Measure 110 Didn’t Fail, Leadership Did
Author: Bea Baker
In 2020, Measure 110 (M110) was voted into state law by Oregonians with overwhelming support to decriminalize drug possession for personal use. Fast forward to 2024, around 60% of Oregonians believe M110 was a mistake. Fueled by intense lobbying to repeal M110, House Bill 4002 (HB 4002) passed the Oregon State Legislature and takes effect on September 1st, 2024.
There are over 18,000 homeless individuals in Oregon, with that number rising every year. Becoming unsheltered plays a large role in triggering addiction and exacerbating addiction for those already experiencing it. Having a history of homelessness and addiction makes it extremely difficult to get stable housing and maintain sobriety.
M110 was supposed to remove punishments and make it easier to get into treatment and housing. In addition, the measure promised to redistribute money from the cannabis tax into addiction and homeless support programs.
How it worked: When a person was found possessing a limited quantity of a controlled substance, they:
Received a $100 fine.
Were provided a 24/7 Hotline number, and required to call to set up social services screening.
Underwent a screening, and were supposed to be connected with mental health services and mailed a letter confirming the screening was completed.
Needed to bring that letter to court to have their fine waived.
Seems simple right? Wrong. A combination of misinformation, inaccessibility, and government mismanagement got in the way.
1. Misinformation. There is a prevailing myth that M110 brought in a huge wave of drug users and homelessness to Oregon, but the data doesn't support that. According to the M110 audit released in December, drug use was already on a steep uphill climb in the years leading up to M110s implementation. That's part of the reason M110 was passed in the first place.
Only 7% of users started abusing drugs after measure 110, 80% said they had been abusing substances for 10 or more years, and only 9% had moved to Oregon in the past 2 years.
“Measure 110 did not make public substance use legal. There's a perception that Measure 110 is responsible for folks using it in public and that's distressing for people, but they're not really connected in that way.” Dr. Amanda L. Risser, Sr. Medical Director of Primary Care and Substance Use Disorder Services at Central City Concern, explained,
“Public substance use has to do with fentanyl and how it's used, how often it needs to be used, and how policing has changed recently.”
Fentanyl provides a brief high that lasts only 30 minutes to an hour. The more someone uses fentanyl, the shorter the high. Fentanyl is cheap and very addictive. When it arrived in Oregon a few years ago, it replaced drugs with longer lasting but less intense highs, like heroin.
It is important to remember: fentanyl is not just an Oregon problem. It’s a nationwide crisis. Fentanyl hit Oregon late after it already had taken root in other parts of the country. M110 did not cause the fentanyl crisis, and it did not increase fentanyl overdoses, or 911 calls.
2. Inaccessibility. M110’s goal was to get people into treatment instead of jail. Our first barrier is we don’t have enough detox or rehab beds.
“We’re just hundreds, if not thousands, of beds behind. “ says Dr. Risser “At Hooper, for example, which is one of the biggest [detox stabilization centers] in our region, we admit about 2,000 people a year and we turn away that much. So we are only really able to serve half of the folks that show up on any given day.” Hooper might be one of the biggest, but it's not the only treatment center in Oregon struggling to meet the demand for treatment, all of them are.
“Locally and statewide there is just the need for many more treatment beds, of all levels of care, including withdrawal management, residential treatment, outpatient treatment,” explained Dr Risser.
If detox or rehab beds are not available, there are harm reduction tools. Needle exchanges reduce the spread of blood transmitted illnesses, like HIV, reduce infection, and provide safe disposal of used needles. Drugs like Naloxone reduce overdose. While there are harm reduction options in Oregon, they aren't always easily available. There are several syringe exchange programs in Oregon, but the popular - and safer- way to use fentanyl is to smoke it using tin foil and straws. Smoking is much safer for users and the community around them as it reduces the safety concerns associated with needle use.
“I'm glad people aren't injecting because there are so many risks with injection drug abuse, but syringe services are also a place were folks who need that service can get a lot of other things too, other kinds of social support, other kinds of recommendations and referrals, counseling on safer use, so I'm worried folks aren't getting that kind of safer use support because they aren't needing syringes.” said Dr. Risser.
