What If We Didn’t Consider Criminalization an Option?

Instead of re-criminalizing drugs, Oregon should actually take care of people.

In 2020, Oregon enacted a landmark drug decriminalization law that eliminated criminal penalties for possession of small amounts of heroin, cocaine, and other hard drugs. Now, after a few years, overdose rates have spiked, and there is reportedly a major surge in public drug use. As a result, there is an effort to re-criminalize drugs, and legislators who “championed [the law] as a way to treat addiction as a public health matter, not a crime, are now contending with one of the nation’s largest spikes in overdose deaths, along with intensifying pressure from Republicans and growing calls from a well-funded campaign group to overhaul it.”

So the state decriminalized drug use, overdose rates spiked, and people called the law a failure and demanded the reinstatement of criminal penalties. But hang on a minute: wasn’t reducing penalties only supposed to be part of what Oregon did? What about “treating addiction as a public health matter, not a crime”? Treating something as a public health matter doesn’t just mean eliminating prosecution, it means addressing it through public health institutions. Did Oregon do that? 

Well, no, it turns out that part of the plan has not really been followed through on. As the Wall Street Journal reported, “Oregon has for many, many years not had [a] sufficient amount of rehabilitation services for people addicted to drugs,” and after the law was passed and provided some new funding for addiction services, “it took a long time to get these services online and some of them are still coming online” and “when the law went into effect, there weren’t a lot of services to point people towards because they had not been set up yet.” Under the law, when a police officer comes across someone using hard drugs, instead of arresting them, they give them a citation, which is dismissed if they call a number on the ticket for addiction services. Apparently, hardly anyone calls the number, and drug users tend to just tear up the citations (one officer even says he saw someone roll up the citation and smoke it). 

ProPublica produced an investigation showing that Oregon state leaders did not do much to implement a critical portion of the law whereby police were supposed to try to connect people with treatment instead of arresting them. They didn’t arrest them, but they also didn’t connect with the treatment. The state government did not train the officers on “where to find detox beds, peer counseling or other services,” or “how to guide people to those services.” And the Oregon Health Authority “developed no programs to inform police of the expanded services available to people they ticketed.” Officers often didn’t even tell people that the citation would be dismissed if they sought treatment. The head of a state rehab advocacy nonprofit said the state “tried to do the least amount of work to administer it to the letter of the law.” Maddeningly, “critics began to cite hotline phones that seldom rang and ignored citations as evidence that decriminalization had failed.”

But none of this is evidence that decriminalization has failed. It’s evidence that pure libertarianism is not a good approach to the problem of drug addiction. Libertarians believe that the state should stay out of people’s lives, and so the cops shouldn’t police drug use. But if you just decriminalize drug use, without introducing new free public services for people struggling with drug addiction and helping people get connected to treatment, then it shouldn’t be surprising that addiction problems could worsen. The evidence that Oregon’s decriminalization law is causally linked to the overdose increase is disputed. But critically, even if it was related, that wouldn’t prove that decriminalization failed. It would prove that what failed was pure decriminalization: not prosecuting people but not actually doing anything to change the conditions that cause people to take drugs or helping them get off drugs once they start using them.

The fact that Oregon is now considering re-criminalizing drugs is infuriating because it totally misidentifies what the source of the failure here is. But people are being led to believe there are only two options: either drugs are legal, and people can shoot up heroin in front of your house, or drugs are illegal, and they can’t. If the issue is framed this way, many people would prefer the situation where drugs are illegal. The Wall Street Journal reported on how one voter’s opinion shifted in favor of re-criminalization: 

We spoke with a woman who’s a bookstore clerk in Eugene, 56 years old. She told us she was a Grateful Dead fan, had experimented with mind-altering substances herself and always wanted to see Oregon liberalize its drug laws. She considers herself kind of a cynical person, kind of a politically savvy person. Now she thought maybe she was a little naive. She said this might have worked in a place where there’s a lot of public assistance for people struggling with mental health and struggling with addiction, but obviously America and Oregon is not that kind of place. And so she felt like maybe it wasn’t the best idea.

So this woman correctly felt that it was wrong to respond to addiction with criminal punishment. But now she feels decriminalization “wasn’t the best idea.” But why? Because America is not a place “where there’s a lot of public assistance.” In other words, we’re too cruel and stingy to actually help drug addicts, so the only option is to throw them in prison!

But even if Oregon did increase addiction services and get the police to actually try to help people, there are still some foundational assumptions behind the state’s decriminalization plan that have to be questioned. First, the very idea of relying on police is questionable. I agree with the law’s critics that a system where police give meaningless citation tickets to drug users is not going to do very much. But why are police the ones we expect to deal with people affected by substance use? The system should be designed so that police aren’t interacting with these people at all, but rather unarmed aid workers who are actually trained in how to convince a person with a substance use problem to seek treatment. (Police are mostly trained on how to use force to ensure compliance with legal rules.) 

Second, even providing good, free services for substance use disorders and connecting people with them successfully doesn’t address some core reasons for widespread drug use. In his powerful book about the War on Drugs, Chasing the Scream, Johann Hari argues that it’s not just that drugs are made of addictive chemicals, but that being poor, lonely, and traumatized increases people’s likelihood of using: 

“Chemical hooks are only a minor part of addiction. The other factors, like isolation and trauma, have been proven to be much bigger indicators. Yet the drug war increases the biggest drivers of addiction—isolation and trauma—in order to protect potential users from a more minor driver of addiction, the chemical hook. If we legalize, somewhat more people will be exposed to the chemical hook in drugs—but the even larger drivers of addiction, trauma and isolation, will be dramatically reduced.”

Legalization does not necessarily substantially reduce trauma and isolation, however, even though we know prison worsens these problems. We still live in a very isolating society. A strong social support system is important, and legalization alone doesn’t make America a less atomized society. We have a loneliness crisis in this country that makes it harder to address drug use crises.

As Oregon thinks about how to address drug overdoses, what it should do is start with the position that decriminalization is a given. Punishing with jail and prison should simply be off the table, which then forces the state to ask: how do we solve this problem if criminalization isn’t an option? What other solution would we come up with? If you don’t like having the streets of downtown filled with homeless people using drugs, one response is to demand the police cart them off to prison. But let’s reject that response out of hand as inhuman. Let’s instead say, okay, well, one problem is that people are homeless, and they’re homeless because the rent is too damned high. Another issue is that they may have a substance use problem. What can we give them to help? At no point in the inquiry is punishment even considered as an option, because the task of policymakers is to figure out how to help people. In a compassionate society, the response to the “failure” of Oregon’s decriminalization scheme would not be to consider undoing the good part of the law (the elimination of punishment as a solution to a health problem) but to fix the inadequate parts of the law. Instead, Oregon vowed to treat drug use as a public health problem instead of a criminal enforcement matter, then didn’t address the public health problem, and is now considering returning to criminal enforcement. This is not a story about the failure of decriminalization, it’s a story about how U.S. politicians, even in a liberal state, seem incapable of addressing any social problem through means other than cruelty. 

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