Table Of Contents
The War on Drugs
America, since the Nixon days, has been fighting what we have called the “War on Drugs.” It is a battle that has largely been fought through the criminal justice system. It has long been thought that the threat of imprisonment and legal consequences would discourage people from dealing and using illegal substances. Every year, there are more than 1.5 million drug-related arrests in this country, more than the combined total arrest for all violent crimes combined. Over 80% of those drug arrests are for possession charges with no violent offenses attached.
Has it worked?
The million-dollar question is if it has worked at all and if there is a more effective way to go about tackling a drug problem that doesn’t seem to be going away. Drug use continues to rise, seemingly unabated. Aside from the fact that the opioid epidemic is obviously unsolved, the focus on charging every person who is carrying drugs for personal use has created a tremendous strain on the prison system and chews up tax dollars that could presumably go elsewhere, perhaps more effectively.
The Treatment Gap
There has long been talk of the “Treatment Gap” prevalent in the United States, which simply put, means that the difference between the number of people who need drug and alcohol abuse treatment and those that actually get it is an untold number of country miles. In 2017, SAHMSA pegged the number of Americans aged 12 and up who suffer from addiction at roughly 20 million. The number of people who have ever gotten treatment at a facility, you ask. A paltry 2.5 million. That represents 12.2 percent of the population who require it. Obviously, not nearly good enough.
There is more than one reason for this. Problems with insurance coverage, the denial that is rampant in addiction, and too many underserved areas with regards to availability of quality treatment centers, are all making significant contributions to the Gap.
Is there a solution?
Solutions to these issues inevitably involve money and resources. Can funding dedicated to punishing the minor players on the street be diverted to pushing those people to treatment rather than prison? Can there be programs and initiatives set up to create treatment pipelines and referrals coming by way of encouragement and outreach in place of drug courts and holding cells? Can the carrot work instead of the stick?
The people of Oregon have decided to find out.
II. Measure 110: The Details
Oregon’s new response
This past election day, Oregon voters passed Measure 110, with over 58% percent of the vote. The initiative, funded by the Drug Policy Alliance , is basically a two-pronged approach on revamping conventional wisdom on how to beat the opioid epidemic. It boils down to this: stop arresting people for minor drug offenses and make treatment more widely available, regardless of a person’s financial or social status.
It is important to note that this new legislation does not legalize drugs. It is merely a change to the consequences of possession violations. Repercussions for manufacturing, smuggling, and dealing will remain the same.
The new law’s effects
The following highlights the specifics of how these goals will be accomplished.
- Reclassifying Drug Offenses
Many possession charges are currently Class A misdemeanors and can result in up to a year in prison and/or thousands of dollars in fines. The new decriminalization law changes those crimes to Class E which comes with a hundred-dollar penalty and a mandate to complete a health assessment. Other more serious infractions, such as manufacture, or delivery of illegal drugs would still be treated as a felony.
Below is a chart from Ballotpedia detailing those changes.
|Drug Schedules||Charge prior to the election||Existing maximum penalty||Charge proposed by the initiative||Proposed maximum penalty|
|Schedule I||Class A misdemeanor||One year in jail and $6,250 fine||Class E violation||$100 fine or completed health assessment|
|Schedule II||Class A misdemeanor||One year in jail and $6,250 fine||Class E violation||$100 fine or completed health assessment|
|Schedule III||Class A misdemeanor||One year in jail and $6,250 fine||Class E violation||$100 fine or completed health assessment|
|Schedule IV||Class C misdemeanor||30 days in jail and $1,250 fine||Class E violation||$100 fine or completed health assessment|
2. Create a network of state funded treatment facilities
The measure mandates establishment of a temporary telephone addiction recovery center. It will be operational 24/7 and 365 days a year. This gives the state a year to establish physical addiction treatment locations by October 1st, 2021. Treatment facilities must offer immediate treatment including medical 24 hours a day, full health assessments by certified addiction treatment professionals, intervention and case management plans for each client, and peer support and outreach. These facilities must be covered by the Medicaid networks in the state, otherwise known as coordinated care organization service areas.
Facilities will be funded by the Drug Treatment and Recovery Services Fund, which will draw from Oregon marijuana tax revenue and from the savings generated by the reduction of drug related arrests due to the new legislation.
3. Oversight and Accountability Council
This committee will be charged with oversight of the fund grants and ensure that all monies are distributed properly. The law sets forth how this council will be staffed in great detail.
