After Fifty Years of the War on Drugs, the Nation Looks West: Why Oregon Required the Drug Addiction Treatment and Recovery Act and What We Can Learn From It

1005

AFTER FIFTY YEARS OF THE WAR ON DRUGS, THE NATION

LOOKS WEST: WHY OREGON REQUIRED THE DRUG

ADDICTION TREATMENT AND RECOVERY ACT AND WHAT

WE CAN LEARN FROM IT

Cailin Harrington*

INTRODUCTION

Justice Louis Brandeis famously recognized that “a single

courageous state may, if its citizens choose, serve as a laboratory; and

try novel social and economic experiments without risk to the rest of

the country.”

With the passage of Ballot Measure 110 in November

2020, Oregon epitomized Justice Brandeis’s sentiment by becoming

the first state to decriminalize small amount illicit drug possession.

The United States has viewed drug policy and substance use disorders

through a criminal lens since 1971 when President Richard Nixon

declared drug abuse to be “public enemy [number one]” and waged a

“War on Drugs.”

After nearly fifty years of this war, Oregon aims to

“make screening, health assessment, treatment and recovery services

for drug addiction available to all those who need and want access to

those services and to adopt a health approach to drug addiction by

removing criminal penalties for low-level drug possession.”

Oregon Measure 110, or the Drug Addiction Treatment and

Recovery Act, approved “two shifts in how the state deals with the use

*J.D. Candidate, 2023, Seton Hall University School of Law; B.A., Tufts University. I

would like to express my gratitude to my faculty advisor, Jennifer Oliva, for her

guidance and support in the writing of this Comment.

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932).

Drug Addiction Treatment and Recovery Act, 2021 Or. Laws ch. 2, amended by

2021 Or. Laws ch. 591.

See Brian Mann, After 50 Years of the War on Drugs, ‘What Good Is it Doing for Us?’,

NPR (June 17, 2021, 5:00 AM), https://www.npr.org/2021/06/17/1006495476/after-

50-years-of-the-war-on-drugs-what-good-is-it-doing-for-us.

Drug Addiction Treatment and Recovery Act, 2021 Or. Laws Ch. 591 (emphasis

added).

1006 SETON HALL LAW REVIEW [Vol. 53:1005

of illegal drugs.”

“First, the measure reduces penalties for small

amount drug possession.”

Second, it funds a new drug addiction

treatment and recovery grant program by combining marijuana sales

revenues with the anticipated savings achieved from the current cost

of enforcing criminal drug possession penalties.

This state law, implemented via Oregon Senate Bill 755, passed in

response to a longstanding, criminal-centric, and failed public policy

approach to drug use. Measure 110 addresses the need for change as

Oregon law enforcement arrested more than 8,000 people in 2017 for

nothing more serious than simple drug possession.

This effort cost

the state an average of $15,000 per case, which is more than the

average cost to provide drug treatment.

Yet Oregon ranks nearly last

out of the fifty states in access to treatment.

This is troubling given

that one in eleven Oregonians suffer from drug use disorder.

The

Drug Addiction Treatment and Recovery Act demonstrates Oregon’s

recognition that it must “shift its focus to addressing drugs through a

humane, cost-effective, health approach” as drug-possession-related

recidivism results from the inability to access treatment.

It is important to recognize Oregon as a pioneer in drug

decriminalization to encourage other states to follow suit and to push

the federal government to understand and acknowledge the dire need

to reframe the narrative surrounding substance use disorders. This

Comment traces the development of drug policy in the United States

to illustrate why Oregon enacted the Drug Addiction Treatment and

Recovery Act, how the statute has been implemented, and what other

states can, and should, take away from Oregon trailblazing into drug

decriminalization.

Part II of this Comment provides a history of the War on Drugs as

well as its intended and unintended consequences. Part III describes

both foreign and domestic drug policy reform efforts. Part IV then

turns to Oregon and focuses on the State’s drug decriminalization

history, its drug use landscape, and key components of its most recent

OR. LEGIS. POL’Y AND RSCH. OFF., MEASURE 110 BACKGROUND BRIEF 1 (2020)

[hereinafter O

R., MEASURE 110 BACKGROUND BRIEF].

Id.

Drug Addiction Treatment and Recovery Act, 2021 Or. Laws ch. 2.

Id.

2023] COMMENT 1007

drug reforms. Part V identifies and analyzes what other states should

glean from Oregon’s approach. Finally, Part VI concludes this

Comment by emphasizing the necessity for widespread drug policy

reform in the United States.

II.

HISTORY OF THE WAR ON DRUGS

Acknowledging the history of the War on Drugs and its impact

lays the foundation for understanding why Oregon enacted drastic

drug policy reform aimed at enhancing access to evidence-based

treatment for individuals with substance use disorders. This Part

provides a history of the American War on Drugs by describing the

evolution of the country’s key drug policies over the past fifty years,

beginning with those of the Nixon Administration. It then highlights

how these policies have failed by instigating unprecedented levels of

mass incarceration, racial disparities, and economic and medical

turmoil in the United States.

A. Fifty Years of United States Drug Policy

President Nixon identified “drug abuse as ‘a serious national

threat’” in July 1969, pointing to “a dramatic jump in drug-related

juvenile arrests and street crime” during the 1960s.

Soon thereafter,

Congress passed Title II of the Comprehensive Drug Abuse Prevention

and Control Act of 1970, commonly referred to as the Controlled

Substances Act (CSA).

The CSA has provided the legal basis for the

government’s War on Drugs since its codification. It superseded all

prior federal drug laws and established the currently used five-

schedule system for categorizing drugs based on their medicinal value

and misuse potential.

The CSA also established the National

Commission on Marijuana and Drug Abuse—known as the Shafer

Commission after its chairman, Pennsylvania Governor Raymond

Shafer—to study cannabis abuse in the United States.

Giving the

Timeline: America’s War on Drugs, NPR (Apr. 2, 2007, 5:56 PM),

https://www.npr.org/templates/story/story.php?storyId=9252490.

Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No.

91-513, §§ 100–709, 84 Stat. 1236, 1242–84 (codified at 21 U.S.C. §§ 801–971).

See Controlled Substances Act, 21 U.S.C. § 812.

Emily Dufton, Richard Nixon Went to War on Marijuana. Donald Trump Is Making

the Same Mistake with Opioids, W

ASH. POST (Apr. 20, 2018, 6:00 AM),

https://www.washingtonpost.com/news/made-by-history/wp/2018/04/20/richard-

nixon-went-to-war-on-marijuana-donald-trump-is-making-the-same-mistake-with-

opioids.

1008 SETON HALL LAW REVIEW [Vol. 53:1005

Commission two years to interview, survey, and research, Nixon

“hoped the commission would connect cannabis to the troubles of the

time . . . warranting marijuana’s placement in Schedule I, the strictest

and most highly punishable level of control.”

In June 1971, Nixon officially declared a “War on Drugs” and

identified drug abuse to be “public enemy number one.”

He argued

“it [was] necessary to wage a new all-out offensive” against the so-called

drug scourge.

The White House demonstrated its commitment to

that strategy by ignoring scientific evidence presented by the 1972

Shafer Commission Report.

After finding no link between cannabis

and criminal behavior, the Report recommended that the federal

government direct its resources toward the ongoing heroin epidemic

as opposed to the enforcement of cannabis criminalization.

Nixon publicly dismissed these findings and rejected the Report’s

recommendations to decriminalize cannabis.

One year later, Nixon

created the Drug Enforcement Agency (DEA) to coordinate the efforts

of the multiple federal agencies involved with drug policy. Since its

founding, the DEA’s mission has been “to enforce the controlled

substances laws and regulations of the United States.”

Despite the Nixon Administration’s anti-drug policy efforts,

“eleven states decriminalized marijuana possession” between 1973 and

1977.

Also in 1977, President Jimmy Carter was elected on a platform

that included ending federal criminal penalties for possession of up to

one ounce of marijuana.

