Three years ago, Oregon voters approved a groundbreaking ballot initiative that eliminated criminal penalties for low-level drug possession. The result of that "reckless experiment," New York Times columnist Bret Stephens claims, has been a "catastrophe" featuring increases in "opioid overdose deaths," "shooting incidents," and public nuisances such as discarded needles, "human feces," and "oral sex."
Stephens' assessment, which draws heavily on a story by Times reporter Jan Hoffman that was published on Monday, combines legitimate concerns about drug addiction and public order with misleading implications based on out-of-context statistics. And because Stephens ignores the main argument for decriminalization—that it is unjust to treat drug use as a crime—he never grapples with the morality of the policy it replaced.
It is important to keep in mind that Oregon's Measure 110 did nothing to address the supply of illegal drugs, which remain just as iffy and potentially deadly as they were before the initiative was approved. Decriminalization was limited to drug users, and it was based on the premise that people should not be arrested merely for consuming forbidden intoxicants. This distinction between drug users and drug suppliers is similar to the policy enacted during Prohibition, when bootleggers were treated as criminals but drinkers were not.
Measure 110 changed low-level drug possession from a Class A misdemeanor, punishable by up to a year in jail and a maximum fine of $6,250, to a Class E violation, punishable by a $100 fine. Drug users who receive citations can avoid the fine by agreeing to undergo a "health assessment" that is supposed to "prioritize the self-identified needs of the client." That assessment might result in a treatment referral, but participation is voluntary.
Despite the limited nature of Oregon's reform, which was not designed to reduce the hazards posed by the highly variable and unpredictable composition of black-market drugs, Stephens thinks the fact that drug-related deaths continued to rise in Oregon shows that decriminalization has failed. "In 2019 there were 280 unintentional opioid overdose deaths in Oregon," he writes. "In 2021 there were 745."
Stephens neglects to mention that drug-related deaths rose nationwide during that period, from about 71,000 in 2019 to more than 107,000 in 2021. The number of deaths involving opioids rose from about 50,000 to about 81,000—a 62 percent increase.
To be sure, the increase in Oregon that Stephens notes was much larger. But how does it compare to trends in other jurisdictions that did not decriminalize drug use?
Between 2019 and 2021, Oregon's age-adjusted opioid overdose death rate rose from 7.6 to 18.1 per 100,000 residents. California saw a similar increase: from 7.9 to 17.8. In Washington, the rate likewise nearly doubled, from 10.5 to 20.5. And even in 2021, Oregon's rate was lower than the national rate (24.7) and much lower than the rates in states such as Connecticut (38.3), Delaware (48.1), Kentucky (44.8), Maine (42.4), Maryland (38.5), Tennessee (45.5), Vermont (37.4), and West Virginia (77.2). On its face, this does not look like evidence that decriminalization is responsible for Oregon's continuing rise in opioid-related deaths.*
While Measure 110 does not seem to have caused an increase in drug-related deaths, it manifestly did not prevent that increase. Was it supposed to?
As Stephens notes, the initiative's supporters argued that the resulting health assessments, combined with new funding for treatment from marijuana taxes, would help people with drug problems turn their lives around. He acknowledges that defenders of Measure 110 complain of "funding shortfalls" and point out that "funds for harm reduction, housing and other services have been slow to arrive." But he notes that the new system so far does not seem to have channeled many people toward treatment. "Of the 4,000 drug use citations issued in Oregon during the first two years of Measure 110," he says, citing an article in The Economist, "only 40 people called the hotline [for health assessments] and were interested in treatment."
Those numbers seem to validate the warnings of Measure 110 critics that, without the threat of jail, few drug users would be interested in treatment. But while forcing drug users to choose between jail and treatment surely boosts the number of people enrolled in such programs, there is reason to question the long-term effectiveness of that policy, which makes a difference only for people who are not yet ready to seek help on their own.
According to a systematic review of the evidence that the International Journal of Drug Policy published in 2016, research "does not, on the whole, suggest improved outcomes related to compulsory treatment approaches, with some studies suggesting potential harms." The authors conclude that "given the potential for human rights abuses within compulsory treatment settings, non-compulsory treatment modalities should be prioritized by policymakers seeking to reduce drug-related harms."
Notably, people with drinking problems generally are not subjected to compulsory treatment unless they commit crimes such as driving while intoxicated. Since alcohol is legal, heavy drinkers are free to ruin their health and their lives as long as they do not injure or endanger others.
