction is tied to systemic problems within the justice system, not a higher rate of drug use among different groups of people.

“The scientific research has long shown there are only slight differences by race and ethnicity with regards to drug use and abuse,” the impact statement noted.  “Recent research within Oregon, however, suggests that overdose deaths have been particularly impactful for Black/African American and Native American communities.”

That holds true across the United States.

“American Indians, Alaska Natives and Native Hawaiians are on the front lines of the fentanyl epidemic,” Vanessa Waldorf, U.S. attorney for the Eastern District of Washington, told the U.S. Senate Committee on Indian Affairs in December. “The drug-related overdose death rate for Native Americans significantly exceeds the national rate — rising to 56.6 deaths per 100,000 persons in 2021.”

And while the proposed law requires the legislature to track state racial equity data that will show whether or not HB4002 is being applied evenly, that’s a backward approach, according to Jennifer Parrish Taylor, director of policy and advocacy at the Urban League of Portland.

“It is not enough to monitor the system when we know it is a system that has bias built into it,” Parrish Taylor said.

The debate surrounding recriminalization

In November 2020, Oregon voters passed Ballot Measure 110, the first in the nation to decriminalize the possession of small amounts of drugs such as fentanyl, methamphetamines and heroin. Possession of large amounts of drugs, as well as their sale, remained illegal.

Nearly three-and-a-half years later, as this year’s short legislative session neared a close, Oregon lawmakers debated whether Measure 110 had led to an increase in overdose deaths.

According to legal and healthcare experts who spoke with ICT/Underscore News, it’s too soon to know the answer. That’s because the voter-approved ballot measure coincided with the saturation of fentanyl into the market less than two years earlier.

"I think it's disingenuous to say that Measure 110 was some colossal failure because they are not looking at all these other mitigating factors,” said Danica Brown, citizen of the Choctaw Nation of Oklahoma and behavioral health program director at the Northwest Portland Area Indian Health Board.

Amid the swirling debate over recriminalization, there are some proven solutions. They include efforts led by tribes and Indigenous people, such as medication-assisted treatment, peer support networks and culturally specific care.

The mobile recovery unit travels between Grand Ronde, McMinnville and Salem Monday through Friday and is equipped with the capability of providing medication, counseling services and more. (Photo by Jarrette Werk Underscore News / Report for America)

A study released in January showed that a mobile medication unit run by the Confederated Tribes of Grand Ronde has helped expand access to opioid treatment for both Indigenous and non-Indigneous people living in rural communities. Although other mobile medication vans operate in Oregon, Grand Ronde’s is the first known to be owned and operated by a tribal nation in the country, according to the study. The Cowlitz Indian Tribe and the Chehalis Tribe also operate similar services.

“In general, most addiction treatment in the U.S. and in Indian Country is hard to come by and high barrier,” said Todd Korthuis, study co-author and addiction medicine specialist, professor of medicine and head of addiction medicine at Oregon Health & Science University. “What an innovative and exciting model [Great Circle Recovery] is that is reaching people who would otherwise not be served, both tribal members and others in the community.”

While a companion bill allocates an estimated $211 million for projects to address addiction and mental health, it’s unclear how much support the proposed law will provide for proven solutions led by those most impacted by the drug crisis.

HB4002 provides very few details specific to efforts led by tribes or Indigenous organizations. While it does suggest some funding could go to tribal government- or community-led organizations for evidence-based, culturally specific programs like peer support, housing and harm reduction, that money will only be made available to tribes and Indigenous organizations “if moneys remain” in the Drug Treatment and Recovery Services Fund after funding and establishing behavioral health resource networks in all 36 Oregon counties.

The law also says one of the 26 members of the Joint Task Force on Regional Behavioral Health Accountability should be someone “with extensive experience in Oregon Indian tribes” and offers grants to tribal jails for medication-assisted treatment. (The Confederated Tribes of Warm Springs operates the only tribal jail in Oregon. It’s unclear if this funding will happen, since the Warm Springs Reservation is not subject to state law, but rather to federal law, in addition to tribal law.)

