Critics of Drug Decrim and Forced Treatment
There is an ideological and political battle playing out among critics and supporters of Oregon's drug decriminalization. It's largely about forced treatment.
Oregon decriminalized personal possession of drugs in November 2020, nearly two years ago. Now, people are trying to figure out if this “experiment” is “working.”
The Associated Press reported that Oregon’s drug decrim law, known as as Measure 110, is off to a “rocky start.” Citing statewide data, the AP found Oregon still has one of the highest rates of addiction in the country; overdoses have ticked up 20 percent over the last year, killing one thousand people; over half of treatment programs still lack the capacity to meet treatment demand due to understaffing and a lack of funding; lastly, and this is the big one people harped on, the AP reported, “Of 16,000 people who accessed services in the first year of decriminalization, only 0.85% entered treatment.”
The AP cited some new numbers that seem to illustrate a high engagement with harm reduction programs: “A total of 60% received ‘harm reduction’ like syringe exchanges and overdose medications.” That sounds good. “An additional 15% got help with housing needs, and 12% obtained peer support.”
The AP also balanced its critical reporting by quoting state officials, treatment programs, and groups working to implement Measure 110 who basically said: Please, bear with us! They say it’s going to take some time to build new public health and harm reduction infrastructure. Plus, they are trying to unravel decades of criminalization and drug policing, which certainly played its role in things getting this bad in the first place. Supporters say: Look, the baseline was so bad you can’t expect us to turn this ship around on a dime.
It’s also important to note what researchers have told me on background: Harm reduction and treatment programs only recently received new flows of money from the state. So of course there hasn’t been any major changes yet. I think that means a lot of the criticism and arguments against Measure 110 are premature. I also think there’s a bit of an ideological battle playing out here among supporters and critics.
This is ideological battle is also known as: politics.
In the tweet below, Brian Cuban, author of a memoir “The Addicted Lawyer” (also Mark Cuban’s brother) raised the question of “coercion” to Stanford psychologist Keith Humphreys, who has been quoted in this Measure 110 news cycle as decrim’s chief critic.
Some background on Humphreys: He was appointed by President George W. Bush to a White House Commission on DrugFree Communities and also served as a senior drug policy advisor for the first year of President Obama’s Administration. Humphreys is also the Chairman of the Stanford-Lancet Commission on the North American Opioid Crisis. He is a frequently quoted expert on addiction and drug policy.
Oregon Public Broadcasting quoted Humphreys under this headline: “Addiction Experts Say Oregon Has Been Too Lax on Drug Use,” referring to Measure 110 as being too soft and mushy toward people using drugs. Both The AP and OPB cite Humphreys, who testified before Oregon’s Senate Committee.
Here Humphreys is quoted in the OPB article:
“On the one hand we have highly rewarding drugs which are widely available, and on the other little or no pressure to stop using them. Under those conditions we should expect to see exactly what Oregon is experiencing: extensive drug use, extensive addiction and not much treatment seeking.”
And here is Humphreys quoted by The AP:
“If there is no formal or informal pressure on addicted people to seek treatment and recovery and thereby stop using drugs, we should expect continuing high rates of drug use, addiction and attendant harm.”
To be sure, Humphreys did not say explicitly that Oregon lawmakers should act against the will of voters and reverse drug decriminalization. Rather, Humphreys and other critics thinks the state should use more law enforcement resources to 1) do something about such easy access to cheap street drugs and 2) exert more pressure on people using drugs to “nudge” them into treatment (i.e. threaten jail or some punishment, sanctions, etc.).
Under Measure 110, law enforcement writes a civil citation (like a speeding ticket) for personal drug possession with a maximum fine of $100. That fine could be waved if people call a hotline for a health assessment. OPB reported that more than 3,100 tickets were issued and they’ve largely been ignored. It seems Humphreys and other critics think this is a weak point in the policy, and there ought to be more consequences for people issued the ticket if they fail to follow up.
Critics of Measure 110 take the present day bad outcomes cited above—which, again, admittedly do not look great—to argue that decrim is not working. They take Oregon’s current status as proof that people need to be forced to engage with treatment or they won’t recover. (Again, it’s worth pointing out that treatment and harm reduction agencies only recently got money from the state).
