This article was originally published by Law360 on December 16, 2020.

On Nov. 3, Oregon passed Measure 110, a novel law[1] that reclassifies personal or noncommercial possession of controlled substances such as heroin, cocaine and methamphetamines, from a Class A misdemeanor to a Class E violation, punishable only by a $100 fine.[2]

It also establishes a drug addiction treatment and recovery program funded in part by the state’s marijuana tax revenue and state prison savings.[3] In 1973, Oregon was the first state to decriminalize possession of small amounts of marijuana. Could Measure 110 be the first step to legalization of cocaine and heroin throughout the U.S.?

Similarities to Marijuana Reform

The broader drug decriminalization movement grows out of, and shares many similarities with, the marijuana reform movement. Like marijuana reform, it is driven by sophisticated, organized, long-term policy advocacy.

For example, according to Ballotpedia, the largest contributor to the Measure 110 campaign was the Drug Policy Alliance, or DPA, which contributed over $4.5 million.[4]

According to the DPA’s website “[b]eginning with California in 1996, the DPA has played a pivotal role in roughly half of the campaigns that have legalized medical marijuana in the U.S.” and is “the only organization that played a role in all the victorious campaigns to legalize marijuana more broadly to date.”[5]

Like the marijuana reform movement, it also enjoys support from wealthy entrepreneurs. The DPA grew out of the George Soros-supported Lindesmith Center, one of the leaders of the marijuana reform movement, and Soros remains on the board of the DPA.[6]

And internet billionaires are again playing an important role. While Sean Parker played a key role in funding marijuana reform in California,[7] Mark Zuckerberg donated over $500,000 to the campaign for Measure 110.[8]

As with the marijuana reform movement, advocates intend to use the Oregon precedent to achieve similar reforms elsewhere. For example, upon passage of Measure 110, the DPA stated: “As we saw with the domino effect of marijuana legalization, we expect this victory to inspire other states to enact their own drug decriminalization policies,” citing California, Vermont and Washington as potential “dominoes.”[9]

Pros and Cons

The arguments in favor of reform are also similar.

The main argument is that the problem of drugs is best addressed through a strategy of harm reduction focused on encouraging drug users to get treatment rather than through a law enforcement strategy focused on punishing them. To this end, Measure 110 establishes a drug addiction treatment and recovery program.

Marijuana reform advocates also point to the racially disparate impact of the war on drugs and the resulting prison overcrowding.

Consistent with these principles, supporters of Measure 110 relied on a study by the Oregon Criminal Justice Commission, which estimated that if the measure passed, convictions for possession of a controlled substance would decrease by over 90%, resulting in fewer collateral consequences for those convicted such as reduced ability to find employment, reduced access to housing, restrictions on the receipt of student loans and inability to obtain professional licensure.[10]

The same report also found that passage of the measure would likely lead to significant reductions in racial and ethnic disparities in both convictions and arrests for simple possession given that both Black and Native American Oregonians were convicted at rates higher than their share of the census population would predict.[11]

The opposition to both movements is also similar.

For example, Smart Approaches to Marijuana, one of the leading civic groups against marijuana reform, has come out against the measure, arguing that “by reclassifying drug offenses as violations, Measure 110 would take away the state’s ability to send people who use drugs to drug courts, an incredibly effective mechanism to reduce crime and promote recovery.”[12]

Similarly Dr. Paul Coelho of Salem Health Hospitals and Clinics in Oregon, a major contributor to the movement against Measure 110, argued that

removing the threat of incarceration and abandoning the collaboration between law enforcement, the judiciary, probation, and the drug court system will result in a revolving door of drug abuse, treatment refusal, crime, homelessness, and ongoing costly health related expenditures for hospitalizations due to overdose, infections, and drug-induced psychosis.[13]

Differences Between Cannabis and Cocaine/Heroin Decriminalization 

At the same time, there are several important differences between the two issues that will present serious challenges for proponents of heroin and cocaine decriminalization.

First, there are the different health risks. According to the U.S. Drug Enforcement Administration, heroin is “highly addictive” and presents a “high risk of overdose or death”[14] and cocaine can lead to “severe adverse health consequences” including “sudden cardiac arrest, convulsions, strokes and death.”[15] By contrast, according to the DEA, “[n]o deaths from overdose of marijuana have been reported.”[16]

Second, there are the budgetary consequences. Anticipated tax revenue has been one of the main arguments for marijuana reform. As New York Gov. Andrew Cuomo recently stated, “There are a lot of reasons to [legalize marijuana], but one of the benefits is it also brings in revenue … we need revenue and we’re going to be searching the cupboards for revenue. And I think that is going to put marijuana over the top.”[17]

By contrast, decriminalization of heroin and cocaine possession, without decriminalization of distribution — which no one is proposing — will not generate any tax revenue. In fact, Measure 110 will require budgetary expenditures on treatment centers — though advocates claim that it will still result in net savings by reducing expenditures on prosecution and incarceration.

Third, marijuana legalization has a state domino effect because when a state legalizes, its neighbors are also pressured to legalize lest they miss out on the potential tax revenue that could be raised through legalization.[18]

Decriminalization of heroin and cocaine possession is unlikely to have the same domino effect for a number of reasons, including the fact that there are no realistic plans to generate tax revenue from heroin and cocaine sales and the use of these drugs appears likely to continue to create health risks for users post-decriminalization that will require the expenditure of state resources to address.

Fourth, legalization of heroin and cocaine has not gained the same level of public support as legalization of marijuana. According to a recent Gallup poll, 68% of Americans now support marijuana legalization, while only 32% oppose.[19] By contrast, according to a 2016 Vox poll, only 16% of Americans support legalizing cocaine with 76% against and only 13% support legalizing heroin with 80% against.[20]

What’s Next?

So where is all this going? Given that Measure 110 is barely one month old and has not yet been implemented, it is simply too early to say.

But if the history of marijuana reform is any indication, other states will closely analyze Oregon’s example, and, if it shows results in terms of saving the state money by significantly reducing expenditures on prosecution and incarceration without an appreciable increase in crime, they will seriously consider similar reforms.

If, however, the costs of treatment exceed the savings with no appreciable reduction in drug addiction or crime, the movement will likely stall.

In the meantime, the movement to decriminalize heroin, cocaine and other scheduled substances will likely help the marijuana reform movement by making its proposals appear less radical in comparison.

[1] While the law is novel for the United States, in 2001, Portugal passed a law decriminalizing possession for personal use of all drugs, including heroin and cocaine. By one account, the Portuguese experiment has been a “resounding success.”





















Tom Firestone is located in Baker McKenzie's Washington D.C. office and Co-chair of the firm's North American Government Enforcement practice.