After a three-year trial period, Oregon’s great experiment with drug decriminalization looks to be wrapping up. A bill to restore misdemeanor penalties for drug possession has now passed both houses of the state legislature with bipartisan support, and Governor Tina Kotek is expected to sign it.
Measure 110, passed by voter initiative in November of 2020, was the first bill in the United States to remove criminal penalties for—that is, to “decriminalize”—possession of small quantities of all controlled substances. Its repeal reflects popular discontent with that arrangement. Last August, two-thirds of Oregonians said they supported dumping decriminalization. Progressive leaders, including the mayor of Portland and the Multnomah County district attorney, have also endorsed an overhaul. Supporters of the reform have cited not only surging overdose deaths—rates rose more in Oregon than in any other state between September 2022 and September 2023—but also an explosion of uncontrolled public drug use.
The end of 110 represents a significant victory against the argument that liberalization is the solution to the drug crisis, and that the problem is the criminal-justice system, or prohibition, rather than deadly drugs. Measure 110’s repeal will probably put to bed for now plans to push decriminalization in other states.
But critics of 110 should not equate winning this argument with solving the problem. If decriminalization didn’t solve Oregon’s issues with drugs, it also didn’t create many of them. The legislature should follow up recriminalization with a real investment in the state’s capacity to treat drug addiction and support people in recovery.
Advocates of decriminalization—in Oregon and elsewhere—argue that being arrested or jailed causes overdoses, as people lose tolerance during detention and then take too much when they’re released. As late as last December, Tera Hurst, who heads the main group advocating for 110, argued that recriminalizing public drug use would push people “back into the shadows,” adding that “people will die because of this.”
Proponents often point to Portugal, where overdose deaths fell after decriminalization in 2001, as evidence that the criminal-justice system takes lives. (Portugal de facto decriminalized drug possession before 2001, and the decline in overdose deaths was probably attributable to the simultaneous large expansion of government-funded treatment.)
In Oregon, decriminalization supporters don’t even have the luxury of citing a decline in overdose deaths, which rose precipitously in the immediate wake of 110’s implementation. Supporters’ response might be called the “complete and total coincidence” theory: 110 was implemented and, at the same time but unrelatedly, fentanyl hit Oregon.
One could (generously) interpret some research to support this theory, arguing that decriminalization in and of itself had no effect on overdose mortality. Measure 110 supporters touted such studies, ignoring not only the evidence that 110 caused an increase in ODs but also the fact that it’s no great boast to say that decriminalization didn’t make things worse. If the criminal-justice system really did cause overdose deaths, then decriminalization should have measurably reduced them. It didn’t—and so the public-health argument in favor of decriminalization makes little sense.
But by the same token, it’s hard to argue that decriminalization was Oregon’s main problem. Prior to 110, the state practiced relatively little drug enforcement, meaning that decriminalizing possession probably didn’t do much to change the intensity of enforcement overall. Internationally, a host of nations have decriminalized possession—not just Portugal but also Spain, Italy, Czechia, Mexico, and Uruguay—without recording either major benefits or major harms. And fentanyl was always going to hit Oregon eventually, even without decriminalization.
In short, the fight over decriminalization is a distraction—one typical of societies unable to manage their problems. In perhaps his most famous essay, “Defining Deviancy Down,” Daniel Patrick Moynihan suggested a relationship between a society’s capacity to enforce its norms and how normative that society is. As Moynihan put it, “the amount of deviance . . . [fits] nicely with the supply of stocks and whipping posts.” A society can respond to deviance by boosting its capacity to enforce, but a decline in the capacity to enforce can also lead the society to reduce its normativity. For example, Moynihan argues, the deinstitutionalization of the mentally ill was accompanied by increased tolerance of public madness, and rising crime rates were met with rising acceptance of crime. If society lacks the capacity to deal with deviant behavior, it can simply insist that the behavior is not really deviant.
The language of “deviance” may sound harsh. But in a purely descriptive sense, abusing drugs deviates from the strong—and beneficial—social norm of not consuming substances to excess. The capacity to manage that deviance, moreover, need not be explicitly carceral. The point, rather, is that when a society lacks sufficient capacity to enforce its norms, it may simply let those norms degrade.
Measure 110, in this view, was an effort to define deviancy down—to identify the problem not as drug abuse but as the undue policing of same. The Oregon legislature’s rejection of this attempt, though, does not mean that it has remedied the structural deficit to which the downward definition was an attempted adaptation.
The deficit is, in a word, treatment. Before 110, Oregon had the lowest rates of treatment among those who need it of any state. In 2017, only 40 percent of Oregonian Medicaid enrollees with a substance use disorder received treatment, including just 12 percent who received residential treatment. These figures represent both a lack of capacity—as of 2019, the state had just 3 residential treatment beds for each 10,000 citizens—and a lack of pressure to get treated. Rates of civil commitment in Oregon have declined more or less continuously since the early 2000s.
Measure 110 neither caused these problems nor fixed them. Repealing Measure 110 won’t fix them, either—not without a substantive commitment to treatment.
To the credit of the repeal’s drafters, the post-110 system will contain a host of “off-ramps.” Those convicted of possession will automatically get probation; even if their probation is revoked, they will be entitled to be released to an available treatment program. Police and district attorneys will be “encouraged” to reroute possession offenders to “deflection programs,” providing treatment in lieu of incarceration.
If it works, such an approach could make an appreciable impact on Oregon’s drug scourge. People with severe substance use disorders often cycle through the criminal justice system, not only for possession but also myriad other offenses. Accepting that fact, and making the system a major source of treatment, can help those most in need.
But deflecting people into treatment, or diverting them post-revocation, will work only if there is adequate capacity into which to move them. Without it, and a commitment to use it, the system cannot work. It’s not enough to define deviancy back up—the resources must be there to address it, too.
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