PORTLAND, Ore. — Oregon is less than two months away from the recriminalization of most hard drugs. On Sept. 1, it will once again be illegal to possess drugs like fentanyl, meth and cocaine — rolling back a key portion of Measure 110, the law that decriminalized possession of small amounts of those drugs in 2020.
The reversal comes from House Bill 4002, which the Oregon Legislature passed earlier this year. The intent was to leave most of the treatment-focused portions of the Measure 110 intact, but reintroduce criminal penalties with an eye toward compelling offenders into treatment — which is why the new law urges counties statewide to set up "deflection" programs.
The idea is that if someone is caught holding or using hard drugs, they can be offered the option of being "deflected" into treatment in lieu of jail. Multnomah County signed a lease last week for a building in Southeast Portland that will function as a drop-off site where police can bring offenders to get them started in the county's deflection program.
But in the past few weeks, reports about the details of Multnomah County's still-developing plan have become a source of frustration, with critics arguing that the plan has no meaningful consequences for offenders who don't seek treatment and is therefore on a path to effectively become a repeat of Measure 110.
A recent meeting of local political leaders put a spotlight on those disputes, but it also made it clear that some of the choices to apparently defang the program are being driven less by philosophical disagreements about how to approach treatment and more by practical issues such as a shortage of treatment resources and Oregon's broken public defender system.
How it works
The Multnomah County program, as its been outlined so far, will not require people caught with drugs to enroll in substance abuse treatment in order to avoid jail time. People will only have to check in at the drop-off center in order to satisfy the deflection program's requirements, and there's no limit to how often a person can opt for deflection over arrest.
It's not exactly clear what that check-in process will look like, but in a statement last week, the county said people will "connect and engage with a service provider who will conduct a screening and can help them access treatment, recovery support services, housing, case management or other services."
Last week, the county's Local Public Safety Coordinating Council met to talk about deflection. The group is a collection of local public safety folks like Portland's police chief and Multnomah County's sheriff and district attorney, and is led by Multnomah County Chair Jessica Vega Pederson. The meeting had some notable highlights, including more information from law enforcement and county officials about how the program will function.
For starters, Portland Police Chief Bob Day noted that the deflection option will only be available for people facing a possession charge alone. If officers roll up on someone using drugs, run their name and find warrants for other offenses, that person will be heading to the criminal justice system with no option for deflection.
The key point for law enforcement after Sept. 1 will be the ability to take direct action to disrupt drug-related behavior, including detaining, handcuffing and searching people — as opposed to the current approach "where we literally just walk away," Day said.
"So although we can characterize it as voluntary — it's not truly voluntary if you're in handcuffs, in my opinion — but we are going to make sure that that is available to individuals and then where we go from there is to a separate location, or someplace that will abate the problem from where it is," he said.
If police find someone using fentanyl in Portland who does not have any other warrants, they can be offered deflection. If they choose that route, officers will bring them to the drop-off center to be connected to services.
Unlimited deflection
It's still not entirely clear what the "connection" will entail, such as whether it will actually require people to talk to someone who can get them into services or just sign their names on a piece of paper and walk about. Multnomah County Commissioner Julia Brim-Edwards asked about that during the meeting, and didn't get the clearest answer.
"So is the only requirement the connection, not that actually the individual undertakes some sort of activity?" she said.
"That's right," Vega Pederson replied. "We want the- we want the connection to be an opportunity to be connected with a screening, with services and with opportunities for treatment and recovery."
"And those, would those be required, or is just 'here's the connection?'" Brim-Edwards pressed.
"Yeah no, it's just the connection, is the only thing that we're requiring at this point," Vega-Pederson replied.
Another sticking point in the meeting was the unlimited number of opportunities for people to choose deflection over jail. Vega Pederson said the team developing the deflection system hasn't put a cap in place so far, but also hasn't "actually spent a ton of time around that particular issue" yet.
"I do think that it needs to be based on the best practices from a health perspective," she said. "The best practices in terms of what actually was going to give us the outcomes that we want, which is that people being successfully on the pathway to recovery through treatment, and that's what's going to inform, I think, the decisions that go forward."