III. Is drug decriminalization a good idea: The conversation
There is a pretty broad consensus that whatever strategies have been employed in the U.S. drug wars for the last 50 years or so, needs to be reinvented. Nearly 70,000 people die a year, and over half a million people are behind bars with drug related convictions. Almost 35 billion dollars are being spent at the federal level yearly to control drug use, with minimal results. Over 30% of that number comes from domestic law enforcement. Whatever we are doing is not working.
The case against decriminalization:
However, many feel that although a facelift to drug war strategies is definitely warranted, completely dismissing the fear of consequences for drug possession will do more harm than good. Currently many referrals to drug treatment and attendance enforcement come via drug courts. Without that, obligation to take part in addiction rehab will be downgraded from obligation to recommendation. Experts against decriminalization also argue that erasing any sort of punitive response to minor drug offenses may lead to more experimentation with illicit substances. This can lead to increased activity by drug manufacturers, traffickers, and dealers, in an effort to target people that would have otherwise been afraid to try drugs.
Those on that side of the fence mostly agree that treatment isn’t easy enough to access and too often is financially prohibitive. They would rather attack that problem directly and initiate efforts to improve the addiction treatment infrastructure, without the sweeping measures called for by taking the justice system completely out of the picture.
The case for decriminalization:
Supporters of Measure 110 point to the sobering effects on prison systems due to minor drug arrests. It is no secret that many prisons are overcrowded, and quite frankly, dangerous. The stories are there for all of us to read. Furthermore, the lack of flexibility in sentencing measures have created too many instances of people who languish in jails for years on end, grossly disproportionate to the crimes they actually committed, robbing them of a chance to rebuild their lives and become productive members of society.
The racial disparity
There is a racial piece here as well. The disparity of African American incarceration directly linked to drug crimes is, quite frankly, depressing. It creates a ripple effect on Black communities and harms family units so crucial to healthy environments.
Legal entanglement is an obstacle to recovery. People get stuck in a vicious cycle, from the back of police cars to in front of a judge to behind bars. Rinse and repeat. It is not an atmosphere that encourages people to believe themselves and commit to the hard work of true recovery.
With money diverted from endless arrests and prison sentences to training empathetic professionals and building treatment facilities committed to creating lasting positive outcomes, proponents of Measure 110 are confident that real progress in the drug wars can be made.
IV. What happened in Portugal: A case study.
What Oregon is trying to do has been tried before. In 2001, Portugal decriminalized drug possession. There is now close to 20 years of data available to analyze the effectiveness of this approach.
The numbers and what they mean
At first glance, the numbers look great. The drug-induced death rate in Portugal is five times lower than the EU average. Prison population tied to drug offenses have tumbled. There was a 60 percent increase of people in drug treatment from 1998 to 2011. HIV infections have completely crashed. At its peak there were 104.2 cases per million. Portugal is now at 4.2 cases per million. These stats all support the idea that Portugal may have uncovered something in how drug laws should be written and enforced.
However, some argue that its not so cut and dried. In reality, the major change in Portugal’s drug policy is overstated. Long before decriminalization was implemented, enforcement of the previous laws was quite loose. The change in 1999 was really in how the drug laws were written. Enforcement had largely been ignored since the early 90’s. It went from, in the laws own words, “the drug consumer is sanctioned by current law in a quasi-symbolic manner, in which the contact with the formal justice system is designed to encourage him or her to seek treatment,” to eliminating the possibility of criminal sanctions entirely in 2001.
So, what changed? What suddenly worked in Portugal?
The one major data point that jumps out is the major increase of treatment centers since the new legislation went into effect. It reflects an attitude change. Replacing the threat of imprisonment with marked efforts to get people into treatment and a focus on building an infrastructure to support it is perhaps the key to making decriminalization effective.
Resources for further study
For more in depth study of the Portugal experiment and an unrolling of both sides of the story, see Glenn Greenwald’s story for the Cato Institute here: https://www.cato.org/publications/white-paper/drug-decriminalization-portugal-lessons-creating-fair-successful-drug-policies and Hanna Laqueur for the Journal of the American Bar Association here: https://www.cambridge.org/core/journals/law-and-social-inquiry/article/abs/uses-and-abuses-of-drug-decriminalization-in-portugal
V. In Conclusion
It is clear that adjustments must be made in the drug wars going forward. Whether or not a full decriminalization is needed remains the subject of debate. However, it is clear that the path to making gains is an emphasis on treatment and prevention. Resources must be expended on building infrastructure, making good treatment more accessible in underserved areas, and removing as much red tape as possible.
Oregon is willing to try something different and for that they are to be commended. Perhaps their out of the box thinking will show the way for the rest of the country to follow and build on. If nothing else, Oregon has a chance to be an incubator for fresh thinking in how to carry on the battle against the opioid epidemic.
It is in our country’s best interest to root for their success.
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