The Multnomah County Health Department planned a pilot program that would have distributed foil and clean straws to users, but Multnomah County Chair Jessica Vega Pederson shut down the program suddenly after online backlash. Taking away harm reduction doesn't make people less likely to use, it only makes using drugs more dangerous. Without accessible harm reduction, users are losing access to many resources and connections.
Even if there were enough treatment spaces, getting them through M110 was not accessible either. In most of the state, the citation tickets handed out by officers did not have the phone number to call in order to get the fine waived. The tickets handed out were a “uniform ticket” used for traffic violations. Without that number there was no next step. Over 7000 tickets have been handed out by police, of those, only around 100 people ticketed ended up calling the hotline. Even fewer ticketed people were able to get the fine waived.
Additionally, access to mail is an ongoing issue for those with no permanent address. This is another reason why so few people were able to get their fine waived. After calling the hotline the person would be mailed a letter to bring to court, but in order to receive the letter they would need an address or P.O. box. Sisters of the Road had a program where customers had their mail delivered to the cafe. Similar programs are now run by other service organizations like Transition Projects Inc, but overall, mail service continues to be inaccessible.
3. Government/Systemic Mismanagement. OPB reported the proposals to amend issues with M110 were ignored or rejected by state officials.
The Executive Director at Oregon Health Justice Recovery Alliance (OHJRA), Tera Hurst, emailed then Governor Kate Brown a proposal detailing how to implement M110 effectively.
This proposal included:
Changing the uniform tickets to one specifically for drug citations that would prominently display the hot line number on the ticket.
Educating police officers on how M110 would work.
Encouraging officers to familiarize themselves with detox beds in their area.
Having the hotline operators notify the court when someone completed the screening, instead of mailing a letter to the person.
Hurst told OPB she had weekly meetings with Brown’s staff and asked them to implement the suggested changes. Brown's office didn’t take up any of these suggestions. Police had no training on M110, aside from explaining the basics of the law to new recruits. In February 2024, former Governor Kate Brown addressed the situation in a press conference saying, “This initiative, happening when it did, was the perfect storm.” Meaning, between COVID-19, wildfires, and the Black Lives Matter protests, her office was stretched too thin.
Failing to address these glaring issues in M110 before implementing it made things harder for everyone in the long run.
Additional bureaucratic hurdles challenged the rollout of M110. Oregon delegates mental health programming to counties. Multnomah County Commissioner, Sharon Meieran, wrote in a letter to her Colleagues, “State law directs counties to act as the Local Mental Health Authorities (LMHAs) for their regions. For years, Multnomah County has not fulfilled this obligation on either a statutory or moral basis.” Due to disparate tax bases among counties, this leads to a huge discrepancy in the amount of funding each county is allocated, and the type of services available. According to Dr. George Keepers, Chair for the Oregon Health & Science University’s Department of Psychiatry, because Oregon distributes its system of governance through counties, Oregon is not able to control the delivery of care in the state. As a result we spend an average of $234.87 per person on mental health but consistently rank in the bottom five for mental health in the nation. In contrast, Massachusetts, which does have control over the delivery of care, spends on average $113.27 per person and ranks in the top five for mental health.
A huge part of M110 was its promise to redistribute the money from the Cannabis Tax to fund expanded treatment options. Tickets for drug possession started rolling out in early 2021, but the over $300 million in initial funding was not fully in place until summer of 2022. In the meantime, many programs remained unfunded.
House Bill 4002 (HB 4002)
In February of this year, the Oregon legislature passed HB 4002. HB 4002 will, among other things, change drug possession from a class E felony to a class C misdemeanor. Instead of a $100 fine, anyone found in possession of a controlled substance can be charged with up to 30 days in jail and a fine of up to $1,250. But the changes can be waived, expunged, or sealed.
Here is how it will work: When a person is found possessing a limited quantity of a controlled substance:
Police and district attorneys are encouraged –but not required– to offer deflection programs rather than a citation, arrest, or trial. If someone completes the deflection program, no charges will ever be brought.
