The promise and pitfalls of calling off the cops
In November 2020, Oregon voters passed Ballot Measure 110 by a large margin, decriminalizing all personal possession of all drugs, moving the offense from a misdemeanor to a civil violation with a maximum fine of $100. It was the single largest reduction in the criminal justice footprint in Oregon history. The measure reallocated cannabis tax revenue to the tune of $100 million per year, which was used to stand up a substance use treatment system, and its provisions dealt with people struggling with addiction far more humanely than the criminal justice system typically does.
Now, a mere three years later, the tides have shifted. Voters of the state are mulling possible ballot measures to recriminalize drugs. It’s not hard for media outlets to find someone to quote who is opposed to drug decriminalization, sometimes even people who voted for the measure.
What happened? Ask some, and they’ll tell you that decriminalization brought problems; ask others, and issues arrived at the same time as decriminalization, but not because of it. My response — as a pro-decriminalization advocate — is that it’s more complicated than either of those two answers allows.
Jailed, strip searched and branded a felon at the age of 23 for the high crime of having a speck of drugs in my pocket, I viscerally understand the harms of criminalization. Long after my release from prison, years into a burgeoning research career, I read mountains of empirical evidence in support of decriminalization, which has been endorsed internationally by the United Nations as sound policy.
So I was among those who cheered when Oregonians, 58% to 41%, voted decisively to declare an end to the war on drugs — and hopefully marshal in an approach consistent with good public health. I was proud to have had a hand in changing punishing policies that had jailed myself and my friends, few of whom lived to see the day. I was even appointed to the council that was to oversee the grant funding to create the substance-use services. The devil lies not in the details, but in the implementation. Without buy-in from the government agency tasked with overseeing it or the police tasked with writing the citations, a vacuum was created. And into the vacuum, criticisms flooded.
Between the vote and the measure’s full implementation, Oregon’s drug supply changed, with heroin giving way to fentanyl, not as an adulterant like on the East Coast, but as a drug of choice. With fentanyl came a spike in overdoses, some of the highest year-over-year spikes in the country, though Nevada and Washington — which promptly recriminalized after a Supreme Court decision briefly invalidated their drug possession statute — both have higher rates.
It’s devilishly difficult to disentangle complaints about public drug use and homelessness from opposition to decriminalization.
As COVID exploded homelessness and decimated mental health, Oregon — the first jurisdiction internationally to decriminalize that also has a high unhoused population — saw a marked increase in outdoor fentanyl- and meth-smoking in plain view of children and passersby.
Community members pleaded for the police to do something about it, yet they responded that their hands were tied. Though drug distribution remains illegal, police insist that without the ability to “roll” users arrested for drug possession, they cannot possibly address the open-air market that cropped up downtown. Indeed, one journalist managed to go “undercover” and purchase fentanyl within a few minutes.
Advocates of decriminalization like me didn’t expect the police to abdicate all drug-enforcement duties, and no one predicted the myriad social ills that rode in with COVID. Their confluence has cracked my rose-tinted glasses.
The many complaints against Measure 110 are rarely about the fact that drug users no longer get arrested for low-level drug possession. They almost always center around public drug use, or consequences of homelessness, such as people defecating in the street. It’s devilishly difficult to disentangle complaints about public drug use and homelessness from opposition to decriminalization.
Yet these are — or should be treated as — profoundly distinct phenomena from decriminalization itself. In November, I was able to travel to Portugal, famously the first nation to treat drug addiction as a public health issue rather than a crime, with a delegation of 24 Oregonians, including two state senators, two representatives, police officers and local government officials. We were able to meet with various stakeholders, including one of the architects of the policy, Dr. João Goulão, who now heads the nation’s addiction-focused government agency, SICAD. Public drug use there was rare, though not absent. The lieutenant of a Lisbon police force admitted that if they could simply arrest drug users, their job would be easier, but it would be harmful for society in the long run.
“Do you coerce people into treatment?” a legislator asked Goulão. “No, never. We persuade but do not coerce.”
The gasp in the room was audible. The discourse in Oregon has centered around the notion of carrots and sticks. The theory goes that you can incentivize people to get treatment with positive rewards (carrots), but when they do not behave as expected, external consequences must be imposed (sticks). In the U.S., addiction policy has heavily emphasized “sticks” and offered very few “carrots.”
Though Portugal’s policy was derided internationally when it was first introduced, it is now broadly considered successful. By dealing humanely with drug users, by treating them rather than punishing them, it has gone from being the heroin capital of Europe, with 100,000 people addicted, to having just 25,000 people addicted, with the lowest drug-related death rate in Western Europe, one-tenth of Britain’s. They treated their opioid crisis so successfully that they no longer have one, and did it all without a single stick.
Where do Portugal and Oregon differ? Here in the United States, we do not have the benefit of a national health care system, though Oregon’s Medicaid coverage is among the best in the nation. By European standards, we do not have a robust social safety net.
