SALEM — Eastern Oregon police, sheriffs and prosecutors are hopeful the revisions to Ballot Measure 110 help get people into treatment.

But the number of people who receive criminal convictions under the new drug possession law Oregon lawmakers passed last week wouldn’t be all that different from the years before voters decriminalized drugs, according to the state’s own estimates.

State legislators voted overwhelmingly to roll back the drug decriminalization effort created when voters approved Ballot Measure 110 in 2020. While lawmakers have emphasized House Bill 4002 prioritizes treatment over criminal consequences, the law is estimated to result in 1,333 new convictions every year among people whose only criminal charge is possessing a small amount of an illicit drug such as fentanyl, heroin, methamphetamine or cocaine, according to the Oregon Criminal Justice Commission.

That’s a 16% drop from the average number of yearly convictions in 2018 and 2019, the two years in which Oregon had drug possession misdemeanor charges before voters passed Ballot Measure 110.

The commission, a nonpartisan state agency under the governor’s supervision, produced the estimates to help lawmakers understand the potential budget implications of the new law.

More cases or different cases?

Under HB 4002, which still needs Gov. Tina Kotek’s signature, Oregon still would have among the nation’s most liberal drug laws. The commission predicts the system lawmakers designed will result in some drug users avoiding a conviction by accepting treatment in some form. But they offer little hope that an already overburdened criminal justice system won’t see an influx of new cases.

Umatilla County District Attorney Dan Primus is in his second year as president of the Oregon District Attorneys Association, which worked with lawmakers on the language of HB 4002. He said the bill will affect the Oregon judicial system, but he questioned if there will be an influx of new cases or more of a change in the kinds of cases.

“We’re seeing additional cases in our workload as it stands right now because of individuals going untreated for their addiction issues that are leading to additional criminal behavior,” he said.

The Criminal Justice Commission report shows some increase in property crimes, Primus said, as a result of Ballot Measure 110 and drug decriminalization.

“So I do think that we will obviously see an increase of case filings when it comes to the possession of controlled substances,” he said. “But we will also see, hopefully, a decrease in some others when we have these individuals being treated for the addiction issue that they are struggling with.”

Deflection requires supervision

The system HB 4002 created is complex — people found with drugs can be charged with a crime, but there will be multiple paths they might take to avoid conviction. Lawmakers have envisioned a “deflection” system that is meant to be a major step in that direction. Under the proposal, counties that choose to participate would create a way for police to route people caught with drugs to service providers, rather than to jail and the courts system.

Dale Primmer, director of Umatilla County Community Corrections, said Measure 110 showed what community corrections and those who work in drug courts and similar programs already knew: that many of the people in the midst of addiction are the least likely to go to treatment without some compulsory mechanism.

“Out of those people that were cited, you had somewhere nearing 90% failed-to-appear rate in court, and then less than 1% of the people that were cited were willing to call the treatment hotline,” he said, adding that HB 4002 acknowledged the need for a mechanism to compel people into treatment.

While the bill makes drug possession a crime on the front end, Primmer said, it does a decent job in using the criminal justice system to supervise people while they’re in treatment, compel them to go and hold them accountable for not going. Those who complete treatment and programs then can have charges dismissed. Striking that balance, he said, means on the back end people can “come out of that addiction without a criminal history that they have to drag like an anchor for the rest of their life.”

But the criminal justice system is not a strong pipeline for treatment, according to Christopher Campbell, an associate professor of criminology and criminal justice at Portland State University. Research shows that people have to want to change, rather than being forced into recovery, he said.

“County jails are notorious for not having much treatment, if at all,” he said. “How do you have a punishment facility that must also balance this rehabilitation and effort to transition you back to the community in a safe and productive way? Historically, prisons and jails are just not really set up to do that.”

Primmer does not buy into that.

“You know, one of the things you’ll hear people say is you can’t force people into treatment and have them be successful,” he said. “And for that I say, ‘Nonsense.’ Look, go to any drug court graduation and you will hear every graduation speech will be some iteration of ‘I’m here because somebody made me do it. And I’m dang thankful they did.’”

Medical doctors, he said, don’t wait to amputate toes before treating someone with diabetes.

“We don’t have to allow people to completely destroy their lives before we start requiring treatment out of them,” Primmer said. “I think there is a whole host of evidence out there related to drug courts that are probably more studied than any other form of substance abuse treatment in terms of the efficacy of drug courts. And almost all of those come from people that are compelled into them.”

