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Changes to Measure 110 likely this legislative session

Key Oregon legislators outline areas of the drug decriminalization law they hope to improve upon.
Oregon State Capitol in Salem. | RENAUDE HATSEDAKIS
January 19, 2023

Dysfunction, delay and bureaucratic ineptitude have punctuated the rollout of Measure 110, Oregon’s voter-approved drug decriminalization law. Now, as Democratic state lawmakers head into this year’s long session of the Legislature, they are gearing up to make changes — and there’s a lot of ideas.

One thing that’s unlikely to happen? Re-criminalization of drug possession.

While there are a handful of Republican-introduced bills that seek to repeal and replace Measure 110, they stand little chance in Oregon’s Democrat-controlled House and Senate. Instead, changes to the law will largely fall under the purview of two legislators: Rep. Rob Nosse, the Portland Democrat who chairs the House Behavioral Health and Health Care Committee, and Sen. Floyd Prozanski, the Lane County Democrat who chairs the Senate Judiciary Committee.

While both Prozanski and Nosse are in the process of putting together workgroups on Measure 110, they already are focused on some areas of the law they’d like to see change. Those include what addiction care services Measure 110 funds support, the makeup of the council that makes those funding decisions, and the amount of fentanyl that’s considered a civil penalty versus a crime.

While the makeup of the workgroups isn’t yet determined, both lawmakers said they are inviting supporters and opponents of Measure 110 alike to participate and hope to also include people who have struggled with addiction.

A Secretary of State audit of Measure 110 released Thursday will likely also have bearing on what legislators do. Nosse said his workgroup will hold discussions with auditors early in the process. Their report made several recommendations to the Legislature that include directing the Oregon Health Authority to better collect data that can help measure the program’s effectiveness.

Improving the measure is no small task. It’s been nearly two years since the law that decriminalized small amounts of street drugs such as heroin and meth was implemented, and many voters feel it has fallen short on promises made during its campaign. Those promises included expanding access to drug and alcohol treatment.

Nosse said his workgroup won’t stop short of re-imagining the measure, and will be asking fundamental questions about how it could work better: “How do we operationalize this in a better way, and deal with all the criticisms, and the challenges with the rollout and make this thing work better — including inconsistencies, the poor staffing, the poor execution?”

Federal data shows that when Oregon voters approved Measure 110 in November 2020, the state was highest in the country for illicit drug use and dead last for access to addiction treatment. The state was also in the throes of a global pandemic that was wreaking havoc on the addiction care workforce and exacerbating pre-existing addiction and overdose crises across the country.

The law was aimed at ending the criminalization of addiction and racial disparities it caused, as well as fixing the state’s broken addiction care system with a fresh source of funding in the form of diverted marijuana taxes — about $300 million distributed in state-administered grants every two years.

The law decriminalized small amounts of drugs such as meth, cocaine and heroin in February 2021, but most of the money to fix the system wouldn’t reach provider’s bank accounts for another year and half. Meanwhile, fatal overdoses in Oregon continued to surge, with most people dying from fentanyl and methamphetamine use, according to an Oregon Health Authority report. Fatal opioid overdoses in Oregon rose from 472 In 2020 to 745 in 2021, according to agency data.

Potential changes to Measure 110 grant program

As the death toll mounted, Oregon’s addiction care system faced closures and workforce challenges throughout the pandemic. When the Measure 110 funding for addiction care stalled, providers cried foul.

In charge of allocating the funding for addiction care in each two-year budget cycle is a council composed of people who work and have experience in addiction care, represent communities of color, have been incarcerated, or are drug policy reform advocates. Not on the council were voting members who had expertise in building health care systems, administering grant programs and other related skills.

This reality — paired with a hands-off approach from Oregon Health Authority, the agency managing the program — resulted in the significant funding delays that came as the council and health authority struggled to process grant applications.

As funding decisions were made, many providers were dismayed to learn the council was not prioritizing funds for residential treatment and drug withdrawal management facilities — and was turning down applications for services that would treat mental health issues alongside substance use disorder.