But just a few years later, incarceration rates

began to skyrocket under the Reagan Administration’s tough-on-crime

tactics.

Shortly after President Reagan took office, Nancy Reagan began

her “Just Say No” anti-drug campaign, which mirrored the zero

tolerance policies of the Reagan War on Drugs that came to define the

Id.

The Editors of Encyclopedia Britannica, War on Drugs, ENCYC. BRITANNICA (Sept.

20, 2022), https://www.britannica.com/topic/war-on-drugs.

Mann, supra note 3.

Dufton, supra note 16.

Id.

About, DEA, https://www.dea.gov/who-we-are/about (last visited Feb. 21, 2022).

A History of the Drug War, DRUG POL’Y ALL., https://drugpolicy.org/issues/brief-

history-drug-war (last visited Feb. 21, 2022).

See Timeline: America’s War on Drugs, supra note 13.

2023] COMMENT 1009

1980s.

The Comprehensive Crime Control Act of 1984 dramatically

increased federal penalties for the cultivation, possession, or transfer

of marijuana.

This comprehensive revision of the United States

criminal code also included the Sentencing Reform Act, which created

the United States Sentencing Commission (USSC) and abolished

federal parole.

Two years later, Reagan signed the Anti-Drug Abuse Act of 1986,

which allocated $1.7 billion to the War on Drugs and established a

series of mandatory minimum prison sentences for drug offenses.

This legislation notably included a massive 100-to-1 gap between the

amounts of crack and powder cocaine that resulted in the same

minimum sentence.

Crack cocaine is chemically identical to powder

cocaine but was cheaper and, therefore, more popular among lower-

income Americans.

Congress further amended the statute in 1988 to

make crack cocaine the only drug with a mandatory minimum penalty

for a first offense of simple possession.

This revision also re-

established the federal death penalty and created the Office of

National Drug Control Policy (ONDCP).

Although President Bill Clinton campaigned on a platform that

promoted treatment over incarceration, he perpetuated the drug war

once he entered office in 1993.

For example, Clinton signed the

Violent Crime Control and Law Enforcement Act of 1994. Title VI of

the legislation, the Federal Death Penalty Act, created sixty new death

penalty offenses, including non-homicidal narcotics crimes.

Further,

A History of the Drug War, supra note 24.

See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, § 502, 98

Stat. 1976, 2068–69.

Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (codified at 18

U.S.C. §§ 3551–3586).

The Editors of Encyclopedia Britannica, supra note 18.

Id.

See Crack vs Cocaine: What’s the Difference Between Crack & Cocaine?, AM. ADDICTION

CTRS., https://americanaddictioncenters.org/cocaine-treatment/differences-with-

crack (last visited Nov. 13, 2022); The Editors of Encyclopedia Britannica, supra note

18.

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 6371, § 404(a), 102 Stat.

4181, 4370.

Id.

See Timeline: America’s War on Drugs, supra note 13; see also A History of the Drug

War, supra note 24.

Federal Death Penalty Act of 1994, Pub. L. No. 103-322, Title VI, § 60001, 108

Stat. 1959 (codified at 18 U.S.C. § 3591 et. seq.).

1010 SETON HALL LAW REVIEW [Vol. 53:1005

in 1995, the USSC released a report acknowledging the racial

disparities for prison sentencing for powder cocaine versus crack.

The Commission suggested reducing the sentencing discrepancy;

however, the Clinton Administration rejected the USSC’s

recommendation for the first time in history.

At the turn of the century, President George W. Bush “arrived in

the White House as the drug war was running out of steam—yet he

allocated more money than ever to it.”

During President Bush’s four-

year term, law enforcement conducted “about 40,000 paramilitary-style

SWAT raids on Americans every year—mostly for nonviolent drug law

offenses, often misdemeanors.”

Although Bush’s drug czar, John

Walters, focused on marijuana prohibition and promoting student

drug testing, state-level reforms slowed the growth of the drug war.

Once public concerns regarding the effectiveness of the War on

Drugs increased, public support for the most draconian aspects of the

drug war began to wane.

Such public sentiment culminated in

notable drug policy reforms, including state-level marijuana legislation

and Congressional enactment of the Fair Sentencing Act of 2010

under the Obama Administration.

The Fair Sentencing Act reduced

the 100-to-1 crack-to-powder drug quantity ratio to an 18-to-1

disparity.

The Obama Administration also passed the

Comprehensive Addiction and Recovery Act of 2016, which was

intended to prevent substance use disorders by increasing access to

treatment programs.

But this legislation is subject to state law,

meaning state legislatures may impose additional regulations that

further restrict treatment access. One such example is the state level

restrictions for opioid agonist treatments.

Timeline: America’s War on Drugs, supra note 13.

Id. A History of the Drug War, supra note 24.

Id.

The Editors of Encyclopedia Britannica, supra note 18.

See id.; see also U.S. SENT’G COMM’N, REPORT TO THE CONGRESS: IMPACT OF THE FAIR

SENTENCING ACT OF 2010 (2015), https://www.ussc.gov/research/congressional-

reports/2015-report-congress-impact-fair-sentencing-act-2010.

The Editors of Encyclopedia Britannica, supra note 18.

See Comprehensive Addiction and Recovery Act of 2016, Pub. L. No. 114-198,

130 Stat. 695.

Kellen Russoniello, Opioid Agonist Treatment: The Gold Standard for Opioid Use

Disorder Treatment, D

RUG POL’Y ALL. 2 (2021).

2023] COMMENT 1011

Although Obama Administration reforms nudged drug policy in

a direction that prevents substance use disorders rather than

criminalizing them, the United States continues to refuse to

implement a health-based approach. In 2017, President Donald

Trump convened the White House Commission on Combating Drug

Addiction and the Opioid Crisis to deal with the Administration’s

inability to stem the overdose tide.

The Commission was housed in

the ONDCP and was tasked with providing recommendations aimed at

improving the federal government’s response to overdose deaths.

In July 2017, the Commission recommended that the Trump

Administration declare the opioid epidemic a national emergency,

which would release millions in federal funds to address the crisis.

Instead, Trump declared it a “public health emergency,” and

dedicated only $57,000 in federal funding to the cause, which was a far

cry from a reasonable investment.

In November 2017, the

Commission made it explicit that more federal assistance was needed

to tackle the opioid crisis.

Instead of adopting the Commission’s

recommendations, Trump followed in the footsteps of Nixon, publicly

mocked the Commission’s findings, and ultimately disbanded the

group.

President Trump also “resurrected disproven ‘just say no’

messaging aimed at youth.”

As of 2021, President Joe Biden has admitted that it was a

“mistake” to support legislation that ramped up the War on Drugs and

dramatically increased incarceration, including the 1994 crime bill.

But admitting to past mistakes is not enough: Biden must now employ

a compassionate approach to problematic drug use—a perspective that

he claims to support.

Given the War on Drugs’s intended and

collateral consequences, the federal government must adopt real

change that employs a humane approach to drug use by increasing

access to treatment and harm reduction services.

Dufton, supra note 16.

Id.

A History of the Drug War, supra note 24.

Id.

1012 SETON HALL LAW REVIEW [Vol. 53:1005

B. Intended and Unintended Effects of the War on Drugs

The War on Drugs has led to unprecedented levels of mass

incarceration, racial and socioeconomic disparities, and economic and

medical turmoil in the United States. Years after Nixon officially

declared the War on Drugs, a top Nixon aide, John Ehrlichman,

admitted:

You want to know what this was really all about. The Nixon

campaign in 1968, and the Nixon White House after that,

had two enemies: the antiwar left and black people. You

understand what I’m saying. We knew we couldn’t make it

illegal to be either against the war or black, but by getting the

public to associate the hippies with marijuana and blacks

with heroin, and then criminalizing both heavily, we could

disrupt those communities. We could arrest their leaders,

raid their homes, break up their meetings, and vilify them

night after night on the evening news. Did we know we were

lying about the drugs? Of course we did.

