By Yvette Farnsworth Baker, Esq., Senior Legal Consultant
The Failed Experiment of Drug Decriminalization in Oregon
In a groundbreaking move, the state of Oregon has repealed its drug decriminalization law. This means that the unprecedented law which decriminalized personal possession of drugs such as cocaine, heroin, and oxycodone is off the books and possession is a criminal offense once again in the state of Oregon.
While the aspirations of drug decriminalization are appealing, the unintended consequences need to be given their due weight. Proponents of decriminalization often frame it as a social justice issue, but the impact on safety and community cannot be ignored.
Drug Decriminalization in Oregon
In November 2020, Oregon voters passed Ballot Measure 110, a landmark initiative that decriminalized the possession of small amounts of heroin, cocaine, methamphetamine, LSD, and oxycodone. This meant that instead of facing criminal charges and potential jail time, individuals caught with these drugs would receive a civil citation with a small fine, similar to a traffic ticket. Offenders were also given information about drug treatment. Another aspect of Measure 100 allocated tax revenue from marijuana sales to fund addiction treatment programs and establish a network of recovery centers throughout the state.
Repeal of Decriminalization
In a surprising turnaround, this year the Oregon legislature repealed Measure 110 and passed a bill that re-criminalizes drug possession. The new law replaces decriminalization of small-amount drug possession with potential jail time (up to six months) for offenders. It also allows prosecutors to seek enhanced penalties for drug dealers. The bill offers drug treatment alternatives to jail time for drug possession and provides for expungement of drug possession convictions. Additionally, the bill expands access to drug treatment facilities and medication.
The new law had wide support in the state legislature and from constituents and was a true bipartisan bill, with votes of 51-7 in the House and 27-3 in the Senate.[i]
Many lawmakers who voted in favor of the newest law saw decriminalization as a failed experiment. State Senate Minority Leader Tim Knopp remarked that drug decriminalization “was not what Oregonians thought it was. They were told that their family, their friends, were going to get treatment for addiction. And what it turned into was a free-for-all of public drug use, increased fentanyl, opioid overdose deaths increasing exponentially, and Oregon becoming seen as a national dumpster fire.”[ii]
Kate Lieber, state Senate majority leader, also explained, “Almost five people a day in Oregon die from fentanyl. So inaction was not an option.”[iii]
The Health and Safety Threat of Decriminalization
The reasoning behind re-criminalization was the striking deterioration to health and safety in the state. The sharp rise in deaths in the short time following decriminalization was dramatic. Drug overdose deaths surged over 50 percent after decriminalization, from 1,171 deaths in 2021 to 1,804 deaths in November 2023, according to the Centers for Disease Control and Prevention.[iv], [v] While experts attribute the spike in deaths to more factors than just decriminalization, it was an unacceptable correlation that turned public opinion sharply against decriminalization.
And while overdose deaths are a tragic and dramatic statistic, they are clearly not the only danger of drug decriminalization. The safety risks of drug use and addiction spread far beyond just overdose.
In Oregon, homelessness also spiked. Public drug use ran rampant. And the numbers of ticketed drug users who sought out the new treatment resources were extremely small. Residents of Oregon saw that drug use was a tsunami that affected not just the users themselves but the families and communities that surrounded them.[vi]
Drawing Parallels to the Workplace
It does not seem a stretch to hold up Oregon’s decriminalization experiment as a warning that applies to more than just state decriminalization efforts. Drug use and abuse is a multi-faceted and complex issue whose effects are widespread. Downplaying the seriousness of drug addiction is a mistake. Oregon shows us that drug use goes beyond personal choices and can have devastating effects on individuals and the communities around them.
This warning sound from Oregon has application in the workplace. Employers who choose to drop drug testing can open their workplaces up to harm. Like criminal penalties for drug possession, drug testing policies can seem intrusive, but they serve as a critical safety measure. By eliminating drug testing, employers risk compromising workplace safety and productivity. Employees under the influence of drugs can pose significant risks to themselves, the public, and the overall operations of a company. Without drug testing and enforcement of drug-free workplace policies, it is extremely challenging to identify and address substance abuse issues among employees.
When a company drops drug testing, it signals loudly to employees that they can use drugs without impact to their job. And it attracts new employees who are looking for employment where their regular use of drugs won’t automatically disqualify them. Oregon’s belief that decriminalizing drugs wouldn’t lead to increased use and abuse within the state parallels the misguided notion that abandoning drug testing won’t result in more drug users within a workplace.
As Oregon’s Senate majority leader stated, “inaction was not an option.” Employers need an action plan to identify and address drug abuse by employees. A robust workplace policy that screens applicants, monitors employees, and provides resources for employee assistance is a basic requirement for a safe and healthy workplace.
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[i] Dirk VanderHart, Oregon Public Broadcasting, “Oregon’s drug decriminalization experiment appears dead.” March 1, 2024. https://www.opb.org/article/2024/03/01/oregon-legislature-passes-bill-recriminalizing-drug-possession-sends-to-governor-measure-110/ [ii] Id. [iii] Carmen Paun and Aitor Hernandez-Morales, Politico, ”Why Portland failed where Portugal succeeded in decriminalizing drugs.” March 28, 2024. https://www.politico.com/news/2024/03/28/oregon-drug-criminalization-portugal-00148872 [iv] Centers for Disease Control and Prevention, ”Drug Overdose Mortality by State.” https://www.cdc.gov/nchs/pressroom/sosmap/drug_poisoning_mortality/drug_poisoning.htm [v] Centers for Disease Control and Prevention, “Provisional Drug Overdose Death Counts.” https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm [vi] Carmen Paun and Aitor Hernandez-Morales, Politico, ”Why Portland failed where Portugal succeeded in decriminalizing drugs.” March 28, 2024. https://www.politico.com/news/2024/03/28/oregon-drug-criminalization-portugal-00148872
