Think Out Loud

Legislators are making changes to Measure 110, not everyone is happy

By Sage Van Wing (OPB)
Feb. 25, 2024 2 p.m.

Broadcast: Monday, Feb. 26

Oregon Democrats and Republicans appear to have reached agreement to enact jail sentences of up to 180 days for people caught with small amounts of drugs like fentanyl, meth and heroin. House Bill 4002 also weakens a provision that would have required police to offer to connect people caught with drugs to treatment rather than bringing them to jail. That “mandatory deflection” was designed to give drug users a choice to avoid a criminal charge. But under the most recent version of the bill, it’s only optional. Malori Maloney, a staff attorney at the Oregon Justice Resource Center, joins us to explain how she thinks this bill will affect Oregon’s already overburdened criminal justice system.


This transcript was created by a computer and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. Oregon Democrats and Republicans appear to have reached an agreement to recriminalize the possession of drugs like fentanyl, meth and heroin. House Bill 4002 would create a new misdemeanor, punishable by up to 180 days in jail. An earlier version of the bill would have required that police offer to connect people caught with drugs to treatment rather than bringing them to jail.

Under the most recent version of the bill, that mandatory deflection is only optional. As we’ve heard in recent weeks, there is bipartisan support for recriminalization but groups like the Oregon Justice Resource Center (OJRC) have serious concerns. Malori Maloney is a staff attorney at the OJRC. She joins us now to talk about them. Welcome to the show.

Malori Maloney: Thank you for having me.

Miller:  I want to start with the most basic argument, then we can get into a lot of details. The proponents of this bill say two things: one, that the war on drugs was a failure, something that I think you agree with, and then the disagreement creeps in. They also say that decriminalization without enough treatment and without a societal ability to compel some people into treatment has also been a failure. And so they’ve put forward this bill that both puts more money into treatment and creates a mechanism to force the hands of treatment-resistant people. What is wrong with their argument?

Maloney: There are a few things - I do agree with proponents that the war on drugs was a failure. But unfortunately, this bill is a relic of the war on drugs. It’s like you said, going back to the bad old days. There are a lot of problems. First, criminalization will not solve the underlying issues, the root issues, like addiction or houselessness, and prisons and jails are not the best place for people who are genuinely trying to get clean. There’s also, as you said, no longer a requirement that treatment be offered to somebody who is accused of simple possession with this bill.

If the bill moves forward, we’re going to see justice by geography, based on the particular programs offered in different parts of the state. So offering treatment to people accused of possession, because it’s optional under the bill, leaves the choice to district attorneys and law enforcement. And essentially this looks like people in one county being punished more harshly than those in the next county over.

Miller: Right now, people who are found using fentanyl or meth on public streets all across the state get tickets, that a lot of reporting has shown they can just rip up. They get separate pieces of paper with treatment numbers that they rarely call. Sometimes this process will happen more than once a day. It often happens multiple times for the same people. If the threat of a misdemeanor in that situation is not the path that Oregon should follow, what is your solution?

Maloney: Really providing robust treatment opportunities for people, providing housing, providing social services. People are acting out of desperation, people are experiencing poverty, experiencing all of the problems that come with houselessness, and forcing someone into treatment is not going to give them long-term stability or long-term success, and it’s not going to make our community any safer. So really, providing an opportunity for the treatment programs that have begun to get off the ground to continue, and pouring resources into those programs, and also every other aspect of social services, mental health services, housing, everything of that nature.

Miller: But, as I’m sure you’ve heard, the proponents of recriminalization say that while we need more services, more substance use disorder treatment, that some people are just ignoring the citations regardless of the availability of treatment. They say that some people are just treatment-resistant, and it’s those people, in particular, that this recriminalization effort is intended to force to get treatment. What do you suggest should happen to people who just are not interested right now in treatment that is available?