This sentiment marked the beginning of the United States becoming

the world’s leader in incarceration, and it continues to produce

disastrous results today.

There are two million people in the United States’ prisons and

jails, which is a 500 percent increase over the past forty years.

The

number of Americans incarcerated just for drug-related offenses

increased “from 40,900 in 1980 to 430,926 in 2019.”

Further, “[a]t

the federal level, people incarcerated on a drug conviction make up

nearly half the prison population.”

And, while the number of people

in prison for drug offenses at the state level has begun declining in

recent years, it nonetheless “has increased nine-fold since 1980.”

Additionally, harsh sentencing laws, including mandatory minimums,

“keep many people convicted of drug offenses in prison for longer

periods of time.”

From 1986 to 2004, the average prison length for a

federal drug offense increased from twenty-two months to sixty-two

Id.

THE SENT’G PROJECT, FACT SHEET: TRENDS IN U.S. CORRECTIONS (2021),

https://www.sentencingproject.org/app/uploads/2022/08/Trends-in-US-

Corrections.pdf.

Id.

2023] COMMENT 1013

months.

The impact of mass incarceration in the United States is

multifaceted, yet it has not produced the impacts its proponents

championed. This is because incarcerating people for drug-related

offenses neither substantially impacts rates of substance use nor

significantly improves public safety.

In terms of decreasing the rate of substance use, numerous studies

demonstrate that mass incarceration is not the answer. In 2014, Pew

Charitable Trusts examined “data from federal and state law

enforcement, corrections, and health agencies” and “found no

statistically significant relationship between state drug imprisonment

rates and three indicators of state drug problems: self-reported drug

use, drug overdose deaths, and drug arrests.”

Simply stated, higher

rates of drug-related imprisonment did not result in lower rates of drug

use, arrests, or overdose deaths.

The Pew Study also provided state comparative analyses as

illustrative examples; for instance, Tennessee imprisons drug

offenders at more than three times the rate of New Jersey.

But the

states’ rates of drug use are roughly equal.

Other studies have shown

that incarceration leads to increased mortality from overdose;

individuals who have been incarcerated are almost thirteen times more

likely to die than the general population in the first two weeks after

their release from prison.

Further, during that two-week period,

previously incarcerated individuals are at a 129 percent greater risk of

dying from an overdose than the general public.

In terms of public safety, mass incarceration has a negligible

effect. Although crime rates have declined since 1990, “researchers

attribute 75 to 100 percent of these reductions to factors other than

incarceration.”

Notably, research indicates that “[i]ncreased

Id.

See THE SENT’G PROJECT, supra note 56.

PEW RSCH. CTR., MORE IMPRISONMENT DOES NOT REDUCE STATE DRUG PROBLEMS

1 (2018), https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2018/03

/more-imprisonment-does-not-reduce-state-drug-problems.

Id. at 5.

Id.

Betsy Pearl, Ending the War on Drugs: By the Numbers, CTR. FOR AM. PROGRESS (June

27, 2018), https://www.americanprogress.org/issues/criminal-justice/reports/2018

/06/27/452819/ending-war-drugs-numbers.

Id.

1014 SETON HALL LAW REVIEW [Vol. 53:1005

incarceration has no effect on violent crime.”

This is because

incarceration is “ineffective at reducing certain kinds of crimes” as

research “indicates that the public safety impact of incapacitating [low

level offenders] is essentially nullified because they are rapidly

replaced.”

While mass incarceration in the United States has neither

improved rates of substance misuse nor increased public safety, it has

led to racial disparities and economic turmoil. Black Americans

constitute nearly 30 percent of all drug-related arrests but only account

for 12.5 percent of all substance users.

Further, “[a]lmost 80 percent

of people serving time for a federal drug offense are black or Latino.”

At the state level, 60 percent of those serving time for drug charges are

people of color.

In terms of harsh sentencing laws, people of color

account for 70 percent of all defendants convicted of charges that carry

a mandatory minimum sentence.

The nation’s racial disparities

connected to drug-related incarceration are simply staggering.

The steady increase in the federal prison population has fueled

the increase in federal prison spending. From 1980 to 2013, spending

increased 595 percent, and the War on Drugs was estimated to have

cost the United States about $1 trillion between 1971 and 2018.

2015, “the federal government spent an estimated $9.2 million every

day to incarcerate people charged with drug-related offenses.”

State

governments spent another $7 billion that year for drug-related

charges.

The federal and state governments funnel exorbitant monetary

resources and taxpayer dollars into a system that does not work. This

nation has endured years of mass incarceration with no positive

impacts on drug use or overdose epidemics. Other countries, like

Portugal, faced similar issues but instead pivoted the country’s

DON STEMEN, VERA INST. OF JUST., THE PRISON PARADOX: MORE INCARCERATION

WILL NOT MAKE US SAFER 5 (2017), https://www.vera.org/downloads/publications

/for-the-record-prison-paradox_02.pdf.

PEW RSCH. CTR., supra note 63.

Pearl, supra note 66.

Id.

PEW RSCH. CTR., supra note 63; Pearl, supra note 66.

Pearl, supra note 66.

Id.

2023] COMMENT 1015

approach and realized substantially improved outcomes. The United

States must do the same.

III.

ADDRESSING THE NAYSAYERS: PORTUGAL AS THE GOLD STANDARD

AND

MARIJUANA LEGALIZATION IN THE UNITED STATES

Opponents to progressive drug policy reform argue that drug

decriminalization will increase the rate of drug use and produce other

grave consequences. But Portugal became the prime example of how

such progressive reform can put less people behind bars while

simultaneously increasing access to treatment. Further, Portugal’s

decriminalization of small amount drug possession in 2001 did not

result in an increase in rates of drug use.

Oregon acknowledged the genius of the Portuguese model and

sought to replicate aspects of it in the state’s own drug policy.

Some

may argue that drug decriminalization in the European Union and the

United States are not comparable. This rings hollow, however, given

that state-level marijuana legalization in the U.S. has failed to produce

the negative effects so many prohibitionists predicted. This Part

describes why Portugal’s model is the gold standard in drug

decriminalization. It also examines the effects of marijuana

legalization in the United States on a state level.

A. Portugal: The Gold Standard in Drug Decriminalization

Despite Portugal’s roots as a historically Catholic, traditional, and

conservative country, Portugal’s government implemented a

comprehensive drug policy reform that both treats drug possession as

an administrative offense and includes “prevention and social

education, discouraging people from further use of controlled

substances, harm reduction, treatment for drug dependent people,

and assistance in reintegrating them into society.”

Portugal

implemented its reforms in the midst of a serious drug crisis; while

lifetime prevalence of illicit drug use had historically been low in the

country, drug consumption became a subject of social concern in the

late 1980s.

This resulted from the rise of a significant population of

See ARTUR DOMOSLAWSKI, DRUG POLICY IN PORTUGAL: THE BENEFITS OF

DECRIMINALIZING DRUG USE 14–15 (Hanna Siemaszko trans., 2011).

See Hilary Beaumont, Oregon’s Bold Drug Decriminalisation Sees Some Success – But

Use Still Rising, T

HE GUARDIAN, (Apr. 4, 2022, 2:00 PM), https://www.theguardian.com

/us-news/2022/apr/04/oregon-drugs-decriminalisation-ballot-measure-110.

Id. at 9.

Id. at 14.

1016 SETON HALL LAW REVIEW [Vol. 53:1005

intravenous heroin users.

Rates of HIV, AIDS, Tuberculosis,

Hepatitis B and C skyrocketed, necessitating the appointment of a

committee of specialists to analyze the Portuguese drug issue.

In 1998, the Portuguese government appointed a committee of

doctors, sociologists, psychologists, lawyers, and social activists to

formulate recommendations for a national strategy.

Eight months

after the committee was formed, it recommended the

decriminalization of drug possession and use.

