Oregon has recently joined a handful of other states to lower criminal penalties for drug possession in limited circumstances. Advocates, legislators and the governor in Oregon should be applauded for their efforts to create a sensible drug policy that limits the overreliance on the criminal justice system to address a public health issue. Drug policy reformers look forward to the positive impact and hope such policies spread across the nation.
Technically, Oregon has defelonized drug possession for those that qualify – mostly first and second time offenders. Defelonization means that drug possession penalties have been reduced from a felony to a misdemeanor. This definition is in contrast to the common and broad use of the term decriminalization, a term defined by Drug Policy Alliance in our most recent report as the full removal of criminal penalties for use and possession not just lowering penalties or defelonizing.
Defelonization is needed and a solid step forward but it is not the final destination when attempting to establish a public health approach to drug policy.
Prop. 47 in California which also defelonized drug possession reveals and reinforces the reality that collateral consequences of a misdemeanor can often have the same impact as a felony charge. To truly limit the overreliance of the criminal justice system we must look to remove its burdensome impact as much as possible. A significant problem is that many feel a criminal hook – at least a misdemeanor - is needed for treatment or preventative purposes.
We need only to look back at recent decades to show the fallacy of trying to arrest, jail and hamper drug users with collateral consequences as a mode to address drug dependency. This is especially true for the minority of drug users who are actually dependent. This demographic buys the vast majority of drugs and costs the system the most resources and yet receives a criminal justice burden more so than adequate treatment. This demographic rarely qualifies for drug court and currently won’t be able to take advantage of the defelonization effort in Oregon because of two or more prior convictions.
We need to establish a system where collateral consequences do not hamper those who are truly dependent and justice involved from receiving the benefits of reform. A system where arrests, adjudications and convictions are not the primary tools for a user to enter into treatment. And, what’s more difficult is addressing the reality that many drug possessors do not need treatment at all.
A decriminalization policy based on the DPA definition is how we begin to establish a true public health approach. In doing so those who are seeking treatment can receive it independent of the criminal justice system. Treatment that is funded through the reallocation of funds previously spent on criminalization. We need to end up with a society where the collateral consequences of criminalization that make re-entry into society more difficult for those who are and those who are not drug dependent is nonexistent.
Art Way is a senior director for DPA’s National Criminal Justice Reform Strategy and State director for DPA’s Colorado Office.