On Monday, a coalition that includes Max Williams, a former director of the Oregon Department of Corrections and former state lawmaker, announced it had filed paperwork for a ballot measure to “fix and improve” Measure 110. A key provision includes re-criminalizing the possession of hard drugs, like fentanyl and heroin, which were decriminalized with the passage of Measure 110 in 2020. That decriminalization, according to The Coalition to Fix and Improve Ballot Measure 110, has fueled open drug use on city streets and a spike in overdose deaths in Oregon, while failing to expand access to drug treatment and recovery services. Max Williams joins us to explain why he thinks Measure 110 isn’t working and why his coalition is seeking a remedy at the ballot box or through the state Legislature.
Note: The following transcript was created by a computer and edited by a volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. On Monday, a well-financed and politically prominent coalition announced it had filed paperwork for a ballot measure to significantly change Measure 110. In case anyone needs a reminder, that’s the measure that voters passed in 2020 that decriminalized the possession of small amounts of illegal drugs like fentanyl and meth and put cannabis tax dollars toward addiction programs and services. But now, with the spike in overdose deaths, there is a growing sense reflected in polls that Measure 110 is not working as intended. That is what the coalition is arguing. They want lawmakers or voters to re-criminalize the possession of hard drugs. Max Williams is one of the leaders of the group. He’s a former state lawmaker, former head of the Oregon Department of Corrections and former CEO of the Oregon Community Foundation and he joins us now. Welcome back to the show.
Max Williams: Thanks, Dave. Appreciate the invitation.
Miller: What’s your diagnosis of what’s wrong right now?
Williams: With Oregon or Measure 110, generally? That’s a tough question.
Miller: We have a limited time. Let’s stick just with Measure 110. Although I am curious what you would have said. No, let’s stick with the topic.
Williams: Yeah, that’s great. I appreciate that. I think the intention of Measure 110 was great, one that from an intense standpoint, I support it and still support, which is that we capture the cannabis dollars, the tax revenue from the cannabis dollars and we invest that in treatment and recovery for individuals dealing with addiction. That was the beauty and I think the promise of Measure 110 that Oregonians really were attracted to when they voted for it. I think what hasn’t worked very effectively, and I don’t think it’s worked effectively anywhere in the country, is this idea that we would decriminalize these hard drugs and to do it frankly, before any of the infrastructure was in place to address this issue. We’ve underfunded addiction recovery and treatment services in this state for years, probably decades.
Miller: We have some of the highest rates of untreated addiction in this state.
Williams: Yes, exactly. And yet we went ahead and made the decision to decriminalize before we had actually used those cannabis resources to start to build more capacity. And I think that’s one of the challenges that we had with the measure.
Miller: If it were just a question of timing, would you think you wouldn’t be here? Let’s say that the voters passed Measure 110 as they did in 2020, but OHA was much faster at getting money out the door. Do you think you would still be here?
Williams: It’s hard to prove the counterfactual, I think. If we had said we’re going to spend four to six years building in depth treatment, infrastructure and then visit the question of decriminalization, I think we might have had a different conversation,
but we didn’t choose to do that in the measure. I still can’t quite figure out why that is because the idea that we could tip up the services that were needed in 90 days, which is what the measure required just doesn’t seem reasonable in anybody’s estimation. But what I do believe is that there are other things that have happened in the intervening period of time. And Measure 110 didn’t create the homelessness crisis, it didn’t create Oregon’s long challenging behavioral health crisis. It didn’t create all of the issues we’re dealing with, with respect to crime, but I think it has exacerbated those issues at this point.
Miller: How can you say that in terms of the data? Why are you confident that Measure 110 in particular? Because the question here is, should voters or should lawmakers change this. So, why are you so sure that Measure 110 itself is to blame for what we’re seeing?
Williams: Well, again, I won’t say it’s 100% to blame for any of it, but I do think it’s exacerbated the problems and I think you talk to folks who are in any of our communities that are dealing right now with the challenges of the open air drug markets and the other situations and I think they would tell you that things got dramatically worse when we decided that we were no longer going to use any aspect of the criminal justice system as a bridge towards treatment and recovery.
Miller: The reason I bring this up is that I looked at CDC data from the last couple of years and if we’re just looking at overdose death rates which is a big part of this. It is not the only one. That’s separate from as you’re talking about open air drug markets. But it’s maybe the most dramatic and the most urgent version of this crisis, people dying.
Miller: If you look all over the country, those overdose death rates are up most likely because of fentanyl. I think that experts want to be careful about ascribing it, but it seems pretty clear that’s what we’re talking about. If you compare Oregon to a bunch of other states that had comparable overdose death rates pre-COVID because some states are way above us. Despite our problems, we’re actually not doing worse [than] many states. But if you compare us to Alabama, California, Colorado, South Carolina, Louisiana and Tennessee, these are all states that, in 2019, were about where we were. All those states ended up with overdose death rates that are roughly about where they were in 2023, comparatively speaking.
