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Guest Essay
By Maia Szalavitz
Ms. Szalavitz is a contributing Opinion writer who covers addiction and public policy.
In February 2021, Oregon decriminalized possession of small amounts of all drugs, via a ballot initiative known as Measure 110. The idea was to treat addiction as a public health problem, based on overwhelming evidence that jailing people for having small amounts of drugs for personal use is both ineffective and counterproductive.
Since then, decriminalization has been widely blamed for increased homelessness, soaring rates of public drug use and a 68 percent rise in the overdose death rate in its first two years. This spike was far greater than the 14 percent rise in the nation’s overall overdose deaths during the same period.
Although Measure 110 passed with nearly 59 percent support, many Oregon voters are now calling for drugs to be recriminalized, citing these worsening conditions. The state legislature, which convenes on Monday, is considering new legislation that would, among other things, restore a criminal penalty of up to a month in jail for low-level possession.
Repealing decriminalization would be a mistake. Researchers studying Measure 110’s effects recently presented compelling evidence that the current law is extremely unlikely to have done the harm for which it is being blamed. But rampant misinformation — often being spread for political gain — means that the legislature is likely to return to its old-school drug war approach. With overdose deaths still on the rise and other states considering decriminalization, a reversal could undo vital national progress in fighting addiction, which is far more effectively resolved with care, not coercion.
If we really want to end the overdose and homelessness crises — in Oregon and around the country — we have to understand and follow the evidence, not the fearmongering.
When events occur in rapid succession, it’s easy to assume that the first one caused the second. But correlation isn’t all that’s needed to prove causation. For something like a change in drug laws to have an impact, certain conditions need to be met.
For one, people need to know that the rules have changed. In a survey of nearly 500 Oregonians who use stimulants, opioids or both, only 7 percent said that they were aware that it was no longer a criminal offense to possess fentanyl. Less than half knew that methamphetamine had been decriminalized. Only 1.5 percent had started using drugs after Measure 110 went into effect. About 85 percent of survey participants were homeless or unstably housed — not a population that typically pays attention to the vagaries of legislative change.
Although opponents of the measure claim that it has attracted homeless people from around the country, only 9 percent of the surveyed drug users had moved to Oregon in the past two years, while nearly three in four had resided there for 11 years or more. Overall homelessness rates in the state have tracked with eviction policy, not decriminalization, the research shows.
Another claim made frequently by critics of the law and by journalists is that Measure 110 has taken away a critical tool that law enforcement could previously wield to force people into treatment: incarceration. In fact, less than one-third of jails in the United States offer medication with buprenorphine or methadone — the gold standard in treating opioid use disorder — to all who could benefit. Few arrestees are even given the chance to choose treatment instead of jail. And in prisons, where nearly half of all inmates have drug problems, only 10 percent have access to treatment beyond self-help groups, according to the Prison Policy Initiative.
So why did overdose death rates rise more in Oregon than they did in the rest of the United States immediately after the measure passed? And how can the answer help both Oregon and the rest of the country set better policy?
“It’s all about the fentanyl,” says Dr. Alex Kral, a distinguished fellow in behavioral health and criminal justice at the think tank RTI International. Illicitly manufactured fentanyl is roughly 50 times stronger than heroin. And it is fentanyl and even more powerful synthetic opioids that have driven the unprecedented rise in overdose fatalities since 2013. When milder substances are suddenly replaced with drugs that are stronger by orders of magnitude, this unsurprisingly becomes the most powerful factor driving overdose deaths.
Every region across the country shows a nearly identical skyrocketing death toll when fentanyl saturates its market — regardless of whether it’s a tough-on-crime state like Texas, or a progressive bastion like California, according to data presented by Dr. Brandon Del Pozo of Brown University and his colleagues, as well as previously published research. Washington State is an especially interesting example: When the state decriminalized drug possession for four months in 2021 because of a court order, overdose rates rose most sharply after criminal penalties were restored.
Furthermore, as recently as 2018, nearly 90 percent of all overdose deaths involving synthetic opioids occurred in the 28 states east of the Mississippi. The drug and its analogues didn’t overrun Western state markets until 2019 and later, and Measure 110 did not go into effect until February 2021. Data from Oregon follows the same trends as other states where fentanyl began to spread during a similar period.
Consequently, it’s spurious to link decriminalization to an overdose rate that has risen in parallel with fentanyl prevalence in every community studied that was penetrated by the drug, regardless of policy changes.
Recriminalizing drug possession in Oregon wouldn’t merely reintroduce expensive and ineffective punishments; it also threatens to turn back the clock on other noncoercive drug policies and harm reduction strategies promoted by the world’s leading experts on drug addiction, like Dr. Nora Volkow, who heads the federal government’s National Institute on Drug Abuse. Measure 110 allocated new spending to harm reduction initiatives that made the overdose antidote naloxone more widely available. A modeling study showed that without this change, even more lives would have been lost to fentanyl overdoses.
After a slow rollout, new funding for addiction treatment is only just starting to make an impact in the state. A Portland police officer, David Baer, has worked on the city’s bike squad in the neighborhoods hardest hit by drugs for the past four years. Recently, he became part of a pilot program that allows him to call in outreach workers, whose jobs are paid for with Measure 110 funding, when he encounters people using drugs who want help. Of the workers, he says: “These folks are experts in this. They have lived experience. They’re so compassionate. And so through that program, we’re able to get people into treatment.” Not everyone he stops seeks care — but a far larger proportion do than call the treatment hotline listed on police tickets currently handed out for drug possession.
These types of programs go hand in hand with decriminalization. Oregon can serve as a powerful example to other states by staying the course and not hastily reversing itself based on politicized misinformation.
“We can’t arrest our way out of this,” says Officer Baer. After decades of punitive policies, the United States has the world’s highest incarceration rate, and the world’s highest overdose death date. Oregon can lead the way by giving humane drug policy the time it needs to prove it can make a difference.
Maia Szalavitz (@maiasz) is a contributing Opinion writer and the author, most recently, of “Undoing Drugs: How Harm Reduction Is Changing the Future of Drugs and Addiction.”
Source photographs by CSA Images and Nathan Howard, via Getty Images.
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