Politics

America’s battle on medicine has failed. Oregon is displaying a approach out.

America’s decades-long war on drugs has failed, simultaneously causing huge harms — fueling drug-related violence around the world and funneling millions of people into jails and prisons — and not preventing drug epidemics, including the worst overdose crisis in US history with the opioid epidemic. But now Oregon has declared a truce of sorts, and it’s showing the rest of the US what an end to the drug war might look like.

On November 3, Oregon voters elected to decriminalize all drugs, including heroin and cocaine, so possessing small amounts of these substances no longer carries the threat of jail or prison time. The state’s voters also approved another ballot measure to legalize psilocybin, the main psychoactive compound found in magic mushrooms, in supervised therapeutic settings. Oregon voters had previously legalized marijuana for recreational and medical purposes, but it’s the first state in modern American history to legalize psilocybin and decriminalize some drug possession.

This amounts to a fundamental rejection of America’s modern war on drugs. The central pillar of the country’s drug war is criminal prohibition — even simple possession of illegal substances carries the threat of jail or prison time. Oregon is chipping away at that regime, if not dismantling it entirely: Drug possession no longer carries the threat of incarceration, and some drugs are even allowed for therapeutic or purely recreational purposes.

The value of Oregon’s moves, both symbolically and practically, is hard to overstate. I’ve been reporting on the war on drugs for years, and have long imagined the end of the US drug war as a three-legged framework: legalizing marijuana, decriminalizing other drugs, and allowing psychedelics for therapeutic purposes.

Ten years ago, marijuana legalization was widely described as unpopular and controversial, with more Americans opposing it than not. But Oregon has now approved all three legs. On Election Day, Drug Policy Alliance executive director Kassandra Frederique described the Oregon measures passing as “a huge victory taking on a cornerstone of the drug war.”

Oregon, like other states that have relaxed their drug laws, didn’t do so because political leaders woke up to the problem and pushed serious reforms. The three major steps Oregon has taken, instead, were all done through ballot initiatives. The same is true for 13 of the 15 states that have legalized marijuana so far; only two states have legalized cannabis through their legislatures.

Oregon’s example shows that even if politicians remain reluctant and cautious on the issue, the public can take action on its own terms. Less than half of states don’t have an open-ended ballot initiative process. But ballot initiatives can ultimately inspire action beyond state borders; political leaders in New York, which doesn’t have an open-ended process, and surrounding areas started to talk up legalization after Massachusetts and Maine legalized, and they’ve already become more vocal after New Jersey voted to legalize this year.

There are still limits to what any state can do. For one, all the drugs decriminalized or legalized in Oregon, including marijuana, remain illegal at the federal level. While the federal government has taken a hands-off approach to state-level drug policy reforms since President Barack Obama’s second term, federal prohibition creates hurdles to state policies, such as limits on government benefits and banking marijuana profits.

And as Oregon will soon learn, ending the drug war doesn’t mean the end of mass incarceration and all its racially disparate consequences. Most US inmates are locked up for violent and other more serious offenses, not minor drug crimes. This also doesn’t repair the damage already done to many communities by the war on drugs, from aggressive policing to the toll of arrests, incarceration, and criminal records on individuals and their families.

But Oregon, as well as the dozen-plus other states to legalize, has shown that much of the public is fed up with the war on drugs — and there is a way out.

Oregon’s approach is a big step to ending the drug war

Oregon’s ballot initiatives are an acknowledgment that criminalization hasn’t worked to prevent drug use and even large drug epidemics, such as the ongoing opioid crisis. That’s despite criminal prohibition spawning its own negative consequences: millions of arrests, vast racial disparities in those arrests and any resulting incarceration, and an international web of crime and violence as the black market has funneled money into drug cartels and other illicit organizations. All the while, some research suggests that harsher penalties don’t even reduce drug use more than a less aggressive form of prohibition would.

Criminalization might even stop some from seeking help for drug addiction, Elaine Hyshka, a drug policy expert at the University of Alberta’s School of Public Health, told me. “Being liable to criminal charges for drug possession, or criminalizing people who use drugs, is a really significant deterrent for people talking about their substance use problems.”

Oregon’s voters and activists, supported by national advocacy groups like the Drug Policy Alliance, have taken a three-pronged approach to ending the state’s war on drugs:

1) Marijuana legalization: Since 2015, the state has let adults 21 and older possess and grow marijuana. Retail outlets across the state sell cannabis. The state government regulates and taxes marijuana cultivation, distribution, and sales. It’s all a big shift from the days when pot could result in a fine or incarceration.

