Decriminalization could help ease the nation’s drug epidemic, but the devil is in the details

Among the 120 statewide ballot measures before voters in the 2020 election, drug decriminalization measures passed in six states.

In Arizona, Montana, New Jersey, and South Dakota, voters approved legalizing marijuana use for adults, while Mississippi voters approved the use of medical marijuana. But Oregon became the first state to decriminalize the possession of small amounts of drugs such as cocaine, heroin, and methamphetamine.

The passage of these ballot measures seems to reflect the idea that voters are beginning to reject the so-called war on drugs and its emphasis on addressing the nation’s drug epidemic through a criminal justice approach and move toward the public health approach that is so clearly needed.

With the opioid epidemic continuing unabated — and made worse by the Covid-19 pandemic — and with spiraling rates of cocaine-induced deaths, a dramatic readjustment in how the nation approaches its problem with substance use is essential.

By itself, decriminalization is just a small piece of a broader, comprehensive effort that is needed to help with this public health crisis. As with all new ideas, it is important to think through the possibility of unintended consequences. For example, the fact that a substance is illegal may prevent, or at least delay, some individuals from beginning to use it.

Once a substance becomes legal, as marijuana has in many states, it becomes socially acceptable in ways that will likely lead to increased rates of use. This has been true in nearly every area that has recently decriminalized or legalized marijuana. While most people can use marijuana relatively safely, some people develop cannabis use disorder, an established and accepted mental health diagnosis that often requires treatment by addiction treatment professionals.

That begs important questions, such as whether funding is in place for additional treatment programs, whether a sufficient workforce is in place to address additional treatment needs, and whether third-party payers (private insurance, federal programs such as Medicare, and state-administered programs such as Medicaid) will provide coverage for treatment.

With legalization or decriminalization, the devil truly is in the details. As with regulating alcohol and tobacco, few individuals seem to support unfettered legal access regardless of the age. One of the risks, then, becomes whether those who currently sell illegal substances will simply shift their sales and marketing activities to those younger than a state’s age of access. Drug dealers and the drug trade in general have been referred to as one of the purest forms of supply and demand capitalism that exists. If new laws reshape the market, those who sell drugs might target younger customers, something no one wants.

Of course, compelling arguments exist in support of the effort to decriminalize simple drug use and drug possession. Overdose risks for substances such as marijuana are virtually nonexistent and largely only when what is sold as marijuana contains or is laced with other substances. The quality-control measures that typically come with the sale of a legal product serve to reduce risk and increase safety, noble goals that should be supported and pursued.

Criminalizing drug use also strains the criminal justice system. In 2018, there were 663,000 marijuana-related arrests in the U.S., 608,000 of those were for marijuana possession, showing that police are arresting recreational marijuana users, not dealers. This means more state revenue, about $30,000 to $35,000 a year, goes into incarcerating these individuals.

The initiative that passed in Oregon will decriminalize the possession of small amounts of cocaine, heroin, methamphetamine, LSD, and other drugs. Those caught with amounts for personal use only will be able to pay a fine or enter treatment in addiction recovery centers funded with tax revenue generated by marijuana sales. Time will tell, of course, whether such a dramatic step will prove effective in facilitating the move from a drug war to a health improvement approach. Close monitoring of rates of use, treatment access and admissions, and treatment effectiveness will all be necessary parts of the evaluation of this landmark legislation.

Any comprehensive policy solution must pay attention to access to appropriate, professional care. If individuals who become addicted to substances, or whose use results in significant disruption to their lives, do not have access to adequate treatment, the new approach will have failed. If we continue to look at people with substance use disorders as weak-willed, of poor moral character, or underserving of assistance for having brought a problem on themselves, then little would have been gained.

Decriminalization by itself does not accomplish these things. What is required is an entire shift in cultural attitude, coupled with an infusion of resources consistent with public health strategy rather than a criminal justice one. On the positive side of the decriminalization discussion, tax revenues will substantially increase, providing the opportunity to fund the kinds of treatment that will be needed. For example in Colorado, the tax revenue helps create jobs, prevents youth consumption, protects public health and safety, and invests in public school construction.

As encouraging as this is to public health officials and addiction experts, the decriminalization measures may appear to be, a deeper, more comprehensive response needed in the drug epidemic our country faces. Moving away from the criminalization of drug use is promising; even more promising would be such a comprehensive effort.

Kevin Doyle is an associate professor and chair of the education and counseling department at Longwood University.