Progressive lawmakers and civil rights groups want more states to follow Oregon’s recent example and drop criminal penalties for carrying small amounts of heroin, cocaine or other drugs, and to spend more money on addiction recovery services. They say substance use disorder should be treated as a disease, rather than as a crime.
Democratic lawmakers in Maine, Massachusetts, Rhode Island and Vermont all proposed decriminalization bills this year. Advocacy groups hope to get a decriminalization measure on the ballot in Washington in 2022 and in California in 2024, said Matt Sutton, director of public relations for the Drug Policy Alliance, a New York-based nonprofit. The Drug Policy Alliance helped fund the ballot initiative that resulted in Oregon’s new law, which took effect in February.
But Oregon’s experience shows that it’s easier to eliminate criminal penalties than to ramp up behavioral health services and get more people to use them. In fact, critics of decriminalization say such policies could decrease access to treatment, because fewer low-level offenders will be pushed into court-ordered programs.
“Criminalizing a health condition is never the way to go,” said Reginald Richardson, executive director of the Oregon’s Alcohol and Drug Policy Commission, an independent state government agency. “So that piece of [Oregon’s law] was beautifully constructed. But it also created a problem, because there are some people—the stick of jail allowed them to get into recovery. And now we don’t have that anymore.”
Oregon’s inpatient facilities, detox clinics and recovery-focused nonprofits also have been battered by COVID-19 and workforce shortages in recent years. It’s unclear whether service providers can expand to serve more clients, some behavioral health advocates say.
Richardson said states should ensure recovery services are widely available before decriminalizing drugs. “Unfortunately, the use of criminal justice becomes a necessary proxy when you don’t have effective behavioral health services,” he said.
Lawmakers in at least eight states are using COVID aid to fund behavioral health services.
Supporters of the Oregon law, approved in 2020 through a ballot initiative known as Measure 110, say it’ll take time to implement such a large shift in policy, and are urging their critics to be patient. “We’re shifting from a terribly traumatizing system and racist system to a trauma-informed, patient-centered system,” said Tera Hurst, executive director of the Oregon Health Justice Recovery Alliance, a coalition of organizations working to implement the measure. “That doesn’t happen overnight.”
The law will use marijuana tax revenue—plus any criminal justice money saved through decriminalization—to fund organizations that help people seek and maintain sobriety. Those services could include peer support groups and transitional housing programs.
Such organizations will get about $300 million over the next two years, Hurst noted. She estimates that’s about five times the amount Oregon is currently spending on services that aren’t provided through Medicaid, the public health insurance program for people who have low incomes or disabilities. About $30 million already has been disbursed, she said.
Hurst said she’s asking people to imagine a behavioral health system that doesn’t rely on police and courts to get people sober. “We’ve never done that, though,” she added, “so it’s really hard for people to open their minds up and say: What would that look like?”
Drug arrests and convictions have plummeted in Oregon since February.
The ballot measure made possessing small amounts of drugs—such as less than a gram of heroin, or less than two grams of cocaine—a civil citation punishable by a $100 fine rather than a crime. It also downgraded felony charges to misdemeanors for possessing slightly larger amounts.
The measure established a hotline that people whom police ticket for possession can call to undergo a health assessment. If they complete the assessment, they can get their citations waived, even without further treatment or other services.
The law also requires the state to establish addiction recovery centers to connect people who use drugs with treatment or other assistance, such as housing or overdose prevention education.
Before decriminalization, in 2019, Oregon law enforcement officers made more than 6,700 arrests and courts issued more than 4,000 convictions for drug possession in cases where possession was the most serious potential charge, according to the Oregon Criminal Justice Commission. Commission members are appointed by the governor to evaluate criminal justice policy.
Between February and August this year, law enforcement made 1,800 arrests for such possession crimes and courts issued 364 convictions. Defendants most likely were arrested for carrying large amounts of drugs or for drug dealing offenses, said Ken Sanchagrin, executive director of the commission.
Decriminalization doesn’t appear to be leading to a rise in drug-related crime, such as property crime. Property crimes in the state actually decreased this year, according to data provided by the criminal justice commission and the judicial department.
It’s less clear whether decriminalization has led more people to seek help for substance use disorders.
Defendants failed to show up in court to make their case against about half of 1,300 citations issued through September for possession of small amounts of drugs, according to the Oregon Judicial Department. In only seven cases did defendants submit a health assessment to get their fines waived.
To critics of the new law, the seldom-used hotline proves that decriminalization isn’t working. Only 51 people have called so far, noted Republican state Sen. Lynn Findley, the assistant minority leader. The Oregonian first reported the hotline statistics.
“People aren’t curbing their behavior, they aren’t paying attention to [the citations], they’re just ignoring them,” Findley said of Measure 110.
Hurst, of the recovery alliance, said it’s too early to judge the hotline, given that people who get ticketed aren’t yet getting the same written information in every jurisdiction and some police officers may not be verbally explaining how to waive the citations. “To me, the data doesn’t tell a story yet,” she said. “It’s very early data, and it’s based on a system that’s not set up.”
Prescribers must complete special training and agree to DEA audits.
