2020 Election Sees Oregon Take a Bold New Step in Decriminalizing Hard Drug Possession. Will Other States Follow?

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Caleb Kampsen

Associate Editor

Caleb Kampsen is a 3L at the University of Kansas School of Law. He earned his Bachelor of Science in Journalism and his Bachelor of Arts in Political Science from the University of Kansas. Caleb is interested in civil litigation and trial work, as well as corporate law. Outside of law school, Caleb enjoys watching various films, reading, and cheering on the Kansas City Chiefs.

While the 2020 election has been dominated by talk of President-elect Joe Biden’s victory, other victories garnered headlines.  On November 4, 2020, Oregon, the first state in the country to decriminalize marijuana possession in 1973, became the first state to decriminalize a host of other “hard drugs” through a ballot initiative in an effort to keep drug users out of incarceration and instead funnel them into addiction recovery centers.[1]  The law applies to those with “personal-use” amounts of heroin, methamphetamine, LSD, oxycodone, and other hard drugs.  Those other hard drugs include cocaine, MDMA, psilocybin, and methadone.  

In lieu of jail time, the offender could pay a $100 fine and attend one of Oregon’s new addiction recovery centers.[2]  It’s predicted that “[t]he measure will also likely lead to significant reductions in racial and ethnic disparities in both convictions and arrests,” according to the Oregon Criminal Justice Commission, an official state agency.[3]  It’s important to note that these new addiction recovery centers are only possible because they are “funded by millions of dollars of tax revenue from Oregon’s legalized, regulated marijuana industry.”[4]

There is also an important legal distinction between legalization, like Oregon’s legalization of the use of marijuana, and decriminalization.  Decriminalization is the elimination of criminal penalties for given conduct and that conduct can only be subject to civil penalties.[5]  Legalization, on the other hand, allows a state or other government entity to lawfully regulate the conduct and it is also not subject to criminal or civil penalties (if the laws are followed).[6]  There are strong examples in favor of the move toward decriminalization of hard drugs.  Portugal, for instance, decriminalized possession of personal-use amounts of hard drugs, and saw no surge in drug use, a decrease in drug related deaths, and an uptick of 20% of people in drug addiction treatment before stabilizing.[7]

The racial and ethnic disparity in arrest and conviction rates resulting from the long-running and unsuccessful war on drugs is not new, nor is the idea of decriminalizing drug possession in an effort to keep drug users out of jail and instead get them treatment they may need. [8]  However, as Oregon illustrates, a radical shift from drug criminalization to drug treatment requires a large investment from taxpayers to fund new treatment centers and to handle an influx of drug users to existing treatment centers.  It is unclear whether other states have the tax revenue to accomplish such an admirable goal, given the Oregon ballot initiative is funded by tax revenue from Oregon’s legalized marijuana industry.  With COVID-19 already hitting state tax revenue projections hard, it is unlikely that many states will have the tax revenue to make a shift like Oregon soon.  However, just like Oregon was ahead of the curve in 1973, Oregon may prove to be a leader and a successful example of a new approach to how the United States deals with drug usage in our communities.[9]

[1]  Andrew Selsky, Oregon Leads the Way in Decriminalizing Hard Drugs, Associated Press (Nov. 4, 2020), https://apnews.com/article/oregon-first-decriminalizing-hard-drugs-01edca37c776c9ea8bfd4afdd7a7a33e.

[2]  Id.

[3]  Id.

[4]  Id.; Cleve R. Wootson Jr. & Jaclyn Peiser, Oregon Decriminalizes Possession of Hard Drugs, as Four Other States Legalize Recreational Marijuana, Wash. Post (Nov. 4, 2020, 5:32 PM), https://www.washingtonpost.com/nation/2020/11/04/election-drugs-oregon-new-jersey/ (“Measure 110 also applies marijuana sales taxes toward payments for drug addiction treatment.”).

[5]  Kyra L. Riggins, The Heart of the Matter: The Federal Decriminalization and the Need for Federal Rescheduling of Marijuana, 44 T. Marshall L. Rev. 75, 86 (2019).

[6]  Id.

[7]  Selsky, supra note 1.

[8]  Wootson & Pesier, supra note 4. (“An Oregon study showed that Black and Native American people were more likely to be convicted of drug crimes than White people.”).

[9]  Id.

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