In other words, when I look at that data, it doesn’t seem like Oregon, with Measure 110, is an outlier; it seems instead that we have been caught up in this national terrible zeitgeist of fentanyl.
Williams: Well, there’s no question that fentanyl is a national problem. But I think there is a difference and I think the issue isn’t so much the raw rate as it is the rate of increase. If you look at that same CDC data, they will tell you that from 2020 to 2022 the rate of overdoses in Oregon went up by 70% compared to 17% nationally. Opioid rates were up 98% in Oregon, overdose rates, as compared to 19%.
Miller: I’m looking at data that goes to January of 2023 and the rate of increase is comparable in these comparable states. So I think we are comparing apples to apples here. It doesn’t seem in these states where we were around in the same neighborhood, I don’t see big differences in the rate of increase in overdose deaths.
Williams: Well, I guess I would say we may not want to be comparing ourselves frankly to every other state. I think we need to look at what’s actually happening on the ground in Oregon. The recent journal just published, I think this month, the Journal of Health Economics, went back and looked at the data of what’s happened in Oregon and determined that we had 182 additional unintentional drug overdose deaths that occurred in 2021 and they tie that directly to the decriminalization aspects of Measure 110.
Miller: I should say that is a study that only looked at unintentional overdose deaths. It didn’t look into deaths by overdose deaths that were ruled suicides or ones that were undetermined. And when you add those in and you look at the more recent data, it’s not clear to me that Measure 110 is as clear a culprit. I don’t want to belabor all this data.
Miller: I just put this out here because it does strike me as important to have some grounding to the extent that we can. And it may be that 10 years from now, there will be better nationwide data and granular state data, but when we’re talking about making new changes to state policy. I just wish we had a much clearer sense for what the policy means now, but it may be that there are some limitations.
Williams: Right and there are limitations. And what I wish is that we would have actually, as I said, invested in treatment and recovery infrastructure before we decided to experiment with decriminalization. I’m sure you’re aware that earlier this week, the Seattle City Council voted to step back from this policy and actually recriminalize possession and public use because of the similar kinds of challenges I think they’re facing in their community that we were facing here. So this isn’t as though we’re somehow charting some brave new course differently. The reason I got involved in this is because I don’t want to repeal ballot Measure 110. The idea that we should be investing greater resources in treatment and recovery and using strategies and the version of this measure that we’ve identified is not just simply about the application of criminal justice resources as a punishment. It is literally to find that segment of the population that is not currently otherwise motivated to seek treatment and recovery. And to use a minimal amount of that resource to try to move them towards treatment and recovery, while simultaneously providing some protection to themselves, the individuals on the street who are actually dying of overdose deaths, and also for the community that’s suffering the community harm associated with this crisis.
Miller: How would diversion programs work, as you understand it?
Williams: Well, there are a couple of different levels. And first and foremost, I want to say that there are a number of incredible treatment providers who, for the first time in years, through the Measure 110 money, have some resources to actually be doing really important work on the ground with peer support and other strategies. To the extent that those programs can continue to be funded and they are effective in getting people out of the addiction and into recovery, we should continue to use those as much as possible. But I think most of those people would acknowledge that there’s a segment of this population that is so highly addicted that they’re not amenable to entering into that kind of program and yet are still causing both harm to themselves and potential harm to the community. So the idea of diversion would be that the bill allows for communities to establish pre arrest diversion programs like something that is often referred to as LEAD (law enforcement assisted diversion), where they don’t even take the person to jail, they route them towards a treatment provider as an option if the individual wants to go.
Miller: So this is different from drug courts that have been around in Oregon for 30 years?
Williams: No, there’s a second level. Obviously, if people aren’t willing to do that, then you move to the next level and then there’s another sort of choice in the map where they can choose to go again into something like a drug court related diversion program.
Miller: But each time you’re in a sense adding a stick to what now is just a carrot with the thinking that for some people, that’s the only way to get them into treatment?
Williams: Yes, with the thinking that for some people, that’s the only way to get them into treatment, but with the promise, by the way, that at the end of whatever the diversion strategy is, whatever the treatment is or whatever the supervision requirements are that once completed, there would be an automatic expungement of that crime off their record. So the idea here is not to stack up additional misdemeanor offenses on somebody’s record and it’s not to put people in jail beds. It is truly to use a minimal amount of the criminal justice resource to motivate that very difficult group to motivate into treatment and recovery simultaneously. And I think we just have to honestly say this to also provide additional support for the communities that are bearing the cost of this current crisis. And a perfect example, I was downtown the other day and I had a meeting that required me to grab lunch just across the street from Pioneer Courthouse Square. I walked into a sandwich shop and they had a full-time security guard stationed in the sandwich shop. Later in the afternoon, I had a meeting with somebody at a coffee shop. I walked into a coffee shop and there was a full-time uniformed security person stationed in the coffee shop, not law enforcement, not a sworn law enforcement officer, not police, but these institutions are happy to pay the price of this challenge, in their own institutions.
