Algosensey|A groundbreaking drug law is scrapped in Oregon. What does that mean for decriminalization?

Three years ago,Algosensey Oregon became the first state in the country to decriminalize illicit drugs. Now, it’s becoming the first state to reverse course and reinstate criminal penalties for use and possession.

As states struggle with a raging opioid epidemic, many health advocates say Oregon's experience was complicated by several factors − and shouldn't discourage other decriminalization efforts across the U.S.

Decriminalization supporters say penalties lead to high rates of incarceration for drug offenses, which pose barriers to housing, jobs and more basic needs for functioning members of society upon release, especially for people of color. And they say criminalization doesn’t solve the larger issue of addiction and overdose deaths.

Oregon's action also comes as the federal government is on the cusp of reclassifying marijuana and recognizing its medical benefits, while a growing number of states decriminalize its use and many go so far as to legalize recreational use. Other drugs on the Controlled Substances Act, including those considered to have much higher potential for abuse and dependency such as meth and heroin, remain illegal for use with stiff penalties across the country.

“We can't think of the Oregon efforts as a failure because it was never given a chance to get off the ground,” Jeffrey Bratberg, a clinical professor in the University of Rhode Island College of Pharmacy, told USA TODAY.

What does it mean to decriminalize drugs?

The American Pharmacists Association’s policy arm last year endorsed decriminalization as a public health measure. Decriminalization is the removal of criminal penalties and prison sentences for the simple use and possession of drugs, while not legalizing or authorizing either. 

“A public health approach is to decriminalize possession and use of substances and to avoid a punitive approach, because it hasn't worked. The drug war has failed, and we need other approaches,” said Bratberg, who helped co-author the APhA’s position. 

In 2020, 58% of voters in Oregon passed a ballot measure to decriminalize possession of small amounts of illicit drugs and invest in treatment and recovery efforts. The law went into effect in 2021. Measure 110 did not legalize drugs, but it removed prison sentences and imposed $100 fines that could be eliminated if users contacted a hotline to undergo addiction screening.

In the years since, the measure prevented the arrests of thousands of people, said Kassandra Frederique, the executive director of the Drug Policy Alliance, a national organization that advocates for the decriminalization of drugs and backed Measure 110.

“Research is consistently showing that (for) people who are incarcerated in jails and prisons, overdose has gone up substantially. And the fact that when people leave jails and prisons, the likelihood of overdose deaths also goes up substantially in comparison to the general population,” Frederique said.

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Oregon's decriminalization efforts coincided with fentanyl explosion

Instead of making clear headway in addressing substance use deaths after the implementation of Measure 110, Oregon saw a 13-fold increase in overdose deaths from synthetic opioids from 2019 through the 12-month period ending June 30, 2023, from 84 deaths to more than 1,100. 

That can’t be blamed only on decriminalization, Frederique said. 

Rather, the fentanyl crisis across the entire United States has brought with it sharp increases in overdoses and deaths. Illegally manufactured fentanyl came onto the scene in the eastern U.S. beginning in about 2014 but didn’t immediately make its way to the western part of the country, so Oregon didn’t feel its effects until more recently, experts say.

It was not until right about the time Oregonians were making the push for decriminalization that fentanyl began to dominate the illegal drug market there, Frederique estimated. Other states felt that burden much sooner, she said.

The CDC has been documenting a drastic increase in overdose deaths across the country since 2014. In the 12-month period ending in July 2018, there were over 30,000 American deaths from overdoses because of synthetic opioids such as fentanyl. Six years later, that number more than doubled to nearly 76,000, according to provisional data, which includes deaths of people who aren't residents of the U.S.

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“Fentanyl is hitting at the same time you have this innovative policy coming in, and the fact that there was a worldwide pandemic, and the fact that Oregon is experiencing an explosion of homelessness,” Frederique said.

As with lots of bureaucratic processes, money was an issue in Oregon. While Measure 110 did secure a funding mechanism for substance use disorder treatment, that was much too slow to be rolled out, bogged down by staffing shortages amid the early days of the COVID-19 pandemic, said Rosalie Pacula, a professor of health policy, economics and law at the University of Southern California. 

State auditors found that in the first year after implementation, only 1% of people cited contacted the addiction-screening hotline.

'Treatment should be a requirement, not a suggestion'

Opponents of Measure 110 pointed to Oregonians’ growing frustrations with what they were seeing on the streets and pointed to decriminalization as the problem. Even some initial supporters of the measure now agree with the rollback.

“Treatment should be a requirement, not a suggestion,” a group of Republican lawmakers said in a letter to the governor urging the reversal of Measure 110.

A measure to recriminalize drug possession passed the Oregon Legislature earlier this month, which Gov. Tina Kotek has said she intends to sign. The bill would make possession of illicit drugs a misdemeanor punishable by up to six months in jail, while encouraging authorities to refer people to treatment. It also allows for possible record expungement.

“Measure 110 was not what Oregonians thought it was,” said Senate Minority Leader Tim Knopp, a Republican, according to Oregon Public Broadcasting. “They were told that their family, their friends, were going to get treatment for addiction. And what it turned into was a free-for-all of public drug use, increased fentanyl, opioid overdose deaths increasing exponentially, and Oregon becoming seen as a national dumpster fire.”

Are other states considering decriminalization?

While no state has gone as far as Oregon, others have taken a harm reduction approach to drug use and possession − the concept of keeping people alive and as healthy as possible for a chance at recovery − while recognizing that punitive measures such as prison sentences haven’t solved the problem.

Measures have been proposed to decriminalize some or all drug possession in states including Maine and Vermont. In Providence, Rhode Island, the city council last month approved a state-sanctioned safe injection site. Two such centers exist in New York, and Colorado, New Mexico and Nevada have also considered adding them.

Last year, Kansas passed legislation to decriminalize the use of test strips that can tell whether fentanyl is present in other substances. Harm reduction advocates say those strips can prevent overdoses that happen when people don’t know what they’re taking is tainted with fentanyl.

“The data on access to harm reduction and the like suggests it actually helps save lives,” Pacula said. “Harm reduction policies stop people from killing themselves with drugs. If that's your goal, harm reduction strategies are incredibly effective, even with potent fentanyl on the streets.”

Is decriminalization ever likely to happen beyond marijuana?

The federal government is currently considering changing marijuana’s place in the Controlled Substances Act list, which would essentially say that marijuana is not as bad as other drugs such as heroin and ecstasy and can be legally prescribed and dispensed at licensed pharmacies. Advocates and experts on marijuana law say it’s one small step toward the ultimate goal of total decriminalization at the federal level, but they don’t think that will happen any time soon. 

What about other drugs? Frederique said people who use them are bogged down by the stigma of “not being able to make decisions for themselves …  We think it’s really important to give people the resources necessary for them to make choices that are healthier and safer.”

Marijuana legalization:Most Americans want legal pot. Here's why feds are taking so long to change old rules.

While other states may look to Oregon and make inferences about decriminalization, most people working in public health and drug policy know that all the other factors have to be taken into account, and “you can't draw conclusions from one policy, ignoring all the other things that are happening at the exact same time,” Pacula said.

Frederique is still hopeful that what happened in Oregon won’t hinder other states from making progress toward broader decriminalization. 

“The idea that criminalization works is one that most people know is not true,” she said. “I think we're going to continue to see people speak about Oregon. But I think with time, people are going to be able to move away from the political theater around it, and actually look at the research.”

Contributing: The Salem Statesman Journal; The Associated Press