Reading all the recent articles about the “rocky start”—or, as ABC News put it, calling decrim an outright “failure”—these arguments are familiar ones: People addicted to drugs will simply not enter treatment unless they’re “nudged” by the criminal justice system. Nudges seek to influence people to make better decisions. It sounds practical. But recent research found that “nudges may not have any effect on behavior at all.” (To learn more about “the nudge” idea beloved by technocrats, there is a solid critique of Cass Sunstein’s famous “nudge” approach that was really popular during the Obama years.)
I think this gets us to the crux of the ideological and political stuff playing out here. On the one hand are those who think addiction requires force, pressure, “nudges” from law enforcement and the state, mainly the threat of jail; and on the other hand are those those who think that is bad and shouldn’t go anywhere near treating a public health crisis. This is a philosophical, ethical, and again, political disagreement.
Personally, I tend to lean more on the side of protecting people’s civil liberties. I’ve simply reported on and seen far too many horror stories where some guy gets arrested for drugs or something silly and dies in jail because his withdrawal symptoms are ignored and neglected by incompetent or cruel (or both) staff—a totally preventable and fucked up way to die. Which is to say the current system of “nudges” that rely on jail can do a lot of harm. I also can’t unsee the statistic that people with opioid use disorders who are incarcerated are at an astronomically higher risk of fatally overdosing, anywhere from 40 to 120 times.
In a thread on Twitter, New York Times opinion writer Maia Szalavitz criticized the Humphreys camp and the way media has reported on decrim generally. Szalavitz also says the arguments playing out seem obviously one of ideology over Pure Reason™. She notes that the press has not cited the fact that under Measure 110 fewer people are being harmed by incarceration (i.e. not going to jail, not contracting covid, not dying from withdrawal or overdose, not losing employment, not losing housing, not losing custody of their children, or facing the multitude of attendant harms that flow out of incarceration and makes life very hard to live).
Plus, there is a systematic review analyzing compulsory treatment studies and it shows the outcomes of forced treatment aren’t all that great. Szalavitz also wrote a persuasive NYT article on why “Forced Addiction Treatment Fails” that is worth reading.
I think It’s also worth noting that people can and often do recover from substance use disorders without formal treatment. Massive epidemiological studies indeed show that the majority of people recover from substance use disorders without formal treatment or even informal help, like from 12-Step and self-help groups. That fact is rarely cited in the news, but seems important here.
The idea of using law enforcement to spur treatment has long been the consensus view of the federal government’s drug policy blob (which I’ve written about before here). In a book chapter titled ‘Tough and Smart’: The Resilience of the War on Drugs During The Obama Administration,” University of Michigan historian Matthew Lassiter analyzed contemporary drug policy and politics to answer why there are so many continuities between Democrats and Republicans on issues of drugs and crime.
In that chapter, Lassiter analyzed President Obama’s incrementalist approach toward criminal justice and drug policy reform, interrogating how addiction came to be promoted as a “brain disease” by politicians who also advocated for the continued criminalization of said disease. A crystalized example of this is that when it came to the 100;1 crack versus powder cocaine sentencing disparity, President Obama signed a law that reduced the disparity to 18:1 rather than pushing to end this racist law once and for all.
About the politics of drug policy under President Obama, Lassiter writes:
“The Obama administration’s ‘tough and smart’ approach to drug and crime control largely operated within the political boundaries of bipartisan consensus and pursued a moderate reform agenda during an era of unprecedented activism against racially discriminatory policing and heightened consciousness about the broader system of mass incarceration. Many factors shaped Obama’s cautious and incremental approach to drug policy reform, including the White House belief that an explicit ‘black agenda’ promoted by an African American president would generate white backlash, the considerable power of ‘law and order’ forces in the federal bureaucracy and in Congress, and not least the robust support for criminal prohibition and interdiction by most Democratic officials and the president himself.”