Additionally, the

committee emphasized that the government should focus on

“prevention and education, harm reduction, broadening and

improving treatment programs for drug dependent persons, and

activities that helped at-risk groups and current drug users maintain or

restore their connections to family, work, and society.”

These

recommendations—the legislative reforms and new national drug

strategy—were seen as intrinsically linked.

Decriminalization would

provide a more humane legal framework, and the new drug strategy

would open up alternative methods for the field to respond to drug

issues as opposed to the previous system that was failing.

Unlike the

United States government, which has a storied history of ignoring the

recommendations of appointed committees, the Portuguese

government accepted almost all the specialists’ recommendations.

Portugal enacted Law 30/2000 in 2000.

Under this legal regime,

Portugal refers individuals who consume, purchase, or possess up to a

ten days’ supply of an illicit drug to an administrative panel, which

makes recommendations for treatment, fines, warnings, or other

penalties, such as community service or “suspensions on professional

licenses and bans on attending designated places.”

Proponents of

this scheme argued that decriminalization was “based on the

fundamental notion of ‘fighting the disease, not the patients.’”

CAITLIN ELIZABETH HUGHES & ALEX STEVENS, WHAT CAN WE LEARN FROM THE

PORTUGUESE DECRIMINALIZATION OF ILLICIT DRUGS? 1001 (2010).

Id.; DOMOSLAWSKI, supra note 78, at 20.

DOMOSLAWSKI, supra note 78, at 17.

Id.

Id. at 17–18.

HUGHES & STEVENS, supra note 82, at 1002.

Id.

DOMOSLAWSKi, supra note 78, at 19.

Id. at 23, n.18.

HUGHES & STEVENS, supra note 82, at 1002.

DOMOSLAWSKI, supra note 78, at 19.

2023] COMMENT 1017

Further, the policies were “not about giving the green light to drug

use, but rather about reducing harm, stopping senseless punishment,

and achieving better control over the drug problem.”

Opponents of

the scheme claimed that decriminalization would cause a sudden spike

in drug use and that “Portugal would become a drug paradise.”

Those skeptics, however, turned out to be wrong.

Research indicates that treating addiction as a disease as opposed

to criminal behavior yields a clear gain.

Since Portugal’s

decriminalization of drugs and implementation of the new national

drug strategy, the number of people who enter treatment programs

has increased every year, indicating that the prevention schemes are

reaching more drug-dependent people.

Additionally, as of 2008,

“three-quarters of those with opioid use disorder were receiving

medication-assisted treatment.”

And, while there may have been

small-to-moderate increases in overall reported drug use in the general

population, “the level of drug use in the most ‘sensitive’ group [those

fifteen to nineteen years old] has decreased from 10.8 percent to 8.6

percent.”

Most significantly, the prevalence of problematic drug use

(and intravenous drug use in particular) is estimated to have

declined.

Consequently, drug-related HIV infections in Portugal,

which was one of the driving forces behind the reform, have

declined.

100

The number of people Portugal arrested for drug offenses

declined by more than 60 percent annually following

decriminalization.

101

Additionally, “[a] 2015 study found that the per

capita social cost of drug misuse in Portugal decreased by an average

of 18 percent over the period 2000-2010.”

102

These results indicate that none of the predictions of the

opponents to drug decriminalization in Portugal have come to pass.

Id. at 26.

Id. at 24.

Austin Frakt, Pointers from Portugal on Addiction and the Drug War, N.Y. TIMES (Oct.

5, 2020), https://www.nytimes.com/2020/10/05/upshot/portugal-drug-legalization-

treatment.html.

DOMOSLAWSKI, supra note 78, at 34.

Frakt, supra note 95.

DOMOSLAWSKI, supra note 78, at 44.

HUGHES & STEVENS, supra note 82, at 1006.

100

DOMOSLAWSKI, supra note 78, at 13.

101

HUGHES & STEVENS, supra note 82, at 1008–09.

102

DRUG POL’Y ALL., IT’S TIME FOR THE U.S. TO DECRIMINALIZE DRUG USE AND

POSSESSION 24 (2017).

1018 SETON HALL LAW REVIEW [Vol. 53:1005

Instead, Portugal provides an example for other countries in terms of

developing a comprehensive public-health-centered framework for

drug decriminalization. The Czech Republic, the Netherlands, and

Mexico followed Portugal’s lead; these countries decriminalized

possession of all drugs since 2000.

103

As one study noted,

the greatest lesson of the Portuguese decriminalization

policy is that it demonstrates that there are ways to overcome

the lack of will among political elites and societies made

afraid by the fear-mongering propaganda of the “war on

drugs” and, in doing so to constructively build rational and

humanitarian drug policies.

104

This attitude has made its way into the United States drug policy

debate, but it has not yet prevailed. Opponents will continue to

maintain that while drug decriminalization may be possible elsewhere,

it will result in grave consequences in America. Unsurprisingly,

prohibitionists advance these same arguments with respect to state-

level marijuana legalization in the United States.

105

As the following

section demonstrates, states that have legalized recreational marijuana

present an example of progressive drug policy reform, casting grave

doubt on ongoing prohibitionist claims about drug decriminalization.

B. The Effects of Marijuana Legalization at the State Level

In the last two decades, United States citizens have substantially

shifted their cultural attitudes regarding both medical and

recreational use of marijuana.

106

In fact, a 2021 study found that fewer

than 10 percent of American adults say marijuana should remain

entirely illegal, while 60 percent of adults say it should be legal for

medical and recreational use, and 31 percent say it should be legal just

for medical use.

107

This was not always the case.

103

DOMOSLAWSKI, supra note 78, at 45.

104

Id. at 50.

105

Samuel T. Wilkinson, More Reasons States Should Not Legalize Marijuana: Medical

and Recreational Marijuana: Commentary and Review of the Literature, 110 M

O. MED. 524–

528 (2013).

106

Ted Van Green, Americans Overwhelmingly Say Marijuana Should Be Legal for

Recreational or Medical Use, P

EW RSCH. CTR. (Apr. 16, 2021),

https://www.pewresearch.org/fact-tank/2021/04/16/americans-overwhelmingly-say-

marijuana-should-be-legal-for-recreational-or-medical-use.

107

Id.

2023] COMMENT 1019

When Colorado and Washington became the first states to

legalize recreational marijuana in 2012,

108

the public was divided over

whether use of the drug should be legalized.

109

In 2011, approximately

50 percent of people opposed legalization, while only about 45 percent

favored it.

110

Since then, however, public attitudes have shifted in favor

of legalization, leading to twenty-one other states legalizing

recreational marijuana.

111

Those opposed to marijuana legalization argue that it “spurs

marijuana and other drug use or alcohol use, increases crime,

diminishes traffic safety, harms public health, and lowers teen

educational achievement.”

112

This section analyzes the impacts of

marijuana legalization to demonstrate the inaccuracy of the “fear-

mongering propaganda” surrounding drug reform in the United

States.

113

A 2021 study by the CATO Institute includes several important

findings regarding the impact of marijuana legalization.

114

The study

drew four important conclusions regarding rates of marijuana and

other drug and alcohol use. First, while legalizing states did in fact

display increasing rates of use prevalence, such patterns existed prior

to legalization.

115

This indicates that post-legalization rates of

marijuana use have not skyrocketed as opponents predicted, but rather

continued from the pre-legalization trend. This further reflects the

shift in the cultural attitude towards marijuana. Second, the available

data on young people self-reporting marijuana use shows “no obvious

effect of legalization on youth marijuana use.”

116

This finding directly

challenges a predominant concern regarding marijuana legalization’s

potential negative impacts on youth. Third, opponents of legalization

108

Angela Dills et al., The Effect of State Marijuana Legalizations: 2021 Update, POL’Y

ANALYSIS (Cato Inst., Washington, D.C.), Feb. 2, 2021, at 1, 1, https://www.cato.org

/policy-analysis/effect-state-marijuana-legalizations-2021-update.

