The two proposals to ‘fix and improve’ Measure 110

PORTLAND, Ore. (KGW) — A new group, the Coalition to Fix and Improve Ballot Measure 110, announced this week that they are prepared to put initiatives in front of voters next November if Oregon lawmakers don’t act first to roll back drug decriminalization in the state — and they’ve already published two examples of how to do it.

According to the group, they don’t want to toss out Measure 110 entirely — they’d mostly keep the law’s drug treatment funding intact (more on that later) — but they do want to re-criminalize possession of hard drugs, and then some.

The coalition is backed by some sizable donations from some of the biggest business names in Oregon. Columbia Sportswear CEO Tim Boyle put in $300,000, joined by $200,000 from Nike founder Phil Knight, $100,000 from Portland property owners the Goodman family, and $50,000 each from business magnates Ed Maletis and Jordan Schnitzer.

When Oregon voters approved Measure 110 in November 2020, it almost immediately decriminalized possession of user amounts of all street drugs. It happened just as cheap, powerful fentanyl really started to flood into Portland and much of the U.S. Together, the two have contributed to open drug use and rampant drug sales on the streets of Portland, accompanied by record overdose deaths.

Three years later, polling suggests that many Oregonians are ready for a change. Washington County District Attorney Kevin Barton says enough is enough — it’s time to re-criminalize drugs.

“It’s needed because we are failing our communities right now,” Barton told The Story’s Pat Dooris. “We’ve got people who are dying from overdoses. We’ve got children and teens who are exposed to drugs. We have communities that are struggling with increased crime. This is an urgent issue where we have to help Oregonians out and move us forward so we can promote getting people into treatment and recovery.”

Max Williams heads the coalition. He’s a former state lawmaker, a former director of the Oregon Department of Corrections and most recently led the Oregon Community Foundation.

“We strongly support the parts of Measure 110 that are putting resources into moving people into treatment and recovery,” said Williams. “That’s why this isn’t a repeal. But what we’re trying to do is actually make 110 better and really fulfill its promise, which is more people into more treatment quickly.”

Defending Measure 110 in its current form is Tera Hurst, executive director for a group called the Health Justice Recovery Alliance. They helped get Measure 110 passed in the first place and continue to advocate for drug decriminalization.

“We’ve already tested the idea of criminalization was the way to answer addiction,” Hurst told Dooris. “We have 50 years of proof that criminalization has only created a lot of harms.”

RELATED: Oregon elected officials plan visit to Portugal for drug decriminalization ‘fact-finding’ trip

Two degrees of ‘fix’

Williams’ coalition has proposed two separate ballot initiatives to amend what Measure 110 made law: version A and version B. According to a comparison checklist published by the group, B is the stripped-down version — broadly speaking, it would restore criminal penalties for simple possession of most drugs, making them a Class A misdemeanor again, but allowing for diversion programs to steer users toward treatment and recovery.

In addition to re-criminalizing drugs, both versions would also create a new crime: use of controlled substance in a public place, another Class A misdemeanor.

Barton, Washington County’s district attorney, said that the plan is full of diversion off-ramps in hopes that people will get help instead of developing criminal records.

“Part of what we’re proposing is to include misdemeanor crimes as a motivation to ensure that people have the accountability to be supervised and engage in treatment. But we’re also proposing ideas that allow for things such as pre-booking diversion, where a police officer can take someone to a treatment or a sobering center instead of taking them to a jail, instead of bringing them into the court process,” Barton said. “We’re also including mandatory diversion just like we have for drunk driving. So if someone is in the court process they can get the diversion program and be diverted away from the traditional criminal justice system and get that treatment that they need. And at the end of the day, when someone does participate in a probation where they’re supervised by the court or a probation officer, their criminal history will be automatically erased if they successfully complete that treatment.”

According to the group’s documents, only version A — the much more extensive version — includes that option to automatically expunge criminal history upon successful completion of a diversion program.

Both versions would mandate treatment for “drug-dependent persons” charged or convicted for drug possession or certain property crimes, like car theft or shoplifting. This makes a pretty big assumption that Oregon will have the capacity to treat them, particularly if inpatient care is required.