Lassiter goes on to write about who President Obama appointed to lead the Office of National Drug Control Policy, frequently known as the nation’s “drug czar.” Obama tapped Gil Kerlikowske, former chief of the Seattle Police Department, who Lassiter noted was the “the fifth consecutive ‘drug czar’ from a law enforcement or military background since 1991.” (President Joe Biden made a big departure from his predecessors when he appointed Rahul Gupta to lead ONDCP, who is an actual medical doctor and has treated addiction for much of his career in medicine).
Kerlikowske’s view on using the criminal justice system for tackling addiction is quite similar to the view that Humphreys promotes in these recent news articles coming out of Oregon. Lassiter writes:
“According to Kerlikowske, the Obama administration believed in ‘using the criminal justice system to spur people in need of treatment to get it,’ a benevolent phrase that justified the continued criminalization of the ‘disease’ of addiction and the illicit recreational market more broadly.”
Lassiter also emphasized that Kerlikowske struck a different tone on drug policy than many of his predecessors and other drug policy hawks. In a 2009 speech to the International Association of Chiefs of Police, Kerlikowske said, “the metaphor and philosophy of a ‘War on Drugs’ is flawed” because “addiction is a disease” rather than a “moral failing.”
President Obama’s “tough and smart” approach sought to synthesize public safety (tough) with public health (smart) to tackle drugs. The idea was to prioritize public health on the demand side while aggressively using cops to disrupt drugs on the supply side. Lassiter writes that, in the same speech to the chiefs of police, Kerlikowske:
“…Denounced advocates of legalization, asserting that this disastrous policy would not reduce crime and violence in American communities or save children from the tragedy of drug abuse. In essence, the White House strategy sought to marginalize the growing legalization movement by portraying its own balanced approach as a public health corrective to prior administrations that prosecuted the war on drugs ‘as an all-or-nothing choice between demand reduction and supply reduction.’”
Lassiter referred to Kerlikowske’s last line as a “greatly exaggerated if not completely false interpretation of recent U.S. history.” For instance, President Richard Nixon poured funding into treatment and straight up built America’s system of methadone maintenance, which at the time was a radical step in recognizing that opioid users were best treated with a safe, regulated supply of opioids. To be sure, Nixon’s methadone treatment system was also infused with America’s penchant for punishing drug users. And this system that weds public health to law and order chugs along to this very day.
In response to Cuban’s question about evidence for “coercive” treatment, Humphreys cites a program he likes called “24/7 Sobriety” that requires those arrested for or convicted of alcohol-involved offenses to take twice-a-day breathalyzer tests or wear an alcohol monitoring bracelet. Anyone who tests positive for alcohol or skips a test are immediately subject “to swift, certain but modest sanctions—typically a day or two in jail,” according to a description of the program by RAND.
South Dakota implemented this program and RAND studied it, finding that it led to some good outcomes. “Arrests for repeat drunk driving reduced 12 percent,” said Beau Kilmer, Director of RAND’s Drug Policy Research Center. “Arrests for domestic violence decreased by 9 percent.” Kilmer also cites reduced traffic crashes among males aged 18 to 40. The program is thought to work because of its “swift and certain” sanctions, meaning people in the program are well aware that their actions will have immediate consequences.
Humphreys cites this program as evidence in support of forcing people to change their behavior. But the question then is: Would a similar program work for, say, injection drug users living on the street in Portland, Oregon? I’m not so sure. That’s a very different population with very different needs than repeat drunk drivers in South Dakota.
In a Twitter back-and-forth, Humphreys elaborates, saying, “Formal and informal pressures on people who use substances do [work]. The alternative hypothesis is that substance use behavior is immune to environmental influence.”
“What I find most frustrating about Humphreys’ standard take is that it’s so black and white,” said Dave Lucas, an expert on drug courts and clinical advisor at Northeastern University Law School’s Action Lab (disclosure: I hold a post at the Action Lab too). “He doesn’t explain treatment disinterest [or] ambivalence with any nuance, [he] just relies on a wink, we all know why people won’t do treatment on their own.” Lucas went on to say:
“I think needing to be ‘forced’ to do things sometimes is deeply human. Responding positively to coercion, like making the most of tough situations, is also not rare. The question is: Does that make it ethical or humane? And why has it become route one in everything we do in this field?”
