Backpedalling on progress: Understanding Oregon’s U-turn on drug decriminalisation

Measure 110, which made Oregon the first state in the United States to remove criminal penalties for possession of a small amount of any drug, was and remains a historic turning point for the decriminalization movement. Sadly, the Oregon legislature has partially repealed the measure, creating new “drug enforcement misdemeanors” punishable by a term of supervised probation or up to 180 days in jail. Instead of taking steps to improve the health-based model, the legislature doubled down on criminal penalties, bowing to political pressure and an intense misinformation campaign by opponents, including the former chief of the prison system, business interests and law enforcement. Though this is undoubtedly a setback, Measure 110’s impact will reverberate for years to come.As the reform movement analyzes the developments in Oregonand strategizes in other jurisdictions, some important lessons stand out:

Messaging and narrative building is a never-ending fight, even when evidence supports the policy shift

Promoting and defending a new reform policy is important well beyond the initial campaign.Whoever sets the narrative first has the upper hand, and it is important to publicize real impact and counter misinformation early on. Otherwise, any new policy can become an easy scapegoat for persistent societal problems, even with no evidence to show a causal link between them. This is precisely what happened in Oregon where M110 detractors took advantage of the valid frustrations with public suffering and blamed it on decriminalization:

• The overdose crisis fueled by fentanyl has affected every area of the United States, regardless of varying drug laws, but Measure 110 has been blamed for the overdose crisis in Oregon. After 110, Oregon’s overdose death rate closely tracked the national average and remained lower than states that impose harsh criminal penalties for drug possession.Moreover, two longitudinal studies (available here and here) found no association between Measure 110 and fatal overdoses.
• Despite evidence that rates of homelessness were directly tied to Oregon’s eviction policies and a limited supply of affordable housing, politicians and drug war sympathizers found 110 to be a convenient target to deflect public frustration with the increased visibility of unhoused people.
• Though Measure 110 did not lead to an increase in crime rates – in fact, major crime rates in Oregon are declining – the new policy was blamed for the public’s anxiety about increased criminal activity.A driver of this perception was public drug use, which has risen in tandem with increased homelessness.Opponents argued that Measure 110 caused an increase in drug use, which resulted in an increase in homelessness.Though this politically toxic message was not born out by the evidence, it was a key factor in the push to reinstate criminal penalties.

Implementation of decriminalization is as important as establishing the policy

Reshaping existing systems to implement a new policy is critical to the policy’s success.In Oregon, state officials were slow to implement key components and undercut the full potential of Measure 110 in a number of ways:

• The Oregon Health Authority (OHA) provided inadequate support, which resulted in significant delays in allocating funding for needed services.We know from successful health-based models how critical it is for decriminalization measures to be implemented in parallel with expanded and fully-funded health and recovery support services. Unfortunately, the delay in Oregon impeded access to needed services.
• The state did not educate the public about the drug treatment screening hotline that the measure created, and failed to provide training to law enforcement, many of whom were opposed to Measure 110.Law enforcement can sabotage the policy in both obvious and subtle ways if they are hostile to it, and it was important to educate them about the benefits of the policy and ensure they are not obstacles to successful implementation.

Timing plays a role

Implementation of Measure 110 unfortunately coincided with a number of other crises:

• The COVID-19 pandemic, which had ripple effects throughout Oregon, especially for evictions, housing policies, and taxing an already overburdened health system.
• The proliferation of fentanyl across the United States, starting in 2019 on the West Coast (including Oregon), led to a sharp increase in overdose rates.
• National fearmongering concerning crime was exploited by longstanding opponents of drug policy reform.

Despite setbacks, M110 will have lasting impacts for the decriminalization movement

• Measure 110 reduced the harms of criminalization for thousands of people by decreasing arrests and barriers to jobs and housing that result from those records.
• It increased access to and engagement with services, doublingthe number of people accessing the addiction services and social supports they need, including substance use disorder treatment, housing services and overdose prevention services.The services created by M110 will stay in place even after drug possession is recriminalized.
• There has been a decrease in criminal penalties for drug possession even after recriminalization – cutting the potential maximum sentence in half - compared to the state of the law before Measure 110.

Criminal penalties are not the answer to problematic drug use.Decades of research and experience have made this clear. Politicians who, in an effort to find cover from public anger, turn to the criminal system for answers will quickly relearn this lesson. Though the legislation will prevent the full benefits of decriminalization from being realized, M110 remains an important step in taking drug possession out of the criminal system. The experience in Oregon also highlights the need for safer supply, drug consumption facilities, and why legal regulation based on health and human rights is essential for a true health-based approach.The legacy of Measure 110 is far from over – it will continue to grow and the lessons learned from it will strengthen the movement to reduce the role of the criminal legal system in drug policy.