Oregon Legislators Overwhelmingly Vote To Recriminalize Low-Level Drug Possession

The reversal of a landmark reform was driven by unrealistic expectations and unproven assertions

By Jacob Sullum.

"Oregon legislators last week overwhelmingly approved recriminalization of low-level drug possession, reversing a landmark reform that voters endorsed when they passed Measure 110 in 2020. Gov. Tina Kotek has indicated that she is inclined to sign the bill, ratifying a regression driven by unrealistic expectations and unproven assertions.

"With this bill," Senate Majority Leader Kate Lieber (D–Portland) claims, "we are doubling down on our commitment to make sure Oregonians have access to the treatment and care that they need." But Oregon is not merely making sure that people "have access" to treatment; it is foisting "help" on people who do not want it by threatening them with incarceration.

H.B. 4002 makes drug possession a misdemeanor punishable by up to six months in jail. A defendant can avoid that outcome by enrolling in a treatment program.

Under Measure 110, by contrast, drug possession became a Class E violation punishable by a $100 fine. Drug users could avoid the fine by completing a "health assessment" at an "addiction recovery center." The initiative said the assessment should "prioritize the self-identified needs of the client" and refer him to appropriate services. But Measure 110 did not make agreement to those services mandatory.

The initiative's supporters argued that coercive treatment is both less effective and more ethically problematic than voluntary treatment. "Research suggests that, except in certain circumstances where drug users are uniquely self‐​motivated (such as doctors and commercial airline pilots who fear losing their licenses), coercive treatment is futile at best and may increase the likelihood of overdose in people who relapse after release from treatment," Jeffrey Singer notes in a Cato Institute blog post.

The policy embodied by H.B. 4002 is notably different from the legal approach to alcohol abusers, who generally cannot be forced into treatment unless they commit crimes such as driving while intoxicated. Measure 110's supporters argued that abuse of those substances likewise should be treated as a health issue rather than a criminal matter.

Over 58 percent of voters agreed. But a continuing increase in opioid-related deaths, coupled with nuisances related to public drug use, soured Oregonians on Measure 110. By last August, at which point the initiative had been in effect for only a year and a half, an Emerson College poll found that 64 percent of Oregon voters favored reinstating criminal penalties for possession.

It is not surprising that opioid-related deaths continued to climb after Measure 110 took effect in February 2021, because the initiative did nothing to address the iffy quality and unpredictable potency of black-market drugs. That problem is created by drug prohibition and aggravated by attempts to enforce it. The government's crackdown on pain pills replaced legally produced, reliably dosed pharmaceuticals with illegal drugs of unknown provenance and composition. The deadly impact of that shift was magnified by the emergence of fentanyl as a heroin booster and replacement—a phenomenon that also was driven by prohibition, which favors highly potent drugs that are easier to conceal and smuggle.

"Oregon voters were mistaken if they believed that decriminalization alone would reduce overdose deaths," Singer writes. "Decriminalizing is not the same as legalizing. If people who use drugs need to get them on the black market, they can never be sure of the dose or purity of what they are buying or if it is the drug they think they are buying."

While Measure 110 demonstrably did not reverse the upward trend in drug-related deaths, there is little reason to think it accelerated that trend. The numbers from Oregon are instead consistent with a fentanyl-fueled rise in fatal overdoses that has played out in different parts of the country at different times.

"Overdose mortality rates started climbing in [the] Northeast, South, and Midwest in 2014 as the percent of deaths related to fentanyl increased," RTI International epidemiologist Alex Kral noted at a January 22 conference in Salem, Oregon. "Overdose mortality rates in Western states did not start rising until 2020, during COVID and a year after the introduction of fentanyl."

That lag explains why Oregon has seen a sharper rise in opioid-related deaths than most of the country since 2020. But so have California, Nevada, and Washington, neighboring states where drug possession remained a crime.

A 2023 Journal of Health Economics study estimated that decriminalization in Oregon was associated with a 23 percent increase in "unintentional drug overdose deaths" that year. But "after adjusting for the rapid escalation of fentanyl," Brown University public health researcher Brandon del Pozo reported at the Salem conference, "analysis found no association between [Measure 110] and fatal drug overdose rates."

Kral concurred, saying "there is no evidence that increases in overdose mortality in Oregon are due to" decriminalization. That is consistent with the results of a 2023 JAMA Psychiatry study, which found "no evidence" that Measure 110 was "associated with changes in fatal drug overdose rates" during the first year.

Critics of Measure 110 argued that it encouraged drug use. Yet an RTI International study of 468 drug users in eight Oregon counties found that just 1.5 percent of them had begun using drugs since Measure 110 took effect. And contrary to the claim that decriminalization had attracted hordes of drug users to the state, the subjects' median length of residence in Oregon was 24 years.

The Associated Press says H.B. 4002 "enables police to confiscate the drugs and crack down on their use on sidewalks and in parks." Yet as with alcohol, public consumption that alarms or discommodes people is distinct from mere possession. Just as it is possible to address public drunkenness and disorderly behavior without making consumption of alcohol a crime, it is possible to address nuisances related to other kinds of drug use without threatening to jail people for consuming politically disfavored intoxicants, no matter the circumstances.

Public disenchantment with Measure 110 seems to be based at least partly on unrealistic expectations that may have been encouraged by its supporters' rhetoric. "The idea behind this groundbreaking effort is simple," Theshia Naidoo, managing director of criminal justice law and policy at Drug Policy Action, said in 2020. "People suffering from addiction need help, not criminal punishments. Instead of arresting and jailing people for using drugs, the measure would fund a range of services to help people get their lives back on track."

Those services were slow to materialize, however. Kassandra Frederique, executive director of the Drug Policy Alliance, complains that Oregon politicians "blamed an innovative policy in its infancy for decades of their own ineffectiveness." While "drug decriminalization worked to reduce the harms of criminalization," she says, "chronic underfunding of affordable housing, effective addiction services and accessible health care are to blame for the heartbreaking public suffering seen in Oregon's streets."

Frederique adds that "there is not a shred of evidence supporting claims that Measure 110 increased homelessness, overdose or crime rates." Recriminalization, she says, is "a false promise of change to distract from politicians' incompetence as they approach reelection." State Sen. Lew Frederick (D–Portland) likewise warns that H.B. 4002 "reinforce[s] the punishment narrative that has failed for 50 years."

Oregon legislators "didn't give decriminalization combined with harm reduction a chance to work," Singer says. "They are delusional if they think going back to the formula that caused countless avoidable overdose deaths and filled our prisons is going to work now when it has never worked before."

At bottom, Measure 110 stood for the proposition that drug use, which violates no one's rights, should not be treated as a crime. Its opponents have yet to offer a persuasive moral justification for rejecting that proposition."