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How Oregon Delegitimized Drug Decriminalization

Image via KTVL

In November 2020, Oregon voters overwhelmingly passed Measure 110, which decriminalized possession of illicit drugs. Law enforcement can still impose fines up to $100 on a person caught with controlled substances, but the fine can be waived if the person received a drug screening and health assessment. The ballot measure also used the state’s marijuana sales tax revenue—approximately $256 million already and expected to increase—to fund treatment, outreach, and harm reduction services for people struggling with addiction. 

Supporters of Measure 110 argued that arresting and jailing people for possession of small amounts of drugs was expensive and ineffective at addressing addiction. The measure aimed to treat addiction as a public health matter, rather than a criminal justice issue, giving people the support and treatment they need instead of incarcerating them. Oregon hoped to replicate the success of Portugal, where overdose deaths, HIV rates, and drug use plummeted after the country decriminalized drugs in 2001. 

In the three years since Measure 110 went into effect, however, the situation in Oregon has deteriorated rapidly, attracting negative media attention and seemingly vindicating the skepticism of decriminalization opponents. Unintentional opioid overdose deaths spiked from 280 in 2019 to 745 in 2021. Portland locals have reported stepping over “needles, shattered glass, and human feces” on their way to work. Some police officers have recounted stories of people shooting up on playgrounds. 

However, although it may be tempting to believe otherwise, there is little evidence to support the argument that decriminalization created a spike in overdoses and disorder. The overdose crisis is a nationwide phenomenon: An New York University study found that states with pre-2020 overdose rates similar to Oregon experienced a similar rise in overdoses. 

Measure 110 may have had nothing to do with its chaotic aftermath, but correlation is easily confused with causation. And the bar is higher for Oregon than for the rest of the country. With the nation watching, Oregon was a domestic test case for a radical new policy innovation. Oregon did just as poorly as the rest of the country, but it needed to do better. If the state had made better implementation choices, it may have still suffered from the national overdose crisis, but the crisis would have been less visible and would not have been associated with decriminalization policy. 

Oregon’s first error lay in its decision to decriminalize drugs before it had a functional, widely accessible voluntary treatment program in place. Instead, it was left playing catch-up after overdoses spiked. Before decriminalization, Oregon had the worst access to addiction treatment in the country. After Measure 110 passed, the state delayed spending the $256 million in cannabis tax revenue it had allotted to improve access to treatment and other services for 18 months. 

Even when Oregon did begin spending the allocated money, too much went to increasing outreach and harm reduction programs at the expense of expanding treatment capacity. Solara Salazar, the director of a Portland treatment center, described the approach as “all harm reduction, no additional residential treatment.” The delay and misallocation of funding have left Oregon unable to meet the treatment needs of its residents: Researchers at Oregon Health & Science University estimated that the state would need to double its treatment capacity to meet demand. 

Implementation problems are inevitable in public policy and even if the rollout had gone perfectly, it would have taken time to hire workers, build new facilities, and execute other steps necessary to expand treatment. Oregon should have expanded treatment capacity before it decriminalized drugs, not after. The spike in overdoses following Oregon’s decriminalization helped sway public opinion, creating an association between decriminalization and overdoses that is now nearly impossible to combat. 

The rollout of Oregon’s decriminalization policy also perpetuated an association between liberal drug policy with public disorder. Oregon state law prevents local governments from prohibiting public drug use even though it allows prohibitions on public drinking. But as Reason Magazine’s Jacob Sullum points out, “eliminating criminal penalties for drug possession does not require tolerating public drug use [or] defecation.” 

Some amount of public drug consumption is inevitable as long as Oregon still has homelessness; homeless people don’t have private places to consume drugs. But Oregon could have at least cracked down on drug consumption in sensitive and high-visibility areas—like playgrounds and sidewalks. It could have also created safe-injection sites, which allow people to consume drugs privately, with the added benefit of making drug use more safe. If Oregon had taken steps to limit public drug consumption, much of the state’s post-decriminalization disorder could have been greatly mitigated. 

Public use regulations admittedly create a moral conundrum for many progressives. Strictly enforcing where people can and can’t use drugs risks creating potentially harmful police interactions and unnecessarily introducing people into the criminal justice system. Decriminalization is intended to reduce these altercations with the criminal justice system. 

But children have a right to drug-free playgrounds. Locals shouldn’t have to step over people shooting up on their way to work. The realities of public drug use creates the perception that disorder necessarily follows the decriminalization of drugs, potentially alienating voters who would otherwise be sympathetic to decriminalization. Public opinion in Oregon has soured, with 63 percent of voters now supporting a return to the state’s former system. There’s already an effort to create a new ballot initiative to recriminalize illicit drugs in the state. Oregon, in its understandable reluctance to police the behavior of people suffering from addiction, may have shot itself and the decriminalization movement in the foot.

Oregon’s failure to create a voluntary treatment system and to stem conspicuous drug consumption is also having ramifications on drug policy outside of the state. States that had seemed open to decriminalization are now rejecting it. Observing the situation in Oregon, the Maine legislature rejected drug decriminalization in 2021. California Governor Gavin Newsom rejected a supervised injection pilot program in 2022 and the Colorado legislature rejected a bill to legalize supervised injection sites in the state in 2023. Oregon has helped create a political climate in which liberalizing drug laws has become toxic.

Oregon volunteered itself as a pioneer of drug decriminalization in the United States. As a pioneer, its success would be decriminalization’s success and its failure would be decriminalization’s failure. In the state’s excitement to end the War on Drugs and rethink the role of the criminal justice system, Oregon forged ahead with decriminalization before it had the treatment infrastructure to support it and refused to curtail the free rein of people struggling with addiction even to the detriment of public order. With these mistakes, Oregon created a law-and-order backlash that threatens not only the state’s own decriminalization policy but also the burgeoning decriminalization movements across the country.