Decriminalizing drugs

Why Portland failed where Portugal succeeded in decriminalizing drugs

Oregon lawmakers gave it three years. Portugal’s program took longer to show results.

By CARMEN PAUN and AITOR HERNÁNDEZ-MORALES

America’s first experiment in treating hard drugs as a public health problem, rather than one for the police, looks like it’s about to end.

The Oregon Legislature has voted to repeal the state’s three-year-old law decriminalizing drug possession for personal use this month, joining cities from San Francisco to Washington, D.C., that are adopting new tough-on-drugs policies. Democratic Gov. Tina Kotek is expected to sign the bill, passed after a surge in fatal overdoses and public drug use, in the coming days.

But public health advocates behind the law say the repeal is coming before decriminalization had a chance to work. They point to Portugal, which saw a 75 percent drop in drug deaths since it adopted the same strategy in 2001 through 2022, as evidence that Oregon is giving up too quickly. Portugal’s success, they point out, wasn’t achieved overnight or even in three years.

Oregon’s experiment “was not given the time that it needed,” said Tera Hurst, the executive director of Oregon’s Health Justice Recovery Alliance. “This is a political response to a serious problem,” she said of the measure’s likely repeal. “This is life and death.”

In response to sky-high overdose rates in the late 1990s, Portugal’s parliament decriminalized drugs in 2000 and reoriented the country’s response to the opioid crisis by reframing it as a public health — and not a crime — crisis starting in 2001.

In an interview in Portugal’s capital, Lisbon, João Goulão, the official who has overseen its drug treatment system since, said the Oregon Legislature’s decision seemed premature.

“Above all, you have to be consistent in your approach and give it time to provide results,” he said. “When you’re taking on something as complex as the opioid crisis, you can’t really expect to see dramatic changes from one day to the next.”

Oregon’s lawmakers voted to once again impose criminal sentences for drug possession because of a surge in fatal overdoses and public drug use.

But Hurst and other decriminalization advocates said the law didn’t succeed because of problems with implementation: a failure to fund new treatment services for 18 months after the law passed, a failure to train police on their new role in addressing addiction, and a failure to direct drug users to treatment.

The decriminalization effort also came as the Covid pandemic drove a nationwide spike in addiction as deadly fentanyl simultaneously arrived in the Pacific Northwest. And the state’s longstanding housing problem, worsened by the pandemic, led to more people living on the streets, with some of them using drugs in public, advocates said.

Proponents of the repeal, which will allow police to arrest people for drug possession while offering options to avoid jail by seeking treatment, said they aren’t abandoning a public health-led approach. Rather, they said they are pursuing the needed fixes.

“We knew we had to intervene in public drug use. And we needed to make sure that it wasn’t just easy to be a drug addict on the streets of Portland,” said Kate Lieber, a Democrat who’s the majority leader in the Oregon State Senate. “We couldn’t do that without recriminalization.”

Debating the data

It was Oregon voters who decided to decriminalize drugs when they passed Measure 110 in a decisive 58 percent to 42 percent vote in November 2020.

At first glance, the decision now looks spectacularly bad.

Drug overdose deaths spiked almost 50 percent, from 1,171 in 2021, when possession of drugs for personal use was decriminalized, to 1,683 in October 2023, according to the latest data available from the Centers for Disease Control and Prevention. Opioids, particularly fentanyl, caused most of the deaths, according to the Oregon Health Authority.

The number of homeless people in Portland, the state’s largest city, also rose to nearly 6,300 in 2023, a 65 percent hike since 2015.

And public drug use grew rampant in the city, leading state and local leaders to declare a 90-day fentanyl emergency in January.

“Fentanyl wreaks havoc on the people in its grips, often rendering them lifeless on our sidewalks,” Portland Mayor Ted Wheeler told reporters when he announced the emergency on Jan. 30.

“It also begets violence among those who bring this deadly poison into our city. This devastation and trauma unfolds on the doorsteps of homes, businesses and in the streets, impacting nearly everyone in some way,” Wheeler, a Democrat, said.

The new legislation aims to make Portland safer by cracking down on public drug use and giving police more power to respond while investing in improving treatment for substance use disorder.

But decriminalization advocates said the ballot measure is unfairly blamed for rising drug use and homelessness. The spike in overdose deaths and public drug use were in their view caused by an unaffordable housing market exacerbated by the pandemic and the arrival of illicit fentanyl on the West Coast in 2020, years after it had hit other parts of the country.

“It’s a conflation of multiple circumstances that are increasing the probability of people being outside on the street using drugs,” said Kassandra Frederique, the executive director of the Drug Policy Alliance, an advocacy group that funded the ballot measure.

The rise in overdose deaths is consistent with national and regional trends, according to data from RTI International, a research institute. Deaths from overdoses spiked nationwide during the pandemic, reaching the record level of nearly 110,000 in a year for the first time. And deaths in Washington state rose more than in Oregon since 2019, even though hard drug possession is still a crime there, according to RTI International’s Alex Kral, an epidemiologist with expertise in drug policy.