Again, I think this reiterates the political battle playing out over Oregon’s Measure 110, suffuse with philosophical and ethical questions that are raised by dealing with drug use and addiction in society. America has been struggling to figure these questions out for well over 150 years! I’m not pretending here to be able to settle and adjudicate these issues once and for all. But I do think it’s helpful to lay out what this conflict really is all about.
I wanted to save Morgan Godvin for last. She’s from Portland, Oregon. She has spent years in federal prison on a drug-induced homicide conviction. She also plays an active role in Oregon’s drug decriminalization and was appointed by the Oregon Health Authority to the Measure 110 Oversight and Accountability Council. Godvin has an important viewpoint and a truly inspiring story. She thinks about this stuff in a deep way.
Americans love to talk about (and argue over) Portugal’s model for drug decriminalization. After 20 years, researchers have concluded that Portugal’s drug decrim is rife with “contradictions and ambiguities,” that drug policy has historically oscillated between public order and public health—ahem, “tough and smart,” sound familiar?
But on the question of compulsory treatment, coercive treatment, nudges, pressure, force, whatever you want to call it, Godvin said this in response to a point I raised: A lot of people in the US have tried addiction treatment at some point and were treated like garbage. People seeking help for substance use in the US are regularly denied medicine and compassion. After being treated horribly, there’s a very felt sense among people struggling with addiction that many institutions do not have their best interest in mind. Godvin points to Portugal:
I think it’s entirely possible for Oregon to build a better treatment system, one that focuses on promoting health and dignity, one that actually sounds like it can help a person who is struggling build a better life, one that is attractive. That system does not yet exist.
Structural changes like these are slow and grinding and sometimes—many times!—do not materialize in the lifetime of those who have dedicated their lives to change. Oregon’s transition to decriminalization, expanding public health, is going to be in tension with the desire for law and order, much like Portugal. These are, once again, political problems.
This is just my personal opinion, based on what I have observed in friends and relatives who don’t understand the trajectory of my daughter’s life. This was her father’s mantra, “what happened to my sweet, smart, beautiful little girl? “ He’s intelligent but clueless—he has no interest, even now (when our grandson is already struggling with substances at age 14) in trying to understand. I think most people who 1. have not experienced addiction themselves, or 2. have not been closely involved with loved ones struggling…. don’t really understand how complicated addiction is… and how many factors there are that can influence how and why it develops. I think many people see addiction as ONE SPECIFiC “THING”—not taking into account the many different reasons people use substances, the many reasons they continue to use, and also the reasons they get treatment or stop on their own—Or don’t want to stop.
I also think many don’t understand that every individual is just that — an individual. There’s not one solution that will work for everyone.
Please forgive me if I read too quickly and overlooked this if you covered this angle, but unfortunately I'm in a rush and the point needs to made urgently: use and addiction are not synonymous terms!
Consider this treatment from Oregon Public Broadcasting:
https://www.opb.org/article/2022/09/21/oregon-decriminalize-drugs-measure-110-addiction-treatment/
"At the same time, the tickets for drug possession meant to steer people to treatment have failed. Most of the more than 3,169 tickets issued through August were ignored, according to state courts officials, with recipients neither paying a fine nor showing up in court. Fewer than 200 people have called a hotline the state set up to help people who receive possession tickets receive treatment."
OK, so less than 200 of more 3000 people found with drugs sought treatment.
But if you ticketed everyone on the road with a six-pack, bottle of wine, or a cannabis vape in their car, how many should we want or expect to seek out treatment? (Remember - the ticket is for mere possession, not intoxicated driving or any other thing.)
It should be clear that if we treat alcohol possession as a positive test for alcohol use disorder, we're going to get a LOT of false positives. The same is true for other drugs.
This is another case where if *other* people get ticketed for being found with *their* drug of choice, *all* of them need treatment. But when the officer sees a bottle of wine in *my* grocery bag, suggesting *I* (or my wife, children, or friends) need treatment is police state overreach and I'll sue!