2) Drug decriminalization: With the 2020 election, Oregon also voted to remove the threat of jail or prison time for simple possession of every drug, including cocaine and heroin. Instead, those caught with small amounts of the drugs will be able to choose between a $100 fine or a “completed health assessment” through an addiction recovery center. Harder drugs like cocaine and heroin would not be legally sold or distributed; possession of higher quantities remain illegal, as do sales and distribution. The initiative also redirected savings, from less incarceration and law enforcement, as well as preexisting marijuana sales tax revenue to addiction treatment.

3) Therapeutic psychedelics: Through a separate ballot measure, Oregon allowed the supervised, therapeutic use of psilocybin. This won’t mean that a person can just go to a magic mushroom dispensary and get the drug. Instead, trained facilitators at a “psilocybin service center” will help administer and then supervise the psychedelic trip. There’s some research backing this approach, showing that just one or two doses of psilocybin can have lasting effects on conditions like depression, anxiety, PTSD, and addiction.

All three of these prongs approach the overall issue of the drug war differently, but they each chip away its foundation: the idea that the use of any of these drugs should be criminally illegal. Instead, they acknowledge that drugs can have value for recreational, therapeutic, or medical purposes, and craft rules on a case-by-case basis according to drugs’ risks and uses.

Oregon is also putting more money into addiction treatment. Based on state analyses, the recently passed decriminalization measure puts more than $100 million a year toward treatment, which would at least quadruple the $25 million the state spent a year before. The question is how this money will be used: There’s significant public funding for addiction treatment out there, but much of it goes to ineffective or downright fraudulent programs, as I’ve covered in Vox’s Rehab Racket project.

Still, if used well, the money could go to a big gap. Just 1 in 10 people with a drug addiction get treatment, according to federal data, largely due to lack of access. “We have gaping holes in coverage,” Renee Johnson, a drug policy expert at Johns Hopkins University, told me. “We just don’t value behavioral health care or mental health care.”

Increased access to addiction treatment remains a key component of any plan to reel back the war on drugs. The hope is that more emphasis on public health, through treatment and harm reduction (which tries to reduce risk rather than eliminate it altogether), will address the problems caused by drug use that criminalization failed to address. If legalization and decriminalization lead to more drug use overall, more and better treatment along with harm reduction could also help combat those trends without the negative consequences created by criminalization.

That’s all in some ways an attempt to emulate the Portugal model that many drug policy reformers have praised for years. In 2001, the small European country decriminalized all drugs, and invested heavily in evidence-based treatment and harm reduction. So far, it seems to have worked well, with lifetime drug use slightly increasing but problematic use, addiction, and their negative consequences declining overall.

The question now is if this works in the US. In modern America, decriminalization is a truly untried experiment; no state has done it, besides Oregon. We don’t know if all the money going to treatment in Oregon will be spent wisely and effectively. Cultural attitudes matter too; it’s notable that Portugal, despite its drug policy, maintained a disapproving attitude in general toward drug use — what Stanford drug policy expert Keith Humphreys described, citing the late Mark Kleiman, as “grudging tolerance.”

But if it works, the model could spread to other states, as is now happening with marijuana legalization. Already, activists in Washington state are pushing to get drug decriminalization through their legislature next year.

Some worry Oregon still doesn’t go far enough

Despite the historic nature of Oregon’s moves, some experts and advocates continue to caution that more action is needed to roll back the state’s — and the US’s — war on drugs.

“There’s still so much more to the drug war than the criminal legal system,” Frederique, of the Drug Policy Alliance, said.

For one, the federal government still prohibits all drugs. That includes marijuana, even for medical purposes. That the Obama administration decided to take a hands-off approach to states legalizing, and President Donald Trump’s administration followed a similar model, is a matter of executive discretion, not a reflection of changes in federal law. That means a future administration, or less cooperative federal law enforcement agents, could still crack down on drugs in Oregon and elsewhere.

Along with federal prohibition, there’s a range of policy outcomes that don’t necessarily lead to an arrest or incarceration. Banking is much harder, if not impossible, for marijuana businesses due to federal prohibition. People can still struggle to get publicly subsidized housing or education if they have a record related to drugs.