Drug prohibition also blurs another distinction that is commonly applied to alcohol: the difference between use and abuse. Anyone caught with illegal drugs, whether or not he is experiencing life-disrupting problems, might be required to enroll in treatment if he wants to avoid criminal penalties. That approach is akin to requiring treatment for all drinkers, including occasional and moderate consumers.
Stephens does not pause to consider whether these differences make moral or practical sense, and he seems confused about how to classify the conduct of people with drug problems. "Addicts are not merely sick people trying to get well, like cancer sufferers in need of chemotherapy," he says. "They are people who often will do just about anything to get high, however irrational, self-destructive or, in some cases, criminal their behavior becomes. Addiction may be a disease, but it's also a lifestyle—one that decriminalization does a lot to facilitate. It's easier to get high wherever and however you want when the cops are powerless to stop you."
Viewing addiction as a disease that overrides free will is convenient for drug warriors, because it justifies forcible intervention. If addicts cannot reasonably be expected to control themselves, the argument goes, the government must step in to help them, whether or not they want that help. Their choices and preferences need not be respected, because they are illusory, a product of pharmacological slavery. At the same time, however, it seems patently unjust to punish people for behavior they purportedly cannot control.
Stephens tries to square that circle by selectively applying the disease model. Addicts are sick, he says, but they are also bad, because they have chosen a destructive and antisocial "lifestyle." Although they are incapable of controlling their drug use, which makes compulsory treatment appropriate, they nevertheless respond to incentives, such that removing the threat of arrest changes their behavior. Their "disease" means they should not be treated as autonomous moral agents, except when it comes to holding them criminally liable for their actions.
That paradox can be avoided if we view addiction as a bad habit that is hard but not impossible to change, a pattern of behavior that cannot be explained by chemistry without also considering the psychological and environmental factors that drive self-destructive attachments to psychoactive substances. According to that view, addicts make choices all the time, albeit choices that are strongly influenced by their personal and social circumstances. There is nothing inherently illogical or unfair about holding them responsible for those choices when they impinge on other people's rights.
That means a heavy drug user who steals to support his habit is not immune from criminal penalties. It also means the government can justifiably regulate what drug users do in public, where their actions might offend, incommode, or alarm people who have an equal right to use sidewalks, parks, and other taxpayer-funded facilities. Although Stephens implies otherwise, eliminating criminal penalties for drug possession does not require tolerating public drug use, defecation, or blowjobs.
In practice, of course, a jurisdiction that decriminalizes drug use when every other jurisdiction continues to treat it as a crime may attract people inclined to behave in the ways that Hoffman and Stephens describe. But those nuisances—which many major cities face, regardless of whether they routinely arrest people for drug possession—are a problem distinct from drug use per se.
Stephens also blames decriminalization for an increase in violent crime. "In 2019 there were 413 shooting incidents in Portland," he writes. "In 2022 there were 1,309." As he notes, that number now seems to be falling: There were 540 shooting incidents in the first half of this year, down from 674 in the first half of last year.
Although Stephens does not spell out the causal connection he has in mind, the reasoning presumably is that decriminalization encouraged drug use and attracted more drug users to the city, boosting demand and therefore black-market activity. But the violence that attends such activity, which is notably absent from legal markets in drugs such as alcohol, is entirely a product of prohibition. Just as Measure 110 did not improve the quality and consistency of illegal drugs, it did not solve the problem of black-market violence, which would require a more fundamental reform.
Decriminalizing drug possession, in short, is a halfway measure that reduces but by no means eliminates the harm caused by prohibition. Stephens, who assigns little or no weight to the benefits of eschewing criminal penalties for conduct that violates no one's rights, is loath to acknowledge even that limited accomplishment.
"Some readers," Stephens says, may argue that "we don't want to return to the cost, violence and apparent fruitlessness of the old war on drugs. But that depends on whether the price of endless war exceeds or falls short of the price of permanent surrender."
Prohibition, Stephens concedes, is ineffective and expensive, and it fosters violence, which is hardly an exhaustive list of its problems. In this context, "permanent surrender" counts as a victory.
*Correction: The original version of this post erroneously cited data from the Oregon Health Authority as evidence that opioid-related deaths in Oregon fell last year. But those data covered only part of 2022; the preliminary estimate for the full year indicates a small increase in fatal overdoses involving opioids.