Overdoses, Street Drugs and High Rates of Drug Use Raise Red Flags
Stung by increasing fentanyl overdoses and a well-organized effort to modify Measure 110, majority Democrats will consider legislative changes next February that they brushed aside earlier this year.
Key Democrats are headed to Portugal this fall to learn more about its decriminalized drug program, with a focus on curbing overdoses, street drug use and transitioning users to treatment. Before then, they are exploring potential legislative fixes that stop short of ditching decriminalization but respond to voter discontent with how Measure 110 has unfolded.
One potential solution is to crack down on drug dealers. Measure 110 decriminalized possession of small amounts of addictive drugs but didn’t make any changes to drug dealing statutes.
Senator Kate Lieber, D-Beaverton, co-chair of the new Committee on Addiction and Community Safety Response, asked, “I’m trying to understand what we need to give police officers to shut down open-air drug markets. What’s happening right now in Portland and in Oregon is unacceptable. We have to send the message that it’s no longer acceptable to be a drug dealer in Oregon”.
The Boyd and Hubbell Rulings
The light-finger approach on drug dealers stems from a 2021 Oregon Court of Appeals ruling that effectively raised the bar to convict a drug dealer based on how the criminal statute is worded. That legal opinion was upheld last week in the Oregon Supreme Court. The legislature could change existing law, which may be on the docket when lawmakers reconvene in February.
The 2021 court ruling modified a ruling dating back to 1988 referred to as the Boyd delivery case, A woman was convicted after being arrested with 23 small bags of heroin she admitted she intended to sell. The court in 1988 said it didn’t matter whether police witnessed a sale. So-called Boyd delivery cases represented half of the drug busts in Oregon between 1990 and 2021.
The Court of Appeals revisited its earlier decision in a case involving a man arrested in possession individual packages of fentanyl. Instead of reaffirming the Boyd delivery standard, the court said its previous ruling was “not just wrong but plainly wrong”. The more strenuous standard for a conviction, known as the Hubbell standard after the defendant, has led to fewer arrests and, in turn, fewer prosecutions for drug-dealing. While prosecutors cautioned against drawing any conclusions, Measure 110 provisions may not have been a significant factor.
People caught with large stashes of drugs can still be charged with possession or attempted delivery, but prosecutors say the penalties aren’t stiff enough to be a deterrent.
District attorneys have tried without success in the last two legislative session to reverse the court’s Hubbell standard. Lieber and other Democrats are now taking a second look. Meanwhile, Governor Kotek has directed State Police to work with Portland police to curtail drug-dealing on Portland streets.
Going After Street Drug Use
Democrats also are looking legislation to prohibit street use of illicit drugs, something Portland officials have sought. The changing political atmosphere could induce prosecutors to seek stiffer sentences for possession of large amounts of drugs.
The 2024 legislative session could get politically messy when defense attorneys resist modifying the Hubbell standard and lapsing back to “when the war on drugs targeted people of color”.
“If we’re not careful how we amend Oregon law, we risk inadvertently scooping up people who suffer from addiction and sell small amounts of drugs, then treating them the same as cartels,” says Mae Lee Browning, a lobbyist for the Oregon Criminal Defense Lawyers Association.
For now, Democrats appear reluctant to make changes to Measure 110. But that also could change in the face of an initiative to reverse decriminalization, mandate treatment and re-codify the Boyd delivery standard. Initiative backers point to polling showing support for undoing the Measure 110 experiment. They also note two recent New York Timesstories depicting street drug abuse in downtown and a mass overdose in a Portland park.
While it’s unclear what will or won’t happen in the next legislative session, there appears to be a tide of public opinion and a concerted effort by business and legislative leaders for change. “People have a right to be able to walk down the street and not have an open-air drug market in their backyard,” Lieber admits.
“People have a right to be able to walk down the street and not have an open-air drug market in their backyard.”
Accountability for Large Investments
The Senate Majority Leader is also interested in accountability for the increased resources approved by lawmakers. In the 2021 session, lawmakers approved $1.3 billion to expand treatment facilities and provide incentives to recruit and retain behavioral health professionals. New funding also went to strengthen community mental health programs, including jail diversion.
The 2023 legislative session provided more funding to expand residential treatment for people suffering from severe mental illness and for addiction treatment facilities for young people and adults. Lawmakers also voted to ensure opioid overdose reversal medication is widely available and the new 40-cent monthly phone tax will stand up a 988 crisis hotline.
A study done by WalletHub ranked Oregon third in the nation for teenage drug users and second highest for adult drug users. The National Center for Health Statistics released a report earlier this year indicating Oregon was worst in the country for pain reliever misuse, with 4.56 percent of Oregonians reporting they misused pain relievers in the past year. Multnomah County reported 516 drug overdoses so far this year. A state audit tracking progress of Measure 110 implementation concluded Oregon’s drug treatment system was failing.
