The war on drugs didn’t work. Oregon’s plan might.

2020-12-17 10:00:00

Criminalizing drugs didn't work the way we thought it would—or did it?

Criminalizing drugs didn’t work the way we thought it would—or did it? (PopSci/)

A tall white man wearing a denim shirt stands in front of a stove. The camera follows his hand as it reaches into a carton of eggs, and then pans out to reveal a cast-iron skillet. Making eye contact with the camera, he points to the egg: “This is your brain.” He points to the skillet. “This is drugs.” With one muscular hand, he cracks the egg into the hot pan. It oozes and sizzles as he slams the skillet down. “This is your brain on drugs.” The camera pans back up to his stare. “Any questions?”

Nowhere, perhaps, in the history of time and space has a man injected more fear into the minds of young people by judging a breakfast food. This 1987 commercial, the most well-known example from a long series funded by the nonprofit group Partnership for a Drug-Free America, is a vivid illustration of how the US has approached drug policy for decades: with scare tactics, punishment, and criminalization measures that disproportionately impact minority communities.

All that may be changing. The 2020 election saw the passage of drug reform-related ballot initiatives in six states as well as the District of Columbia. Most dealt with cannabis, which has now been de-penalized, decriminalized, or legalized by all but 15 states. But the standout in all this is Oregon, a state known for liberal laws but also an epidemic of police violence.

There, the passage of Measure 110 legalized the possession of personal-use amounts of any and all drugs—under a gram of heroin, less than 40 units of LSD, and as many as 40 pills of oxycodone, to name just a few examples—and laid the groundwork for a system of free substance-abuse treatment for anyone who wants it.

“If this was going to happen anywhere, a state like Oregon makes sense,” says Katherine Neill Harris, a drug policy researcher at Rice University. The state ranks high in federal metrics of drug use and abuse, and has been trying to address the issue for a number of years. Back in 1973, it was the first state to decriminalize cannabis.

Public health, addiction, and criminology researchers, as well as progressive policymakers, hope the recent win signals a decisive turn in public attitude toward people who use drugs. “The DARE stuff, all that kind of vibe, that never worked. We know that never worked,” says Jacob Borodovsky, a drug policy researcher at the Washington University School of Medicine. “You don’t have to be an expert to see all the problems caused by the way we manage drugs in this country.”

The war on drugs is based on bias, not science

“America’s public enemy number one in the United States is drug abuse,” President Richard Nixon said in the 1971 speech in which he coined the phrase “the war on drugs.” At first his administration put the bulk of its funding toward demand reduction—that is, treatment for people dealing with addiction and outreach to educate people about the potential consequences of drug use. Over time, however, Nixon’s rhetoric changed, and efforts became decidedly more warlike, with increased focus on using jail time to curb use.

In an October 1982 address during which he pledged millions of dollars in funding for the carceral state, President Ronald Reagan further argued that cracking down on drugs would address the “American epidemic” of crime. Criminal activity “takes the lives of over 20,000 Americans a year, touches nearly a third of America’s homes, and results in about $8.8 billion a year in financial losses,” he said. Throughout his tenure and for the next 38 years, crime and drugs were inextricably linked in American policy and in the American psyche—although the actual connection between them is arguably the product of drug criminalization, not the drugs themselves.

But the war on drugs never delivered on its promise of a safer and healthier society. Today, half a million people across the US are incarcerated for drug-related offences— including the 49 percent of inmates in federal prisons—yet more than half a million people still die of overdoses each year, and predatory rehab centers increasingly pop up to prey on vulnerable people and their families.

These negative effects were a feature, not a bug, says Hakique Virani, a doctor and addictions specialist at the University of Alberta in Canada. Drug laws “were never set out to help people stop using substances,” he says. “What they were set out to do was exclude people with certain characteristics.” Those who are marginalized because of their race, class, sexuality or other factors bear the overwhelming burden of criminal drug policy, he says, “in spite of the fact that substance use rates are equivalent across demographics, including racial demographics.”

Drug laws haven't curbed substance abuse. They've just filled up prisons.

Drug laws haven’t curbed substance abuse. They’ve just filled up prisons. (PopSci /)

One example is the historical difference in sentencing between crack cocaine and powder cocaine, which, chemically, are largely the same drug in different forms. The kind that’s snorted, cocaine hydrochloride, is a powdered form of extracts from coca leaves, cut with a substance that makes it less pure. Crack cocaine is made by cooking cocaine hydrochloride with baking soda and some water until it forms “rocks” that can be smoked. The process changes the cocaine’s chemical composition, but it doesn’t change its psychoactive properties.

