Gov. Kotek said agencies will need to step up their efforts to avoid pitfalls when implementing new programs in the law

By Ben Botkin, Oregon Capital Chronicle 

Gov. Tina Kotek on Monday signed into law the sweeping measure the Oregon Legislature passed to combat the state’s fentanyl drug addiction and overdose crisis.

Kotek previously had said she would sign House Bill 4002, which was a centerpiece proposal of the short session. The law puts in place a new misdemeanor penalty for possession of small amounts of hard drugs, with opportunities for defendants to avoid jail if they enroll in programs that aid in their recovery and potential treatment.

In a letter to legislative leaders, Kotek said the state needs to have a carefully coordinated implementation to work as intended. 

“Success of this policy framework hinges on the ability of implementing partners to commit to deep coordination at all levels,” Kotek wrote in her letter to Senate President Rob Wagner, D-Lake Oswego and House Speaker Julie Fahey, D-Eugene.  

The new law will put $211 million towards a variety of court and treatment programs, including new and expanded residential treatment facilities, recovery houses and programs for counties to set up so-called deflection programs that people can participate in to avoid jail and criminal charges after an interaction with police. So far, 23 of Oregon’s 36 counties — including Jackson County — have agreed to set up those programs, which are not mandatory.

The new misdemeanor penalty starts in September, with jail time only required when defendants violate or fail their probation. The misdemeanor penalty unwinds the drug decriminalization of Measure 110, which Oregon voters passed in 2020. Measure 110 put a $100 citation system in place with no criminal penalty for possession of small amounts of hard drugs. But the new law also keep in place the provision of Measure 110 that funnels a share of cannabis revenue into addiction programs and services. 

In her letter, Kotek said she has met with leaders from across the state — including prosecutors, public defenders, mental health providers, courts and law enforcement — who will be involved in setting up the new programs to try to steer drug users toward recovery. 

‘One strategy’

While counties will have flexibility to determine what their programs look like, Kotek said it’s important to balance local community program designs with the need for statewide consistency. 

Noting that House Bill 4002 encourages law enforcement to prioritize deflection without an arrest, Kotek said this approach is “one strategy” to reduce the disproportionate impact on communities of color — and reduce the number of court records that need to be sealed.

“Simplification and standardization of court and other administrative processes will help reduce confusion and support successful completion of programs necessary to achieve future expungement,” Kotek said.

Under the law, no charges are filed when someone enters deflection. For those who are charged with the misdemeanor in court and convicted, the case will be expunged after completion of probation. 

Advocates and public defenders have warned House Bill 4002 has potential complications that could harm people in addiction rather than help them. For example, the state already has a lack of public defenders, a lack of addiction treatment options to help people, and the state’s own analysis found the law could disproportionately put people of color in jail. 

And people could inadvertently end up in jail in other ways under the new misdemeanor charge, such as if they don’t show up in court and are charged with failure to appear, which carries up to 364 days in jail.

Kotek said she’s directed state agencies to make the new law work as seamlessly and fairly as possible. 

“Implementation of House Bill 4002 will be complex, but committing to clarity and coordination is one way to improve its likelihood of long-term success,” Kotek wrote.

For example, she has directed the Oregon Criminal Justice Commission to use certification forms that clearly show when someone has completed deflection to create consistency across different jurisdictions. 

Kotek said the Oregon Department of Corrections will “exhaust non-jail opportunities for misdemeanor sanctions.” She’s also directed the Oregon Public Defense Commission and Criminal Justice Commission to collaborate and share data about trends and new cases as the programs start. 

In the long-term, Kotek said, her office is working on strategies to bolster the behavioral health care workforce, which is key to access and care. 

Ben Botkin covers justice, health and social services issues for the Oregon Capital Chronicle.

Related story: With addiction bill passed, now Oregon faces biggest challenge (Oregon Capital Chronicle)

April 3: Updated to indicate that Jackson County is among the counties agreeing to set up deflection programs.