In both versions, diversion is most accessible for first-time offenders. It won’t be offered to everyone charged with drug possession, far from it.

In order to qualify for diversion, a defendant must have no other criminal charges pending, must not have been convicted of drug manufacture or delivery within the last five years, must not have taken part in a drunk driving or drug diversion program within the last year, must not have taken part in a drug diversion program or have been on probation for a drug misdemeanor charge within the last five years, and must not have a criminal history that includes two person-related felonies.

This is true in both versions of the ballot measure, A and B. But version A goes well beyond all that. It would also take Measure 110’s grant funding apparatus away from its oversight council and the Oregon Health Authority, instead building it anew under the auspices of another body called the Alcohol and Drug Policy Commission.

It’s worth noting that this part of Measure 110 already saw reform this legislative session. State lawmakers passed House Bill 2513, which gave the Oregon Health Authority a larger and more distinct role in administering Measure 110 grants, also giving them the funding to ensure that they can sufficiently staff the program. And after a rocky start in getting the grants out the door, there are signs that OHA and the oversight council have worked out many of the kinks that plagued the rollout.

RELATED: Drug treatment in Oregon still hitting a bottleneck at inpatient care

Version A of the Measure 110 “fix” keeps going. Instead of limiting grant funding to Behavioral Health Resource Networks or BHRNs, the drug treatment organizations, it would open up funding to counties, cities and school districts. And funding would no longer be limited to treatment — version A states that grants and funding can be provided to “cities and counties to support enforcement related to community harm reduction services.”

“Community harm reduction,” under the coalition’s definition, includes diversion programs. But it also includes “focused deterrence to eliminate overt drug markets,” which suggests that the funding could be used to bankroll law enforcement missions aimed at cracking down on drugs.

Version A would also further penalize drug dealers: creating a new Class C Felony for possession of a drug tableting or encapsulating machine, requiring a sentence of 36 months for repeat drug dealing convictions within five years, requiring a sentence between 58 and 130 months in most cases for drug dealing that results in a death, and ensuring that possession with intent to deal is included in the “attempted transfer” of drugs.

These additions mean that the coalition’s Measure 110 “fix” would actually go beyond Oregon’s drug laws prior to 2020, particularly version A. Version B only adds the penalty for public drug use.

Back by popular demand

Hurst, who supports keeping Measure 110 the way it is, believes that re-criminalization will mean going back to the bad old days of the war on drugs. However, she acknowledges that the public is frustrated.

“So what the public I believe is crying for, and I agree, is that we need to do something to address the issues on our streets,” Hurst said. “What we need to do is not just criminalize people, we need to house people. We need to get the services set up and we need a whole lot more of our law enforcement, really, being able to enact and to respond to true public safety issues.”

“And how long, under your scenario, would it take to get housing and all those other things in place?” Dooris asked her.

“Well, I mean, this is a complicated and complex issue, right? I mean, look at the fact that I think the governor is proposing 1,000 units, or however many units that she’s looking for … (to end) the houseless crisis that we’re currently in,” Hurst said. “We have 50% capacity of treatment beds currently in the state, according to OHSU and the Alcohol and Drug Policy Commission. So we’ve got a lot to get on line, but we have to do that whether we’re criminalizing people or not.

“The question is, do we spend money on criminalization? Or do we just invest that money directly into the care that people need? Will it take a while? Yeah, of course it will. But we’ve been responding to 50 years — I’m going to say it’s going to take more than a year and less than 50.”

RELATED: New detox center to open in Southeast Portland, backed by Measure 110 funding

But the organizers of the Coalition to Fix and Improve Ballot Measure 110 say it has already taken too long.

“Yes the money is getting out and we think that’s awesome. There are a lot of great treatment providers and we need to build a deeper and bigger and more robust treatment infrastructure, and we’re not trying to disrupt that with this measure,” said Williams. “But what we would say is — people are dying. It’s been in the law for three years, it’s time to act.”

The coalition is asking Oregon lawmakers to either pass their changes as a bill in a special session this year or during the short legislative session that begins next February. If not, they’ve pledged to take one of these initiatives directly to the voters.

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