Oregon’s Ballot Measure 110 shifts from punitive based policies to rehabilitative-based policies with respect to drug-related charges.
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By Meghan Phelan, JHBL Staff Member
In the early 1970s, President Richard Nixon declared a War on Drugs, stating drug abuse was “public enemy number one.” Nixon’s initiative increased federal funding for drug control agencies and implemented strict measures mandating prison sentences for drug-related crimes. Since then, drug users have been viewed as “morally corrupt troublemakers.”[1] However, this notion is now being challenged because the idea of treating drug addiction as a public health problem, rather than one of crime and punishment, is gaining traction.
The War on Drugs has led to unprecedented levels of incarceration. In the United States, more than 1.5 million drug arrests are made per year. Offenders affected by drug abuse or addiction, most commonly are provided with drug education and counseling while in correctional facilities. Although treatment during and after incarceration has been shown to significantly reduce drug use, less than 20 percent of inmates with substance use disorders receive proper treatment. There are often severe consequences for a person with a drug charge on their criminal record, including impacts on potential employment, eligibility for loans, ability to rent a home, child custody, as well as implications on personal relationships. Evidently, drug offenders are not receiving adequate treatment and must manage the negative consequences following imprisonment, but maybe it is time to rethink the process.
One proposed plan to reduce the number of individuals swept into the criminal justice system for drug violations is to decriminalize drug use and possession. Decriminalization is the removal of criminal penalties for drug law violations. By decriminalizing drug possession and investing in treatment as an alternative, states may have the opportunity to reduce the harms of drug misuse while improving public safety and health.
On election day, Oregon became the first state in the nation to decriminalize all drugs. Residents overwhelmingly supported the ballot measure intended to reduce arrests and improve access to addiction treatments. As a result, Measure 110, also known as the Drug Decriminalization and Addiction Treatment Initiative, marked a momentous shift in favor of a public health approach to substance abuse.
Ballot Measure 110 shifts from punitive based policies to rehabilitative-based policies with respect to drug-related charges. Oregon residents will no longer face hefty fines, probation, or imprisonment for possessing small amounts of illicit drugs, including heroin, cocaine, oxycodone, methamphetamine, and LSD. This does not mean these drugs are legal. Instead, the measure would change the possession charge from a misdemeanor to a Class E civil violation. Effective February 1, 2021, the penalty for possession will be a $100 fine, which may be waived if the individual cannot pay or they choose an alternative path. If the fee is not paid, the individual must attend a health assessment at an addiction recovery center.
To be clear, manufacturing drugs or possessing with the intent to distribute to others will still be a crime. Additionally, federal drug laws will still apply; however, the federal government rarely gets involved in personal possession cases.
In an effort to connect drug users to treatment pathways, Measure 110 establishes new addiction recovery centers around the state. These centers will provide individuals exhibiting addiction-like behaviors, twenty-four-hour access to health assessments, drugs interventions, harm reduction, and triage. Measure 110 does not create any new taxes. Instead, funding stems from Oregon’s cannabis tax revenue and law enforcement savings. By decriminalizing some drug offenses, the state would save money it typically spends on arrests, probation supervision, and incarceration.
Proponents of Measure 110 explain that treating drug use as a medical condition is a more effective and humane approach than putting drug users in jail. To understand the widespread effects Measure 110 may have on drug addiction, first, let’s understand the nature of drug use and addiction. Not everyone who uses drugs becomes addicted as each person’s body and brain are different. Some become addicted quickly, while others do over a longer time period. Drug addiction is defined as a strong compulsion to obtain and use substances, despite the undesirable and dangerous consequences that are likely to occur. Classified as a medical disorder, addiction affects the brain and changes a user’s behavior. After a user consumes drugs, an influx of the chemical messenger dopamine affects the brain’s reward circuit and leads to a sense of euphoria. A properly functioning reward system motivates a person to repeat behaviors. Thus, each time a person uses drugs, it results in the reinforcement of pleasure. When a person continues to misuse drugs, the brain adapts by reducing the ability of cells in the reward circuit to respond to the drug, thereby lessening the high the person may experience after each use. After tolerance is built up, a person may take more of the drug in an attempt to achieve the same high. Over time, drugs can quickly take over a person’s life, as continued use becomes necessary for the user to simply feel normal levels of pleasure.