Because of its method of ingestion, crack cocaine produces a quicker and more acute high. It seems to be more associated with dependence or addiction. But because of the level of difficulty associated with studying illegal substances—and the lack of easy data-gathering in a police-enforced prohibition—there’s little scientific evidence to back that up.

But the lack of data didn’t stop policymakers from leaning into an anti-crack bias. The Anti-Drug Abuse Act of 1986 set much harsher punishments for crack possession than for powder. Someone with 5 grams or more of crack would be up for the same sentence as someone carrying 500 grams or more of powder.

“There was really no rhyme or reason to why somebody who was caught with crack cocaine was subject to imprisonment many, many times more severe than people who were found with soft cocaine,” says Virani. The difference, he says, was in who used and sold crack cocaine when the laws were established: low-income Black communities in major cities were the main site of the crack epidemic.

The Fair Sentencing Act of 2010 narrowed the disparity in sentence length from 100:1 to 18:1, but the gap still exists. As a result of this and other baked-in biases, Nixon- and Reagan-era policies and their ilk have had a disproportionate effect on Black Americans. According to numbers from the Drug Policy Alliance, a nonprofit aimed at decriminalizing all illicit drug use, Black or Latinx inmates with drug-related offenses account for about 80 percent of those in federal prison and nearly 60 percent in state prisons. Because they’re disproportionately targeted, about one in 13 Black adults can’t vote due to laws that keep felons disenfranchised.

Broadly speaking, the status quo isn’t working. By 2019, the federal government was spending $34.6 billion annually on attempts to control drug use. More than $1 trillion has been directly spent on war on drugs initiatives in the past four decades, yet use continues a steady rise. A 2018 study published in the journal Science found that overdose death rates have increased exponentially and “along a remarkably smooth trajectory” in the past 40 years.

What changed, the paper further found, were the drugs of choice. Specifically, the targeted approach to policy left the country unprepared to handle the opioid addiction crisis, which first impacted white communities with the legal painkiller Oxycontin. Research published in the Proceedings of the National Academy of Sciences has theorized this happened because doctors are more likely to believe and address white people’s physical pain. With little in place to stop an addiction epidemic that began with legitimate access to pharmaceuticals, the crisis grew quickly. Opioids killed 47,600 people in the US in 2018, representing the majority of the 67,300 recorded overdose deaths.

Many experts believe that the opioid epidemic, which brought white addiction to the fore, has helped to shift public opinion on drug users and increase the viability of new policies like Oregon’s ballot initiative.

“We wanted our drug laws to hurt,” Virani says. But then they started hurting people who looked like the lawmakers.

Drug laws are starting to follow the evidence

In the 1970s and 1980s, when US drug laws were born, “There was very limited research on drug policy,” says Richard Grucza, an epidemiologist and professor of psychiatry at Washington State University. But that’s no longer true. Policymakers today have a significant body of evidence to draw from.

In the national context, much of that focuses on cannabis, which has been decriminalized throughout the country with increasing speed since the 1990s. In Grucza’s research of decriminalization in five different states, he found a 75-percent reduction in arrests related to cannabis possession for youth and a 78-percent drop for adults. At the same time, rates of use among youth, the most-studied demographic, didn’t increase in any of the states he studied. Youth numbers are a particularly important public health metric, because drug use in that age bracket is a strong determinant of an individual’s behavior in adulthood.

Internationally, decriminalization and related efforts in countries like Portugal, Switzerland, and The Netherlands seem to further confirm that simply taking the penalties off possession and use doesn’t lead people to take more drugs. In Portugal, which adopted a policy similar to Oregon’s new Measure 110 in 2001, a 2010 study found usage rates did not increase notably, and neither did the country’s supply of substances.

To understand why initiatives like these work, it’s important to understand what they do and don’t do. Oregon, for instance, did not vote to legalize drugs. In the most basic sense, Measure 110 means people won’t be arrested or put in jail if caught with a Schedule I-IV narcotic, including heroin, crystal methamphetamine, and LSD, in a quantity likely to be for their own personal use (the exact amounts vary by substance). Legalization and commercialization aren’t part of the legislation and aren’t likely to come into the picture. While shifts in cannabis policy have, in many cases, led to a booming commercial industry, no one is advocating that seriously dangerous, addictive drugs be advertised and sold to the masses. The consequences of cannabis commercialization are still being studied by multiple research teams, but early indicators show that potential harms seem to be lower than those of another commercialized drug: alcohol.