"Even though it was broadly reported that there would be no limits, what you're saying is it's still under discussion?" Brim-Edwards asked.
"Yeah. I mean, so far we haven't put any limits on the number, on people's ability to go through deflection," Vega-Pederson replied.
For comparison, the Washington County District Attorney's Office told KGW that they only plan to offer people one deflection per year. The Clackamas County District Attorney's Office said they don't have an exact number yet, but they do plan to have a limit such as once a year or once every three years.
Lack of treatment resources
The unlimited deflection piece has been a major point of contention, with critics wondering why the county would even consider it and questioning what purpose the program serves if there's no cap — won't people found with drugs just take the deflection route over and over again?
A partial explanation finally emerged during the meeting from Grant Hartley, the Multnomah County director of Metropolitan Public Defenders, the largest public defense firm in Oregon. He pointed to a lack of treatment resources available in the community, with many of the most high-acuity users cycling in and out and using the most resources.
There aren't enough detox beds, he said, which are the first step for high-acuity users. So if a person only gets one chance at deflection, then if there happen to be no beds available when they come in, they'll miss their chance and end up in the criminal system, where there aren't enough resources to help treat them either.
RELATED: Portland program pairing police with outreach workers gets expansion under fentanyl emergency
"And so while it may seem like giving numerous chances, what it really is, is an approach based on a realistic assessment of resources and a firm understanding that addiction is a complicated issue that you cannot just address with a single incident, a single referral to treatment," he said. "It takes time, and part of this is creating a connection and a relationship so that when that individual is ready for treatment, they know a safe place that they can go to get that treatment, assuming it is available.
"This is a phased approach, and so it may not stay unlimited once there are sufficient resources available, but at this time there just aren't," he added.
"I'm sorry, just to clarify, you're saying it's unlimited and that's from a public defender's standpoint, primarily because there's not enough resources, there's not enough detox or treatment resources," Brim-Edwards asked. "But if there were..."
"So yeah, I'm saying that is one of the bases," Hartley replied. "Because if there are not resources available and that individual is deflected, then it's not really fair to consider that a deflection."
It's also unusual for deflection programs to require treatment, he added. Nationally, some programs do require it, but in terms of best practices, "very few are abstinent or treatment-required." It has to be a community-based referral process, he said, where deflected people can have conversations with people who have been in their situation, which will hopefully help them decide that they want treatment.
"That's what's most effective for treatment, long term," he said.
Public defender shortage
If someone is arrested for hard drug possession and decides not to accept deflection despite the unlimited offer, they'll face a new misdemeanor charge created by HB 400 and sent into the criminal justice system, where they're certain to run into another issue: Oregon's public defender shortage.
Multnomah County Circuit Court Chief Criminal Judge Michael Greenlick explained at the meeting that if a case is referred to court, the offender has a right to an attorney — but there are already not enough public defenders available for felony cases right now, let alone misdemeanors, even before HB 4002's new drug possession misdemeanor gets added to the books.
RELATED: Oregon defendants without defense attorney must be released from jail, US appeals court says
"Of course it is the greatest frustration to watch people charged with significant felonies not get lawyers, but you know, we certainly don't — we have over two dozen felony cases without lawyers (per) week coming into the system right now. They're telling us they're working on a six-year plan; we don't seem to have a 90-day plan."
The vast majority of drug possession offenders simply wouldn't get lawyers, he said, which means they would be told to come back to court later to see if a lawyer is available — and the vast majority would fail to appear, if they didn't already fail to appear at their first court date.
"Talk about a revolving door," he said. "We have people having to come back to court without lawyers 234 times. Some judges in our jurisdiction will dismiss cases after somebody's had to come back four times."
RELATED: Washington County ordered to release defendants from jail if public defenders aren't available
But even setting aside the lawyer shortage for a moment, Greenlick added that the misdemeanor approach to drug possession may not be enough. Defendants who refuse deflection and enter the justice system still have a right to conditional discharge under House Bill 4002, which means they can still avoid jail if they successfully complete treatment — but the amount of jail is important when they weigh that decision.
"You know, requiring treatment when somebody is looking at going to prison three, four and five years, that works pretty well," he said. "It doesn't work pretty well in these misdemeanor counts."