After the continued use of drugs, a person’s ability to exert self-control after use can become seriously impaired. Brain imaging studies indicate physical changes in areas of the brain critical to judgment, decision-making, behavior control, learning, stress, and memory. These alterations likely explain the compulsive and destructive behaviors associated with addiction. Fortunately, researchers have learned more about how drugs affect the brain and have developed treatments that can help people recover from addiction and lead productive lives. So, why wouldn’t the state allocate more funds or services for early intervention to prevent misuse from happening? It’s time to prioritize health before punishment.
Supporters of 110 also highlight the State Analyst’s predictions that demonstrate that drug possession convictions will drop from just over 4,000 in 2019 to less than 400 in the upcoming year following implementation of Measure 110. This effect is expected to save the state upwards of $24.5 million in the 2021-22 fiscal budget and will be reinvested in new treatment programs. Supporters contend the decriminalization initiative would help young people avoid a criminal record as misdemeanors may have long-term negative impacts on their academics, physical and mental health, relationships, and chances of obtaining a job.
Those in opposition to Measure 110 argue Oregon is the wrong state to choose as the guinea pig for this new and controversial approach. Oregon’s Criminal Justice Commission notes the state struggles with some of the highest rates of substance abuse in the nation and maintains one of the worst rates for access to treatment services. Although opponents are hopeful this new effort will be successful in addressing addiction, they fear decriminalizing drugs will remove an important incentive against drug use. Challengers explain that many individuals will be able to pay the fine, thereby escaping treatment, which could lead to a larger substance abuse problem. Opponents also highlight impediments of Measure 110, explaining there is no mechanism to compel a person to access treatment after the first initial health assessment, and the system does not address cases involving juveniles.
Although Oregon is the first state in the nation to decriminalize all drugs, a number of governments around the world have tried a version of drug decriminalization. In Portugal, for example, drugs have been decriminalized for the last 20 years. Here, use rates have remained lower than the average rates in Europe and are considerably less than those in the U.S. The number of arrests dropped an estimated 60 percent, with a contemporaneous increase of 60 percent of individuals enrolling in drug treatment programs. Portugal reports the number of annual drug overdose deaths have plummeted following the decriminalization initiative.
Measure 110 provides Oregon with a unique opportunity to intervene before it is “too late.” When a person is found to be in possession of illicit drugs, they will be provided the choice to obtain a health assessment that would encourage them to seek treatment they may have otherwise avoided. Advocates of Measure 110 hope the election victory will inspire other states to enact their own drug decriminalization policies that prioritize health over punishment.
[1]See Was the War on Drugs Effective, Addiction Research (Jan. 7, 2020), https://lagunatreatment.com/addiction-research/war-on-drugs/.
Meghan Phelan is a second-year law student at Suffolk University Law School and a staffer on the Journal of Health and Biomedical Law. This past summer, Meghan interned for the Honorable Judge Tochka at Suffolk Superior Court. Prior to attending law school, Meghan interned for the Judicial Nominating Commission for one year. She graduated from Providence College with a Bachelor of Science in Biology and has an interest in health, biomedical, and biotech law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.
Sources:
https://lagunatreatment.com/addiction-research/war-on-drugs/
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https://apnews.com/article/oregon-first-decriminalizing-hard-drugs-01edca37c776c9ea8bfd4afdd7a7a33e
https://www.opb.org/article/2020/10/15/measure-110-oergon-politics-decriminalize-drugs/
https://www.opb.org/article/2020/11/04/oregon-measure-110-decriminalize-drugs/