Unfortunately, as Measure 110’s implementation has shown, our bureaucracies are at times incompetent. While arrests were halted in February 2021, just four months after the vote, the full funding for services did not arrive until September 2022, a 17-month gap. One of the campaign talking points used in the measure’s passage was that Oregon had long ranked last or next-to-last in access to treatment. A single round of grant funding could not possibly undo decades of underinvestment.
Advocates of decriminalization, like myself, didn’t expect the police to abdicate their other drug-enforcement duties, and no one predicted the myriad social ills that rode in with COVID. Their confluence has cracked my rose-tinted glasses.
Decriminalization was an attempt to remove police from the substance use equation, yet they were also tasked with carrying out a key part of the measure, the newly minted drug possession citations. Accompanied by a $100 fine came a phone number to call and receive a behavioral health screening and be connected to services. Almost no one called it. The linkage between police contact and treatment services just wasn’t working — frustrating police, who, while not necessarily supportive, are often aware of the futility of traditional drug war approaches.
Three years later, treatment resources remain inadequate, especially as perceived by people outside the field who may not see a difference in their community. Medicaid-reimbursable services were not the focus of Measure 110 funding, and they remain far less available than the need would require. The behavioral health workforce shortage means that even existing treatment facilities are operating at only half capacity. There are horrendous gaps in the state’s treatment system. Addiction services would need to double to meet the need; for now, most people seeking detox or inpatient treatment are placed onto a waitlist. The district attorney of Portland’s Multnomah County, Mike Schmidt, regularly gets an earful about all that is wrong with our system. “There is frustration with not having the treatment options as readily available for people that are experiencing addiction,” he says.
All eyes were on Oregon. Implementation needed to go as well as possible, since we knew those opposed to it were hoping for — and working toward — its failure. Despite that scrutiny, implementation was fumbled. The police were not trained, no uniform citation was created for them to issue, treatment options were anemic upon the cessation of arrest, and even once funding went out, it was not enough to make a noticeable dent, especially considering an ongoing housing crisis. No amount of drug treatment can suddenly house people. People’s frustration with the state of affairs in Oregon is valid. But that frustration is not because people like me are no longer getting arrested for low-level drug possession.
Decriminalization is the baby we risk throwing out with the bathwater in our outrage at separate problems, many of them associated with homelessness, including public drug use.
While some insist that Measure 110 is the sole factor behind public drug use, DA Schmidt disagrees. “I don’t think that decriminalization has to result in public drug use,” he says. If we had robust treatment services into which police could easily refer those they’re contacting, people would be dissuaded from using publicly, he suggests. “But we really haven’t had that [treatment referral] part; we’ve had a citation that police officers can give to people. And that clearly has not dissuaded them from using publicly.”
If decriminalization is an act of public health, of promoting one’s human rights, then so is reducing drug use in our public sphere.
In Portugal, the police confiscate drugs upon citing someone for drug possession. In Oregon, the police cannot violate the Constitution’s Fourth Amendment, so — now that drug possession is not a criminal offense but rather a civil one — citing someone for drug use does not give them the right to search them or their property. Drugs technically remain illegal; their possession is just not an arrestable offense. When pressed on why they don’t even confiscate the drugs that are in plain sight, they say that it could cause a physical escalation. (The Portland Police Bureau is under a consent decree for its use of force.)
Schmidt’s office recently released a series of policy proposals that would criminalize public drug use as a misdemeanor, which is distinct from criminalizing drug possession. Advocates assert, correctly, that the proposed policy would disproportionately target people experiencing homelessness. Schmidt doesn’t disagree but insists that to preserve the public health spirit of decriminalization — and the measure itself in the face of backlash — it’s necessary to criminalize public use. The mere act of creating a misdemeanor for public use, he asserts, would dissuade people from doing it.
“There’s a balance between an individual’s choices and dealing with addiction and having a health response,” Schmidt says. “But then when those choices impose externalities on the community, such as using in public spaces and using in public transportation, we have to recognize the impacts that that has on other community members who are trying to be in public spaces, or ride public transportation, for example.”
I, too, would rather not walk through fentanyl plumes on the way to the store, but am convinced that confiscating what’s in plain sight 100% of the time would have a similar impact without the need for handcuffs and jail cells. Police have effectively sent the green light to drug users by seeing someone smoking fentanyl in front of a business and driving right on by.
Everyone wants to know if decriminalization is “working.” Because thousands of Oregonians have been spared arrest, I unequivocally state yes. But we should not let our ideological North Stars interfere with fixing what is obviously broken. If decriminalization is an act of public health, of promoting one’s human rights, then so is reducing drug use in our public sphere. Doing no harm — stopping the arrests — must be accompanied by healing, the creation of robust treatment and housing options. To repeal the measure is to take what isn’t working well in Oregon and transform it into what isn’t working well in other states, 25 of whom have a higher overdose rate than Oregon does today.
The sheen may have worn off that which once held such promise, and my naive idealism may have been replaced by gritty realities. But my conviction holds firm: Drug possession should not be a crime. You cannot punish the hurt out of anyone.