Measure 110 would make Oregon 1st state to decriminalize drug use

Oct 15, 2020
Originally published on October 16, 2020 11:58 am

Measure 110 decriminalizes the personal possession of small amounts of illicit drugs, including cocaine, heroin, Oxycodone and methamphetamine. It also reduces the penalties for possessing larger amounts.

It funds health assessments, addiction treatment, harm reduction and other services for people with addiction disorders by reallocating cannabis tax dollars and savings from law enforcement making fewer drug arrests.

Proponents say their goal is to take people who are addicted to drugs out of the criminal justice system and to treat their addiction as a medical problem.

If Measure 110 passes, Oregon would be the first state in the nation to attempt decriminalization.

The Yes on Measure 110 campaign is funded by the New York based advocacy group Drug Policy Alliance, which also backed Oregon’s legalization of recreational cannabis in 2014.

The group has spent about $3.5 million on signature gathering to qualify the measure for the ballot, staff time and cash contributions to the yes campaign. Facebook founder Mark Zuckerberg and his wife Priscilla Chan contributed $500,000 through the Chan Zuckerberg Initiative.

The measure’s local petitioners are cannabis legalization activist Anthony Johnson, Haven Wheelock, a public health and addiction expert at Outside In, and Janie Gullickson, the executive director of the Mental Health and Addiction Association of Oregon.

Opponents, who include some local addiction policy groups, say that the measure goes too far towards decriminalization without putting adequate dollars into treatment. They argue Oregon already offers alternatives to jail time for most people convicted of drug possession..

This measure addresses two interconnected topics: how Oregon law treats drug-related crimes and how the state supports and promotes addiction treatment.

Let’s start with criminalization: Under Measure 110, possession of drugs would be considered a civil violation — similar to a traffic offense — subject to a $100 fine, without the possibility of jail time. A person could avoid the fine by participating in a health assessment.

State law currently treats simple possession of small amounts of drugs as a misdemeanor in most cases, and as a felony in cases where a person has two or more prior convictions for possession, or any prior felony conviction. All of these offenses would be reclassified as civil violations.

Possession of larger amounts of drugs — for example, 40 or more Oxycodone pills or 2 grams or more of cocaine, methamphetamine, or heroin — is currently a felony. Measure 110 reduces these offenses to misdemeanors.

If Measure 110 passes, the state could still use 11 factors that constitute evidence of a commercial drug offense to charge someone in possession of drugs with a felony.

Those factors include also having stolen property or weapons, and indications a person is selling drugs, like having more than $300 of cash and baggies.

The measure would reduce convictions for drug possession by close to 90 percent, according to a detailed analysis by the Oregon Criminal Justice Commission - from 4,057 convictions in 2019 to an estimated 378 if the measure passes.

Measure 110 does not decriminalize manufacturing or selling drugs.

The measure also addresses how Oregon treats addiction: It would take some cannabis tax revenue that’s been allocated to schools and other programs and redirect it into a new state grant fund dedicated to addiction treatment.

The measure requires the state to put at least $57 million dollars a year, adjusted for inflation, into the fund.

That minimum amount represents a roughly 15 percent increase in the state’s annual budget for these services: A recent report found the state spends about $235 million a year on addiction treatment.

Measure 110 also rewrites the state’s formula for distributing marijuana tax revenue.

If marijuana tax revenue continues to increase as the state projects, it could mean bigger investments in the addiction treatment fund in future years: a projected $91 million a year for the fund in 2021-2023, for example.

The measure requires some of that money be set aside to establish a dozen or so centers in regions across the state, open seven days a week, to triage the needs of people addicted to drugs and connect them to health care and services.

These so-called “Addiction and Recovery Centers” would conduct the health assessments people need to complete to avoid being fined for drug possession. They would also be required to provide peer support and case management, connecting people to health care.

The new state fund could also be used to pay for addiction treatment, housing for people with substance use disorder, and harm reduction services like needle exchanges.

A committee made up of paid members appointed by the Oregon Health Authority would be responsible for deciding how to spend the money in the fund, and for oversight of the Addiction and Recovery Centers.

Finally, the measure would redirect any state and county dollars saved through the reduction in drug arrests and convictions into the new state fund for addiction treatment.

Many labor unions and community organizations that work with Black Oregonians, immigrants, and communities of color, including Unite Oregon, Latino Network, and the NAACP of Portland.

It’s also been endorsed by the Oregon Nurses Association, the Oregon Academy of Family Physicians, and the Oregon Chapter of the American College of Physicians.

The measure’s supporters emphasize a number of arguments, starting with the lasting harm of an arrest, conviction, and criminal record.

“It’s imperative that we change our culture so that people suffering from addiction aren’t stigmatized and isolated. By treating them as criminals, you prevent them from coming forward. They are often scared to come forward to their friends and family, because they’re considered second class citizens,” said petitioner Anthony Johnson.

Supporters also cite the disproportionate impact of drug arrests on Black Oregonians in particular.