Miller: Anybody who’s been in downtown Portland recently, I think that they’ll know what you’re talking about but it does make me wonder if now you’re starting to oversell the effects of what this new change would be. Are you actually arguing that if drugs were discriminated against, it would lead to a wholesale change in a kind of security atmosphere or feeling of safety or a feeling of lack of safety in a place like downtown Portland?
Williams: I’m not saying that it would be a wholesale change at all, but I think you have to start someplace and I think the sense right now is that there isn’t any place where this is actually starting. And frankly, local governments are gonna get to decide even under this measure what they wanna do. It’s up to a local prosecuting attorney. It’s up to the local law enforcement about how they want to apply these things. So that’s local control decision making. And so maybe this won’t have those direct changes. But what we are doing is we’re giving communities around the state an option to use a different method.
And again, the point here is not to punish people who are possessing these drugs. The point is to try to move that very difficult set of population into treatment and recovery. In a perfect world, Dave, we would never need law enforcement involved in this at all. We would have a sufficiently robust treatment infrastructure that would look different than what we have in the United States, but that’s not what we have right now. These are the tools that are available for communities to use.
Miller: Before Measure 110, there were drug courts, there were treatment courts in counties all across Oregon. And Oregon had the second lowest rate of imprisonment in America for drug offenses. That’s according to former Clatsop County DA Josh Marquis who loves to email me (laughter), but he wrote that to us when people were saying that there’s too much criminalization of drug possession and he pushed back to say that’s not the case. But this is preamble, because one of the things I’m wondering is besides putting more cannabis tax money towards treatment, keeping that aspect of Measure 110, what you want lawmakers or voters to do [that] would actually be different from the previous status quo.
Williams: Well, so first, let me just say on the issue of the incarceration of people with drugs, we really haven’t put people in prison for drug possession in Oregon for probably more than 30 years. And that’s true. We’ve handled it at the local level through community supervision and other strategies. And sometimes I think we get wrapped up in the national conversation about that issue and it actually isn’t reflective of what took place in Oregon. But even then, what we know is that’s not the best environment for people who want to ultimately get into recovery or seek recovery. But I will also tell you that I’ve had numerous conversations, both when I was running the Department of Corrections and since I’ve been engaged in this effort, from people who have told me that it was their engagement ultimately with law enforcement and their time either in jail or under supervision, that was the trigger they needed to ultimately move into treatment and recovery and an abstinent life. The great part about Measure 110 is we decided that we wanted to try to meet people with addiction where they are. The disappointing part for me about Measure 110 is we’re choosing in many cases to leave them there.
Miller: So to go back to this question, besides keeping the infusion of cash from cannabis purchases going towards treatment, how is what you want going forward different from the old status quo?
Williams: Well, the old status quo didn’t include this minimal use of law enforcement resources. It didn’t include the diversion concepts at the same level. It didn’t include automatic expungement of the record for someone who actually a lot of those things in drug courts were a part.
Miller: I thought the promise of drug courts for decades has been an expungement. This crime no longer exists as long as you stay clean and you follow these protocols [and] the record will be expunged.
Williams: But that expungement wasn’t necessarily automatic in those cases and it required different engagements and drug courts run differently on a county by county basis. So this structure didn’t exist in the way that we’re sort of putting it forward.
Miller: So you’re saying that this would be a more robust and maybe more easily-accessible version of diversion?
Williams: That would be our hope. And I want to say that one of the challenges that everybody’s facing is even with the cannabis money, Dave, there aren’t sufficient resources right now for treatment. If you looked at recent studies, you’d see that we have a huge gap in what we need even with the cannabis dollars. And we know that the cannabis dollars are going to decline to some degree because the price of cannabis has declined and the tax revenues therefore are going to decline. So one of the things that we’re hopeful for is that the legislature would see this as a place where we need further investment in Oregon, particularly in light of the issues that we’re dealing with, with just fentanyl for sure, but not just fentanyl with issues involving meth as well. There’s a huge meth problem on top of this. That is also a problem. It’s different from the way people react with fentanyl, but it’s creating additional challenges. So we want more investment in these issues. We want more money for treatment.