Maloney: I can say from my work as a public defender, forcing people into treatment is not effective. Arresting people who don’t comply with treatment, who violate the terms of a diversionary program or probation, arresting them and putting them in jail only serves to destabilize them further. You’re at a heightened risk of overdosing upon release from jail. If you’re arrested for failure to comply perfectly with one of these treatment programs, you are at risk of just enormous destabilization in all aspects of life - of losing your job, of losing housing, of having custody issues. And so trying to force somebody into treatment with the threat of jail is just not the way.

Miller: Proponents of recriminalization also pointed to the news that came out last week from federal data showing that Oregon saw, by far, the largest increase in fatal overdoses between 2019 and 2023 in the country. They see that as evidence of decriminalization not working. What do you do with these numbers? It means that in 2019, Oregon had one of the lowest fatal overdose rates in the country - something that may surprise a lot of listeners - and because we increased at a rate that was almost twice as much, twice as high, over that five-year period as any other state, we’re now in the middle of the pack nationally. How do you reckon with those numbers?

Maloney: I mean, the numbers of overdose deaths in Oregon are something to take very seriously, and that’s why resources need to be directed to real treatment options, not coercive treatment options that are not evidence-based. We have a legal system that’s already incredibly overwhelmed. The public defender crisis is ongoing. There are currently, I think, around 3,000 people who are waiting for an attorney to be appointed to them, people facing criminal charges who are too poor to pay for an attorney and who are going without because of an enormous need. And about 150 of those people are already in jail.

So we have this truly incomprehensible situation where people are sitting in jail without having been convicted of a crime, with no one to defend them, and many more facing the same situation outside of custody with their lives hanging in the balance. And this bill would do absolutely nothing to actually address the root issues of houselessness and addiction, and it would make these problems, this burden on our legal system, much, much worse.

Miller: So let’s turn to the various scenarios of what you think would happen if this bill were to pass. How do you imagine it might play out if somebody were found with a small amount of fentanyl, say, either just simple possession or using it, while on the street in Pendleton or Monmouth or in Portland?

Maloney: There are going to be huge disparities depending on where people are and depending on whether prosecutors in a particular county opt to extend a treatment option to somebody. We know that there are racial disparities at every step of the criminal system nationwide and in Oregon, and we expect to see the same disparities in availability of treatment options. The bill will work to criminalize BIPOC Oregonians, houseless Oregonians, low-income Oregonians and those experiencing mental illness or acute drug addiction.

So somebody who is charged with possession in one of these three places, perhaps they are arrested and then offered the option to go into one of these deflection or treatment programs. Perhaps they will have to wait many months for an attorney to be appointed before that happens, before they can move forward with their case and actually get into treatment. Perhaps during that time, they miss a court date and get a new charge for failing to appear in court. And now they’re facing not just 180 days for the possession charge, but a full year for failure to appear. They move and don’t get notice of the next court date.

There’s just so many things that affect people who are houseless, who are low-income, that make it really, really difficult to stay up to date with a court date, with the court process, especially when there’s not an attorney available to help them through the process. So it’s possible that some people may be lucky enough to get into a treatment program, but there are going to be enormous barriers in the way, and in some parts of the state treatment won’t even be an option.


Miller: You asked lawmakers to formally request a racial equity impact statement, and last week, they agreed. I want to talk in a bit about what that actually means, but what are the specific reasons that you wanted lawmakers to put this process in motion?

Maloney: Well, we know from the failed war on drugs that the racial disparities of the policing and prosecution of possession and delivery charges are staggering, and this bill wouldn’t just recriminalize simple possession, which the people of Oregon voted to decriminalize. It would also classify some types of possession as delivery, which is a practice that the Oregon Supreme Court overturned.

We actually have really good data on what it looks like when people are charged with what we call “Boyd” deliveries, on what kind of racial disparities exist with those.

Miller Boyd…that’s named after a recent court case?

