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How to Address Oregon's Drug Decriminalization Mess

The state’s first-in-the-nation approach to decriminalization has left deaths and overdoses surging. Criminalization needn’t be equated with incarceration. The spectrum of penalties can include fines, community service and treatment.

A drug purchase
The debate over Oregon’s Measure 110, passed in 2020, was framed as “treatment over incarceration” for drug offenders. It seems all of us have now learned how wrong this framing was. What appeared to be a constructive debate about finding a better response to drug use was in fact a ballot measure that made drug use a penalty-free behavior, in effect encouraging it.

The failure of prior penalties for drug use does not mean that all penalties should be removed, as was done. At a conceptual level, treatment should be the penalty for drug use, rather than incarceration.

Evidence now suggests Oregon’s first-in-the-nation approach to decriminalization, heralded by supporters as a step forward, has not done any better than the policy it replaced. These feel-good drug policies appear to be making matters worse.

Oregon overdose deaths increased by more than 70 percent between 2020 and 2022, according to the Centers for Disease Control and Prevention (CDC). Yet at the national level, over that same period, overdoses increased by only 18 percent. More notably, opioid-involved overdoses — ranging from heroin to synthetic opioids like fentanyl — increased by 101 percent in Oregon, while they increased by less than 20 percent nationally. The rate of violent crime also increased in Oregon despite decreasing nationally.

Three years later, Oregon is not better off than it was before Measure 110. The public tends to agree.

Polling shows public support for Measure 110 has dropped significantly. Nearly two-thirds of Oregon voters now want to repeal parts of Measure 110 and bring back penalties for the possession of drugs. This is a stark contrast with the 58.5 percent of voters who initially supported this drug policy experiment.

Notably, 79 percent of Hispanics and 74 percent of Black Oregonians want to bring back penalties. The poll also found 54 percent of voters want to repeal Measure 110 completely.

This is perhaps not surprising, given that 1 in 10 deaths of Black people in Oregon in 2022 were due to overdoses, compared to 1 in 35 deaths of white Oregonians, the CDC found. Overdose rates among Black Oregonians have more than doubled since 2020.

While pushing the pendulum back may be better than the penalty-free status quo, policymakers would be wise to consider a third way, remembering why voters favored a change in the first place. It is time to turn the page on the war on drugs.

Many wrongly equate criminalization with incarceration, not understanding that the spectrum of penalties can include court-ordered fines, community service, treatment, parole, incarceration and more. The underlying issue is that “treatment over incarceration” remains compatible with both criminalization and decriminalization frameworks, explaining why Measure 110 was misleading to voters.

Of course, it is possible to swap one penalty for another, like replacing incarceration with court-mandated treatment. Treatment courts and pre-trial diversion both fit this model — à la treatment over incarceration. Moreover, the completion of treatment would keep the drug-related charge off their criminal record, helping to incentivize the individual to do so.

A decriminalization framework is premised on the assumption that people will seek treatment themselves. But a top reason for why individuals have not received treatment is that they do not want to stop using drugs. In Multnomah County, where overdose deaths increased by more than 70 percent between 2020 and 2022 and surpassed 1,000 over that period, Willamette Week reported that only 32 people had called the treatment hotline set up by Measure 110 through May 2023 — “a success rate of around 1 percent.” Interventions help prevent drug use from continuing indefinitely.

The Drug Policy Alliance, which crafted Measure 110, said its is “working to end the punishment” of drug use. But it is also working to legalize all drugs. No wonder Oregon’s law was written so poorly.

Unless one’s end goal is the legalization of all drugs, individuals should agree that drug use should be penalized to some extent. This shifts the discussion back to what the intervention should be. Compared to incarceration and no penalty, evidence-based drug treatment would likely be received as an appropriate, cost-effective and proportional penalty for drug use.

The criminalization of drug use does not necessarily conflict with the provision of treatment for drug use. Oregon’s experiment with no-penalty drug policy is failing. Policymakers should advance a drug policy with a backbone, recognizing that penalties have a valid role to play in incentivizing individuals to complete treatment and achieve recovery.

The removal of penalties for drug use is no solution to the drug crisis. A reversal of Measure 110 in this vein could provide a model for the nation.

Kevin Sabet is the president of the Foundation for Drug Policy Solutions and a former White House drug policy adviser to presidents Barack Obama, George W. Bush and Bill Clinton. Connor Kubeisy is a communications and policy associate with the Foundation for Drug Policy Solutions and a master of public health student at the Harvard T.H. Chan School of Public Health. This commentary originally appeared in the Oregon Capital Chronicle, part of the States Newsroom network. Read the original here.

Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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