Rethinking drug decriminalization
As fentanyl deaths soar, state lawmakers weigh harsher penalties for possession
Soon after Oregon voters approved Measure 110 in November 2020, Jason Bull noticed an uptick in public drug use. “Decriminalization has taken drugs from being done in the alleys out onto the sidewalks,” the Medford Gospel Mission executive director said. The ballot initiative decriminalized small amounts of illicit drugs including heroin, methamphetamine, and fentanyl. On his way into work one day last November—about two years after the measure became law—Bull saw six addicts smoking meth against the side of the shelter he leads, about 100 yards from a nearby middle school.
Fifty-eight percent of voters said yes to the decriminalization act. Supporters hoped that more people would see the inside of a treatment center instead of a jail cell if the law treated addiction as a health issue instead of a crime. Those cited for possession of illicit substances now choose between paying a $100 fine or calling a hotline that connects them to a recovery center for an evaluation and referral. But as of February 2022, less than 1 percent of people ticketed by police accessed services instead choosing to pay the fine and continue using drugs.
The measure also has done nothing to slow the deadly uptick of drug overdoses: About 30 percent more Oregonians died from overdoses in 2021 than 2020. Nationally, overdoses rose by an estimated 15 percent in the same time period. The synthetic opioid fentanyl was responsible for about 70,000 of those overdoses. A growing number of drug users seek out the potent opioid, but some addicts accidentally consume the substance unaware it has been mixed into other illicit drugs. A 2 milligram dose of the drug can be deadly.
State legislatures are scrambling to combat the epidemic by legalizing strips that test other drugs for the presence of fentanyl. They are also increasing the availability of the overdose-reversing drug naloxone, often referred to by the brand name Narcan. But a growing number of bipartisan lawmakers argue stricter penalties for fentanyl possession are the only way to stop its deadly rampage. The push has reignited debate over whether criminalizing drug use hurts or helps people trapped in harmful addictions.
Oregon lawmakers are considering a bill that would make possessing 1 to 5 grams of fentanyl a misdemeanor and anything more a felony. The act, sponsored mostly by Republicans but also a few Democrats, mandates treatment for offenders. West Virginia lawmakers passed a law last year upping fentanyl possession to a felony and are considering a bill that would lengthen prison terms. State Sen. Charles Trump, a Republican, said raising the penalty moves the cases from magistrate court to circuit court where addicts have access to drug treatment courts and supervised probation. Lawmakers in Washington and Nevada are considering similar bills, and Alabama Gov. Kay Ivey signed a law earlier this month that established mandatory prison sentences for fentanyl possession.
Arizona Gov. Katie Hobbs, a Democrat, vetoed a similar bill that lowered the amount of fentanyl used to determine a person’s intent to sell from 9 grams to 2 milligrams, about one pill. Opponents warned the bill would only incarcerate addicts and multiply the state’s prison population.
In Oregon, arrests for drug possession fell from about 1,200 to 200 monthly after the decriminalization law went into effect in February 2021. By October 2021, police had issued about only 1,280 citations statewide—far fewer than the previous number of arrests for drug possession—The Oregonian reported. About half of those cited failed to show up in court. Law enforcement leaders said police aren’t willing to expend resources on issuing citations that make little difference. Only 51 people called the treatment hotline to complete the 25-minute assessment, and 35 admitted they were only calling to meet the law’s requirements and declined further information.
Proponents of decriminalization blame the disappointing results on inadequate treatment infrastructure and funding. In January, the Oregon Health Authority released an audit concluding the effectiveness of the program has yet to be determined due to poor data collection and a lack of coordination between agencies. The decriminalization act directed authorities to support treatment facilities with funds generated from marijuana tax revenue and from incarcerating fewer addicts, but the law’s slow rollout meant many centers didn’t receive funding for months.
Jeffrey Miron, vice president for research at the Cato Institute, said Oregon didn’t take decriminalization far enough to see any meaningful results. It effectively legalized low-level possession, but it didn’t decriminalize distribution or supply. Legalizing the market for these illicit drugs would reduce violence, Miron argued, adding it would also allow for quality control and prevent many accidental overdoses.
Harsher penalties for fentanyl possession will only make the problem worse, Miron said, since addicts may be more nervous about seeking treatment. “There’s very little evidence that prohibitions get people to reduce their use or force them to get to rock bottom,” he said. “If people don’t voluntarily choose to seek help with their harmful addictions, there doesn’t seem to be a lot that policy can do.”
Dr. Eric Geisler, a board-certified addiction specialist and a member of the Christian Medical and Dental Associations, believes that though there is a role for criminal penalties in dealing with addiction, felony convictions for possession take it too far. Geisler is the medical director for Serenity Lane, a residential addiction recovery program with locations throughout Oregon. He pointed out that a felony conviction sticks with addicts for years: “They can’t get apartments, they can’t get jobs. And it really impairs their recovery.” But that doesn’t mean there isn’t a role for law enforcement, he said, noting that incarceration protects some people from themselves and enables them to begin recovery.
Back in Medford—on the other side of the wall where he watched several addicts smoking meth—Bull said making fentanyl possession illegal again is a step in the right direction, but it doesn’t go far enough in undoing the effects of decriminalization. “[Decriminalization] has emboldened people in their addictions,” he said, adding that about 80 percent of the homeless men and women that arrive at Medford Gospel Mission have used a substance to get high within the last 30 days. Since decriminalization passed, fewer people seem to want help. “They’re not necessarily interested because they could freely use drugs and camp outside and not have any consequences,” he said.
At the mission, Bull and other team members focus on sober living, relationships, work, and getting plugged into a local church. “For somebody that’s been living on the street for a long time dealing with a lot of trauma, we see things just fall away,” he said. “A lot of that falls away because they’re in a community that cares.”
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