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As drug criminalization debate rages, Oregon lawmakers consider creating a new misdemeanor

A sidewalk in downtown Portland, Ore., is dotted with tiny scraps of tinfoil, that police say are used for smoking fentanyl.
Kristyna Wentz-Graff
A sidewalk in downtown Portland, Ore., is dotted with tiny scraps of tinfoil, that police say are used for smoking fentanyl.

Democrats and Republicans are seeing whether they can find a compromise over what kinds of consequences drug users might face.

As Oregon Democrats and Republicans tussle over how to reintroduce criminal penalties for possessing drugs in the state, much attention has fallen on whether that offense should be a class C misdemeanor, the least serious type, or class A, the most serious.

But with Democrats’ leading bill on the matter facing an uncertain path, some members of the two parties have begun discussing another option. They are looking at creating an entirely new misdemeanor to accomplish what both sides say they want: to offer police a greater ability to disrupt open drug use and create a new tool for steering users toward treatment.

“The conversation in the building is, what is an alternative to a misdemeanor A, what is the alternative to a misdemeanor C?” said state Rep. Greg Smith, R-Heppner, who serves on the joint committee charged with tackling addiction. “Can we as a body come to an agreement on our own definition that serves Oregonians, serves justice and provides mercy?”

The closed-door discussions haven’t yet arrived at an answer, sources on both sides said. But the negotiations reflect a tricky political math. Recriminalization in any form is bound to be unacceptable to some Democrats, but Republicans might not get on board without stronger potential consequences. Complicating matters, a coalition that includes some of the state’s richest people is threatening to pass a ballot measure including potential tough penalties if lawmakers don’t act.

Tess Seger, a spokesperson for Senate Democrats, said the idea of creating a new “unclassified” misdemeanor for drug possession is “one of the many different ideas [committee] co-chairs are considering to get the policy right, but no one has agreed to anything.”

Democrats’ proposal for combating Oregon’s addiction crisis is laid out in House Bill 4002, a wide-ranging bill that looks to expand access to medications that ease opioid withdrawal, expand drug treatment services, and make it easier to prosecute drug dealers.

The bill also would make possessing small amounts of drugs like heroin, meth and fentanyl a class C misdemeanor, punishable by up to 30 days in jail. The offense is currently a noncriminal violation, punishable by a ticket that can be ignored without consequence.

Democrats leading the effort to address addiction — Sen. Kate Lieber, D-Portland, and Rep. Jason Kropf, D-Bend —say their billwould offer drug users options to avoid prosecution, emphasizing their intent to steer people to treatment.

But a growing coalition that includes Republican lawmakers, cities, counties, prosecutors, and law enforcement officers has argued that only a class A misdemeanor, punishable by up to a year in jail, is adequate to convince people to accept help.

Supporters of that approach showed up to a four-hour committee hearing last week, urging Democrats to beef up their bill. They were opposed by Oregonians who are adamant that reintroducing criminal penalties would be a harmful and costly mistake that would disproportionately affect people of color.

Opponents of recriminalization point to research recently presented at a symposium in Salem. Among other things, it suggested that a flood of cheap fentanyl throughout the West — not the voter-approved Measure 110 — is to blame for soaring overdoses Oregon has experienced in recent years.

Still, lawmakers appear set on introducing some form of new criminal penalties. Some have raised the possibility of compromising with a class B misdemeanor, punishable by up to six months in jail. But Smith said Monday that A, B and C misdemeanor charges, which carry potential fines, are a bad fit for drug possession since many people don’t have the money to pay the fine. That’s given rise to the possibility of another option.

“We all know that there’s going to have to be a little give and take,” said Smith, a longtime GOP lawmaker who often bargains with Democrats. “At the end of the day, it does Oregonians no good to simply incarcerate without treatment.”

It’s not clear whether all of Smith’s Republican colleagues agree. House Minority Leader Jeff Helfrich, R-Hood River, has been adamant that Measure 110 should be repealed and possession made a class A misdemeanor. He offered no sign Monday that he’d changed his mind.

“We have heard that Speaker [Dan] Rayfield wants to create a new classification of misdemeanor, though he has not held formal discussions with caucus leadership,” said Cole Avery, a spokesperson for Helfrich. He added, “The House Republican Caucus’ position is a Class A misdemeanor gets addicts off the street and into treatment. Anything less is just like putting a Band-Aid on a bullet hole.”

Democrats are showing a willingness to introduce more severe misdemeanor consequences for drug use in at least one respect this year. A bill that would make it a class A misdemeanor to use drugs on public transportation got a hearing on Monday afternoon.

Dirk VanderHart is JPR's Salem correspondent reporting from the Oregon State Capitol. His reporting is funded through a collaboration among public radio stations in Oregon and Washington that includes JPR.