In November 2020, Oregon voters passed Measure 110, which decriminalized the possession for personal use of small amounts of all drugs, including cocaine, heroin, LSD, methamphetamine, and oxycodone. Oregon is the only U.S. state to have implemented this policy.

Minor possession in Oregon became a civil infraction on February 1, 2021; violators receive a citation and $100 fine, which can be waived by calling a hotline to screen for substance use disorder.

A year and a half later, critics call 110 ineffectual or even harmful, claiming the black market remains vibrant. The Republican and independent candidates for governor are calling for its repeal.

The problem, however, is that 110 did not go far enough.

While 110 eliminated serious penalties for personal use, it did not legalize production and sale of drugs. For example, manufacturing or distributing heroin is a felony punishable by up to 20 years in prison and a $100,000 fine, plus twice the amount gained through dealing.

Moreover, federal law still bans possession of all amounts of drugs. Thus, the black market remains because producing, selling, and even possessing drugs remains illegal. 110 was not designed to eliminate the black market; its purpose was “to stop criminalizing drug use and addiction” and arrest fewer people.

This means most standard harms from underground markets are likely to remain.

Prohibition encourages violence because illicit suppliers cannot use the legal and judicial systems to resolve disputes.

Prohibition also incentivizes high potency products because traffickers can more easily conceal these from law enforcement. Most consumers cannot easily assess potency because reliable suppliers cannot legally advertise, and consumers cannot sue over faulty or mislabeled products. So accidental overdoses from high potency drugs, especially those laced with fentanyl, are common under prohibition.

Critics assert that homicide and drug overdose rates increased after 110, but this misses the mark. Since 110 did not shrink the black market, we should not expect violence and overdoses to decline. Furthermore, critics misinterpret the facts.

Portland saw a record 88 homicides in 2021, a 54.4% increase over 2020, and local police have tied the rise to turf wars between drug gangs. But causality is unclear. Homicides increased at a greater rate, 58.3%, from 2019 to 2020.

Drug overdose deaths in Oregon increased 39.4% the year after 110 went into effect, compared to the same period a year before, while the U.S. increased 13.8%. But overdose deaths in Oregon increased at a similar rate, 34.3%, the year before 110.

Some assert 110 increased demand for drugs in Oregon. Evidence suggests prohibition has a minor effect on demand, largely because enforcement is difficult. However, if demand increased at all while supply remains illegal, prohibition’s harms would continue or worsen. Indeed, fentanyl has driven Oregon’s recent overdose deaths.

110’s supporters campaigned under the success of Portugal’s 2001 decriminalization law, which led to an almost immediate drop in Portugal’s drug death rate. 110’s critics point out that Portugal took years to prepare by carefully shifting resources from criminal justice to treatment and recovery services. This has led some to say Oregon “put the cart before the horse.”

Portugal did focus on treatment over punishment for a decade before 2001; fines were the primary punishment given to drug users, and less than 1% of imprisoned drug offenders in 2000 were jailed for drug use. Thus, Portugal “primarily codified existing practice.”

The most drastic effect of the 2001 law, however, appears to be lighter sentences for drug traffickers. Supply remains illegal, but drug trafficking convictions fell by 40% and incarcerations by nearly 50% the decade after passage.

The success of Portugal’s law should be partly attributed to reduced prosecution of drug traffickers. This has not happened in the U.S.; a spokesperson for the DEA said, “Measure 110 has not affected our work at all.”

Nevertheless, 110 was a step in the right direction. 5,400 fewer people were arrested in the ten months after decriminalization compared to the same period in 2020. The Oregon Criminal Justice Commission estimates decriminalization will reduce racial and ethnic disparities in arrests and convictions. This means fewer Oregonians will struggle securing jobs, loans, professional licenses, and other necessities for a successful life.

Oregon can improve its policy — and save lives — by legalizing the manufacture, distribution, and sale of drugs, rather than just decriminalizing use.