Decriminalize Everything? Oregon’s New Drug Laws

February 25th, 2022 in Analysis, Criminal Law, Health Law, State Legislation

In November 2020, Oregon voters overwhelmingly decided to decriminalize the possession of small amounts of almost all hard drugs. Measure 110 went into effect on February 1, 2021. The legislation took a groundbreaking, albeit controversial step by reclassifying the possession of hard drugs. Offenses that were formally criminal misdemeanors, subjecting citizens to arrest, fines, and jail time, are now mere civil violations, subject only to a $100 civil citation, which can be avoided by participation in health assessments.

The measure makes possession of certain controlled substances a noncriminal violation so long as the possession is less than a specified amount:

• 1 gram of heroin;
• 1 gram of MDMA;
• 2 grams of methamphetamine;
• 40 units of LSD;
• 12 grams of psilocybin;
• 40 units of methadone;
• 40 pills of oxycodone; and
• 2 grams of cocaine.

The measure further reduces the charge from a felony to a misdemeanor for simple possession of substances where the amount is:

• 1-3 grams of heroin;
• 1-4 grams of MDMA;
• 2-8 grams of methamphetamine; and
• 2-8 grams of cocaine.

As noted by Oregon State Policy Capt. Timothy Fox, “possession of larger amounts of drugs, manufacturing and distribution are still crimes.”

The law was predicted to have a drastic impact on yearly convictions for possession of controlled substances. The Oregon Criminal Justice Commission estimated yearly convictions would decrease by a staggering 90.7%. The legislation comes approximately 50 years after President Richard Nixon famously declared his War on Drugs. While the drug war has been criticized as a racist, inhumane failure, Oregon’s recent legislation marks a significant, perhaps radical step towards restructuring the deeply flawed systems instituted over the past half century. This article will first explore the main arguments on either side of the debate regarding the wisdom and efficacy of Measure 110. Later, it will discuss some cautious conclusions and the broader implications of Measure 110 and how it might fit within the larger, national public debate regarding drug decriminalization.

The Promise

Proponents of Measure 110 see it as a much overdue remedial measure to a disastrous drug war that has done far more harm than good. Kassandra Frederique, executive director of the Drug Policy Alliance (“DPA”), remarked on its passing, “Today, the first domino of our cruel and inhuman war on drugs has fallen, setting off what we expect to be a cascade of other efforts centering health over criminalization.” Supporters highlight the wisdom of shifting from a drug policy model that focuses on punishment, incarceration and criminalization to a more progressive model that sees drug use and addiction as a disease to be treated rather than a crime to be punished. From this perspective, substance use is better addressed by providing access to physical and mental healthcare and removing the stigmatization and obstacles that traditionally accompany drug charges such as the difficulty landing jobs and finding housing. “Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem,” says Mike Schmidt, district attorney for Oregon’s most populated county.

A key provision of Measure 110 earmarks a portion of cannabis tax revenues for improving and expanding the state’s treatment system, along with drug safety education and services. To date, Oregon has generated hundreds of millions of dollars for this purpose, distributed to at least 70 different organizations in 26 different counties, aimed primarily at helping providers expand services for people with low incomes and without insurance. This kind of investment is clearly a necessary part of shifting from a model oriented around the criminal justice system to a model oriented around healthcare. In addition, proponents of Measure 110 emphasize that decriminalization will ease racial disparities in drug arrests. For example, African American Oregonians are 2.5 times as likely to be convicted of a possession felony as whites. Without delving into the reasons behind this disparity, by reducing possession convictions overall decriminalization will reduce the negative effects on minority communities. Indeed, according to Theshia Naidoo, managing director for legal affairs at DPA, although the “information is not fully available yet . . . from the data we can see, there have been no drug possession arrests in the state since the decriminalization took effect.”

The Concerns

One major area of concern is implementation. Detractors question whether Oregon’s treatment system has the resources and functionality required to support such a fundamental shift away from the criminal justice system as the primary model for addressing drug use and executing drug policy. Are the resources provided by Measure 110 adequate to handle a corresponding substantial influx of people seeking treatment? Unfortunately, It is likely still too early to tell; but shifting from the criminal justice to the health care system is undoubtedly not going to happen overnight.

Relatedly, critics question whether a civil citation akin to a parking ticket will provide the adequate impetus and resources for users to seek help. Mike Marshall, co-founder and director of Oregon Recovers, worries that “the only way to get access to recovery services is by being arrested or interacting with the criminal justice system. Measure 110 took away that pathway.” Perhaps the threat of the criminal justice system provides users with the necessary motivation to seek treatment and the threat of a citation and potential fine is lacking in some critical respect. Decriminalization may ultimately limit access to treatment as fewer offenders are pushed into court-ordered programs. Decriminalization advocates counter that the criminal justice system’s pathway to treatment is flawed, biased and ineffectual, and point out that “on average a huge percentage [approximately 70 to 80 percent in Multnomah county] of those convicted of drug possession in the state were rearrested within three years.” Regardless, there is shockingly little data to determine what programs work best and no agreed upon set of metrics or benchmarks to judge program efficacy, either in Oregon or nationally.

The Verdict

Unfortunately, it’s likely too early to fairly assess whether Oregon’s remarkable drug policy transformation can be deemed a success. Part of this is because the transformation is still underway. Supporters of decriminalization point to Portugal as a reform model, which took more than two years to transition from a system centered around the criminal justice system to a healthcare model. Covid-19 is a another complication; Oregon’s detox clinics, recovery-focused nonprofits, and impatient facilities have been battered by the pandemic and related workforce shortages.

Nonetheless, Oregon’s bold efforts have seemingly inspired state level decriminalization efforts across the country as lawmakers in Maine, Massachusetts, Rhode Island, and Vermont have all proposed similar decriminalization bills this year. The takeaway seems to be that decriminalization is a wise policy so long as recovery services are widely available. As Reginald Richardson, director of Oregon’s Alcohol and Drug Policy Commission, put it, “the use of criminal justice becomes a necessary proxy when you don’t have effective behavioral health services.” Overall, this kind of major shift in policy is daunting and will always involve overcoming unforeseen challenges, although hopefully not always to the extent of a global pandemic. Still, the Nixon-era drug policies has largely been an abject failure, and states like Oregon ought to be commended for trying, however imperfectly, to improve their approach.

 

Alexander Gatter anticipates graduating from Boston University School of Law in May 2023.