As it turns out, significant pieces of the narrative around Oregon’s short-lived run decriminalizing drugs do not align with newly available data. While police unions, lobbyists and elected officials decried Measure 110 as a “failed experiment,” data shows little evidence decriminalization was responsible for the perceived ills of society.

Researchers at Portland State University published the second of three annual studies on Measure 110’s impact on the criminal justice system, and what role the criminal justice system plays in a larger network of substance use supports in Oregon.

Oregon voters passed Measure 110, which decriminalized possessing small amounts of drugs for personal use and routed new funding to addiction treatment, in November 2020, driven in part by increased awareness of racial disparities in policing.

Despite its close proximity to law enforcement agencies, the study’s findings challenge prominent narratives used in the push to recriminalize possession of a controlled substance for personal use, or PCS, during the 2024 legislative session. The effort resulted in the bipartisan passage of House Bill 4002, which Gov. Tina Kotek signed April 1. The new data shows Measure 110 likely wasn’t the bogeyman it was made out to be, and recriminalization likely isn’t the magic bullet it was made out to be.

The project, led by PSU criminology and criminal justice researchers, was supported by over $495,000 in grants from the National Institute of Justice, or NIJ, Office of Justice Programs and the U.S. Department of Justice.

The study found police stops and searches were declining before Measure 110 was enacted, challenging a common narrative saying Measure 110 was responsible for a reduction in “proactive policing” tools. Similarly, PCS arrests declined from a peak in 2016, more than seven years before Measure 110 went into effect.

The study also found COVID-19 and Oregon’s public defender crisis, not Measure 110, was responsible for a reduction in drug court enrollment, despite the contrary refrain from activists seeking to recriminalize drugs. It said while the criminal justice system may play a role in connecting some individuals to treatment services — like drug courts and diversion programs — the state needs more services to offer people when they are ready.

“Measure 110 has often been a quick heuristic in terms of thinking about attributing cause and effect,” Kelsey Henderson, PSU associate professor and researcher, told Street Roots. “You just have to recognize all of these other changes that have occurred during this same time period.”

Henderson said COVID and Oregon’s public defender crisis sent the state’s criminal justice system into a period of intense challenges.

Titled “An Additive Model of Engagement: Considering The Role of Front-End Criminal Justice Agencies in Treatment Provisions,” the PSU report noted even before voters passed Measure 110, Oregon led the United States in misuse of pain reliever medication, was second in methamphetamine use, fourth in cocaine use and ranked among the worst states in treatment access.

Rather than decriminalization itself, a more likely culprit in Measure 110’s perceived flop was the glacial pace at which the state funded treatment programs — something the Secretary of State and Oregon Audits Division found in a 2023 audit.

As Street Roots reported last October, it took 18 months between passing Measure 110 and the state sending funds to create 42 new Behavioral Health Resource Networks, or BHRNs. The state did not begin administering funds until May 2022, despite Measure 110 going into effect Feb. 1, 2021. The state ultimately sent $265 million to 233 organizations to help reverse the decades-long disinvestment in accessible treatment. Funding will continue under HB 4002.

As the state built the new public health infrastructure, groups like the Coalition to Fix and Improve Measure 110 — a lobbying group funded by wealthy backers and led by former Oregon Department of Corrections director Max Williams — elected officials, and current and former police officers said decriminalizing possession of drugs removed the tools they needed to coerce people into treatment. The message took hold early on, before funding started making its way out the door, and continued through passage of the new law making possession a misdemeanor, rather than Measure 110’s Class-E violation, starting Sept. 1.

“We worked closely with law enforcement to force Democrats to come to the table and give our public safety officers the tools they need to hold people accountable,” House Republican Leader Jeff Helfrich (District 52), a retired Portland Police sergeant, said Feb. 29, after the Legislature passed HB 4002 to recriminalize drugs in Oregon.

The PSU report outlined four pathways potentially leading a person into drug treatment, noting a combination of services can help lead to success. A person may voluntarily enter treatment with no external pressure, with external pressure from family and friends, with motivation from outreach and social programs or, lastly, can be compelled by legal pressures. The report focused on the legal aspect, as its first-year study revealed a common perception from police officers that they lacked the ability to stop and search based on drug-related probable cause.

Historically, police contact may begin as a simple “non-voluntary” stop unrelated to drugs, which then leads to police escalation, including searching a person or a vehicle, and a drug arrest. Proponents of proactive policing, which seeks to prevent crime through increased policing, say police conducting more stops and searches is the tool needed to compel people into treatment or admit a person to drug court or other diversion programs. Critics say this philosophy — which encapsulates many practices but is best known for "stop and frisk" policies — uses the exact tools that lead to racial disparities in policing.

The NIJ distinguishes between “reactive policing,” or responding to a call for service, and proactive policing, which requires a more active police presence in hopes of deterring crime. The NIJ also acknowledges that proactive policing has the potential to distance police from the community, historically due to “stop and frisk” policies and racial biases.

Using various sources of data — including police stops, searches, PCS arrests and drug court enrollment — the PSU report sought to contextualize the scope of Oregon’s drug crisis and effective pathways toward treatment, focusing on the most common perception found in its first study — police officers’ loss of probable cause to search.

