Oregon Ending Failed Drug Decriminalization Experiment

Tina Kotek (R) speaks to her constituents during a rally in Portland, Ore., on Oct. 22, 2022. Mathieu Lewis-Rolland/Getty Images

An experiment with the decriminalization of hard drugs in favor of addiction treatment will come to an end later this year, as Democratic Oregon Gov. Tina Kotek signed into law a bill that recriminalizes the possession of small amounts of drugs on April 1.

The new law (pdf) rolls back Measure 110, passed by 58-percent of Oregonian voters in 2020, which was a first-in-the-nation attempt to tackle the issue of drug addiction that suffered from many implementation issues.

It decriminalized possession of small amounts of heroin, methamphetamine, LSD, oxycodone and other drugs—imposing a $100 fine or a health assessment that could lead to addiction counseling.

The new law overturning some of the soft on drug policies brings back some limited criminal penalties, with so-called “personal use possession” of drugs punishable up to six months in jail.

It also encourages law enforcement agencies to create diversion programs to addiction and mental health services instead of facing criminal penalties.

In a three-page letter written by the governor to legislative leaders, she appeared to address the limitations and challenges of the new law.

“Success of this policy framework hinges on the ability of implementing partners to commit to deep coordination at all levels,” Ms. Kotek said. “Courts, Oregon State Police, local law enforcement, defense attorneys, district attorneys, and local behavioral health providers are all critical to these conversations and necessary partners to achieve the vision for this legislation.”

What Measure 110 Did and Its Implementation

The decriminalization measure directed millions in cannabis tax revenue toward addiction services, but the state was not able to increase these services quickly enough to combat the problem—while fentanyl use “exploded” in the state after the bill’s passage, according to a state audit.

The Oregon Secretary of State’s audit added, “Controversial from the start, M110 attracted more scrutiny when funding of services was delayed and decriminalization took effect amid an explosion in fentanyl use.”

The audit also found that rapid fentanyl use, overdose deaths, and homelessness increases have “increased the need for treatment,” which the state has not kept up with.

New Provisions

Notably, the newly enacted legislation addresses the legal and penal aspects of substance abuse.

It modifies the definition of “delivery” for the purposes of the Uniform Controlled Substances Act, increases presumptive sentences for unlawful delivery of controlled substances in specified locations, and heightens penalties for unlawful possession of a controlled substance effective Sept. 1, 2024.

The legislation introduces a new form of conditional discharge for drug enforcement misdemeanors and establishes processes for sealing records related to such crimes.

Additionally, HB4002 establishes the Oregon Behavioral Health Deflection Program, aimed at funding deflection programs to prevent the criminalization of substance use disorders, and the Oregon Jail-Based Medications for Opioid Use Disorder Grant Program, further embedding the treatment-first approach within the criminal justice system.

Other provisions include requiring the Oregon Health Authority (OHA) to conduct an in-depth study of the challenges posed by drug use in the state.

The OHA is tasked with presenting its findings to the interim committees of the Legislative Assembly related to health by Sept. 15, 2025, with the legislation set to sunset on Jan. 2, 2026. This research initiative is aimed at laying the groundwork for future informed legislative and policy decisions to effectively tackle Oregon’s addiction crisis.

Another key feature of the new law is its emphasis on eliminating barriers to medication-assisted treatment for substance use disorders.

It prohibits insurers from demanding prior authorization or other utilization reviews for the coverage of medications used in treating substance use disorders, with certain exceptions.

Additionally, coordinated care organizations are mandated to provide their members with access to medications for treating opioid use disorder and any co-occurring substance use disorder or mental health condition, without requiring prior authorization.

The new law also allows pharmacists to prescribe and dispense early refills of medication for opioid use disorder under specific conditions.

It also requires coordinated care organizations to maintain adequate networks of addiction treatment providers.

Furthermore, the legislation establishes the creation of a certified community behavioral health clinic program, the Joint Task Force on Regional Behavioral Health Accountability, and the Task Force on Improving the Safety of Behavioral Health Workers, all with sunsetting provisions in January 2026.

Reactions to New Law

Notable reactions to the new legislation include state Republicans, which opposed the original ballot measure and have called for it to be overturned ever since.

Oregon Senate Republican Leader Tim Knopp praised the bipartisan legislation which he said will reverse much of Oregon’s “drug decriminalization experiment in response to a deadly addiction crisis plaguing major cities, suburban neighborhoods, and rural communities across the state.”

“Now that the Governor has given the recriminalization bill her stamp of approval, we can finally end the chapter on Oregon’s experiment with decriminalizing hard drugs,” Mr. Knopp said in a statement. “HB 4002 is not a perfect solution; legislators will undoubtedly have much more work to do in upcoming sessions. But it sets a standard for how the state should approach the drug addiction crisis: by empowering law enforcement and our behavioral health systems to work together to help Oregonians struggling with chronic addiction seek life-saving treatment.”

He added it was a key priority for the Senate Republican Caucus as well as addressing homelessness and rising crime.

“Recriminalizing possession of small amounts of hard drugs was at the top of the list,” he said in the statement. “It is widely supported by Oregon voters.”

Oregon House Democrats also responded to the legislation, noting it is a response to “the crisis unfolding” in Oregon’s streets.

“This sweeping package invests in prevention and the root causes of addiction, cracks down on drug dealers, restricts public drug use, moves people into addiction treatment, improves the behavioral health workforce pipeline, and reduces the number of overdose deaths,” the caucus said in a statement after the end of the legislative session.

Critics have decried the “county-by-county” approach the legislation lays out, which according to Oregon Public Radio was a compromise made to get law enforcement groups to support the bill. The outlet added that many Democrats had hoped to require diversion programs instead of just encouraging them.

“It’s not enough to write the word ‘deflection’ in a bill, you actually have to create the apparatus and they did not create the apparatus or fund it,” said Sandy Chung of the ACLU of Oregon, according to the outlet. “We’ll see whether the counties actually succeed in creating those programs.”

The outlet added that local law enforcement officials are scrambling to set up diversion programs and apply for funding, hoping something can be done to “see a reduction in overdoses and overdose deaths.”