Maloney: Yes. Boyd was a case from 1988; the recent court case of Hubbell overturned Boyd in 2023 [State v. Hubbell, 314 Or. App. 844] - well, first in 2021 by the Court of Appeals, and then more recently by the Supreme Court. So what are often called Boyd deliveries, they’re not actually deliveries or drug dealing at all, but they allow police and prosecutors to go after people. not based on hard evidence, not on actual drug dealing, but on their perceptions.

So if someone is suffering from an addiction and they’re caught with drugs, law enforcement may decide that they are not, in fact, just a drug user, because they have more than a single-use amount of drugs or they have cash on them. Prosecutors may decide to charge them with delivery, the same crime that occurs when drugs actually change hands. And so there are a few problems with these Boyd deliveries. They’re, like I said, a relic of the war on drugs and they really don’t do anything to address the root problems we’ve been talking about - of homelessness, addiction and poverty.

Because we have 30 years of data, 30 years of cases using Boyd prosecutions, we have really good data. We were able to partner with a research scientist to analyze a representative sample of Boyd deliveries spanning three decades, and we learned that compared to white people, Black people are five times more likely to be convicted of Boyd deliveries, and Latino people are twice as likely. And there’s no reason to believe that bringing back this law would result in any different outcomes. And those disparities are despite the fact that people of different races use and sell drugs at similar rates, but we know enforcement of the law is not done in an even-handed way.

Miller: Do you feel confident that something like the disparate racial impact that you’re expecting would come from this law, that that would be discovered by a racial equity impact statement that lawmakers say they are going to do?

Maloney: We would expect to see that the analysis will show projections of House Bill 4002 having a particularly harmful impact on Black and Brown communities, yes.

Miller: How long does it take to do an impact statement like this? And what might it mean for this session? I mean, the clock is ticking, it’s a short session.

Maloney: Well, there’s an agreement that the impact statement will be done, but there’s no timeline for when it will be done, and there’s no guarantee that it will be done before legislators decide whether to move this bill forward.

Miller: What have you heard from Oregon judges or justices at the highest levels of state courts broadly, about lawmakers’ plans to recriminalize possession and public use?

Maloney: We’ve heard even judges expressing concern over the impact the bill would have on our criminal legal system. Judges from 27 districts around the state have actually written in and told legislators that the bill they’ve drafted would create an extraordinary workload, and that they’re not sure they would have the resources required to respond to the proposed changes in law. And they, too, pointed to the public defense crisis. So the disastrous impact on the legal system this would have really cannot be understated.

Miller: Part of the calculus of Democrats, if I understand this correctly, is that if they pass this bill, they would prevent a ballot measure that would maybe have stiffer penalties for everything we’re talking about - for possession and use, maybe have even less of a pathway towards some kind of diversion.

In the realm of politics, not policy, is this the best version of recriminalization that you can get?

Maloney: No, absolutely not. This is an extremely regressive version of recriminalization. It’s recriminalization with harsher penalties for drug delivery. It’s recriminalization with the reclassification of possession into delivery, treating some types of possession as seriously as delivery, as if people are actually engaged in selling drugs. So, no, not at all.

Miller: But I feel like your answer is still about policy as opposed to politics. Let me put it this way: If this bill were to fail, if you were successful at the very least in preventing this bill from being passed, and the session ends, do you have reason to believe that Oregon voters would pass a different version, a different change to Measure 110 that you would like more?

Maloney: I think Oregonians really want something that works. People see the suffering that folks are experiencing who are struggling with houselessness and addiction and they want something that works, and something that works is not going to be throwing people in jail with a revolving door, putting people in prison where their lives are completely destabilized and they’re back in the community worse off than they were before. I really believe that Oregon voters want what’s best for the state, and what’s best for the state is not going back to the war on drugs.

Miller: Malori Maloney, thanks very much.

Maloney: Thank you.

Miller: Malori Maloney is a staff attorney at the Oregon Justice Resource Center.

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