Critics of the law also argue decriminalizing drugs will reduce access to court-ordered treatment. Nationally, about 27% of adults and teenagers referred to substance use disorder treatment in 2019 were sent by the criminal justice system, according to data from the federal Substance Abuse and Mental Health Services Administration. People referred themselves to treatment or were referred by another person, such as a family member, in about 44% of cases.
Supporters say that doesn’t mean court-ordered treatment always works, or that arresting people is the only way to help them overcome addiction.
Not everyone finds long-term sobriety after court-ordered treatment, said state Senate Assistant Majority Leader Kate Lieber, a Democrat and former prosecutor. “I don’t think we should kid ourselves … that the criminal justice system was the thing that was getting people clean.”
It’s more important to make sure services are available when people need them, she said.
“What is the thing that really helps people get clean? What is that thing?” she said. “People will tell you it’s access to treatment when they’re ready for it. Right now, our access to treatment is pretty bad.”
Oregon’s rate of substance use disorder is among the highest in the country, according to federal estimates. As of 2019, only adults living in Colorado, Vermont and Washington, D.C., experienced drug or alcohol dependence at higher rates.
Clinical treatment programs in the state have long been overstretched. Now they’re offering even fewer inpatient beds and detox opportunities, because of an ongoing worker shortage, pandemic-era social distancing rules and other financial stressors.
“Unfortunately, we’re in the middle of two things: COVID and a workforce exodus,” said Heather Jefferis, executive director of the Oregon Council for Behavioral Health, a trade group for clinical treatment providers. “I’m not even going to call it a crisis anymore, I’m going to call it an exodus.”
Her group and others pushed successfully for an early release of Measure 110 funding—that initial $30 million lawmakers approved—to help support providers who were struggling to stay in business, she said.
Lawmakers are trying to further bolster Oregon’s behavioral health system. Democratic Gov. Kate Brown this year signed a package of bills, championed by Lieber and others, that allocates $350 million to, among other things, increase the number of state hospital beds and community providers and beef up workforce development efforts.
Many states have been moving away from punitive war on drugs-era policies for years. Oregon lawmakers in 2017 downgraded first-time, small-scale drug possession offenses from felonies to misdemeanors, for instance.
Adults can legally purchase and consume marijuana in Oregon and 18 other states (although in one of the states, South Dakota, legalization has been stalled by court battle). In an additional 12 states—including conservative-leaning ones such as Louisiana, Missouri and North Dakota—people caught with small amounts of pot no longer face jail time.
Voters and elected officials in cities such as Denver, Seattle and Washington, D.C., have in recent years directed law enforcement to deemphasize prosecuting possession of psychoactive mushrooms.
Now supporters want more states to follow Oregon’s example. Drug decriminalization advocates say police have disproportionately enforced drug laws in low-income, minority neighborhoods. They say decriminalization will advance racial equity, reduce the stigma of addiction and spare people from criminal records that can prevent them from getting jobs and housing.
“We cannot have this conversation without talking about the racial impact of the drug laws,” said Washington state Sen. Manka Dhingra, a Democrat and prosecuting attorney who proposed a decriminalization bill this year.
Opponents, including some law enforcement groups, argue that decriminalization will encourage people to use dangerous drugs, lead to a rise in other drug-related crime and make it harder to force people to get sober.
In some states, overdose deaths spiked more than 50% during the pandemic.
State legislatures haven’t been as receptive to decriminalization of all drugs as Oregonians, who approved Measure 110 with 58% of the vote.
Maine state Rep. Anne Perry, a Democrat, proposed a decriminalization bill this year inspired by the Oregon measure. But her bill stalled in the state Senate and was opposed by Attorney General Aaron Frey, a Democrat, and Maine Drug Enforcement Agency Director Roy McKinney.
Both noted the role police and courts play in helping people access treatment. And McKinney said in written testimony that decriminalizing drugs “sends a mixed message that fails to recognize how dangerous these drugs are and normalizes their possession.”
Perry said she’s now focused on reducing drug possession penalties rather than dropping them. “There’s been a change in attitudes on a lot of this,” she said, but not enough to pass her bill.
In Washington state, drug possession was suddenly decriminalized in February when the state Supreme Court struck down the state’s drug possession law. The law had imposed felony charges even on people who had no idea they were carrying someone else’s drugs.
Washington lawmakers scrambled to reintroduce penalties for drug offenses, albeit at lower levels. Dhingra’s decriminalization proposal evolved into a compromise law that made possession of small drug amounts a simple misdemeanor.
Some lawmakers say those penalties are still too low. State Senate Republican Leader John Braun said he supports changing possession crimes from felonies to gross misdemeanors, but not to simple misdemeanors, because prosecutors can order defendants convicted of a gross misdemeanor into drug treatment for a year.
Braun said he also opposes the law’s requirement that police refer people caught with small amounts of drugs to “assessment and services” at least twice before arresting them. “It does nothing for the individual, to help them get on a better path,” he said of the bill. “I think it’s a disaster.”
Policymakers nationwide likely will be watching Oregon for policy insights, said Beau Kilmer, director of the RAND Drug Policy Research Center at the RAND Corporation, a California-based research group.
But the Oregon law is so new—and is being implemented at such an unusual time, during a global pandemic—that it’s hard to tell whether it’s working as intended, he said. “I suspect voters in other states will be considering this before we have hard evidence on it.”
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