In the early 20th century, U.S. Supreme Court Justice Louis Brandeis wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Justice Brandeis’s analysis popularized the idea that state legislatures are “laboratories of democracy.”
In our highly partisan times, debate over a single state’s actions is often nationalized. It can be easy to forget this virtue of our federal system espoused by Justice Brandeis. However, this context can be helpful as we consider the progression of Oregon’s drug laws in recent years. What does the soon-to-be-enacted Oregon HB 4002 mean for drug policy in the state?
How Did We Get Here?
In November 2020, Oregon voters made history in their overwhelming passage of Ballot Measure 110. The Ballot Measure effectively decriminalized the possession of small amounts of illicit drugs. It also sought to increase funding for recovery resources such as rehab facilities. At the time, studies showed that Oregon had high rates of addiction, and ranked poorly for providing access to treatment. Advocates for Measure 110 believed that increased funding for recovery, combined with a transition away from punitive responses to addiction, could improve the situation in Oregon.
Measure 110 took effect in 2021. Law enforcement entities began issuing citations and treatment referrals rather than arrests. Since then, opioid overdoses increased, both nationally and within Oregon. This spike was driven in part by an increased prevalence of fentanyl in the state. At the same time, treatment funding mechanisms established by Measure 110 were slow to get off the ground. Many programs are only just starting to feel their impact.
Last fall, business leaders and opponents of Measure 110 began organizing opposition to the new rules. This included gathering signatures for a referendum to roll back aspects of the Measure. Prior to the 2024 legislative session, both Democrat and Republican leaders signaled their support to revise Measure 110.
What Is Oregon HB 4002?
Bipartisan interest in rethinking Measure 110 resulted in HB 4002. The bill passed through the legislature, and Governor Kotek will soon sign it into law. Oregon HB 4002 directs additional resources towards the addiction recovery continuum of care, including measures:
- Increasing funding for community-based treatment
- Establishing additional treatment options
- Prohibiting insurers from requiring prior authorization of medication for substance use disorder
Most notably, HB 4002 will also recriminalize possession of illicit drugs in some circumstances. Under the bill, those found in possession of small amounts of drugs can be charged with a crime. However, they may have the opportunity to avoid conviction by seeking addiction treatment. Repeat offenders or those who break probation may serve up to six months in jail.
While HB 4002 provides ample opportunity for diversion from the criminal justice system, opponents are concerned that it marks a return to the criminalization of addiction. Oregon’s overburdened and under-resourced addiction healthcare system may prevent those caught with drugs from choosing treatment. Further, the Oregon Criminal Justice Commission noted that the bill may disproportionately impact communities of color.
What Will Oregon HB 4002’s Impact on Drug Policy Be?
The politics surrounding Measure 110 have remained impactful. Returning to Justice Brandeis’s thinking, one might argue that other states may resist decriminalization efforts based on Oregon’s experience.
At the same time, it is worth noting that HB 4002 does not represent a full reversal of thinking by Oregon’s leaders. The bill continues to increase investment in treatment. Further, the re-criminalization of drug possession still includes pathways out of the justice system. Even after HB 4002 goes into effect, Oregon’s drug laws will be among the most progressive in the country.
It’s expected that HB 4002 will make decriminalization efforts (beyond marijuana) difficult. In recent years, New York, Massachusetts, and Washington have introduced bills proposing expansive decriminalization of drug possession. Opponents of those efforts will point to Oregon’s experience with Measure 110 as evidence of failure.
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