Last week, Gov. Tina Kotek signed HB 4002 into law, a bill that effectively ends Oregon’s experiment with drug decriminalization under Measure 110.
As of Sept. 1, 2024, the possession of hard drugs like fentanyl and meth will be a misdemeanor punishable by up to six months in jail. But the law also sets aside nearly $21 million to incentivize counties and Tribal governments to deflect drug users from jail time by connecting them to treatment and recovery service providers.
Washington County is one of 23 counties in the state that has signed letters committing to prioritize deflection over incarceration. The details of those programs, however, are left up to each participating county.
Joining us to talk about what deflection could look like in Washington County, and its impact on law enforcement and treatment providers are District Attorney Kevin Barton and Alison Noice, the executive director of Coda Inc., a substance use disorder treatment provider serving the tri-county region.
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. Last week, Oregon Governor Tina Kotek signed a bill into law that effectively ended Oregon’s experiment with drug decriminalization. Starting in September, the possession of hard drugs like fentanyl and meth will be a misdemeanor, punishable by up to six months in jail. But the law also allows counties and Tribal governments to deflect drug users from jail time by connecting them to treatment and recovery service providers. Twenty-three counties in the state have signed letters committing to prioritize deflection over incarceration. We’re going to hear today what that might look like in Oregon’s second most populous county. We’re going to get two perspectives on this in a little bit. We’ll hear from a substance use disorder treatment provider. Kevin Barton joins us first. He is a Washington County District Attorney. Kevin Barton, welcome back.
Kevin Barton: Thank you. It’s great to be back.
Miller: Can you give us a sense for what deflection is going to look like in Washington County?
Barton: Well, the phrase deflection describes really a process or a goal of trying to get people who are struggling with addiction and are breaking the law, now that it’s a crime once again to possess and use illegal substances, but really to approach it in a way where we’re putting treatment first and recovery first. So the goal is if a police officer encounters someone on the street who’s using or possessing illegal drugs, things like fentanyl or meth or heroin or cocaine, we want to give that officer another option that they currently don’t have. And that option would be to try and steer that person into a treatment program rather than taking them to jail or bringing them to the courthouse or bringing them to the DA’s office. And if we can successfully get that person to engage in treatment over a period of time through what we’re calling a deflection program, then the criminal justice system doesn’t need to really get fully involved because we’ve deflected or diverted them away from the traditional criminal justice system into the goal that we all have, which is getting people to address their addiction and move forward in a healthy way.
Miller: Can you just give us a sense for what the actual conversations are going to be like? I mean, the way this has been described in the past is that for some portion of people who have been resistant to going into treatment, that the threat of jail time\ – in this case up to six months – in some cases, that’ll be the incentive they need to get into treatment. But what might a prosecutor actually say?
Barton: Well, the first thing is to recognize that we’re really dealing with human behavior. We are trying to convince people to do something that they may not want to do always on their own. And that’s the problem currently on the streets with Measure 110. We’ve seen that a purely voluntary system has not produced the results that I think Oregonians were hoping it would produce. So what we now have with this new law is what I think is a sensible middle ground with good public policy, where we have created some carrots and some sticks, some rewards and consequences to motivate people to do what can be a very hard thing which is engaged successfully in treatment.
I think we need to recognize that there’s no one single solution that will work for everybody. Some people respond well to certain types of motivations, to a carrot, to a stick to a reward or a consequence. But we do know the criminal justice system does have some built in rewards and consequences that I think we can take advantage of. So for example, for some people, when they interact with the police, the very opportunity to engage in treatment right then and there, and we know that the earlier we can get people access to treatment when they have that interaction, the higher the likelihood of success. And if we can reward them with avoiding the downside of a possible prosecution by engaging successfully in treatment, that will work for some people, but it may not work for everyone.
We need to recognize there will be people who may not successfully engage in deflection. So equally important to the deflection conversation is what’s the safety net they’re going to fall into if they don’t successfully engage in that first moment. And that’s where we’re having conversations about specialty court programs in the court system, diversion programs in the court system, that have proven over the decades to also show great success for many people.
Miller: Well, to that end, I’m curious how different this new system is going to be from what was in place before. Deflection is a word I don’t remember, but diversion is, drug courts or specialty courts have been around for a while. What’s going to be truly new starting in September?
Barton: Well, I would say there’s new and old together. So we’re taking building blocks that are proven. One of the challenges with Measure 110, it was a completely unproven and novel experiment. No other community in the United States had decriminalized the possession of really dangerous drugs like fentanyl and meth, et cetera. That was brand new, a big experiment and we know how that worked.
Now, this is another new program, this idea of a statewide deflection effort. However, there are communities that have used it successfully already. So we can take the lessons that we’ve learned from those communities, places like Marion County. It has a program right now called Law Enforcement Assisted Diversion. That’s basically deflection. Seattle has the same thing. Law Enforcement Assisted Diversion. That’s deflection. So we can take the lessons that we’ve learned from other areas that have successfully used it and we can apply them here on a broader basis.