Nosse said he’s certain that his workgroup — which will focus on the Measure 110 grant program operations and its impact on the addiction care system — will be looking at who is on the council making decisions and what it pays for.

“There is a criticism of the measure in terms of some of the things it funds. But one of the operating things about the measure that I think is important to remember, or to maintain, is that it’s there to augment what Medicaid can pay for it — not supplant it,” Nosse said. “So that would be a thing I’m sure we’re going to discuss.”

Addiction care providers have told The Lund Report that even with recent increases in reimbursements from Medicaid for services such as residential addiction treatment, those payments fall short of covering the actual cost of care. Providers also need money to purchase or erect the buildings that willhouse those needed services to begin with. Grant applicants and local officials in some counties have criticized the Measure 110 council for rejecting applications for detox facilities, stabilization centers or residential treatment in their regions.

Funding in many counties has instead gone primarily to harm reduction programs, which distribute items such as clean syringes; low-barrier outpatient treatment; peer mentor services, which utilize people who are in recovery from addiction to connect people with services; housing and other addiction care services.

While the workgroup hasn’t been finalized, Nosse is considering representatives from Oregon Health Authority, the Judicial Department and Department of Justice, Alcohol and Drug Policy Commission, behavioral health programs, cities, counties, district attorneys, defense lawyers, Oregon Recovers, Measure 110 grant recipients and the Justice Recovery Alliance, a group that exists to advocate for the continued implementation of Measure 110, among others.

Nosse said he’s open to a lot of possibilities, including “the possibility that we don't land on anything,” he said. The workgroup may simply advise Gov. Tina Kotek and the health authority’s new behavioral health director, Ebony Clarke, of ways the program could run better, he said, telling them: “You don't need a bill. You need different people and different line of sight.” But, he said, “I’m not there yet.”

Prozanski takes aim at fentanyl

Sen. Floyd Prozanski, who oversaw the key legislation that implemented Measure 110 in 2021, will be examining the law again in his continued chairmanship of the Senate Judiciary Committee.

His workgroup will examine aspects of Measure 110 related to law enforcement and potential prosecution, he said. And his initial focus is fentanyl, a synthetic opioid that is 50 times stronger than heroin and 100 times stronger than morphine, according to the U.S. Drug Enforcement Administration.

That includes the way fentanyl is defined and what amounts are considered a civil penalty under Measure 110, versus a crime.

“What I’m talking about is just the sheer quantity of how many units of the drug a person would have in their possession,” Prozanski said. “Would that qualify to be personal use? Or would it be something above and beyond that into potential dealing?”

As it stands, said Prozanski, fentanyl is categorized with heroin in terms of quantity, making possession of anything less than 5 grams a class E violation instead of a crime. But due to the high-potency of fentanyl, 5 grams extends far beyond the quantity needed for personal use.

Complicating this effort, however, is how fentanyl so often is mixed into other drugs, such as methamphetamine, heroin and counterfeit pills, without the person consuming the drug’s knowledge. Would they be considered culpable?

Prozanski said he wants to make sure that efforts to correct don’t “overcorrect.”

He said when considering the will of the voters — to move simple possession of a controlled substance out of the criminal justice system and into a medical model of care — there will be questions about whether isolating one particular drug and treating it differently will align with that.

“That discussion will occur,” he said. “I can't tell you what the end result is going to be because we just haven't gotten there yet.”

Prozanski said he’s also looking at how to get better results from the measure, such as more people ushered into treatment.

“I’m totally convinced that having a retribution system of punishment does not get you the benefits and long-lasting outcomes that incentive-based models do. And the best example I can give you is look at Norway,” he said. He traveled to Norway with other state leadership in 2017 and was impressed with the country’s approach to addiction and crime.

“At that time, Norway’s recidivism rate for the country was 20% — state of Oregon at that time was over 40%. And they use a different model of incentivizing people to change,” Prozanski said. “That's what I hope that we start looking at and getting better outcomes, because everyone benefits from that including victims and victims’ families.”

Emily Green can be reached at [email protected]. Follow her on Twitter @GreenWrites.