By Chief Joel F. Shults, Ed.D.
Oregon has reduced the penalty for most drug possession cases from being a felony offense to being no offense at all. The $100 that a defendant would pay will be a ticket to rehabilitation. Such a radical departure from a criminal justice response to a health care response just might work. If so, the legalization and decriminalization advocates can look over their shoulder and say “I told you so” with great pride. If it doesn’t work, the skeptics can say “Too bad, I wish it had turned out the way you had hoped”.
The Plan and Its Goal
Since President Richard Nixon affixed the label of war to drug enforcement efforts in 1971, critics say the war on drugs has failed. Citing that 1 of 11 Oregonians are addicts, the state’s proposal anticipates that people who are dependent on illegal drugs will embrace rehabilitation and find a cure for their substance abuse. If that works, it could become a model for other states and even other nations. The law and its operation will face many challenges.
Sustainability
Laws either reflect the public consensus or reflect the political power of interest groups. When big issues face the political process the outcome is often considered the final solution. Politicians and the public move on to the next burning issue. The enactment of this drastic decriminalization effort depends on the ongoing support of the public. It is, after all, a grand experiment with an uncertain outcome. Adjustments to programming, funding, and the public’s attitude will be necessary in the coming years. Whether that happens or not will determine what long-term successes and failures occur.
Economics
Funding for treatment for substance abuse needs a reliable source. The $100 assessment is, in reality, voluntary and would not fund the programming in any case. Ironically, or perhaps appropriately, the program will be funded by tax revenue from marijuana sales. That revenue has been projected to grow, but a continued upward trajectory in the marijuana market isn’t guaranteed. It would seem if drug use, in general, were to drop, so would marijuana sales. But we fund health initiatives with cigarette tax money, including smoking cessation plans, so maybe that will work out.
Proponents also claim that the savings in prison costs can be shifted to drug treatment. The relationship between drugs and crime is a complicated one. Since most drug possession cases arise out of other arrests, the absence of a drug charge doesn’t mean the absence of a jailable offense. The effect on treatment availability and diversion will not necessarily be a reduction in overall crime. Although a significant number of prison inmates are in on drug-related charges, many are there for sales or manufacture which will still be illegal under Oregon law. And everyone in law enforcement and corrections knows that an inmate is in prison because of a history of offenses and second chances and plea bargains. To say that drug offenders will no longer go to prison is not universally true.
Criminal Justice Compulsion
Many drug reforms are already in place within the criminal justice system. Court-ordered treatment, decriminalization, prison-based programs, and probation and parole supervision are some of the ways that entry into the criminal justice system by arrest has been the pathway to substance abuse recovery. Admittedly, rehabilitation in corrections has an unreliable history, but the voluntariness of addicts entering treatment on their own is an assumption that will not always hold true.
The protections of a convicted offender by access to lawsuits and appeals may be lost to an addict in the medical/psychiatric world. Handing over hundreds of offenders to the mental health system has its own set of ethical and procedural questions. The Constitution protects citizens against government actors, not health care providers.
Treatment Infrastructure
There aren’t enough facilities and providers for a sudden mass entry of substance abuse clients. Grants are envisioned to create and sustain treatment centers and modalities. Just as Medicaid reimbursements craft what services are offered based on what money can be made, treatment centers will chase after grant dollars just as private prisons did when state prisons overflowed. The supervision of these institutions and programs that will spring up like mushrooms will be limited to state resources and expertise. Drug treatment is not settled science. Rehabilitation, by definition, assumes there is a “habilitated” state to which an addict can return. Additional therapy behind mere detoxification can be more complex than the proposed system can accommodate.
Additionally, how many persons will move to Oregon because of the availability of treatment? How many will relocated because they perceive that there is a get out of jail free opportunity to use drugs with little risk?
What is Success?
Finally, it will be critical for the public to watch for measures of success. If one out of ten addicts turns away from regular drug use, will that be a success? If it takes multiple trips to rehabilitation programs over a period of years to overcome the addiction, will that still be success? If the addict reduces dependence on drugs but still uses alcohol and marijuana, is that success? If the prison population does not reduce, but treatment facilities are full, is that success? Oregon is embarking on a bold experiment. There are many skeptics waiting to watch that experiment fail.