Portland Back-Peddles on Public Drug Use

There is an odd theory that making illicit drugs easier to use will make them safer, such as needle exchanges and safe injection sites. Other reformers argue that decriminalizing small quantities will avoid court costs and incarceration costs. Moreover, the proponents of the above theories believe the policy known as The War on Drugs has been ineffective and even racist.

There is another theory, one that is grounded in reason, common sense as well as backed by empirical testing, that demand curves are downward sloping. Similar there is an economic truism that posits if governments wish to encourage some activity, then subsidize it. If government wishes to discourage some activity, then tax it.

At first glance the above two paragraphs have nothing in common, but they do. By reducing the risk (and therefore the cost) of illegal drug consumption, local governments are encouraging drug consumption. As a side note, by reducing the cost and risk of shoplifting, state and local governments have de facto encouraged it, which is probably how many drug addicts finance their drug habits.

In 2020 Oregon voters approved ballot Measure 110 to decriminalize small quantities of illegal drugs. It is still illegal to sell them, and larger quantities are also illegal to possess. However, small personal-use quantities are a civil issue rather than a criminal one. Oregon’s bold experiment has not gone well. Now the Portland city council is debating criminalizing drug use on public property, similar to the way alcohol consumption is banned in public.

Portland Mayor Ted Wheeler is proposing a new ordinance to stop illegal drug use on Portland’s streets, and – if approved – violators could get a $500 fine or up to 6 months in jail.

It would add “consumption of a controlled substance” to the City of Portland ordinance that already prohibits public consumption of alcohol on streets, sidewalks, and public right-of-ways.

The mayor said the proposed ordinance is related to Measure 110 that decriminalized small amounts of drugs. The Portland police support the measure, saying:

“We’re not going to arrest our way out of the addiction and the homeless and the mental health crisis that we have in the city but police officers need tools to go and interdict issues,” Aaron Schmautz, president of the Portland Police Association, previously told KATU News.

The proposal may not survive legal challenges due to a decades old law on the books.

Wheeler initially proposed the public drug use ban in June as a way to re-establish criminal sanctions for people openly using drugs in public. But the plan was thwarted once Wheeler’s office realized that a decades-old state law prohibits such bans.

The Oregon statute outlaws local governments from adopting a policy that penalizes public consumption of alcohol or controlled substances. The 1971 law was established to address substance abuse as a health problem, rather than a crime. While that law does allow cities to prohibit alcohol consumption in specific areas – as with Portland’s public alcohol consumption ban – it does not allow the same exemption for drugs. That’s likely because illicit drug possession was considered illegal in Oregon until 2020.

Whether the law goes into effect or is thrown out is a real concern. The Portland mayor hopes the Oregon legislature will pass a new law allowing cities to regulate drug use in public spaces.

He also expressed hope that a new state bill, which makes it a criminal misdemeanor to possess a small amount of any substance containing fentanyl, would help address the problem.

“I expect this change will positively impact the City of Portland by expanding local law enforcement’s abilities to make Portland safer and healthier,” he said at the time.

Wheeler and Gonzalez will jointly reintroduce the public drug consumption ordinance Wednesday. This time, the policy notes that the rule will only be effective once the Legislature passes a law allowing cities to institute a public drug use ban or if a court approves such a ban.

Considering the current state of affairs the proposal is much ado about nothing. Oregon town and cities lack the ability to police drug use and will not regain it until the legislature acts. It all makes me wonder whether Oregon voters regret voting for ballot Measure 110 and if they are willing to repeal it with stronger laws against drug possession and use.