Miranda E. Williams, executive health director for the Siletz Community Health Clinic, said the legislature “definitely” should have undergone a more robust consultation process with tribes before passing HB4002.

“They can always do a better job in communicating with tribes,” Williams said.

And many worry the funding is not enough.

“This is just a drop in the bucket, essentially, of what needed to happen a long time ago to address the things that we as a state have not done,” said Rep. Tawna Sanchez, D-Portland, Sanchez, Shoshone-Bannock, Ute and Carrizo.

Oregon State Rep. Tawna Sanchez, D-43rd District, Shoshone-Bannock, Ute and Carrizo and NAYA’s director of family services, and Rep. Annessa Hartman​ D-40th District, Haudenosaunee, the only two Native American women to currently serve in Oregon, wave up at the row of familiar faces in attendance Feb. 12, 2024 for NAYA Action Fund’s Legislative Day of Action. (Photo by Jarrette Werk Underscore News / Report for America)

Meanwhile, overdose rates continue to soar across the state and across the country. Some experts argue the legislature spent its time debating the wrong issue.

“I think there are a lot of claims on both sides that underappreciate the role of fentanyl,” Korthuis said. “[The role of] fentanyl in the Pacific Northwest eclipses any policy. It’s just more important than Measure 110 and it’s more important than discussions about recriminalization. Those things may or may not be good policies. But they're not going to turn around the federal overdose epidemic without a lot more prevention and treatment.”

Fentanyl has virtually replaced heroin and has led to a surge in counterfeit pills. With potency 50 to 100 times stronger than heroin, the dangers of an overdose are extreme.

As of September 2022, reported fatal overdose cases in Oregon reached 1,242 people. By September 2023, that number significantly increased with 1,650 fatal overdoses reported in the state, according to Centers for Disease Control and Prevention.

In Oregon, people who identify as Native American have more than double the overdose rate compared to white people, according to Korthuis.

That rise in overdose deaths is mirrored across the country. Unlike many other regions, where fentanyl saturated the market nearly a decade ago, the Pacific Northwest has only really seen fentanyl proliferate since 2019. The increase in fatal overdoses correlates with other states as they saw a rise in the use of fentanyl, as detailed by the Lund Report.

Recent reporting by Oregon Public Broadcasting shows how lawmakers largely neglected to implement the strategies they agreed to put in place when Measure 110 passed — strategies that would have increased the effectiveness of the law.

The proposed law would fund community behavioral health clinics throughout the state and increase access to life-saving medications that aid withdrawal symptoms and expand treatment services in jails across the state, with $18 million in additional grant funding that could be used for community-based medication-assisted treatment clinics.

But because it reintroduces criminal penalties for drug possession, many say it will do more to harm those most affected by the drug crisis than it will to help.

“With HB4002, Democratic leadership and Republican proponents, using the tools of white supremacy, have succeeded in building a slightly larger cage for those who will be collateral of criminal provisions of HB4002, which will cause unfathomable harm and lasting violence to communities of color and other Oregonians suffering from drug addiction,” said Parrish Taylor, policy and advocacy director at the Urban League of Portland.  

Rep. Sanchez voted yes on the bill, but called it a “no-win situation.” Sanchez said she is well aware of the fact that people of color are likely to face higher rates of punishment under the law, but said legislators cannot stand by as Oregonians continue to die.

Sanchez and other BIPOC legislators said they will be watching to see what those disproportionate impacts may be.

“I completely understand the fear around the racial impacts, which is why we are going to be paying attention to them,” Sanchez said. “We will be the watchdogs on this.”

Optional diversion programs

While some counties will offer a diversion program to those arrested, promoting treatment as opposed to incarceration, that provision is optional. The 23 counties out of 36 in Oregon that have elected to do so represent 80% of the state’s population, according to Sen. Kate Lieber, D-Portland and co-author of HB4002.

