The State of Oregon and Ballot Measure 110: A Trailblazer in Controlled Substance Abuse Legislation

On February 1, 2021, the state of Oregon put into effect the historic Ballot Measure 110, also known as the Drug Decriminalization and Addiction Treatment Initiative. [1] Measure 110 makes Oregon the first state to decriminalize the possession of specified quantities of formerly illegal drugs including heroin, cocaine, methamphetamine, and Oxycodone; it also lessens the punishment for possession of larger quantities than those legalized by the measure. [2] Most importantly, Measure 110 requires the state of Oregon to institute several programs aimed at aid and recovery. [3] This implementation of Measure 110 marks a significant step forward in the outlook on drug control policy, as it reframes substance abuse as a public health issue instead of a criminal justice one. 

In order to contextualize ballot Measure 110, it is apt to begin with a brief overview of American drug control legislation and policy. Substance abuse in the United States has long been treated as a criminal justice issue. In the landmark 1962 case Robinson v. California, the Supreme Court held in a 6-2 decision that a California statute, which made it a criminal offense to “be addicted to the use of narcotics,” was in violation of the Eighth and Fourteenth Amendments, as it inflicted cruel and unusual punishment on those suffering from substance abuse. [4] Specifically, it was argued that “[t]o be addicted to the use of narcotics is said to be a status or condition, and not an act. It is a continuing offense, and differs from most other offenses in the fact that [it] is chronic, rather than acute; that it continues after it is complete.” [5] While it is important to note that courts today recognize addiction not as a criminal status but instead as an illness requiring treatment, the legislative understanding of substance abuse prior to Robinson v. California portrays a justice system geared towards punishment and not recovery.

Due to this erroneous outlook on the issue of substance abuse, the American legal system has consistently sought to punish those suffering from addiction to controlled substances rather than to provide a viable means towards rehabilitation. In the 1958 case Sherman v. United States, for example, the Court unanimously reversed the conviction of a recovering drug addict who, after months of repeated solicitation, sold illegal drugs to another addict who was working as a government informant. [6] In Sherman v. United States, the petitioner’s defense depended on the issue of entrapment, “an affirmative defense in which a defendant alleges that police officers acquired the evidence necessary to commence a criminal prosecution of the defendant by inducing the defendant to engage in a criminal act which the defendant would not otherwise have committed.” [7][8] Furthermore, the Court also held that “[t]he Government cannot make such use of an informer and then claim dissociation through ignorance of the way in which he operated.” [9] While over six decades ago, the Sherman case provides a haunting example of a legal system that, its eyes set on punishment, sought to derail a recovering addict’s efforts to rehabilitate themself. Thus, the federal government’s employment of an informant and solicitation of illegal drugs to a recovering addict, and its subsequent attempts at dissociation from the informant, convey an erroneous legislative understanding of substance abuse as a criminal justice issue rather than a public health crisis, as was the case in Robinson v. California. 

Recently, in the 2011 case Tapia v. United States, a district court imposed a 51 month-long sentence on the defendant to qualify her for the Bureau of Prisons’ Residential Drug Abuse Program (“RDAP”); the defendant appealed the ruling, and the Supreme Court unanimously overturned it, ruling that neither state nor federal courts can “impose or lengthen a prison term in order to foster a defendant’s rehabilitation.” [10] The Tapia ruling was particularly significant, as it effectively stated prison is not where a person struggling with substance abuse should be sent for recovery; however, the Tapia ruling maintains that once imprisoned, an addict can receive aid. Tapia v. United States, in conjunction with the rulings of Robinson and Sherman, delineates the evolution of the American legal system’s understanding of substance abuse from a once criminalized status to the modern understanding of addiction as a treatable illness.

With this legal overview in mind, the significance of Oregon’s ballot Measure 110 cannot be overstated. Measure 110 effectively reclassifies from a Class A misdemeanor to a Class E violation the possession in specified, small quantities of Schedule I-IV illicit drugs, including cocaine, heroin, methamphetamines, and Oxycodone. [11] Consequently, an offense once punishable by imprisonment now results in either a $100 fine or a health assessment. [12] Measure 110 also requires the state of Oregon to establish rehabilitation programs and services, including an around-the-clock telephone addiction recovery line and an “Oversight and Accountability Council,” meant to allocate funds to “government or community-run organizations to create addiction recovery centers.” [13] Specifically, Measure 110 states these “centers must provide immediate medical or other treatment 24 hours a day, health assessments, intervention plans, case management services, and peer support and outreach.” [14] Through this decriminalization of the possession of controlled substances and the promotion and facilitation of recovery, Measure 110 expands the 1962 ruling of Robinson v. California, which decriminalized the “status” of drug addiction; however, Measure 110 also draws on the 2011 ruling of Tapia v. United States, because it presents those struggling with substance abuse with health screenings and readily-accessible rehabilitation rather than with prison sentences. [15][16][17] 