The report also highlighted how the criminal justice system adapted to other recent legal changes in addition to Measure 110. The state implemented the Justice Reinvestment Program in 2014, reallocating 10% of funding from prisons to programs for victims and for decreasing recidivism, and defelonized PCS in 2017. Oregon search and seizure laws changed in 2022 after the Oregon Supreme Court ruled a police officer cannot search a car without a warrant, barring “exigent circumstances,” in Oregon v. McCarthy.

“It's just really important for the public to recognize these challenges and these changes over the last few years, and to not make definitive conclusions or statements in terms of thinking about public safety — to keep letting the data drive our understanding of what's going on,” Henderson said.

Police officer stops and searches, a common form of “proactive policing,” began to decline pre-COVID and continued on a stable trajectory after Measure 110, suggesting Measure 110 did not have a significant impact on police proactivity, according to the study. From July 2019 to the beginning of 2020, police in Oregon made an average of 49,956 stops per month compared to 39,080 per month in 2022.

“If police stop and searches are to be a potential conduit for connecting those with substance use issues to treatment, this data shows that there are less than 200 persons per month throughout Oregon that are stopped by police and found with incriminating evidence through a search,” the report said.

Proponents of a public health approach to addiction note racial disparities in proactive policing are clear, and the trends hold up regardless of the severity of the consequences. Black and Latino men are overrepresented in data on everything from stops, to searches, to receiving jail time versus diversion opportunities, according to Tera Hurst, Health Justice Recovery Alliance executive director.

The Oregon Criminal Justice Commission said potential racial disparities were expected in new convictions in an impact statement prior to the Legislature’s recriminalization of drugs.

The disparities also exist after police stops.

Hurst said Oregon only has one treatment center for Spanish-speaking men and none for Spanish-speaking women. Measure 110 maintained a focus on culturally specific service providers for this reason, allowing those who are often exited from treatment situations based on cultural differences and racism within some treatment facilities.

“You're kind of compounding the issue by saying we're going to divert and deflect when we don't actually have anywhere to divert and deflect people to, especially the folks that, data shows, that we will be impacting more,” Hurst said of HB 4002. “Who gets deflected and who goes to jail, who gets diverted to services, versus who just ends up staying in the system? It's got nothing to do with whether or not somebody wants services or support or help.”

A central piece of recriminalizing drugs was the promise of diversion opportunities, including drug courts. Narratives persisted that Measure 110 was responsible for Oregon’s emaciated drug court system, particularly in Multnomah County.

“It just became fact, in the public narrative, that drug courts — that were these highly effective things — were gone because of Measure 110 and that anybody who said otherwise was wrong,” Hurst said.

The PSU study found drug courts can be an effective measure in reducing recidivism for some people, suggesting a roughly 9% to 14% reduction in recidivism for participants who graduate from a program. Still, not all drug courts are created equally. The report noted education and restitution are typically more effective, whereas community service, fines and employment requirements are ineffective.

“Aligning the program requirements and expectations with the needs of individuals is the likely ticket to success for both the program and the participants,” the study found.

Regardless, the narrative that Measure 110 would lead to the demise of drug courts is not supported by the stabilization of cases after decriminalization took effect, according to the study. Backlogs in court due to COVID and Oregon’s public defender crisis likely contributed far more to lower participation in drug courts.

Courts terminated 228 individuals’ involvement in drug court in 2020 — the highest number of terminations of any successive year — and the second-fewest number of people, 567, were referred in the first place that year. This may be a consequence of courts’ challenges during COVID lockdown, including challenges in coordinating care to ensure people stay on track, according to the report.

Drug court participation peaked in 2019 with 1,344 individuals per month, but participation gradually declined after the COVID lockdown. From 2017 to 2020, the average number of participants was 934, and from 2020 to 2021 the average was 960, with the highest month being 1,074.That number stabilized to 710 individuals per month from 2021 to 2023.

“COVID-19 seems to have had the biggest impact on drug court participation,” the report said. “Statewide drug court participation has been stable after the passage of M110.”

Increased services

Contacts with people who could utilize programs funded by Measure 110 increased significantly through 2023. Measure 110 service providers across Oregon reported 267,000 encounters for people seeking peer support services and over 220,000 for substance use treatment from July 1, 2022 to Sept. 30, 2023, according to the Oregon Health Authority. With recriminalization leaving diversion or jail sentences up to a judge, court decisions could lead to fewer contacts and a higher likelihood of prejudiced outcomes.

Oregon ranks first in the nation for those who need substance use treatment but cannot receive it. An estimated 327,157 Oregonians have an illicit substance use disorder, but a 49% gap exists in services, according to the report. The state’s $265 million investment is intended to fill that gap.

The most significant increase in encounters was among services requiring less rigidity and intensity, like peer support services, according to the report. It noted the Substance Abuse and Mental Health Services Administration prioritized four dimensions of support: Managing symptoms, housing stability, meaningful daily activities and social networks of support. Hurst is hyperfocused on building supportive infrastructure.

“Ultimately, what's going to save lives and change lives is people's interactions with the providers, not with the police,” Hurst said. “I think the police understand that too.”

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