If the first diversion offer isn’t an option, the state must offer conditional discharge. The person is charged with possession of a controlled substance, but they can enter into an agreement similar to probation. Like probation, it's handled by a Probation Officer (PO), and if the person breaks the rules they face jail time. However, entering into a conditional discharge does not appear as a conviction on someone's record.
If the person does not accept or complete the first two offers, they go to trial. If found guilty, they will be put on probation. Like conditional discharge, the person has the opportunity to get treatment. Unlike the deflection program, charges will appear on the person's record until they complete treatment, but after treatment charges are sealed.
If the person goes to jail, The Oregon Department of Community Justice and their PO can work with the person to set up an early release from jail. If they do not comply with rules of their release, they return to jail and complete their sentence.
After 3 years the charges are sealed, even if someone is convicted and does not get treatment.
Issues with HB 4002
The Oregon Judicial Department and Oregon's Supreme Court raised concerns HB 4002 will put a huge workload on public defenders and the court. Public defenders are severely understaffed. Over 2,800 people are facing charges without representation, and re-criminalizing drug possession is estimated to add 1,523 cases per year. If Oregon cannot provide a defense lawyer to the defendant within 7 days of their first court appearance, they must be released. This is to ensure their 6th amendment right to a speedy trial is not violated. Oregonians need to have reasonable expectations of our legal system’s ability to divert and detain people accused of violating law.
HB 4002 introduced many new things to the court system. Oregon courts will now need to figure out how to retroactively seal and expunge records, how to carry out conditional discharges, and navigate deflection programs. These big changes need to be figured out by an already overworked system before September 1, 2024.
Re-criminalizing possession will disproportionately affect people of color. The Racial & Ethnic Impact Statement put out by the Oregon Criminal Justice Commission predicts that “a racial disparity for Black/African American individuals will be present for the new convictions resulting from legislation regarding possession of controlled substances.”
Just like the rest of Oregon's mental health programs, deflection programs will be handled by the county and not by the state as a whole. Not every treatment program can be a deflection program. A deflection program is a “program between law enforcement agencies and behavioral health entities that assists individuals who may have substance use disorder, another behavioral health disorder or co-occurring disorders, to create community-based pathways to treatment, recovery support services, housing, case management or other services.”
No one wants a return to the war on drugs. Supporters of HB 4002 are quick to distance themselves from that narrative, but that doesn't change the fact that we are stepping back into a system that fails to address root cause issues and disproportionately affects people of color.
Long Term Solutions
Homelessness and addiction will not get better on their own. Decriminalizing drug possession did not and will not end these issues, but that is not why people voted for M110. M110 and HB 4002 are not meant to address the root of addiction. They are meant to help people currently dealing with addiction and homelessness get treatment. People deserve treatment, people deserve compassion, but treatment is not and can not be the start and end of the conversation.
Addiction and homelessness did not come out of nowhere, they are symptomatic of greater issues in our society. There's no one root cause: lack of affordable housing, lack of available jobs, dropping out of school, debt, an unstable homelife, and mental health issues are all contributing factors that lead people to abuse drugs and/or end up on the streets. Setting up more long-term treatments and resources for addicts and homeless is important for people currently experiencing homelessness and addiction, but it is not the only aspect of this issue that requires our attention.
In order to reduce the number of people who become addicted to substances, we need to look at preventative measures. Early childhood education, stable and affordable homes, and access to enough nutritious food are all building blocks to a resilient community. M110 as a concept did not fail. Instead of addressing the issues with its implementation and solving the root cause of these problems, we re-criminalized possession. Just like M110, HB 4002 has issues with timing and implementation. We are making huge changes to our legal system and reintroducing more than a thousand cases while we are in the middle of a public defenders shortage. We are trying to divert people into treatment when we are already critically short on spaces in treatment facilities. We are reopening the door to discrimination.
As we start to roll out HB 4002, we need to remember what actually went wrong with M110: misinformation, inaccessibility, and government mismanagement.