Notably, some of the outcomes are cultural. Employers still often test people for drugs, and opt not to hire them if they have a history of drug use — despite the greater understanding across the country that addiction is a medical issue. Those kinds of consequences are part of a war on drugs, some argue, even if they’re not necessarily tied to any particular statute.

Some experts have also pushed against the notion, perpetuated by books like Michelle Alexander’s The New Jim Crow, that the war on drugs is a main driver of mass incarceration. In reality, only 1 in 5 people are in jail or prison right now for drug offenses, and the majority of those in state prisons, where most of America’s incarcerated population is held, are in for violent offenses. What sets America’s massive prison population apart isn’t so much its drug war but punitive practices elsewhere, such as its relatively long prison sentences for even minor crimes.

“It’s not just drug offenses that are causing mass incarceration,” Johnson said. “It’s a piece of the pie, but it’s not the pie.”

America, meanwhile, could take more steps to combat drug misuse and addiction. Better access to evidence-based treatment and harm reduction programs could be a component of that. Drug policy historian Kathleen Frydl has also argued for using other levers of policy, like tariffs, to limit the international distribution of illicit substances; it’s an effort to restrain supplies of illegal drugs, which some evidence does support to make these substances less accessible and used.

All of that is to say: Ending the criminal prohibition of drugs at the state level doesn’t fully solve for all the problems surrounding the war on drugs, including within Oregon.

At some point, America will have to do more than ballot initiatives

It’s notable that Oregon has carried the three major drug policy reforms through ballot measures. It’s also notable that this is the common story for bigger drug policy reforms across the country: While federal and state lawmakers have eased penalties for drug crimes here and here, they’ve by and large resisted anything bigger than merely making criminal prohibition more tolerable — even as there’s been clear public support for bigger reforms.

Consider marijuana legalization. It polls extremely well, with some surveys showing that even a majority of Republicans, who are typically more skeptical of bigger reforms, back legalization. That’s how you get the situation in Montana and South Dakota this year, where state voters simultaneously picked Trump for president and elected to legalize marijuana — while both Trump and Biden opposed legalization at the federal level.

Humphreys recalled his frustrating experience with a related issue in California. In 2013, then-Gov. Jerry Brown vetoed a bill that would have reduced drug possession crimes from felonies to “wobblers,” which can be charged as felonies or misdemeanors. Humphreys was furious that the Democratic governor rejected a modest reform approved by the legislature.

So he endorsed the campaign to get this done through a ballot initiative, Proposition 47. The measure even went further than the bill Brown vetoed, cutting drug possession crime down to flat-out misdemeanors instead of wobblers — effectively defelonizing simple drug possession.

Proposition 47 went on to win by a massive 19-point margin.

“The process failed me,” Humphreys told me. “So here I am endorsing a ballot initiative with Jay-Z.”

There’s an obvious lesson here in that politicians should represent their constituents, who are clearly fed up with a destructive drug war, instead of rejecting milder measures only to see more aggressive ones pass through ballot initiatives.

But there’s another concern, too: Ballot measures really shouldn’t be the main means of making policy on any issue, especially one as complicated as drugs. Let’s say that there are better ways to legalize marijuana than the current commercial model states are embracing, as some experts and activists have argued. Maybe it’s better to put the state government in charge of marijuana distribution and sales, as some states do with alcohol.

That is simply less likely to end up on the ballot. No one wants to run a campaign that effectively argues the government should sell marijuana. It’s also much harder to raise money for this campaign, since the for-profit cannabis business won’t throw its weight behind it. It’s also possible that the measure may not be able to get on some state ballots at all, since the regulations would be much more complicated than some state laws may allow.

For all these reasons, much of the country has been pushed toward the same commercial model for marijuana with no serious alternatives offered.

Ballot measures also can’t be as comprehensive as bills produced by a legislature and governor. While activists and experts note that Oregon’s measures don’t do enough to address concerns about the war on drugs and mass incarceration, the truth is it would be really difficult, if not impossible, to deal with all these issues through the ballot process — requiring possibly dozens of initiatives over years and years. A legislature could, at least in theory, enact many of the necessary reforms in a single piece of legislation.

But that requires lawmakers overcoming the caution they exhibit toward drug policy.

Until then, Oregon activists and voters have demonstrated, with popular support, a possible framework for the US beginning to end its war on drugs.

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