When Oregon decriminalized drugs, overdoses went up. Will that happen with Australia's recent legislation?
A new bill came into effect in the ACT at the weekend decriminalizing personal possession of common illegal drugs.
The bill decriminalizes the possession of small amounts of illicit drugs, including cocaine, methamphetamine, MDMA, LSD, psilocybin (magic mushrooms) and heroin for personal use.
Critics of the move say when similar laws were brought into effect in the US state of Oregon, overdose deaths went up. However, there was already an upward trend, and Oregon now has lower rates of death from overdose than most other US states.
What does decriminalization mean?
Decriminalization isn't legalization. With decriminalization, drugs are still illegal, but the criminal penalties are removed. Instead, they usually attract a fine, a bit like a speeding fine.
The ACT will be the first Australian jurisdiction to decriminalize common illegal drugs. In this model, people will be diverted from police to attend a one-off health information session where a health worker assesses their well-being and the need for support or intervention. They provide education and harm-reduction information and make referrals to other services if needed.
Police will still confiscate illicit drugs they find on people. Drug dealing and trafficking are still criminal offenses.
This system means people who are caught with small amounts of some drugs will be diverted away from the criminal justice system. Contact with the criminal justice system is one of the biggest harms from illicit drugs.
There's no evidence enforcement-led solutions to personal drug use reduce use or harms. But having a criminal record can have a long-term impact on getting a job or secure housing, which can then increase the likelihood of further drug use. Current punishments in many states and territories include a possible prison sentence.
Policing of drug laws, and the justice system itself, disproportionately impacts Aboriginal people and other people of color. Young people have been described as being traumatized and dehumanized by the use of drug dogs and strip searches by police.
The change is supported by decades of research and backed by major health and human rights organizations, such as the World Health Organization, the United Nations and the Joint United Nations Program on HIV/AIDS.
Where else has decriminalized drugs?
We know from other jurisdictions that decriminalization reduces harms from drugs and increases seeking help. Portugal is the most well-known case. It decriminalized all drugs more than 20 years ago and has seen significant reductions in drug deaths, crime and drug use.
But critics in Australia are concerned about the possible negative outcomes, pointing to problems in Oregon. The federal opposition unsuccessfully introduced a bill to overturn the ACT legislation.
In November 2020, Oregon passed Measure 110, which decriminalized the possession of small amounts of drugs for personal use. Instead of criminal charges, people are now given a US$100 (A$155) fine for possession, which is waived if they contact a support hotline.
After Portugal decriminalized personal drug use in 2001, there was a drop in drug-related deaths.
In the two years after Measure 110 passed, opioid overdose deaths in Oregon more than doubled.
Why did this happen in Oregon?
The purpose of decriminalization is merely to reduce one of the biggest harms from illicit drugs: contact with the criminal justice system. It has certainly achieved that in Oregon, especially among Black Americans, who are over-represented in the criminal justice system.
In the year before Measure 110 was passed, overdose deaths in Oregon were already on the increase, up 69% on the previous year. Oregon was ranked second-highest of all US states for substance use disorders, and ranked last of 50 states for access to treatment.
Decriminalization on its own isn't intended to directly reduce use or overdoses. Portugal's success in reducing use and other harms, such as overdoses, is likely more to do with the significant investment in treatment and support. And as Oregon continues the roll-out of treatment program funding, there are indications 2023 overdose death rates have come down, tracking at half the rate of the year before.
We know treatment is the most effective and cost-effective way to reduce use and harms. A study in California found for every $1 spent on drug treatment, the community saved $7 in other costs, primarily by reducing crime and increasing employment earnings.
Decriminalization needs to be supported by treatment, support and evidence-based harm reduction measures, such as access to naloxone and drug checking.
Naloxone has been available for free with no prescription since July 2022 in Australia, and the Take Home Naloxone program will increase the availability of naloxone Australia-wide.
The Queensland government has given drug checking services the green light to start operating, and Canberra's fixed-site drug checking service has been extended until December 2024. The service checked nearly 1,200 samples for their contents and provided more than 1,500 brief interventions in the first 12 months.
Will drug decriminalization work in the ACT?
The ACT is Australia's most progressive jurisdiction when it comes to drug laws. It removed criminal penalties from cannabis possession more than 30 years ago, and in 2019 it introduced a "home grown" model, removing all penalties for the use and possession of small amounts of homegrown cannabis for personal use.
It has the lowest rate of cannabis use in Australia. There has been no change in rates of cannabis use, drug driving offenses or hospital presentations, and there has been a significant reduction in the number of Canberrans being exposed to the police and criminal justice system.
Ultimately, we won't know the full impact of decriminalization in the ACT until the bill has been implemented for some time. But evidence from places such as Portugal says it will increase diversion from the criminal justice system, improve access to treatment and harm reduction, and reduce stigma towards people who use drugs. To significantly reduce drug use itself, the ACT also needs to increase investment in drug treatment.