Oregon State Sen. Kate Lieber, D-Portland and co-author of HB4002, addresses colleagues on Feb. 5, opening day of the 2024 legislative session. Photo by Jordan Gale

Five of the counties that opted against the provision are where the reservations of six of the nine federally recognized tribal nations in Oregon are located: Coos County, Coquille Indian Tribe and Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians; Douglas County, Cow Creek Band of Umpqua Tribe of Indians; Jefferson County, Confederated Tribes of the Warm Springs; Lincoln County, Confederated Tribes of Siletz Indians; and Polk County, Confederated Tribes of Grand Ronde.

The Confederated Tribes of Warm Springs, along with the Burns Paiute Tribe and the Confederated Tribes of the Umatilla Indian Reservation, are not subject to Public Law 280, which means federal and tribal law apply there, rather than state law. So although Harney County, where the Burns Paiute Tribe is located, and Umatilla County, which is home to the Confederated Tribes of Umatilla, have opted to require people arrested under the law to be offered treatment, the law will not apply on those three reservations.

Of the nine federally recognized tribes in Oregon, only one — the Klamath Tribes — would have access to the provision offering mandatory treatment.

On top of that, tribal law enforcement is already extremely limited in its ability to prosecute non-Native people, including for drug trafficking, thanks to the 1978 U.S. Supreme Court ruling Oliphant v. Suquamish Indian Tribe.

Moreover, although 23 counties have written letters of commitment to offer a diversion program, the letters are not binding, and thus it is too early to say if all those counties will actually offer such programs, according to Sandy Chung, executive director of the ACLU of Oregon.

“The letters of commitment don’t mean anything; they are not legally enforceable,” Chung said.  “There's two parts to the optional nature of this. First, it will be on counties to create the programs, but they said it's optional for counties to create them. And second, even if they exist, it's optional for police and prosecutors to use them.”

Since counties got to decide to opt in or out of the diversion programs, they were not required to submit a fiscal impact statement, which likely would have shown a lack of funding to support these programs, according to Chung.

The Oregon Justice Resource Center sent a letter to lawmakers Feb. 29, saying the bill violates the law, and, if passed, the center would likely file a lawsuit.

HB4002 violates a law that requires information about costs for proposals creating a new crime to be submitted, according to the letter. The letter underscored Chung’s point: that the fiscal impact statement did not include all information from counties, including costs for local law enforcement and the creation of diversion programs.  

“If you're allowing police and prosecutors to decide who gets treatment and who gets jail, and there are limited treatment spaces, this is what we know happens in our society with a lot of inequality: people with money, with connections, or racial privilege, get into the treatment spaces away from jail,” Chung said. “And Black, brown and low-income people will more likely be put into jail without access to the treatment.”

Lead image: The Oregon State Capitol is undergoing renovations, which are expected to be completed in January of 2025. (Photo by Jarrette Werk Underscore News / Report for America)

Note: This story has been updated to reflect that The Confederated Tribes of Grand Ronde operates the first known mobile medication unit in the U.S. run by a tribal government. In the Pacific Northwest, the Cowlitz Indian Tribe and the Chehalis Tribe also operate similar services.

About the author

Nika Bartoo-Smith

Nika is a journalist with a passion for working to provide platforms for the voices and experiences of communities often left behind in mainstream media coverage. Most recently, she worked as the health and social services reporter at The Columbian in Vancouver, Washington. Prior to working at The Columbian, Nika spent the summer of 2022, after graduating magna cum laude from the University of Oregon with a degree in journalism, working as a Snowden Intern at The News-Review in Roseburg, Oregon. A descendant of the Osage and Oneida Nations, Nika was born and raised in Portland. Her favorite way to unwind is by trying a new recipe, curling up with a good book or taking a hike in one of the many green spaces around Portland.

Twitter: @BartooNika

Email: nbartoosmith@underscore.news

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