This article is part of a GAINS Center series on promoting race equity in behavioral health and justice outcomes. Read Part 4 here.
By Alice Chasan
In Oregon, as elsewhere in the country, the disproportionate involvement of people of color in the criminal justice system has remained a serious civil rights and public health concern. Civil liberties advocates, grassroots activists, and criminal justice reform proponents repeatedly pointed to the disparate treatment of people of color and members of other minority populations who came into contact with law enforcement on the street or while driving, particularly for charges related to substance use. The channeling of people of color into the criminal justice system for drug charges often supersedes opportunities to link people who have substance use disorders and co-occurring disorders to treatment.
Oregon’s work to address this issue began with the End Profiling Act, which mandated the creation of a state-appointed task force, chaired by Attorney General Ellen Rosenblum, representing diverse groups with a stake in public safety and equity in the state’s justice system. The group’s mission was to craft new policies that would eliminate profiling and to develop standardized documentation practices to capture data on police operations. The Act also allocated funding to Portland State University’s Criminal Justice Policy Research Institute to create the Law Enforcement Contacts and Data Committee, to which people report their experience of being profiled by law enforcement.
The task force undertook an 18-month process of internal consensus-building and information-gathering from a wide range of criminal justice professionals, civil liberties experts, and community members about the often-catastrophic consequences of felony convictions on people’s lives. The result of the task force’s work was HB 2355, passed with broad bipartisan support in August 2017. In part, the law is an extension of HB 2002 and follows a national trend: Oregon was the thirty-first state to define and prohibit profiling with the passage of HB 2002. But 2355’s principal reform—reclassification of first-time possession of a small quantity of controlled substances (PCS), such as cocaine, heroin, and methamphetamine from a felony to a misdemeanor and to divert those convicted to treatment—is unique nationwide as a measure to combat profiling. The state’s law enforcement leaders publicly championed the drug provision.
A “high-level narrative” produced HB 2355, says Michael Schmidt, executive director of Oregon’s Criminal Justice Commission (CJC). Prior to the task force’s work, grassroots organizations, such as Unite Oregon, along with other civil liberties proponents and public watchdog groups, had pushed for these reforms. McCullough says that her organization had long been focused on the linkage between disparate minority contact with the justice system and disproportionate minority conviction levels for drug offenses. But the linchpin to highlighting the intersectionality of these issues and connecting them as the nexus of HB 2355 was the CJC’s 2017 analysis of available data on felony convictions, which revealed a pattern and practice of racial profiling in PCS-related cases.
“It’s only when you aggregate data on law enforcement interactions with people that you see the disparities,” explains Aaron Knott, legislative director in the office of Attorney General Rosenblum. While equal numbers of people across races use controlled substances, the Oregon data showed “profound disparities” in felony drug convictions—African Americans at more than twice the rate of Caucasians; Native Americans at five times the rate.
The study results prompted Schmidt to invite police and sheriffs’ leadership to see the data. The ensuing discussions led the state associations of police and sheriffs to ask to add the defelonization element to the bill. They also released a public letter in September 2017 supporting the new law, stressing that drug use is a public health issue: “It is imperative that mandated assessments and treatment services accompany this change in drug crime policy so that individual risks and needs can be identified and addressed,” the letter stated.
Kevin Campbell, executive director of the Oregon Association of Chiefs of Police and lobbyist for the Oregon State Sheriff’s Association, explains: “Our willingness to propose a strategic reduction in drug possession penalties was motivated by a desire to reduce the number of people who find their way into the criminal justice system because of addiction, with the hope of applying drug treatment resources and reducing obstacles that come with felony conviction for first-time offenders in housing, education, and employment.”
Law enforcement’s “very brave” support was critical to reaching consensus on the bill’s content, says the Oregon ACLU’s policy director, Kim McCullough. It propelled her organization as well as the state’s defense attorneys to support the measure. The ACLU had initially pushed for more extensive drug sentencing reforms. Campbell says that civil liberties groups looked to California, which passed Proposition 47 in 2014, enacting what he describes as “across-the-board reductions in drug and property crime penalties.” But because law enforcement leaders saw that measure’s “adverse effects,” says Campbell, they stood firm on the Oregon bill’s more limited scope.
Nevertheless, the ACLU stood behind the bill, concluding that incremental steps could lead to more expansive drug sentencing reforms in the future, according to McCullough. She says that compromise was essential to the ultimate outcome of the bill. “Crafting the bill required a painful process of give and take that lasted several months,” Campbell observed.
Task force participants cite Oregon’s longstanding culture of consensus as a principal element in their willingness to stay at the table despite often widely divergent initial positions. One notable exception in the broadly bipartisan coalition was the Oregon District Attorneys Association, which opposed the bill because of the reclassification component. (Under then-existing state law, people convicted of drug felonies participated in drug courts and received state-funded probation supervision, while those with misdemeanor convictions came under the aegis of the counties, which often lack funds and infrastructure for drug treatment.) HB 2355’s final form obviated this problem by extending state funding to people convicted of the new misdemeanor drug charge.
Despite the pride that the principal players take in the bill-crafting process, there are varying degrees of satisfaction with the end-product, as well as general agreement that the outcomes remain uncertain. For example, achieving the law’s goal of treating people who are drug-addicted to discourage future criminal justice system involvement hinges on the state’s ability and willingness to create and continue to fund effective treatment programs.
HB 2355 includes provisions designed to monitor its implementation and assess its success. It requires police and sheriffs’ staff to undergo training in cultural competency and implicit bias. And enforcement agencies must develop data-collection systems for all interactions with the public. The CJC will review that data, as well as data on self-reported profiling experiences, to identify any ongoing patterns of profiling. Beginning in 2020, the CJC will share its annual review and data analyses with the governor, the legislature, and the Department of Public Safety Standards and Training.
While Schmidt concedes it is too soon to judge the law’s effectiveness, he points to the CJC website’s dashboard that steers the reader through preliminary data on Oregon drug trends since 2355’s enactment. From August 2017 through January 2018, the data show a 50 percent drop in PCS convictions for African Americans. “About 1,500 people a year were becoming felons under the old PCS law,” he says.” Now it’s about 500.”