109

Id. Russell Heimlich, Nearly Half Support Legalization of Marijuana, PEW RSCH.

CTR. (Nov. 12, 2012), https://www.pewresearch.org/fact-tank/2012/11/12/nearly-

half-support-legalization-of-marijuana.

110

Heimlich, supra note 109.

111

Casey Leins et al., States Where Recreational Marijuana is Legal, U.S. NEWS & WORLD

REP. (July 27, 2022), https://www.usnews.com/news/best-states/slideshows/where-is-

pot-legal.

112

Dills, supra note 108, at 1.

113

DOMOSLAWSKI, supra note 78, at 50.

114

See generally Dills, supra note 108.

115

Id. at 5.

116

Id. at 6.

1020 SETON HALL LAW REVIEW [Vol. 53:1005

argue that marijuana is a gateway drug that leads to consumption of

other drugs like cocaine, but data suggests “no clear relationship

between marijuana legalization and cocaine use . . . [or] alcohol

use.”

117

Finally, although prohibitionists contend that legalization

would cause marijuana prices to drop and therefore lead to increases

in use, marijuana prices have barely budged.

118

The CATO study also demonstrates that marijuana legalization

did not impact crime or the economy as opponents predicted.

“[V]iolent crime has neither soared nor plummeted,” and the

marijuana industry created 77,000 jobs in 2020.

119

Further, tax revenue

from legal recreational marijuana has skyrocketed since its inception.

For example, Colorado now collects almost $20 million per month

from recreational marijuana, whereas the State only generated $135

million in recreational marijuana revenue during all of 2015.

120

It appears that those critical of marijuana legalization have

substantially overstated their case. As the CATO Institute concluded,

“[t]he absence of significant adverse consequences is especially

striking given the sometimes-dire predictions made by legalization

opponents.”

121

These findings make clear that drug policy reform is

possible in the United States.

IV.

OREGON AT THE FOREFRONT OF DRUG POLICY REFORM IN THE

UNITED STATES

Oregon is no stranger to leading the United States in drug policy

reform efforts: the State has been at the forefront of marijuana reform.

Oregon is also accustomed to leading this nation with one of the

highest rates of substance use disorders. This Part provides a brief

history of drug decriminalization in Oregon. It then demonstrates why

Oregon enacted the Drug Addiction Treatment and Recovery Act.

This Part concludes by highlighting key components of Oregon’s drug

decriminalization legislation to demonstrate how drug policy will

operate in the state moving forward.

117

Id. at 8.

118

Id. at 6–7.

119

See generally Dills, supra note 108, at 9; Greg Rosalsky, The Data on Legalizing Weed,

NPR (Mar. 16, 2021, 6:30 AM), https://www.npr.org/sections/money/2021/03/16

/976265525/the-data-on-legalizing-weed.

120

Dills, supra note 108, at 10 (Washington has realized similar increases in tax

revenue).

121

Id. at 11.

2023] COMMENT 1021

A. Brief History of Drug Decriminalization in Oregon

Oregon became the first state in the nation to decriminalize

marijuana in 1973.

122

In 1986, Oregon voters rejected Ballot Measure

5, the Oregon Marijuana Legalization for Personal Use Act, which

would have legalized cannabis.

123

The initiative garnered the support

of only 26.33 percent of the voters; however, efforts to recriminalize

cannabis were defeated in 1995 when Oregon House Bill 3466 died on

the floor.

124

Just three years later, in 1998, Oregon voters passed Ballot

Measure 67, the Oregon Medical Marijuana Act, joining a small group

of states that legalized medical marijuana.

125

Oregon voters finally

legalized recreational marijuana through Ballot Measure 91, the

Control, Regulation, and Taxation of Marijuana and Industrial Hemp

Act, in 2014.

126

Oregon advanced its most progressive drug reform in November

2020 when its voters passed Ballot Measures 109 and 110. Measure 109

passed with 55.75 percent support and legalized psilocybin mushrooms

for use in therapeutic settings.

127

Measure 110, the focus of this

Comment, passed the vote with 58.46 percent support, making Oregon

the first state to decriminalize small amount drug possession.

128

It is

important to note that Oregon’s last four successful drug reforms—

Measure 67 of 1998, Measure 91 of 2014, and Measures 109 and 110 of

2020—came to fruition via state ballot initiatives, which require

majority support from Oregon voters instead of elected legislators.

122

Marijuana, ASS’N OF OR. CNTYS., https://oregoncounties.org/news/publications

/marijuana/ (last visited Sept. 24, 2021).

123

Oregon Marijuana Legalization for Personal Use, Ballot Measure 5 (1986),

ALLOTPEDIA, https://ballotpedia.org/Oregon_Marijuana_Legalization_for_Personal

_Use,_Ballot_Measure_5_(1986) (last visited Feb. 21, 2022).

124

Id.

125

Marijuana, supra note 122.

126

Oregon Legalized Marijuana Initiative, Measure 91 (2014), BALLOTPEDIA,

https://ballotpedia.org/Oregon_Legalized_Marijuana_Initiative,_Measure_91

_(2014) (last visited Feb. 21, 2022).

127

Oregon Measure 109, Psilocybin Mushroom Services Program Initiative (2020),

ALLOTPEDIA, https://ballotpedia.org/Oregon_Measure_109,_Psilocybin_Mushroom

_Services_Program_Initiative_(2020) (last visited Feb. 21, 2022).

128

Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative

(2020), B

ALLOTPEDIA, https://ballotpedia.org/Oregon_Measure_110,_Drug

_Decriminalization_and_Addiction_Treatment_Initiative_(2020) (last visited Feb. 21,

2022).

1022 SETON HALL LAW REVIEW [Vol. 53:1005

B. Oregon Drug Landscape

Oregon should undoubtedly be recognized for its valiant drug

policy reform efforts. But it should also be acknowledged that Oregon

enacted the Drug Addiction Treatment and Recovery Act due to

previous drug policy failures on the national level. For the past fifty

years, United States drug policy has centered around punitive

measures, including incarceration and coerced treatment. Oregon’s

decriminalization and health-based approach not only reflects

society’s evolving attitudes towards drugs but also the dire need for

change both nationally and in the State.

According to the 2021 State of Mental Health in America report,

Oregon ranked 48th in the United States in prevalence of mental

health and substance use disorders and access to care, indicating one

of the highest rates of mental illnesses and lowest rates of access to care

in the country.

129

This ranking is a troublesome result of how few state

dollars were dedicated to treatment services. Oregon spends about

$6.7 billion in state dollars on issues related to substance misuse, but

Oregon allocates less than 1 percent of that funding towards the

prevention of misuse, treatment, or assistance for those recovering

from substance use disorders.

130

Further, in 2018–2019, the estimated

percentage of people needing but not receiving treatment for

substance use disorder was 8.64 percent, higher than the national

average of 6.88 percent.

131

Oregon’s rates of drug use and substance use disorder are also

much higher than the national average.

132

During 2017–2019, the

annual average prevalence of past-year illicit-drug-use disorder in

Oregon was 3.8 percent (or 137,000), nearly a full percentage point

higher than the national average of 2.9 percent.

133

Throughout that

same time, the annual average prevalence of past-year substance use

disorder in Oregon was 10.2 percent (or 363,000), which was

129

MADDY REINERT, THERESA NGUYEN & DANIELLE FRITZE, 2021 THE STATE OF MENTAL

HEALTH IN AMERICA 9 (2020).

130

OR. ALCOHOL AND DRUG POL’Y COMM’N, 2020-2025 OR. STATEWIDE STRATEGIC

PLAN 5 (2020).

131

SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., NATIONAL SURVEY ON DRUG

USE AND HEALTH 5, 204– 06 (2019), https://www.samhsa.gov/data/report/2018-2019-

nsduh-state-specific-tables.

132

Id. at 5, 205.