We can also take the lessons we’ve learned from specialty courts like drug courts and veterans treatment courts, mental health courts, where we use wraparound services, where we meet people where they are, we engage in rewards and consequences. There’s a level of accountability but also an understanding that sometimes people will stumble and take two steps forward, one step backwards, all with an eye toward successfully getting people to engage in treatment. So yes, there’s some new ideas here in terms of bringing it together with a deflection program, but these are not experimental. There are proven techniques that we can employ here and I think have better success than what we’re currently seeing on the streets.
Miller: What’s your estimate for what it’s going to cost just within Washington County to set up this new system? Whether that means new prosecutors, new people to work in specialty courts, all of this. What’s it going to cost?
Barton: Well, that is literally the million dollar or multimillion dollar question. So we’re wrapping our heads right now around what this is going to mean, and it’s a work in progress. We spent the last several months designing what this law would look like. Now, we’re going to spend the next several months building the structure, and then we need to have it all work on September 1st when everything is fully implemented. We know one of the early challenges is that we may not have enough funding. The legislature was building in the funding alongside the new law. And I think everyone was thinking, let’s try this and see if there’s enough funding here. But we know, for example, Washington County’s funding is below what we anticipate we’ll need. We’re scheduled to receive $1.4 million from the state to implement this program. And that unfortunately appears to be less than what we need.
Miller: Just kind of back of the envelope sense, less by how much?
Barton: Well, it’s hard for me to answer that, Dave, because we haven’t built the program yet. So I can’t give you a hard and fast number. What I can tell you is Multnomah County is scheduled to receive $4 million. Washington County’s share of the deflection money is about the same as Marion County, a county that’s about half our population.
We’re working in communicating with legislative leaders about the need for more funding and I’m very confident that we’ll receive more funding because everybody wants this to work. But I can definitely say right now there’s not enough gas in the tank to get the car to the destination we all want to reach. So we need to put some more in there, more funding, so we can hire the peer navigators, the treatment coordinators, people to go on the streets and actually meet people where they are, but also help them engage in treatment and successfully engage so that we’re not seeing them overwhelming the criminal justice system.
Miller: Are you not able to give us even just your ballpark sense for how much this is going to cost? I understand you want more. You’re saying that when you look at the respective counties that are similar in terms of population ranking, you feel it seems that Washington County has gotten short changed, but you still haven’t given us just even a ballpark sense for how much this is going to cost that way. That way listeners can have a sense for how far away you think you are.
Barton: Absolutely. It’s going to cost several million dollars more than what we have and it’s going to be not just one-time funding. Right now, the funding we have is for the one-time. We need something that we know is recurring and stable so we can build up the treatment infrastructure to be able to address the need going on in years to come.
The unfortunate reality is that there will not be an overnight change. The law goes fully into effect September 1st. On September 2nd, it will not look different. It will take time, it will take not just months or years to turn the ship around and move things in a more positive direction. And that’s going to take a sustained commitment in the millions from the legislature, not just to Washington County, but to all communities throughout Oregon because every community is dealing with the struggle in different ways. But I do think once that commitment comes into play, we’ll all reap the benefits from that and it’ll be money well spent.
Miller: The Oregon Criminal Justice Commission estimated that hundreds of additional people are going to be sent to jail for misdemeanor drug possession as a result of this legal change and that People of Color are going to be overrepresented in that. What are you going to try to do to prevent racial disparities in the application of this law?
Barton: Yeah, that’s a really important question. We’re going to do everything we can to track the data so we can see in real time how the law is being applied. And there’s a tendency to focus on people who are ending up in jail or people who are arrested. But I think at the same time, we need to also think about who is negatively impacted by overdose death and that’s also People of Color. Who are negatively impacted by the crime that surrounds rampant drug use in our communities. And that can include financially vulnerable communities and marginalized communities as well.
So when we think about all of the impacts of drug use and abuse, I think we need to think about everything and how we’re working to address those negative impacts in a fair and an equitable way. We would fail, I think, if people are just ending up in jail; that is not the goal of this. The goal is to get more people into more treatment more quickly. And that should help People of Color and people who aren’t of color, equally.
Miller: In a simple way, how are you going to assess whether or not this new system is working?
Barton: I have two metrics I’m looking at: Are we saving lives and are we saving communities? So, in a simple way, those are the two things that are motivating me to engage and that’s why I was motivated to try and fix Measure 110. People are dying, communities are struggling. And I think if we can measure that lives are being saved, so overdose deaths are going down, not up, that’s one important metric. And the other one is our communities, the impact on communities and community harm. Is that going down? Is crime decreasing? Are businesses able to return to our downtown areas? Are people feeling safe when they’re riding on public transit, on MAX, on TriMet, wherever it might be. Those are the two metrics that I want to focus on.
Miller: Kevin Barton, thanks very much.
Barton: Thank you.
Miller: Kevin Barton is a Washington County district attorney.
Alison Noice joins us now. She is the executive director of Coda. It’s a substance use disorder treatment provider that serves a tri-county region. Alison Noice, welcome.