While support has arisen nationwide for Measure 110, dissent has been equally pronounced. The effectiveness of Measure 110 relies primarily on one variable: that those who suffer from substance abuse actually seek treatment. However, under Measure 110’s policies, it is highly unlikely that courts will retain their ability to mandate treatment for the possession of quantities within the parameters delineated in the ballot measure—meaning that substance abuse victims themselves, and they alone, decide whether or not they seek treatment. [19] This empowerment of substance abuse victims has been the primary concern for outcry for groups within the state of Oregon who oppose Measure 110: opposers of Measure 110 argue that “80 percent of addicts are resistant to treatment [...] [s]imply offering an assessment without external motivation will fail for most people.” [20] Conversely, however, it can be argued that it is often the fear of criminal punishment that inhibits addiction victims from seeking treatment. Another chief concern expressed against Measure 110 is the potential ineffectiveness of the drug addiction treatment centers it seeks to implement, which exclusively offer health screenings and subsequent connections to appropriate rehabilitation services—but no actual, on-site treatment: “[t]he 16 ‘Addiction and Recovery Centers’ are [...] redundant and un-needed [...] Oregon has a desperate need for more residential addiction treatment beds, not assessments.” [21][22] Opponents also criticize Measure 110’s fiscal policies, which propose that any tax revenue from the sale of marijuana (which is legalized in Oregon) in excess of the state’s yearly goal ($45 million) be used to establish and to fund existing drug addiction centers: “[Measure 110] doesn’t bring in any new revenue to fund addiction services, rather it just takes money away from funds that would otherwise have gone to schools [...] mental health services, and law enforcement.” [23][24] 

Many Oregon residents remain wary of Measure 110, as they perceive the implementation of the ballot measure as a “social policy experiment.” [25] Measure 110 is certainly not without fault. Nonetheless, the ballot measure undoubtedly shines as a trailblazer in the tumultuous history of American drug legislation. Oregon’s move to become the first state in American history to decriminalize the possession of controlled substances constitutes a significant step forward in the reframing of substance abuse as a public health crisis instead of a criminal justice one. 

Edited by Alexander Liebeskind

[1] “Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[2] ibid

[3] ibid

[4] “Robinson v. California, 370 U.S. 660” (1962). Justia Law. online at https://supreme.justia.com/cases/federal/us/370/660/#tab-opinion-1943913

[5] ibid

[6] “Sherman v. United States, 356 U.S. 369” (1958). Justia Law. online at https://supreme.justia.com/cases/federal/us/356/369/

[7] ibid

[8] “Entrapment.” Cornell Law School: Legal Information Institute. online at https://www.law.cornell.edu/wex/entrapment

[9] “Sherman v. United States, 356 U.S. 369” (1958). Justia Law. online at https://supreme.justia.com/cases/federal/us/356/369/

[10] “Tapia v. United States, 564 U.S. 319” (2011). Justia Law. online at https://supreme.justia.com/cases/federal/us/564/319/

[11]   “Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[12] ibid

[13] ibid

[14] ibid

[15] “Robinson v. California, 370 U.S. 660” (1962). Justia Law. online at https://supreme.justia.com/cases/federal/us/370/660/#tab-opinion-1943913

[16] “Tapia v. United States, 564 U.S. 319” (2011). Justia Law. online at https://supreme.justia.com/cases/federal/us/564/319/

[17] Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[18] ibid

[19] ibid

[20] “FAQs: Vote No on Measure 110!” (2020). Vote No on Measure 110! online at https://votenoon110.com/33-2/

[21] Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[22] “FAQs: Vote No on Measure 110!” (2020). Vote No on Measure 110! online at https://votenoon110.com/33-2/

[23]  Oregon Measure 110, Drug Decriminalization and Addiction Treatment Initiative” (2020), online at https://ballotpedia.org/Oregon_Measure_110,_Drug_Decriminalization_and_Addiction_Treatment_Initiative_(2020)

[24]  “FAQs: Vote No on Measure 110!” (2020). Vote No on Measure 110! online at https://votenoon110.com/33-2/

[25] ibid