With drug possession re-criminalization looming, PSU researchers study impacts of Measure 110

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Researchers at Portland State University have released Year Two findings as part of a three-year project studying the impacts of Measure 110 in Oregon.

M110 made history in 2021 when Oregon became the first state to decriminalize possession of controlled substances. However, this year the Oregon Legislature passed House Bill 4002 which goes into effect Sept. 1, 2024. This bill re-criminalizes possession of controlled substances to an undesignated misdemeanor criminal offense - punishable up to 180 days in jail. The bill encourages law enforcement to refer individuals into an official "deflection program" in lieu of arrest or prosecution.

"Once HB 4002 takes effect, the criminal justice system will once again play a role in enforcing and prosecuting laws against user-level drug possession," said Associate Professor Kelsey Henderson. "Theoretically, this can serve as a pathway to help individuals engage in substance abuse treatment opportunities. Studying the history of such efforts in Oregon was an important first step to understanding the possible effects of HB 4002."

The three-year project from Henderson, Associate Professor Christopher Campbell, and Professor Brian Renauer examines trends in law enforcement, prosecution/sentencing, and public safety outcomes both with state data and through interviews with decision makers. This study, funded by the National Institute of Justice, aims to understand how Oregon's monumental experiment on responding to drug use impacts the justice system and those affected by it.

The Year One report examining police officer perceptions was released in 2023. The new Year Two report explores the role of the criminal justice system and examines criminal justice metrics (arrests and drug court participation) and treatment resource information.

"Our focus on the criminal justice system emphasizes how law enforcement agencies are inherently intertwined with societal sentiments toward substance use and addiction. This report shows how such an intertwined role manifests in treatment contact points," Campbell said. "We also want to ensure that criminal justice policy decisions are informed by appropriate interpretation of data and with knowledge of how the policy is experienced by those implementing it and affected by it."

The report focuses on four pathways to treatment that existed before M110 was implemented, keeping in mind the implications of HB 4002 which would make interactions with the justice system more common.

"We highlight the points at which there exists some degree of legal pressure opportunities to compel someone into treatment (in theory or hypothetically)," according to the report. "By doing so, we shed light on the role criminal legal pressures could or should play in connecting the public to drug treatment services considering historical involvement."

The four pathways are:

• Police Stops: One of the first possible points of contact/engagement is non-voluntary police stop (e.g., being pulled over by the police in your vehicle or stopped on the street). Although many police stops are unrelated to drugs, such interactions become the proverbial gateway to potential legal pressures that could be applied towards treatment if it were appropriate to do so.
• Police Searches: During a police stop, legal pressure may begin to mount in the form of searching the person or vehicle. In theory, successful searches (e.g., finding contraband, evidence of criminal behavior) increase the potential that formal, court-based legal pressures to compel treatment could be applied.
• Arrests for Possession of Controlled Substance: Compared to stops and searches above, this is the first category where drugs are a central factor to the contact. Arrest opens the subject to greater legal pressure in the form of a potential official charge and criminal record, but also a treatment opportunity.
• Drug Court Admissions/Participants: Admission into a drug court, which almost always involves drug treatment, represents a popular, yet capacity- and eligibility-limited, method of how the criminal justice system mandates drug treatment services.

"Despite the common negative perceptions regarding M110's impact on the criminal justice system, long-term trends in criminal justice activity illustrate a system that is more stable and able to re-adjust," Renauer said. "The report also illustrates that the use of legal pressures as the primary pathway to address substance abuse disorder has historically fallen well short of meeting the treatment needs in Oregon; thus, more pathways to treatment outside of criminal justice engagement are necessary."

The report shows there is a disconnect between perceptions about the negative impacts of M110 and the data trends.

"Although M110 was a huge change for practitioners working in the system, and many have noted that M110 has impacted their jobs in substantial ways, data trends suggest that the system appears to have adapted," according to the report.

For example, police officer stops and searches as a method of proactive policing had been declining pre-COVID, but have since started increasing to pre-COVID levels. Between July 2019 and the start of 2020, law enforcement officers made an average of 49,956 stops per month. In 2022, the monthly average was 39,080 and climbing, suggesting that M110 hasn't significantly impacted police proactivity as public narrative - and police perception - has suggested. Similarly, arrests for possession of a controlled substance were also on the decline since a peak in 2016-2017. That decline continued through COVID and M110 (understandably given the shift in M110 to decriminalization).

M110 has also received criticism arguing that participation in Oregon drug/specialty courts - which research shows can significantly reduce recidivism - would decrease as fewer individuals are arrested for possession of a controlled substance. Law enforcement officers indicated in the Year 1 report they were hesitant to issue M110 citations that "have no teeth to them," especially when compared to a drug court model which mandates treatment as part of a pre-plea or post-plea, sentencing agreement. However, following the gradual decline of drug court participants in the pandemic and prior to M110, participation has since stabilized indicating that M110 has not led to the demise of drug courts.

Meanwhile, the number of client contacts for Substance Use Disorder Treatment, Harm Reduction and Peer Support Services funded through M110 have increased through 2023. But given the sheer volume of individuals in Oregon with a substance abuse disorder, more services and methods of engagement are needed.

"Key for jurisdictions opting into HB 4002 deflection programs is sorting out how the role of law enforcement is actually going to help meet their goals for the program," Campbell said. "Design and performance measures will be critical in this regard. Deflection efforts with the goal to reduce overdose deaths may look quite different from those that are aiming to reduce public disorder."