Alison Noice: Hi. Thanks for having me.
Miller: The most basic promise or premise of this change in law is that because of the threat of jail time, more people are going to get connected to treatment services. Do you think that’s true? Do you think it’ll work?
Noice: I think it will work for some people and I think DA Barton is also doing a good job of suggesting this is not the solution for every problem and for every person. But fundamentally, what we know about how people enter substance use disorder treatment and thereby eventually recovery is some version of an external motivator is usually critical. The challenge of an active substance use disorder is that it truly distorts an individual’s priorities, their ability to sort of move in a healthy way of life. And there are people for whom the idea of prison time, jail time, simple interaction with law enforcement will motivate them. And there are people for whom that is not a powerful enough motivator. So I think as a substance use disorder provider, we need as many pathways into care as are possible. So, reopening this pathway or redesigning this pathway, I absolutely think will help some people.
Miller: Has the DA’s office in Washington County or in other counties – you work in the tri-county region – reached out to your organization to get input on how to craft a deflection program that has the best chance of being successful?
Noice: I think at this moment, so much activity is focused on the intersection of law enforcement and criminal justice that I have not been in active conversations yet about where treatment rolls into this process. I think this is a complicated, and from my sort of outsider perspective, a rather finessed solution that has a lot of build that is just starting.
Miller: That’s a careful way to put that. I appreciate that. [Laughter] But, is it also fair to say that this is only going to work if there is a really seamless and effective connection between the law enforcement, the judicial side and people like you?
Noice: Absolutely.
Miller: So what do you think it would take to give the system, that’s coming in a kind of weird patchwork way to a couple dozen of Oregon’s 36 counties, the best chance for these systems to work?
Noice: I mean, obviously very active collaboration as quickly as possible has to be at or near the top of the list. I think in my experience, what we have to work through as these systems is as a starting point, how our language is different, how our expectations are different. As an example, in previous experiences I’ve had working with the criminal justice system, there is often a real emphasis on treatment completion. Now what we know about a substance use disorder is it’s a chronic disease, right? So the idea of when a person has completed treatment so that you can expunge their record – so that you can sort of get a person, if you will, off paper – the need for a marker like that, often challenges a system like ours. As an example, when we use medications to treat substance use disorders, these are often lifetime interventions that are sometimes very intensive and sometimes very low intensity. So what we need to do is be able to get these systems to understand really how we intersect and agree on what the right outcome is. Is it engagement? Is it a quality of life assessment? It’s going to have to be something more than a completion of an event.
Miller: And what about the repercussions for, say, a positive test on a urine analysis? How should a drug court or some specialty court or a deflection program respond to hiccups along the way?
Noice: I think just like that. I think they have to be understood in context. I have conversations like this with our treatment teams often. A toxicology screen is a piece of data and it’s often a very useful and objective piece of data. And that’s great because in behavioral health, often what we look at is very gray or very nuanced. So a positive toxicology screen is going to tell me something, but I also need the clinician’s judgment. I need an understanding of the circumstances that that individual is in the midst of. And so I need context to understand a positive toxicology screen. And in my experience, specialty courts and when we have really well integrated relationships with criminal justice systems, those cases are made so that context is understood.
Miller: Let’s turn to the question of capacity. Are Washington County, or the Portland metro region as a whole, ready for what I think there has to be an increase in demand for substance use disorder services? That’s the premise of this: more people getting into treatment. Is there a treatment there for those people?
Noice: I believe in a lot of ways it is. And again, this comes down to how we are understanding each other’s systems more effectively. Often, people who are outside of the treatment system assume that treatment equals residential treatment. So there’s a lot of conversation and articles being written about bed capacity and the state having half of the beds that it needs. The reality of it is that not every person who has a substance use disorder will benefit from residential treatment, is a good candidate for residential treatment or frankly wants residential treatment. And that third one, we often leave out of the equation. There is capacity in different ways to engage people, to motivate people and to wrap service around them in a lesser intensive setting or in creative ways. Should they eventually need a residential bed, I think there is capacity to support those individuals beforehand and frankly, to determine if that’s really even the proper intervention.
Miller: What is your metric? We have about a minute left for whether or not this system is working. In the coming years, what will you be paying the most attention to?
Noice: As it relates to the treatment system or to this larger deflection?
Miller: This new approach at the state level for drug possession and drug use. The big picture.
Noice: We have to see overdose death rates decline and in particular, we need to see them change in a much more substantial way in our historically-underrepresented communities. Those overdose rates nationally are not coming down in the way that they are in other places. So that’s a huge concern.
Obviously, there is a livability element to this conversation. None of us who treat people with active substance use disorders want to see the kind of suffering that we see and we appreciate that our communities at large don’t want to see that, but the reality of it is this won’t pivot overnight. People will need time. And we need to develop trust in a system that they don’t understand or haven’t experienced yet. We need…
Miller: Alison Noice, we’re out of time. Sorry, but we will talk again. That’s Alison Noice, executive director of Coda.
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