133

Elinore F. McCance-Katz et al., Behavioral Health Barometer: Oregon, 6 SUBSTANCE

ABUSE & MENTAL HEALTH SERVS. ADMIN. i, 24 (2019).

2023] COMMENT 1023

significantly higher than the national average of 7.4 percent.

134

2020, Oregon had the fourth-highest prevalence of substance use

disorders among adults in the country at 9.94 percent.

135

Oregon

voters recognized that these statistics indicated a need for statewide

reform and that not enough was being done to mitigate the prevalence

of substance use disorders.

C. Key Components of SB 755

Senate Bill 755 (“the Bill”) was crafted to implement and make

changes to Measure 110 during the 2021 legislative session.

136

The

Findings and Policy section of the enacted law from the Bill states that

Oregonians “find that a health-based approach to addiction and

overdose is more effective, humane and cost-effective than criminal

punishments. Making people criminals because they suffer from

addiction is expensive, ruins lives and can make access to treatment

and recovery more difficult.”

137

This section highlights the key

components of the Bill and explains how they prioritize screening,

health assessment, treatment, and recovery.

The first key component of the Bill is that it expands treatment

and services for those that need and want access to those resources.

Section two creates Behavioral Health Resource Networks (BHRNs).

138

A BHRN is defined as “an entity or collection of entities that

individually or jointly provide some or all of the services described in

subsection (2)(d) of this section.”

139

Minimum services under the Bill

include health screenings and assessments, intervention planning,

peer counseling, mobile outreach, low barrier substance use disorder

treatment, transitional and supportive housing, and harm reduction

services.

140

The legislation requires at least one complete BHRN in

each Oregon county by January 1, 2022.

141

Each BHRN must minimally

staff a certified alcohol and drug counselor, a case manager, and a

certified addiction peer support or wellness specialist.

142

These service

134

Id. at 26.

135

REINERT, NGUYEN & FRITZE, supra note 129, at 19.

136

OR. LEGIS. POL’Y & RSCH. OFF., S. B. 755 ISSUE BRIEF 1 (2021) [hereinafter OR., S.

B. 755 ISSUE BRIEF].

137

Drug Addiction Treatment and Recovery Act, 2021 Or. Laws ch. 591.

138

S.B. 755 § 2(1), 81st Leg., Reg. Sess. (Or. 2021).

139

Id.

140

S.B. 755 §2(2)(d)(A)–(H), 81st Leg., Reg. Sess. (Or. 2021).

141

OR., S. B. 755 ISSUE BRIEF, supra note 136, at 2.

142

Id.

1024 SETON HALL LAW REVIEW [Vol. 53:1005

and staff requirements work toward the goal of ensuring that a client’s

substance use and other social determinants of health are adequately

addressed.

Section two of the Bill also creates the Oversight and

Accountability Council (OAC), which oversees and approves grants

and funding to implement the BHRNs.

143

The OAC may “provide

grants to entities, whether government or community based, so long

as the entity increases access to any of the following: low barrier

substance use treatment, peer support and recovery services, housing

for persons with substance use disorder, harm reduction interventions,

or behavioral healthcare workforce supports.”

144

Notably, the Bill

requires “that the OAC must distribute funding to ensure access to

historically underserved populations and to culturally specific and

linguistically responsive services.”

145

These provisions aim to decrease

the racial and socioeconomic discrepancies perpetuated by the War on

Drugs.

146

To that end, all grantee services (within and outside of

BHRNs) must be free to all people receiving treatment.

147

The Bill’s most significant provision categorizes the unlawful

possession of small amounts of controlled substances as a Class E

violation instead of a crime.

148

This reform draws from Portugal in

terms of decriminalizing possession: instead of facing arrest, those

found with personal use amounts of drugs face a civil citation, not a

criminal citation.

149

Under the Bill, a Class E violation is a presumptive

$100 fine, with a maximum of $100 and a minimum of $45.

150

In lieu

of the fine, those subject to the penalty for a Class E violation may

complete a screening or any equivalent or more intensive treatment

within forty-five days of the citation.

151

Failure to pay a Class E violation

fine, however, is not a basis for further penalties.

152

Prosecuting

attorneys, with the defendant’s consent, may elect to treat certain

pending charges as Class E violations by initiating a Class E violation

143

S.B. 755 § 2(1), 81st Leg., Reg. Sess. (Or. 2021).

144

OR., S. B. 755 ISSUE BRIEF, supra note 136, at 2.

145

Id.

146

See Part II.B (outlining the racial disparities and economic turmoil resulting

from the War on Drugs).

147

Id.

148

S.B. 755 §§ 11–20, 81st Leg., Reg. Sess. (Or. 2021).

149

See Part III.A.

150

S.B. 755 § 13, 81st Leg., Reg. Sess. (Or. 2021).

151

S.B. 755 § 20(1), 81st Leg., Reg. Sess. (Or. 2021).

152

S.B. 755 § 20(3), 81st Leg., Reg. Sess. (Or. 2021).

2023] COMMENT 1025

proceeding if the pending charge was committed on or after February

1, 2021.

153

The final theme of note is funding, particularly the Drug

Treatment and Recovery Fund (DTRF). The Bill requires that each

quarter, any amount in excess of the first $11.25 million in the Oregon

Marijuana Fund be transferred to the DTRF.

154

Further, savings and

revenue as a result of the implementation of the Bill must be

transferred to the DTRF.

155

These monies are first distributed to fund

administrative costs of the Oregon Health Association and then to

fund grant programs administered by the OAC.

156

The Bill also

mandates oversight and administration of the DTRF; for example, the

Oregon Secretary of State must perform real-time audits and financial

reviews.

157

Overall, the Bill represents much-needed drug policy

reform that focuses on individualized health and well-being as opposed

to perpetuating racial disparities and medical and economic turmoil.

WHAT OTHER STATES SHOULD GLEAN FROM OREGON

DECRIMINALIZING SMALL AMOUNT DRUG POSSESSION

Oregon is the first—and only—state in the United States to

decriminalize small amount possession of most illicit drugs. Its sister

states and the federal government should look to Oregon’s new drug

decriminalization scheme and its impacts to assess and understand

potential additional reforms. While Oregon’s scheme is still in the

early days of implementation, there is much that can be learned from

the reform and its projected impacts.

A. The Good

Oregon’s trailblazing legislation undoubtedly includes objectives

that should provoke and encourage future drug decriminalization

work in the United States. This section discusses a cascade of

potentially positive aims that can result from complete

implementation of the Drug Addiction Treatment and Recovery Act,

should Oregon give it the time necessary to reach its full potential.

The first metaphorical domino is the legislation’s elimination of

drug-related criminal penalties, which aims to reduce the number of

153

OR., S. B. 755 ISSUE BRIEF, supra note 136, at 7.

154

Id.

155

Id.

156

Id.

157

Id.

1026 SETON HALL LAW REVIEW [Vol. 53:1005

people ensnared in the criminal justice system for non-violent offenses.

Reflecting on the impacts of incarcerating substance users, Richard

Harris, a former director of mental health and addiction services for

the Oregon Health Authority, explained that “‘[i]f you put them in

jail, you’ve only increased the mountain they have to climb because

they now are unable to gain finance, work and housing unlike people

who don’t have a record.’”

158

The Oregon Criminal Justice Commission (CJC) projected that

the number of felony and misdemeanor convictions for possession of

controlled substances in Oregon would substantially decrease after the

enactment of Measure 110.

159

Specifically, the CJC estimated that the

total number of convictions would fall from 4,057 to 378—a nearly 91

percent reduction.

160

It appears that the CJC’s estimation will be

validated. There were 60 percent fewer total drug arrests in Oregon

over the first ten months since decriminalization compared with the

same period in the previous year.

161

Although the data does not yet

show the extent to which this decline was a result of the legislation, this

reduction is consistent with the CJC’s predictions.

