In the grand experiment of American democracy, it is often said that states serve as laboratories, testing policies that challenge the status quo without risking the stability of the whole. Oregon, known in recent years for its pioneering drug decriminalization laws, is at a crossroads that marks the end of a significant experiment. State legislators recently passed a bill aiming to recriminalize the possession of small amounts of certain substances, a move now awaiting Democratic Governor Tina Kotek’s approval. Last week, the governor announced that she plans to sign the bill. The move toward recriminalization highlights a broader conversation on the re-evaluation of drug policy, public health, and social justice in a post war-on-drugs environment in the U.S.

The Catalyst Behind Recriminalization

Voters in Oregon approved Measure 110 in November of 2020 amidst the height of the COVID-19 pandemic. The initiative reclassified the possession of small amounts of schedule I-IV controlled substances including cocaine, heroin, and fentanyl as a simple violation not punishable by jail time — only a $100 fine. Supporters of the bill argued that criminalizing drug use has disproportionately impacted minority communities by targeting them with drug-related charges, and that treating the underlying causes of addiction like mental health and abuse is a more effective approach to combatting dangerous drug use. The initiative represented a major departure from the traditional approach to drug policy in the U.S., and opponents of the measure quickly raised concerns that its passage would make more dangerous substances like fentanyl cheaper and easier to manufacture and distribute, exacerbating rather than curtailing drug use in Oregon.

The recent push for recriminalization stems from Oregon’s deepening opioid crisis and rise in fentanyl-related overdoses deaths. From 2019 to 2023, fentanyl overdose deaths in Oregon skyrocketed by about 1,500%, moving Oregon to the 17th highest ranked state for overdose deaths. Despite Measure 110’s initial aim to address addiction through treatment, rather than incarceration, and leverage cannabis tax revenue for addiction services, its implementation faced hurdles. The ongoing public health crisis commanded the attention of health officials, meaning the program was slow to be funded and launched. As a result, treatment services were lacking while the supply of drugs increased, and enforcement eased.

The new bill, HB 4002, seeks to address these challenges by reinstating misdemeanor criminal penalties for certain drug possession, punishable by up to a six-month jail sentence. The bill also aids law enforcement by re-expanding their authority to address public use and distribution of substances, and suggests, rather than mandates, the development of deflection programs for addiction and mental health services. Critics argue that the bill’s approach may exacerbate existing societal inequities, particularly impacting communities of color and low-income Oregonians. By not requiring localities and law enforcement to establish or utilize deflection programs, opponents argue that the bill could perpetuate barriers for individuals seeking housing, employment, and financial services due to misdemeanor drug charges. Additionally, opponents argue that the anticipated increase in low-level possession cases threatens to overwhelm an already strained legal system, with disproportionate effects predicted for communities of color.

Why It Matters: Diverging Views on Effectiveness and Broader Implications for Drug Policy

The debate surrounding drug policy in the U.S. is multifaceted, touching on the complex challenges of aligning law enforcement, public health initiatives, and social equity considerations. Oregon’s legislative pivot raises crucial questions for national drug policy around the soundness of broader drug decriminalization. However, it has also been shown that the war on drugs has proven ineffective for eliminating substance abuse in the U.S. and that new approaches to treatment and recovery are needed. If Oregon’s experimentation has taught us anything, it is that grappling with the challenges of implementing broader drug reform will require nuanced and thoughtful research, careful implementation, and a commitment to policies that mitigate harm while promoting social justice.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.