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Decriminalization—a Failed Experiment

Decriminalization—a Failed Experiment

It was supposed to be the panacea for the opioid epidemic. If you decriminalize drug possession and get people with substance use disorder (SUD) into treatment, the crisis will go away. Except, it didn’t.

“When Oregon embarked on a landmark plan three years ago to decriminalize hard drugs, it wagered that a focus on treatment over punishment would create a new model for drug policy around the country,” Mike Baker reported for The New York Times earlier this month. “But after a deluge of overdose deaths and frequent chaos in the streets of Portland, Gov. Tina Kotek signed into law […] a measure to restore criminal penalties for drug possession.”

The new law rolls back a 2020 voter-approved measure by making so-called personal use possession a misdemeanor punishable by up to six months in jail. It also establishes ways for treatment to be offered as an alternative to criminal penalties by encouraging law enforcement agencies to create deflection programs that would divert people to treatment services instead of the criminal justice system.

Measure 110, approved by voters with 58 percent support in 2020, made the personal use possession of illicit drugs such as heroin, cocaine, and methamphetamine only punishable by a ticket and a maximum fine of $100. Supporters said treatment is more effective than jail in helping people overcome addiction and that the decades-long approach of arresting people for possessing and using drugs hasn’t worked.

Farther north, British Columbia became the first province in Canada last year to decriminalize the use of hard drugs as part of its efforts to tackle its deadly opioid crisis. But there, too, the policy is now facing pushback, leaving its future uncertain.

Portugal was the trailblazer for this approach, but the European country has also had second thoughts lately. “Portugal decriminalized all drug use, including marijuana, cocaine, and heroin, in an experiment that inspired similar efforts elsewhere, but now police are blaming a spike in the number of people who use drugs for a rise in crime,” reported Anthony Faiola and Catarina Fernandes Martins in The Washington Post last year.

“Portugal became a model for progressive jurisdictions around the world embracing drug decriminalization, such as the state of Oregon, but [...] some Portuguese voices are now calling for a rethink of a policy that was long a proud point of national consensus. Urban visibility of the drug problem, police say, is at its worst point in decades and the state-funded nongovernmental organizations that have largely taken over responding to the people with addiction seem less concerned with treatment than affirming that lifetime drug use should be seen as a human right.”

Clearly, decriminalization has not ended Portugal’s drug problem. Overdose rates hit 12-year highs and almost doubled in Lisbon from 2019 to 2023. Sewage samples in Lisbon show cocaine and ketamine detection is now among the highest in Europe.

It seems that in all three places—Portugal, British Columbia, and Oregon—decriminalization primarily brought drug use out in the open without actually curbing it. So, why didn’t it work?

“Measure 110 did not reduce Oregon’s drug problems,” wrote Keith Humphreys and Rob Bovett in a recent analysis piece in The Atlantic. “The drug overdose death rate increased by 43 percent in 2021, its first year of implementation—and then kept rising. The latest CDC data show that in the 12 months ending in September 2023, deaths by overdose grew by 41.6 percent, versus 2.1 percent nationwide. No other state saw a higher rise in deaths. Only one state, Vermont, ranks higher in its rate of illicit drug use.”

It appears the notion that decriminalization will induce a flood of help-seeking from people with addiction was hopelessly naive. “The replacement for criminal penalties, a $100 ticket for drug possession with the fine waived if the individual called a toll-free number for a health assessment, with the aim of encouraging treatment, failed completely,” wrote Humphreys and Bovett. “More than 95 percent of people ignored the ticket, for which—in keeping with the spirit of Measure 110—there was no consequence.”

Humphreys and Bovett have spent the better part of their careers studying and working on drug policy and were not surprised that “trivial pressure” to seek treatment proved ineffective. “Fentanyl and meth addiction are not like depression, chronic pain, or cancer, conditions for which people are typically motivated to seek treatment. Even as it destroys a person’s life, addictive drug use by definition feels good in the short term, and most addicted people resist or are ambivalent about giving that up. Withdrawal, meanwhile, is wrenchingly difficult. As a result, most addicted people who come to treatment do so not spontaneously but through pressure from family, friends, employers, health professionals, and, yes, the law.”

The reporters contend that Oregon didn’t even need Measure 110 as “a rebuke to the War on Drugs” because Oregon “had never fought such a war.” The state had the country’s “lowest rate of imprisonment for nonviolent crimes. Short local jail sentences for drug possession were permitted, but diversion programs, including drug courts and community supervision with drug testing, were widely used. However, after Measure 110 was passed and the threat of jail time eliminated, the flow of people into these programs slowed.”