Decreasing the number of people who are arrested for these

offenses necessarily alleviates some of the racial and socioeconomic

disparities that the War on Drugs has perpetuated for far too long. The

CJC found that the primary source of racial and ethnic disparities is in

the rate at which individuals of different races/ethnicities were

convicted of possession of controlled substances.

162

It therefore follows

that drops in arrests and convictions would result in decreases in

criminal justice-related racial and ethnic disparities.

The reduction of drug-related prosecutions also leads to less

money being pumped into a system that has failed the United States

158

Ben Botkin, Ballot Measure Stresses Treatment, Not Jail Time for Drug Possession, LUND

REP. (Aug. 17, 2020), https://www.thelundreport.org/content/ballot-measure-

stresses-treatment-not-jail-time-drug-possession.

159

OR. CRIM. JUST. COMM’N, IP 44 RACIAL AND ETHNIC IMPACT STATEMENT 3 (2020),

https://maps.org/wp-content/uploads/2020/12/IP44-Racial-and-Ethnic-Impact-

Analysis.pdf.

160

Id.

161

See One Year of Drug Decriminalization in Oregon: Early Results Show 16,000 People

Have Accessed Services Through Measure 110 Funding & Thousands Have Avoided Arrest,

RUG POL’Y ALL. (Feb. 1, 2022), https://drugpolicy.org/press-release/2022/02/one-

year-drug-decriminalization-oregon-early-results-show-16000-people-have.

162

OR. CRIM. JUST. COMM’N, IP 44 RACIAL AND ETHNIC IMPACT STATEMENT

SUPPLEMENTAL DOCUMENT 3 (Aug. 5, 2020), https://www.opb.org/pdf/IP44%20-

%20REI%20Statement%20Supplement_1602708982790.pdf.

2023] COMMENT 1027

for over fifty years. Mass incarceration has proven ineffective.

Coercion does not work. Drug courts are not the answer. Legislators

may argue that drug courts are the solution for this nation’s struggle

with substance use disorders. Opponents to drug decriminalization

will argue that decriminalization is pointless because drug courts can

divert and treat people arrested and charged with drug offenses.

Drug courts, however, do not represent an evidence-based,

health-centered response. One of the fundamental tenets of drug

courts is that people with substance use disorders who “choose” to go

into drug court are not making completely voluntary decisions; they

are simply choosing treatment over spending years in prison.

163

Research on the impacts of drug courts is varied and inconclusive.

164

Even when individuals agree to undergo treatment through drug

courts, they are positioned to fail because they lack necessities like

housing—something that Oregon’s new law provides.

Drug courts also raise economic concerns. In order to operate,

they require taxpayer-funded judges, court staff, and attorneys.

Proponents of drug courts cite to the savings generated by the model,

but “[d]rug court participants, team members, and treatment

providers all highlight[] lack of funding for treatment of substance use

disorders as a massive hurdle to much-needed care both inside and

outside drug courts.”

165

The Oregon legislation expands access to

evidence-informed drug treatment, peer support, and harm reduction

services.

166

This individualized and health-centered approach provides

those suffering from substance use disorder with more options for

recovery and additional supports. Drug courts do no such thing.

Rerouting the savings realized from fewer prosecutions also

means more funding for health interventions. This will ensure that

the State can enhance its previously limited public health resources

and increase access to treatment. Given that Oregon ranked poorly in

terms of access to treatment, it is notable that the new reform will

163

See Christine Mehta, How Drug Courts Are Falling Short, OPEN SOC’Y FOUNDS. (June

7, 2017), https://www.opensocietyfoundations.org/voices/how-drug-courts-are-

falling-short.

164

See id.

165

PHYSICIANS FOR HUM. RTS., NEITHER JUSTICE NOR TREATMENT: DRUG COURTS IN THE

UNITED STATES 10 (Claudia Rader ed., 2017), https://phr.org/wp-content/uploads

/2017/06/phr_drugcourts_report_singlepages.pdf.

166

See Part IV.C and discussion therein.

1028 SETON HALL LAW REVIEW [Vol. 53:1005

generate between $103 to $157 million a year.

167

This is four to six

times more than what Oregon spent on non-Medicaid funding for

addiction services.

168

Dr. Robert Lowe, a former instructor of

emergency medicine at Oregon Health & Science University, and Dr.

Ray Stangeland, a board-certified emergency physician, remarked that

“anyone who wants services will be able to get them, not just those who

have the funds or the ‘right’ insurance plan. Measure 110 isn’t just a

good idea; it is literally a life and death matter.”

169

Treating addiction

as a complex psychosocial medical issue as opposed to a punitive

problem will save lives. Drs. Lowe and Stangeland further noted that

“Measure 110 can change our broken, unjust system that criminalizes

addiction instead of connecting people to care.”

170

The enactment of Measure 110 further demonstrates changing

public attitudes towards drugs. Measure 110 passed with 58.46 percent

of voter support and exemplifies that Americans are ready for

change.

171

Consistent with the Measure 110 vote, the CATO 2019

Welfare, Work, and Wealth National Survey found that 55 percent of

Americans favor “‘recategorizing drug offenses from felonies to civil

offenses.’”

172

Federal and state legislators who have long-crafted

United States drug policy are disproportionately white and male—that

is, these individuals largely belong to a group that has not been

disproportionately harmed by the nation’s ongoing drug war.

173

This

is obviously a problem that extends beyond drug policy, but it is

important to note in light of public sentiment and the public health

167

HEALTH JUST. RECOVERY ALL., THE DRUG ADDICTION TREATMENT & RECOVERY ACT

FREQUENTLY ASKED QUESTIONS 3 (2020), https://healthjusticerecovery.org/wp-

content/uploads/2021/05/Alliance-FAQ.pdf.

168

Id.

169

Robert A. Lowe & Ray G. Stangeland, Opinion: A ‘Yes’ on Measure 110 Will Ensure

Oregon Treats Addiction as the Health Care Issue it Is, O

REGONIAN (Sept. 20, 2020, 6:15

AM), https://www.oregonlive.com/opinion/2020/09/opinion-a-yes-on-measure-110-

will-ensure-oregon-treats-addiction-as-the-health-care-issue-it-is.html.

170

Id.

171

Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative, supra

note 128.

172

Emily Ekins, Poll: 55% of Americans Favor Decriminalizing Drugs, CATO INST. (Oct.

2, 2019, 9:15 AM), https://www.cato.org/blog/poll-55-americans-favor-

decriminalizing-drugs.

173

See Renuka Rayasam, Nolan D. McCaskill, Beatrice Jin & Allan James Vestal, Why

State Legislatures Are Still Very White – and Very Male,

POLITICO (Feb. 23, 2021, 2:13 PM),

https://www.politico.com/interactives/2021/state-legislature-demographics.

2023] COMMENT 1029

crisis this nation has faced for years. State and federal legislatures must

listen to the people they represent.

B. The Bad

Most legislation will draw criticism, and Oregon’s Drug Addiction

Treatment and Recovery Act is no different. While it is important to

recognize the successes of Oregon’s reform, it is also important to

recognize its shortcomings. This is particularly important because

Oregon should, and likely will, serve as a model for other states

attempting to enact similar reforms. This section identifies the

shortcomings of Oregon’s recent reforms and potential barriers other

states may face.

The most prominent shortcoming of Oregon’s scheme is that it

appears to permit law enforcement to retain too much power. Under

the new law, law enforcement agencies are tasked with issuing citations

for simple possession of drugs as well as informing those subject to

such citations about their option to either pay a fine or complete a

screening through a statewide hotline run by OHA or another BHRN

screener.

174

Unfortunately, “[l]aw enforcement agencies . . . have had

little appetite to use a key component of Measure 110, a violation akin

to a traffic ticket that can be dismissed if users call a hotline that can

help them access treatment.”

175

The statute essentially puts its own fate in the hands of law

enforcement. This is especially problematic given the use of law

enforcement-issued citation statistics as a key metric to measure the

statute’s success.