Miller: What about more money for a very overburdened justice system? In a sense, you’re saying the justice system needs to be brought back into this conversation. It was a mistake to take it out of it, but we’ve had many conversations recently about the disastrous condition in terms of public defenders and other aspects of a very overburdened system that is in some places grinding to a halt. Now you want to put more work back on their plates.
Williams: Well, back is the operative word. We knew how to do this in 2019. So it’s not like in 2019, we didn’t know what we were doing and now in 2023 we’re asking them. These systems existed. There are all sorts of challenges. You started this out about what’s wrong with Oregon? I think that was your question to me.
Miller: [laughter] I think in the context, I thought of my intro, I thought it was clear, but fair enough.
Williams: It’s a big question and yet I don’t think we simply say we’re not going to do anything because other systems aren’t responding. This is a question about leadership and we need leadership at the legislative level by the governor and by local leaders to address these issues. And so we simply can’t say well, because other things are broken, we shouldn’t be trying to fix this issue. We shouldn’t be trying to address this issue.
Miller: What’s the idea of adding misdemeanor theft cases to those funded for supervised probation? That’s one of the ideas embedded in this proposal.
WIlliams: Right. What you have right now, Dave, is people currently who are picked up on misdemeanor theft cases. And these are misdemeanor theft cases that are linked
to drug use, right? Their theft is to support their addiction. So for folks who are dealing with addiction and picking up these misdemeanor thefts right now, what happens is they typically get a bench probation which means there is no supervision for them after they get it. And so they end up just stacking up additional offenses. So what we’re proposing here is they actually be provided supervision. And the idea of that supervision again is to help motivate them into treatment and recovery.
Miller: In a sense, it’s a way to cast a wider net to bring more people into this court-ordered version of treatment.
Williams: Yeah. So when I was running the Department of Corrections, I would say 70 plus percent of the population had an addiction-related issue that they were evaluated on when they came into the system. Almost no one was in there because they had possessed drugs. If they were involved in manufacturing or distribution, actual significant quantity dealing, they might be in prison. But otherwise they were in for either a person crime or a property crime that resulted in a felony with more than a year sentence associated with it and that’s what got them into prison. And so while they weren’t in prison for violating drug laws, they were in prison as a result of their addiction and what we’re trying to do with this strategy is to actually intercept them early in the process, get them the help they need and avoid the stacking up. Because right now these people under this bench probation approach, with these misdemeanor thefts, they’ll continue to spiral and eventually they’ll either have a person crime or a property crime in many cases that will result in them getting a felony on their record. And we don’t want more people with felonies on their record. We don’t want more people going to prison. We know that a person with a felony on their record typically, when they get out, cuts their lifetime earnings opportunities in half by 50%. It almost guarantees a challenge about living in poverty. So if we can intercept people early, and use a balanced approach in the criminal justice system to offer people treatment and recovery and to help them avoid further more serious crimes, we both protect the individual, we help their families and we protect the community from further damage.
Miller: You are moving forward with a potential ballot measure, but you also clearly want lawmakers to act on this sooner. What have you heard from lawmakers in your conversations?
Williams: [Laughter] Well, I’m a former lawmaker, as you pointed out a former judiciary chair. I really don’t like ballot measures. That’s not mine.
Miller: This should be the work of experts.
Williams: This should be the work of experts, it should be the work of experts. And so my hope is that the legislature will act on this between now and the February session. If not before then at the February short session.
Miller: You first want a special session. You’re talking with urgency here.
Williams: People are dying. I mean, I would love a special session.
Miller: That’s what you want but what have you heard?
Williams: Well, I’ve had conversations with a number of legislators, some in legislative leadership. I think they understand that they’re going to need to do something. I think the senate president just acknowledged recently in a conversation that they would be taking this issue up in February and we’re very hopeful that they will.
Miller: If they simply say give cities the ability to regulate the public use of drugs, would that be enough for you to not put the ballot measure forward?
Williams: Well, I think there’d be a whole set of factors that would have to talk about, but there would be nothing that would make me happier than not having to run this ballot measure because it would tell me that our political system is actually responsive and working. I would say that if it’s simply criminalizing public use, I think that’s a bit of a challenge because I don’t think it gets to the underlying effects of possession. I don’t think it gets to the issue that right now these drugs are sort of ubiquitous with very low costs. So public use just simply means that the person can go somewhere and take the drug, the same consequences for them as the individual happen, the same consequences for the local community in which they’re taking these drugs and operating happens. So I think it’s a little bit sad. Now that we’ve included a public use element in our measure because we think it’s a tool that law enforcement and communities ought to have available, but we don’t think it goes far enough. We think you don’t get to the heart of the issue without actually talking about possession of these very, very dangerous hard street drugs.
Miller: Max Williams, thanks very much.
Williams: Thanks, Dave.
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