The measure’s petitioners asked the independent Oregon Criminal Justice Commission to analyze the racial and ethnic impact of the measure. The CJC reviewed data from 2019 on drug arrests and convictions, focusing on cases where drug possession was the most serious criminal charge a person faced.

It found that Black Oregonians were particularly overrepresented. They were 4.7% of people convicted of drug possession and just 1.9% of Oregon’s population. The CJC analysis found that Measure 110 would in effect eliminate the disparity in possession convictions for Black Oregonians.

The CJC analysis noted that the drop in convictions could have far-reaching impacts on the collateral consequences people experience after incarceration, like difficulties getting housing and loss of access to student loans.

Supporters also say addiction is a medical condition and that people who are addicted will be more likely to succeed in treatment without incarceration.

“We are endorsing measure 110 because we have seen what happens to families and patients in the wake of the opioid epidemic,” said Dr. Marianne Parshley, the governor of the American College of Physicians Oregon chapter.

According to Parshley, incarcerating people for personal possession of drugs increases the health consequences of addiction.

“They have higher rates of HIV and hepatitis C, and they also are at increased risk of fatal overdoses. The time of highest risk is in the two weeks post discharge from correctional institutions,” she said.

The measure has been endorsed by many health care and social service providers that work with people experiencing homelessness, including Outside In, Transition Projects Inc. and Central City Concern.

“It will have such big impacts on the lives of people using substances. I’m excited to see Oregon being brave,” said Haven Wheelock, of Outside in.

The opposition includes several influential local organizations working on drug and addiction policy, including The Oregon District Attorney’s Association, Oregon Recovers and the Oregon Council on Behavioral Health, the lobbying arm of addiction treatment providers in Oregon.

They say the measure provides no guaranteed amount of funding for addiction treatment itself.

“Measure 110 doesn’t have any goals in it. How many people are going to actually be offered treatment? It doesn’t say,” said Mike Marshall, the director of Oregon Recovers.

Marshall believes the measure undercuts his group’s effort to convince the legislature to overhaul the state’s addiction treatment system in next year’s session, and fund more treatment with a new tax on alcohol.

Without a major new source of revenue, opponents argue the state’s behavioral health providers aren’t prepared for a potential influx of new patients. Adding triage and assessment centers without a guarantee that treatment programs be adequately scaled up risks making people wait even longer to get into treatment.

Oregon has just 1,427 beds available in residential treatment facilities and 201 beds in detox facilities, according to a 2019 report by the legislature.

“In failing to add a single penny of revenue to these needed supports, BM 110 will undermine progress in our recovery system and fails to provide a solution for Oregon’s most vulnerable,” the Oregon Council for Behavioral Health wrote in opposition to the measure.

Opponents also point out that in 2017, Oregon reduced the criminal penalties for drug possession, in part to avoid having to build a new state prison. They argue that people convicted of possession today rarely have to serve time in jail. Instead, most are offered either probation or supervised treatment through drug court programs, which operate in 26 of Oregon’s 36 counties, according to the DA’s association.

Some opponents of the measure believe that the threat of jail time is necessary to compel some people with addiction disorders to start and remain in treatment programs.

“Sadly, many people only confront their substance use disorder because of a contact with law enforcement which often ends in diversion and treatment,” the Oregon District Attorney’s Association wrote.

“This measure will tie the hands of law enforcement and prosecutors everywhere and lead to disastrous results for our communities.”

Opponents also cite concern that decriminalization will lead more young people to try drugs, and that parents may not be able to use the juvenile justice system as leverage to get their children into treatment.

“I think It’s a bad idea to decriminalize for children. I think it sends a really bad message to them, and influences their perception of the risks, at a time when it’s the most dangerous drugs have ever been,” says James O’Rourke, a defense attorney who has helped organize the opposition to measure 110.

O’Rourke specializes in cases connected to addiction and alcoholism, and is in recovery from addiction himself.

It’s complicated.

Measure 110 doesn’t create any new taxes. Instead, it rewrites the formula for distributing the state’s cannabis tax, which has brought in more money than the state expected.

It reduces funding for programs currently funded by the marijuana tax.

The measure caps the amount of funding available for existing marijuana tax recipients at $45 million per year maximum.

Schools currently receive the largest share of marijuana tax revenue: 40%. The State School Fund would see the largest revenue loss: a projected $73 million reduction in 2021-2023.

In addition, 20% of the state’s marijuana tax dollars goes to the state’s Mental Health, Alcoholism, and Drug Services account, 20% goes to local governments, 15% goes to the Oregon State Police, and 5% goes to the Oregon Health Authority. All would receive less marijuana tax revenue as a result of measure 110.

But it’s hard to say how that revenue loss would translate into cuts to programs and services. The legislature will likely need to backfill the revenue loss for schools with general fund dollars, for example.

Finally, there are cost savings associated with the measure. Decriminalizing some drug offenses would save the state money it spends on arrests, probation supervisions and incarceration. The state estimated the savings would be $24.5 million in the 2021-2023 biennium and would increase in future years. That money would be reinvested in the new treatment fund.

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