176

Further, decriminalization opponents are already

introducing legislation to shift funding away from drug treatment and

back toward law enforcement.

177

In the legislative session that started

February 1, 2022, house members considered redirecting some of the

money Measure 110 set aside for treatment back to the Oregon

Criminal Justice Commission for grants to law enforcement

174

See OR., S. B. 755 ISSUE BRIEF, supra note 136, at 4–5.

175

Dirk VanderHart, Oregon’s Pioneering Drug Law Raises More Questions than Answers

in Early Months, O

R. PUB. BROAD. (Oct. 27, 2021, 8:00 AM), https://www.opb.org

/article/2021/10/27/oregon-pioneering-drug-law-raises-more-questions-than-

answers-early-months.

176

See id.

177

Anthony Effinger, Legislators Look to Mine Drug Treatment Money for Law

Enforcement, W

ILLAMETTE WEEK (Feb. 3, 2022, 2:11 PM), https://www.wweek.com/news

/state/2022/02/03/legislators-look-to-mine-drug-treatment-money-for-law-

enforcement.

1030 SETON HALL LAW REVIEW [Vol. 53:1005

agencies.

178

The Oregon legislature should consider alternate avenues

of informing those with substance use disorders of their options for

treatment instead of backsliding into a criminal justice-dominated

approach.

The statute’s treatment of drug paraphernalia presents another

shortcoming. Under the new Oregon law, individuals cannot be

arrested for drug paraphernalia possession. But some cities continue

to fine individuals up to $500 for possessing paraphernalia.

179

Such

fines seem unjustifiably disproportionate considering the maximum

fine for Class E violations (drug possession) is $100.

180

The goal of the

Oregon scheme is not to impose lofty fines for minor drug-related

offenses but to increase access to treatment.

181

The possession of drug

paraphernalia should, at most, implicate the same procedures as a

Class E violation.

Another shortcoming of the Oregon scheme involves the drug

thresholds it sets for personal use. While a comprehensive discussion

of this issue is beyond the scope of this Comment, drug thresholds

require a careful analysis to distinguish between personal drug

possession and drug distribution or intent to distribute. In Portugal,

an individual is permitted to possess up to a ten days’ supply of the

drug.

182

This seems to eliminate some of the ambiguity involved with

delineating drug thresholds. Legislators should work with public

health professionals in setting drug thresholds.

With regard to potential barriers, there are three important

obstacles other states may face. First, as is evident from Portugal’s drug

decriminalization experience, reform of this nature requires a strong

public health infrastructure and a reform-ready culture. Both Portugal

and Oregon’s schemes consist of a two-part methodology: drug

decriminalization and implementation of a new comprehensive drug-

treatment strategy. Other states interested in the successful

implementation of similar legislation will also need to ensure that

prevention, early intervention, treatment, and recovery support are all

available to accompany decriminalization.

178

Id.

179

HEALTH JUST. RECOVERY ALL., DRUG DECRIMINALIZATION IN OREGON: KNOW YOUR

RIGHTS 2 (2021), https://live-health-justice-recovery-alliance.pantheonsite.io/wp-

content/uploads/2021/04/OR_decrim_quarterpager-Full-Page-4-23-21.pdf.

180

S.B. 755 § 13, 81st Leg., Reg. Sess. (Or. 2021).

181

Drug Addiction Treatment and Recovery Act, 2021 Or. Laws ch. 591.

182

HUGHES & STEVENS, supra note 82, at 1002.

2023] COMMENT 1031

Second, Oregon Measure 110 passed as an initiated state statute.

Many states do not have the type of ballot initiative process that

Oregon voters have used to implement its three major drug reforms.

Twenty-six states provide some form of initiative, but only twenty-one

permit citizens to initiate state statutes.

183

Thirteen of the fifteen states

that have legalized marijuana have done so through ballot initiatives.

184

Finally, despite all the work that has been done to legalize

marijuana in the states, Schedule I drugs—including marijuana—

remain illegal at the federal level. While the federal government has

employed a relaxed approach to marijuana enforcement since

President Obama’s second term, that informal policy is subject to

change at any time. Federal agencies may enforce the CSA in all states

and territories.

The Josephine County, Oregon federal lawsuit presents an

example of why true reform demands a change in not just state but

federal drug policy. After Oregon legalized recreational marijuana in

2014, Josephine County filed a lawsuit in federal district court arguing

that the State lacked the authority to prevent the county from

regulating marijuana.

185

The lawsuit used marijuana’s status as an illicit

Schedule I drug under federal law to bolster its cause.

186

While the

court ultimately dismissed the case,

187

this type of challenge

demonstrates the threats to state decriminalization reforms that are

inconsistent with federal criminal law.

C. The Unknown

Because it is too early to determine the definitive impacts of

Oregon’s reforms, this section first highlights key questions that will

define the future of the new Oregon scheme. It then proposes key

indicators that should be evaluated to gauge its success moving

forward.

183

Initiated State Statute, BALLOTPEDIA, https://ballotpedia.org/Initiated_state

_statute (last visited Sept. 24, 2021).

184

German Lopez, America’s War on Drugs Has Failed. Oregon Is Showing a Way Out,

OX (Nov. 11, 2020, 8:00 AM), https://www.vox.com/future-perfect/21552710

/oregon-drug-decriminalization-marijuana-legalization.

185

Josephine Cnty. v. Oregon, No. 1:18-cv-00566, 2018 U.S. Dist. LEXIS 183089, at

*1–4 (D. Or. Aug. 30, 2018).

186

Id. at *1–5.

187

Josephine Cnty. v. Oregon, No. 1:18-cv-00566, 2018 U.S. Dist. LEXIS 181685, at

*1 (D. Or. Oct. 23, 2018).

1032 SETON HALL LAW REVIEW [Vol. 53:1005

In light of the American public’s desire for instant gratification, it

remains an open question whether Oregon will give its new scheme

the time it needs to reach its full potential. The ongoing battle

between the Oregon drug warriors and drug reformers raises

additional questions. First, who is going to win: the police and other

drug warriors who oppose the shift from criminal punishment to a

health-based approach, or the reform-minded public? Second, will law

enforcement stand down and make any attempt to recognize the good

that can come from informing drug users of their option for treatment

or work to undermine the new regime? Third, is it possible to change

the statute to get the referral process working as the legislature

intended?

In terms of fairly measuring the new scheme’s success, the

number of police citations issued simply cannot serve as a key metric.

Instead, the following inquiries should determine success. First, is the

reform meaningfully reducing the number of individuals who are

incarcerated for non-violent offenses in Oregon? Second, is the

reform reducing the racial disparities that have long attended to the

arrest and conviction of individuals for possession of controlled

substances? Third, has Oregon realized a return on investment from

its reform? Finally, and perhaps most importantly, has the Oregon

scheme increased access to evidence-based treatment services, thereby

reducing the harms caused by drug prohibition and the illicit market?

VI.

CONCLUSION

It has been fifty years since President Nixon declared a War on

Drugs, and the impacts of this failed war have been catastrophic. Mass

incarceration plagues this nation, resulting in racial and

socioeconomic disparities, and medical and economic turmoil.

Oregon’s Drug Addiction Treatment and Recovery Act provides U.S.

states with a solid example of a different approach. Reframing the

narrative surrounding drug policy as a health-based approach as

opposed to a punitive policy is necessary to better help those with

substance use disorders. Recognizing the need for change, Oregon

took a big step in becoming the first state to decriminalize small

amount drug possession. While it is too early to determine the impacts

of the reform, Portugal and other European countries demonstrate

that drug decriminalization leads to improved public health and safety

outcomes. Even U.S. state-level marijuana legalization demonstrates

that anti-drug propaganda is nothing more than extreme statements

meant to instill fear. The United States government must look west

2023] COMMENT 1033

and finally recognize that “public enemy number one” is the substance

use disorder epidemic.