Getting tougher on dealers

Hermiston Police Chief Jason Edmiston said HB 4002 brings some accountability to decision-making that’s been lacking since the passage of Measure 110.

“To migrate back into an unclassified misdemeanor from a minor violation, hopefully, is a step towards people seeking treatment to change their patterns and their way of life,” he said. “The penalty is not what we are after. We want to see a change in behavior. That’s what we want to see, but having some hooks into people is necessary, and that’s where the misdemeanor (comes in).”

Grant County Sheriff Todd McKinley said the revisions to Ballot Measure 110 will help Oregon communities address drug use and addiction at the source.

“So I think the effect of this change with House Bill 4002 is twofold,” he said. “I see us being able to go after the dealers. You know, there’s a fix in there for law enforcement to be able to deal with that, and that’s huge. I think that’s a big win for us. I’m optimistic on how it’ll all work out, but it’s a big win.”

Primus said the teeth HB 4002 gives to prosecuting drug dealers is significant. Oregon law for years has enhanced penalties for dealing drugs within 1,000 feet of a school. HB 4002 adds to that, with harsher penalties for dealing drugs near public parks, treatment facilities and residential shelters — the places where a lot of drug dealing can occur.

Those places need to be safe for families, he said, just as schools need to be safe for students.

Other pathways

So far, at least 23 counties — accounting for the vast majority of Oregon’s population — have signaled interest in a deflection program. But what kind of policies they might create is unknown, hinging partly on state funding.

Despite the uncertainty, state analysts have attempted to predict how many people around the state will use deflection to avoid criminal penalties. By cribbing arrest data from 2019, and assuming that half the people offered deflection would succeed, the agency estimated some 1,269 Oregonians a year will be found with drugs but emerge without any charge ever being filed against them for drug possession.

Under HB 4002, anyone who is not successful in deflection still is eligible for what’s known as a conditional discharge. That means that in exchange for satisfying requirements from the court — such as completing drug treatment — a person could have their case dropped without a conviction appearing on their record.

Though defendants with only a possession charge are eligible for a conditional discharge under HB 4002, state analysts aren’t counting on most of them being offered the option. The commission noted just 18% of drug possession cases were offered a chance to dodge conviction via this path in 2019.

That year, Multnomah County gave 292 people with drug possession cases conditional discharge, according to state data. In Washington County, zero defendants got conditional discharge. That was also true in other large counties, like Clackamas and Marion.

Under HB 4002, the Criminal Justice Commission expects about a quarter of people who are charged with misdemeanor drug possession to receive conditional discharge. It assumed a modestly higher number than past years because of the emphasis by lawmakers on providing “off ramps” into treatment.

Historical trends suggest just half of those who are offered conditional discharge will be successful. Those who fail would be convicted.

All told, when cases that include other misdemeanor charges are lumped in, the state expects more than 2,200 criminal convictions a year that include low-level drug possession. Of those, the estimate suggests 1,333 new people would be convicted solely of the misdemeanor charge lawmakers want to create.

Public defense worries

Critics of recriminalizing drugs, meanwhile, say the complex provisions designed to offer drug users leniency under HB 4002 are going to snarl the courts for years to come. The Oregon Public Defense Commission has requested $29 million it says will be necessary to hire new attorneys to take on the additional caseload.

“There’s no county probation agency or circuit court in Oregon that can handle the hundreds of new cases that will come from this,” Chris O’Connor, a public defender in Multnomah County, testified in a Feb. 26 hearing. “It’s a mess.”

Union County District Attorney Kelsie McDaniel, who serves on the ODAA Board of Directors, said she disagreed the new cases will overrun the courts.

“If you do the different programs, those are all pre-adjudication anyway, so that they don’t even make it into the circuit court,” she said.

Primus said Oregon has a shortage of attorneys in general, and district attorneys offices are no exception. His office is down four prosecutors.

“So I’m supposed to have nine deputies — I have five,” he said. “So you can see we’re dealing with a shortage as well.”

But he said community safety remains the priority.

“Individuals that are suffering from a drug addiction that are out there on the streets that we’re seeing every day — it’s inhumane to watch what they’re going through,” Primus said. “And so the ultimate goal is the drug treatment … to get these individuals the treatment they need, to get them access to treatment that they need.”