Opinion | Oregon Measure 110 Wasn’t a Failure. Rolling Back Drug Decriminalization Will Be.

In November 2020, nearly 60% of Oregon voters passed Ballot Measure 110, often referred to as “drug decriminalization,” which reclassified schedule I-IV drug possession from a Class A misdemeanor to a Class E civil violation. The change took effect in February 2021. In the 3 years since, Oregon has received much sensationalized attention related to this, culminating most recently in the passage of House Bill 4002 through both houses of the state legislature and an almost certain end to decriminalization, pending governor sign-off.

It is true that drug overdose deaths, driven by illicit fentanyl, have continued to increase in Oregon, with an estimated 1,250 in 2023 — a record high. But what the overwhelming coverage of Oregon’s drug situation often fails to mention is that overdoses have also continued to rise across the entire country. Compared to several other states, Oregon has actually not seen a significantly worse rise in overdose rates in the years since attempting decriminalization. In fact, there is no good evidence that drug decriminalization has worsened the situation in Oregon, and a lot of good data showing the exact opposite.

As the overdose crisis continued to worsen nationwide, also at play was a very well-funded campaign led by some of the wealthiest individuals in Oregon to pass two ballot measures (for this fall’s general election) to make drug possession the highest level of misdemeanor, punishable with up to a year in jail. They framed Measure 110 as doing more harm than good: worsening homelessness, behavioral health, and crime in the state.

What Are the Actual Facts?

Despite calling it “decriminalization,” Measure 110 did not fully remove all penalties for possession but made it more akin to a traffic ticket — people caught with small amounts of hard drugs would be given a $100 citation that could be avoided by taking a health assessment. And contrary to popular media coverage suggesting otherwise, the manufacture and sale of even the smallest amount of illicit drugs like fentanyl has remained a felony.

Beyond misrepresentation of the law, the drug overdose situation in Oregon has been characterized unfairly. Let me put it in context.

Like the rest of the country, Oregon has seen fentanyl replace other drugs like heroin in its illicit opioid supply, in this case mostly during 2020-2021. And also like the rest of the country, overdoses in Oregon are driven by fentanyl, not regional policy.

As far as overdoses go, Oregon ranks 30th in the country, meaning that 29 states are actually doing worse. And that is despite the fact that Oregon consistently ranks last or next-to-last in terms of availability of drug treatment. It is also worth mentioning that Oregon has the fourth highest rate of unsheltered individuals, a number that has skyrocketed in recent years due to a housing crisis.

While much of the coverage has attempted to link the housing problem to decriminalization, the evidence says otherwise. One popular narrative even suggests that people are choosing to be unhoused, even coming from out of state, just in order to do drugs. This couldn’t be further from the truth. Oregon’s large population of unhoused individuals is, however, very visible, and any drug use is likewise public as they do not have access to shelter, let alone housing, and also because Oregon has no designated consumption centers.

Issues like housing will not be solved by drug criminalization. But what about drug use?

An economics paper from the first months of implementation is cited by critics as proving that decriminalization increased overdose deaths. But the paper has a fundamental flaw because it failed to take into account the introduction of fentanyl to Oregon’s drug supply; fentanyl almost completely replaced heroin in 2020-2021.

Two other papers looking at longer-term data and using more robust methodology showed no evidence that decriminalization increased drug overdoses or crime. This data also showed that decriminalization was successful in reducing the racial inequities that Oregon had been seeking to correct. I expect that the new criminalization system will once again worsen racial inequity in the state’s criminal justice system.

We Will Not Arrest Our Way Out of the Fentanyl Crisis

Another concerning aspect of House Bill 4002 is that it allows people to pursue drug treatment rather than receiving criminal penalties. In academic circles, this is viewed as coercive treatment. Coercive treatment is not only unethical, it increases overdose risk and other harms. Resources should be used to expand access to voluntary treatment and ensure best practices are being offered.

Criminalizing drug use for some people has added the negative effect of a criminal record that adds barriers to jobs, housing, and other services. It can also keep people from seeking help. Research has repeatedly shown that incarceration increases the risk of future overdose, and that incarceration itself is actually a risk for overdose. In fact, just being arrested on a drug charge increases someone’s overdose risk, even if that person is not incarcerated.

Drug seizures by law enforcement have been linked to increased overdoses and deaths within local communities. Coercing people into treatment has been repeatedly shown to increase risk of overdose without reducing rates of drug use.

If the goal is increasing the number of people getting treatment or getting into recovery, then coercing them into existing services does not address the reasons people are not already on these paths. Not only does Oregon lack the capacity to provide drug treatment to everybody who wants it, but current treatment options are not always guaranteed to be evidence-based and may not be beneficial at all.

Historically, Oregon’s criminal justice system did not effectively connect people to drug treatment resources and has failed to be a viable solution. At the core of Measure 110 was an attempt to increase Oregonians’ access to treatment; yet, even though Measure 110 took effect in February 2021, the state did not begin dispersing funding for treatment resources until May 2022, and since then has faced major limitations almost every step of the way.

Unjust Laws

Best estimates — and the historical record — suggest that arrest and conviction rates for possession will disproportionately target Black Oregonians in addition to other already minoritized groups like Latinos and indigenous Oregonians. In fact, Measure 110 was an attempt to address massive racial disparities in Oregon drug arrests, one area in which it was undeniably successful.

If House Bill 4002 takes effect, the law is estimated to result in 1,333 new convictions and 533 Oregonians being jailed for drug possession each year. In addition to perpetuating systemic injustices, Oregon does not even have the infrastructure to handle this increased case load. At the time of House Bill 4002’s passage in the House, almost 3,000 Oregonians lacked legal representation.

Beyond the matter of feasibility from the added burden on the legal system — and costs to taxpayers – I am also concerned about treatment. For many areas of the state, the only available “treatment” option may be Narcotics Anonymous meetings, which can be a valuable resource for some but definitely do not work for everyone. It is a far cry from the gold standard for treatment of fentanyl addiction.

Instead of seeking to address the shortcomings of Measure 110, or address other issues like the housing crisis, the Oregon legislature bowed to public and political pressure to return to regressive policies. As is often the case when it comes to drug topics, emotions have taken precedence over facts. Not only is it inaccurate to say that Measure 110 failed, but we actually can say after a century of opioid prohibition in the U.S. that drug criminalization has not worked to make anything better.

Please enable JavaScript to view the

comments powered by Disqus.