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Oregon Lawmakers Seek to Recriminalize Psychedelics and Other Drugs by Repealing Measure 110
With House Bill 2831, Representative Lily Morgan aim to reinstitute criminal penalties for personal possession of controlled substances such as cocaine, heroin, psilocybin, and LSD
On November 3, 2020, Oregon voters approved Measure 110. This historic ballot initiative made Oregon the first U.S. state to partially decriminalize drugs.
Measure 110 eliminated criminal penalties linked to personal possession of small amounts of many controlled substances, including heroin, cocaine, psilocybin, and lysergic acid diethylamide (LSD).
Instead of being arrested, people possessing amounts within Measure 110’s limits are guilty of a Class E violation, punishable by a $100 fine, which can be avoided by undergoing an evaluation at an Addiction Recovery Center. Measure 110 also siphons tax revenue (at least $302 million) from Oregon’s cannabis industry to fund services that support people with substance use conditions.
Two years after Measure 110 was enacted, four state senators want to repeal it. Sponsored by Representative Lily Morgan (R), House Bill 2831 (HB 2831) would reinstitute criminal penalties for possessing small, personal amounts of controlled substances. Representatives Jami Cate (R), Rick Lewis (R), and Anna Scharf (R) have co-sponsored the bill.
HB 2831 would eliminate the Class E violation category that Measure 110 created for personal possession of controlled substances within specified limits. Possession of a Schedule I controlled substance such as heroin, psilocybin, or LSD would become a Class A misdemeanor. If a person has a prior felony conviction, or two or more prior convictions for unlawful possession, then personal possession of a Schedule I controlled substance becomes a Class B felony.
Similarly, under HB 2831, possession of a Schedule II controlled substance such as methamphetamine or cocaine would become a misdemeanor. If a person has a prior felony conviction, or two or more prior convictions for unlawful possession, then personal possession of a Schedule II controlled substance becomes a Class C felony.
Measure 110 was inspired by Portugal’s partial decriminalization of drugs in 2001, which has lauded as a success. In addition to reducing criminal penalties, Portugal invested in harm reduction measures and substance use treatment services. Since the policy change, the country’s opioid overdose deaths decreased.
Since Oregon voters approved Measure 110, other states have attempted to build on their success. Colorado’s Proposition 122, the Natural Medicine Health Act, partially decriminalized the production, possession, consumption, and sharing of five psychedelic substances. California’s proposed Senate Bill 58 and New York’s recently filed A114 would have similar effects.
Measure 110 was a hotly debated topic during Oregon’s recent gubernatorial race. Candidates Christine Drazan and Betsy Johnson wanted to repeal it. In a 2022 interview, Drazan told Oregon Public Broadcasting, “[g]iven the disastrous rollout and false promises associated with it [Measure 110], I believe that Oregonians will support repeal.” Drazan was referring to significant delays in delivering the funds that Measure 110 promised.
Governor Tina Kotek, who won Oregon gubernatorial race, promised more rigorous oversight of agencies like the Oregon Health Authority. She told Oregon Public Broadcasting, “[u]nfortunately, the state has failed to deliver the promised treatment programs fast enough.” Kotek added, “my opponents want to go back to our failed approach of just throwing people struggling with addiction in jail. I want to fix the problems and actually deliver on what voters demanded.”
Morgan and the co-sponsors of HB 2831 have sided with Drazan and Johnson. Instead of taking a public health-oriented approach to substance use, they favor a punitive approach that could worsen Oregon’s overdose and mental health crisis.
Enacting HB 2831 would also exacerbate inequities of Oregon’s Measure 109, the Oregon Psilocybin Services Act. Passed by voters alongside Measure 110 in 2020, Measure 109 legalized the use of psilocybin with support from trained facilitators. However, psilocybin services offered under Measure 109 are estimated to cost hundreds or thousands of dollars per session, beyond the reach of many consumers.
If Representative Morgan successfully repeals Measure 110, services offered under Measure 109 would be the only way that Oregonians could consume psilocybin without risking arrest and prosecution. With interest in psychedelics rising, and Measure 109’s remaining relatively inaccessible, the illicit market for psilocybin could grow, and arrests for personal possession could rise.
Meanwhile, another Oregon lawmaker, Senator Elizabeth Steiner, recently filed Senate Bill 303, which would place clients in Oregon’s regulated psilocybin program under mandatory state surveillance. SB 303 would further increase the costs of Oregon’s psilocybin services while undermining client privacy and autonomy.
While other states like Colorado and California pursue evidence-based, public-health oriented drug policies, Oregon’s HB 2831 and SB 303 would send the state’s drug laws back in time, relying on the failed punitive approaches of the U.S. war on drugs.
On January 16, HB 2831 was referred to the House Committee on Behavioral Health and Health Care. There are currently now hearing scheduled to discuss the bill. Stay tuned to Psychedelic Week for more updates.
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*The views expressed on Psychedelic Week do not represent the views of POPLAR at the Petrie-Flom Center at Harvard Law School or the Florida State University College of Law. Psychedelic Week is an independent project unaffiliated with these programs and institutions.
Mason Marks, MD, JD is the Florida Bar Health Law Section Professor at the Florida State University College of Law. He is the senior fellow and project lead of the Project on Psychedelics Law and Regulation (POPLAR) at the Petrie-Flom Center at Harvard Law School and an affiliated fellow at the Information Society Project at Yale Law School. Marks teaches drug law, constitutional law, and administrative law. Before moving to Florida, he served on the Oregon Psilocybin Advisory Board where he chaired its Licensing Subcommittee. Marks has drafted drug policies for state and local lawmakers. His forthcoming book on psychedelic law and politics will be published by Yale University Press. He tweets at @MasonMarksMD and @PsychedelicWeek.