Humphreys and Bovett do not advocate a return to severe crackdowns by the justice system. “Many states are far more punitive toward drug users than Oregon was before Measure 110 passed. They overemphasize incarceration of people who use drugs, they do not provide adequate, publicly funded health treatment and health insurance, and they do not use criminal justice productively to discourage drug use (for instance, by using arrests and probations as leverage to get people into drug courts and treatment).”

If these states could be persuaded to dial down their overly harsh criminal-justice approach to approximate what Oregon had before Measure 110, “except with adequately funded, evidence-based prevention and treatment, substantial gains in public health and safety would likely follow,” they feel. “The future of successful drug-policy reform is not greater laxity in states that are already quite progressive in their approach to drug use; it is using criminal justice and public health together in a balanced, pragmatic fashion, as Oregon is now poised to do.”

While the decriminalization of heroin, cocaine, and meth was based on naive assumptions about addiction, at least proponents have not attempted to declare these substances to be harmless or even good for your health. In the case of the legalization and commercialization of cannabis, that is exactly what happened.

In Colorado, cannabis has been legal for “medical” use since 2000 and for recreational use since late 2012. On November 7, 2000, 54 percent of Colorado voters approved Amendment 20, which amended the state constitution to allow the use of marijuana in the state for approved “patients” with written “medical consent.” Twelve years later, that medical figleaf was dropped with Amendment 64, which led to full recreational legalization in December 2012 and state-licensed retail sales in January 2014.  

The impact has been widespread and negative. Few people are aware that marijuana legalization is largely driven by well-organized multi-state operators selling unregulated and unsafe commercial products. Foundry Treatment Center Steamboat Managing Partner Ben Cort has been raising awareness of these issues for years. In a webinar last year, Cort explained how the potent products the marijuana industry is selling in the 21st century are a far cry from the "weed" people smoked in the 1970s. The reason is the extreme THC (delta9-tetrahydrocannabinol) content of today's cannabis products.

The average THC content of cannabis products seized by the Drug Enforcement Administration was 15 percent in 2021, up from just four percent in 1995. However, many commercial cannabis products now advertise THC concentrations of up to 99 percent. The potency of the plant is irrelevant because the plant is being converted into products not used on its own. According to Cort, "Rarely, if ever, do we treat an individual who is only using cannabis in anything like its natural form; they use highly concentrated THC produced by extracting THC from the plant."

"There are now users who consume several grams of this unnaturally potent THC daily," says Ben Cort. "I know that because we treat such patients here at our program." The result of the widespread use of these powerful concentrates: "Addiction rates are considerably higher, the higher the potency goes as are negative psychiatric complication."

According to healthcare analytics company Truveta, rates of diagnoses for cannabis-induced disorders were more than 50 percent higher at the end of November 2023 than in 2019. It has been estimated that approximately three in ten people who use marijuana have a cannabis use disorder.

Despite the addiction risk, Colorado is still expanding the availability of cannabis. Since January, retail marijuana stores have been allowed to accept payment for products ordered online. Online ordering became legal in Colorado late last year, but customers still had to pay for their orders in person.

American Heart Association warned last year that marijuana use is linked with an increased risk of heart attack and heart failure. “As more people across the US use marijuana, [...] two new studies suggest its regular intake may damage heart and brain health. In one study, daily use of marijuana raised the risk of developing heart failure by about one-third, even after considering other factors, compared to people who reported never using marijuana. In a second study, older people with any combination of Type 2 diabetes, high blood pressure, and high cholesterol who used marijuana, significantly increased their risk for a major acute heart or brain event while hospitalized, compared to those who reported not using marijuana.”

Legalizing dangerous substances like cannabis because people bought into claims of unproven medical benefits or tolerating the illegal use of heroin and cocaine in the hope that people addicted to these drugs will simply come forward asking for treatment without any encouragement is a path fraught with dangers as it turned out. Addiction is a complex bio-psycho-social disease characterized by the continued use of psychoactive substances or the continuation of addictive behaviors despite negative consequences.

Addiction is frequently driven by underlying trauma and depression, and simply decriminalizing maladaptive attempts to self-medicate such underlying conditions does nothing to address them. Treating a severe substance use disorder often requires the concerted efforts of the affected individuals, their families, and a team of treatment professionals addressing the root causes of the SUD.

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