The key change is not in which drugs are legal in Oregon, but rather in how the state treats illegal drugs. Instead of a Class A misdemeanor, those found with personal amounts of illicit substances are charged with a Class E violation, which comes with no jail time or mark on a criminal record. (That’s big; just a few years ago, possession in Oregon netted a felony charge.) They’ll instead get the option of either paying a $100 fine or attending a health assessment. That check-up will set them up to attend state-funded and monitored treatment, but they won’t be forced to follow through.

The funding for the treatment will come, partially, from taxes on the state’s legal cannabis sales. Oregon also plans to use savings in policing and other areas that should result from the legal changes in its efforts.

Despite the fact that Oregonians voted 58.5 percent in favor of Measure 110, the fried-egg view of drug users is still influencing public opinion today. Its legacy was clear to see in the arguments levelled against Measure 110, which boiled down to the notion that it would increase drug use, draw funding away from policing, and lead to an uptick in addiction and crime, especially among young people—in spite of the evidence to the contrary from countries like Portugal and cannabis measures in other states.

The science doesn't support it.

The science doesn’t support it. (PopSci/)

Oregon’s legislation is “a huge first step,” says Mark Tyndall, a professor of medicine at the University of British Columbia in Canada and an expert in harm reduction, a public health philosophy that focuses on preventing the collateral damage of behaviors like drug use. For example, harm reduction advocated for offering free, clean needles to intravenous drug users in order to lessen the spread of bloodborne diseases like HIV. Decriminalization means that programs intended to help people who want to stop using drugs have a much higher chance of success, according to Tyndall, since it lowers the barriers to care. “It’s very hard to engage people in follow-up and care when they’re in and out of jails and being chased around by police,” he says.

If Oregon’s decriminalization lowers overdoses, HIV infection rates, and other measurable effects of drug use, Grucza expects to see other states moving to adopt similar legislation in the near future. “I generally think decriminalization policies are really good,” he says. “Particularly for more addicting drugs, they’re a good balance between strict prohibition and commercialization.”

Decriminalization isn’t a magic bullet, Tyndall cautions. But it will help, he says: “Criminalization is a dark cloud over all of our other efforts to help people with their drug use and addiction.”

Decriminalizing drugs is just the first step

When it comes to the impact that the war on drugs has had on Black Americans, simply changing the law won’t be enough to fix the damage.

“The reality is that systems of oppression always find ways of incarcerating Black and Brown folks,” Kayse Jama, the executive director of Unite Oregon, a Portland-based social justice organization, told The Marshall Project after Measure 110 passed. While the new law is a step forward, Jama said, evidence from Oregon suggests that law enforcement will continue to target racialized communities. Using 2018 federal government data (the most recent available), the American Civil Liberties Union found that Black people were 1.8 times more likely than white people to be arrested for cannabis possession in Oregon, even though the drug was legalized there in 2014. Though Black people make up just two percent of the state’s population, they account for 10 percent of its inmates.

Measure 110 did at least put the role of drug legislation in supporting systemic racism on the books. “Criminalizing drugs disproportionately harms poor people and people of color,” the text of the Measure acknowledges. And by decriminalizing everything across the board, the law eliminates potentially biased distinctions between drugs, exemplified by the federal hair-splitting between forms of cocaine.

While experts frame Measure 110 as a start to a much bigger process, they also note that, if lawmakers want to heal the harm done by the war on drugs, they’ll also need to retroactively adjust the sentencing of people still imprisoned (or carrying a felony record) due to possession that would no longer be considered illegal. That’s something that Oklahoma and California have done already for cannabis. Oregon currently has thousands of annual felony convictions.

A briefing document shared with Popular Science by the Drug Policy Alliance, a national organization that led the push for Measure 110, outlines how the next two years will change Oregon drug policy. On February 1, 2021, drugs will be decriminalized and the process of establishing the cannabis-funded treatment system will begin. A telephone addiction counseling service will be available. By October, the plan stipulates that each jurisdiction will have a treatment center. By 2022, additional funding from savings in the criminal justice budget will be funneled into the system.

As this plan plays out, drug policy reformers and researchers around the country will be watching. “I think the United States has led the way in prohibition and poor drug policy,” says Tyndall. Now, Oregon has the chance to lead the country in another direction.

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