step away from the arrest, charge and jail model for possession that’s been a centerpiece of American drug policy since President Richard Nixon declared his War on Drugs 50 years ago this week.
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Oregonians overwhelmingly passed Measure 110 that makes possession of small amounts of cocaine, heroin, LSD and methamphetamine, among other drugs, punishable by a civil citation — akin to a parking ticket — and a $100 fine. That fee can get waived if you get a health screening from a recovery hotline.
The measure, a major victory for advocates pushing for systemic change in U.S. drug policy, expands funding and access to addiction treatment services using tax revenue from the state’s pot industry as well as from expected savings from a reduction in arrests and incarceration.
For years Oregon has ranked near the top of states with the highest rates of drug and alcohol addiction and near the very bottom nationally in access to recovery services. And while critics everywhere have long called the drug war a racist, inhumane fiasco that fails to deliver justice or health, Oregon is the first to take a leap toward radically changing those systems.
“What we’ve been doing for the last number of decades has completely failed,” says Mike Schmidt, district attorney for Oregon’s most populated county, Multnomah, which includes Portland. Schmidt, who publicly supported Measure 110, says he firmly believes the health model — not criminalization — is the best way to battle the disease substance use disorder.
“Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem,” Schmidt says.
Support for decriminalization comes with concerns about implementation
Moving to emphasize health care over incarceration, supporters hope, will also start to remove the stigmatizing obstacles that often follow, including difficulty landing jobs, housing and student loans, and getting a professional license in a variety of fields.
“The War on Drugs has been primarily really waged on communities of color. People’s lives have been destroyed,” says Tera Hurst, executive director of the Oregon Health Justice Recovery Alliance, which campaigned last year to pass decriminalization and is now pushing to see it’s fully funded and implemented. “We can’t nibble around the edges on this. It’s really important to me that we smash the stigma on addiction and drug use. And this helps get us closer to that.”
But five months since decriminalization went into effect, the voter-mandated experiment is running into the hard realities of implementation. Realizing the measure’s promise has sharply divided the recovery community, alienated some in law enforcement and left big questions about whether the Legislature will fully fund the measure’s promised expansion of care.
Even many recovery leaders here who support ending the criminalization of addiction are deeply concerned the state basically jumped off the decriminalization cliff toward a fractured, dysfunctional and underfunded treatment system that’s not at all ready to handle an influx of more people seeking treatment.
Advocates for decriminalization “don’t understand the health care side, and they don’t understand recovery,” says Mike Marshall, co-founder and director of the group Oregon Recovers.
“Our big problem is our health care system doesn’t want it, is not prepared for it, doesn’t have the resources for it and honestly doesn’t have the leadership to begin to incorporate that [expanded treatment],” says Marshall, who is in long-term recovery himself.
“My drug of choice from beginning to end was alcohol,” he says, “but the last 10 years was dominated by crystal meth.”
Oregon supporters of decriminalization point to Portugal as a reform model. In 2001, Portugal dramatically changed its approach and decriminalized all drugs. The nation began treating addiction as a public health crisis. There, anyone caught with less than a 10-day supply of any drug gets mandatory medical treatment.
But Marshall and others point out that Portugal took more than two years to transition carefully to a new system and replace judges, jails and lawyers with doctors, social workers and addiction specialists.
“So we put the cart before the horse,” he says.
In fact, Marshall and others worry the treatment and harm reduction horse isn’t even on its feet in Oregon, which is leaving too many stuck in a dangerous pre-treatment limbo and at potential risk of overdosing.
“There were no resources and no mechanisms in [Measure] 110 to actually prepare the health care system to receive those folks,” Marshall says.
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“Most places that have successfully done decriminalization have already worked on a robust and comprehensive treatment system,” says Dr. Reginald Richardson, director of the state Alcohol and Drug Policy Commission. “Unfortunately, here in Oregon, we don’t have that. What we have is decriminalization, which is a step in the right direction.”
There’s also shockingly little state data to determine what programs work best or to track treatment outcomes and share best practices. There’s also no agreed upon set of metrics or benchmarks to judge treatment efficacy, both in Oregon and nationally.
And the pandemic struck and decimated a treatment system that was already struggling, experts here say. Because of social distancing and other pandemic protocols, Oregon, like many states, had to reduce the number of treatment beds and services. That’s left the system reeling just as decriminalization programs try to take flight.
“We’ve got significant trouble in terms of workforce, having the right people, qualified people and enough people to provide services to folks who struggle with addiction,” Richardson tells NPR. “And we’ve got underfunding by about a third to treatment providers.”
Indeed, even some closely involved with implementing the new measure are privately voicing growing concerns. “I really hope we don’t spend the next 10 to 12 months with open air drug markets and nowhere to send” those seeking help, said one official who asked not to be named because he wasn’t authorized to speak publicly.
Complicating implementation is that Oregon can’t get matching federal Medicaid money, a key funding source for states, to expand treatment under Measure 110 because it’s using tax revenue from the legal sale of marijuana, which the federal government still classifies as a Schedule 1 illegal drug.
Today, anyone across Oregon caught by police with small amounts of hard drugs is issued a civil citation — like a traffic ticket — not a criminal charge. So if you’re found holding, among other drugs, up to 2 grams of methamphetamine or cocaine, 40 hits of LSD or oxycodone, up to a gram of heroin, you get a citation and a $100 fine. That fine goes away if you agree to get a health screening through an addiction recovery hotline, an assessment that might lead to counseling or treatment.
Measure 110 did allocate millions in new treatment funding — money funneled from the state’s marijuana tax along with expected savings from reductions in arrests and incarceration.
But Marshall and others are alarmed that it did not require those funds be spent in a strategic way to expand capacity for a system that has too few detox beds, not enough residential or outpatient treatment and recovery chairs, not enough sober housing and too few harm reduction programs.
These are all services that will be desperately needed, Marshall says, as more people get pushed out of the criminal justice system and into the health system.
“Many times the only way to get access to recovery services is by being arrested or interacting with the criminal justice system. Measure 110 took away that pathway,” he says.
“I know that it takes an intervention for many of us to be saved” from addiction, says Jim O’Rourke, a Portland lawyer who opposed Measure 110 and who is also in long-term recovery.
Arrest, he says, can give people the push they need to finally get help.
“The threat of having to go through a judicial process gave them the external motivation they needed to do something that their internal motivation wasn’t strong enough to get done,” O’Rourke says. Addiction is a disease “that takes over the brain, it takes over your executive function.” A citation and a potential fine, he believes, “just isn’t strong enough.”
Opponents say that’s especially true since there’s basically no consequence if anyone now cited for possession simply ignores the ticket.
“If word on the street is it’s only 100 bucks and you don’t go to jail, boom, chances are they’re going to toss it,” says Pam Pearce, founder of Oregon’s first high school dedicated to youth recovery. She is also in long-term recovery.
“If it’s like a parking ticket, what is the person’s motivation [to get help]?” asks Pearce, who’s now executive director of Community Living Above, an Oregon substance abuse prevention organization. “We’re talking heroin, meth, cocaine and acid — it’s not child’s play.”
But decriminalization advocates counter that jail pathway to potential treatment was so flawed, biased and ineffectual for so long it had to be taken away.
The percentage of arrestees who successfully followed through on addiction treatment was low. And on average a huge percentage of those convicted of drug possession in the state were rearrested within three years.
“When you look at recidivism rates,” says Schmidt, the Multnomah district attorney, “70% and 80% were getting rearrested. That’s a complete and utter failure.”