The study was supported by Arnold Ventures, a philanthropy that backed the ballot measure, but Kral said it “has absolutely no input into any aspect of our research or dissemination.”

The ballot measure aimed to improve care for people suffering from addiction by allocating some $150 million a year from the state’s cannabis tax revenue to improve and expand treatment access. Oregon ranked last in the nation in its capacity to provide addiction treatment when it decriminalized drug possession.

However, funding for new treatment services did not roll out until some 18 months after decriminalization. The Oregon Health Authority, which was in charge of the rollout, had to implement the new law while responding to the pandemic and working with volunteers from the substance use disorder recovery community to award grants.

“One of the things that people miss in the conversation is the context in which this intervention is being played. It’s not like the state was doing great and the state got worse. The state had nothing,” Frederique said.

By contrast, Portugal had an expansive and trusted public health network that was reinforced by adding addiction treatment clinics during the 1990s.

Portugal’s decriminalization went into effect in the summer of 2001. Goulão believes it was effective in moving drug users into treatment from the start, while reducing overdoses, but he said it took three to four years to prove it was.

“For you to be able to claim something works, scientifically, you have to let it exist, you have to collect data, have it contrasted ... These things take time.”

Given the confounding factors affecting drug overdoses in the state, Oregon’s secretary of state warned in January 2023 that the state health authority needed to collect more data to assess whether decriminalization was working.

But by late 2023, lawmakers had lost patience, as constituents pressured them to stem the rise in deaths and public drug use.

“Almost five people a day in Oregon die from fentanyl. So inaction was not an option,” said Lieber, the state Senate majority leader.

Lieber took issue with the comparison decriminalization activists make with Portugal, where fentanyl use is inexistent.

“That is a game changer for us. It’s cheap. It’s available. It’s deadly,” she said.

Course correction or retreat?

Under the decriminalization law, Oregon police issued $100 tickets to people caught using drugs, waivable if the person called a hotline to get treatment.

The Oregon secretary of state reported in December that the hotline was receiving only about 10 calls a month and that staffing the line was costing $7,000 a call.

Lawmakers who led the recriminalization legislation said they’re adding a big stick to encourage drug users to get treatment — the threat of up to six months in prison — but that they’re not giving up on the treatment-first approach.

If Kotek signs their bill, people arrested for drug possession can avoid jail if they agree to treatment.

“We have tried to create a system where law enforcement has the ability to intervene when they see something happening on our streets and confiscate drugs, but signal to our law enforcement and district attorney and court partners that we want people directed towards a behavioral health system and to treatment,” said Democratic Rep. Jason Kropf, who worked on the bill with Lieber.

That will bring Oregon closer to Portugal’s system, advocates of the recriminalization bill said.

Portugal doesn’t put drug users in jail: Instead, police officers are used to encourage them into treatment by dissuading public consumption and issuing tickets to those who are found to be doing so.

“Portugal has been able to be more coercive, more able to interfere with someone’s liberty to encourage or motivate them to engage in treatment,” said Kevin Barton, the district attorney for Washington County, west of Portland.

Goulão disputed that characterization, pointing out that Portuguese authorities can no longer threaten users with jail time and that fines are symbolic at best. He instead credited Portugal’s success to the persistent street presence of police officers and social workers who work together to guide users toward treatment.

“The social workers we deploy are there every step of the way. They set up appointments, they take people to the appointments by hand if need be, and if they refuse treatment they do everything they can to keep them as safe as possible,” he said.

In Oregon, Measure 110 has funded similar outreach projects, which can continue under the new bill.

Max Williams, a former state lawmaker who also ran Oregon’s prison system, said the legislation would also put hundreds of millions of dollars into building treatment facilities that the state needs to respond to the demand for care.

“Despite our rollback of this issue, Oregon has the most progressive drug laws of any state in the United States,” he said.

A stalled movement

That’s not the lesson the rest of America will take from what’s happened in Oregon, though, other critics of the decriminalization law said.

Oregon Sen. Tim Knopp, the Republican minority leader, called the idea underlying the decriminalization movement — that people will seek treatment on their own — a fantasy and rejected the argument that the policy needed more time to show results.

“The only thing that was happening with more time is our overdose deaths were on a skyrocketing trajectory,” he said.

Knopp’s advice to other jurisdictions: Get tough on drugs, while building treatment infrastructure.

“The new compassion can’t be that we’re going to let people die more slowly,” he said.

Democrats increasingly see things similarly. Tough-on-drugs policies are taking hold again in Democrat-led cities.

Voters in progressive San Francisco earlier this month approved a proposal by Mayor London Breed to screen and mandate addiction treatment for people receiving welfare.

Washington, D.C., revived a 1990s law allowing the police to designate drug-free zones for up to five days to stop drug trafficking and loitering.

And states, including California, have passed or are considering laws increasing penalties for fentanyl dealers.

If “people feel like public order and public safety are deteriorating around them, you will lose the citizenry and you will lose the politicians,” said Brandon Del Pozo, an adjunct professor teaching international drug policy at Georgetown University.

“Nationwide now, decriminalization is going to be off the table for a while,” he said.