In the wake of a nearly 30% increase in drug overdose fatalities within a single year, states have been grappling with how to reduce overdose deaths, including exploring new approaches to penalizing the use of substances. Aligning to Biden administration priorities to increase access to treatment services and address racial inequities in drug policy, some state approaches specifically target interventions to respond to disproportionately high numbers of Black and Latinx Americans who are currently incarcerated for drug violations.
Since the fall of 2020, three states have enacted legislation that eliminates criminal penalties for some or all controlled substances, including, for example, methamphetamine, heroin, cocaine, and psilocybin. Some of these laws call for a significant overhaul of the state’s criminal code and revamp of substance use disorder (SUD) treatment infrastructure, while others simply decriminalize threshold amounts of certain controlled substances.
- In November 2020, Oregon was the first state in the nation to decriminalize the possession of small amounts of all scheduled drugs for personal use through policy established by Ballot Measure 110. The law removes barriers to treatment and recovery services for people with SUD and eliminates criminal penalties for drug possession.
- In May 2021, Washington took action by passing a law that similarly removes criminal penalties for drug possession and establishes a comprehensive plan to increase access to and engagement in treatment for SUD.
- In June, 2021, Vermont’s governor signed H. 225 into law, making Vermont the first state to specifically decriminalize possession of non-prescribed buprenorphine. The new law also refers individuals under 21 found in possession if 224 milligrams or less of buprenorphine to a state-run court diversion program, and individuals under 16 found in possession of 224 milligrams or less of buprenorphine to delinquency proceedings in state family court.
Several other states introduced legislation in 2021 to decriminalize possession of scheduled substances that failed to pass. Maine’s proposed legislation died, while proposed measures in New York and Rhode Island were not decided upon before legislative sessions ended or went into recess. Massachusetts’ proposed legislation is still under consideration and will be further discussed at a hearing scheduled for September.
The table below summarizes themes across states with 2020-2021 legislation that decriminalizes at least one controlled substance.
Key features of state drug decriminalization legislation (enacted and proposed)
|Eliminates criminal penalties||X||X||X||X||X|
|Imposes fine and/or screening||X||X||X||X||X|
|Tasks/creates a committee with assessment and recommendations||X||X||X|
|Establishes a SUD treatment funding plan||X||X|
|Language regarding SUD as a disease||X||X|
|Language regarding ineffectiveness of punitive interventions||X||X||X|
|Language regarding social determinants of health/racial equity||X||X||X|
|Amends paraphernalia law||X||X|
|Referral to treatment or counseling||X||X||X||X|
|Specifically decriminalizes possession of small amounts of non-prescribed buprenorphine||X|
*Indicates proposed legislation
Expanded SUD treatment and recovery services, funding for those expanded services, and impacts on sentencing are emerging as themes in decriminalization policy out of recent introduced and enacted state legislation:
- Oregon will fund existing government and community-based organizations to create Addiction Recovery Centers to provide people who use drugs with both acute care for immediate needs as well as intensive case management and referral services. Expanded treatment services provided in Oregon will be funded through marijuana tax revenue and savings from avoided drug-related arrests, incarceration, and prosecution. This is projected to provide over $100 million for services in the program’s first year.
- Washington will develop a substance use recovery services plan that will connect people with SUD to low barrier treatment and recovery support services. The state has allocated just under $100 million in general funds to provide support to each local behavioral health administrative services organization for the development of recovery navigator programs. Both Washington’s and Oregon’s behavioral health administrative services organizations are also tasked with developing a recovery navigator program, which will be modeled after existing recovery programs and will be responsible for providing community-based outreach as well as intakes, assessments, and connection to ongoing treatment services.
- In tandem with signing H. 225 into law, Vermont’s governor released an executive order, which cites the increase in fatal and non-fatal opioid overdoses, driven by COVID-19, as the impetus for the bill and indicates that decriminalizing buprenorphine is intended to decrease opioid overdose deaths and increase engagement in treatment for opioid use disorder (OUD). The executive order establishes the Decriminalized Buprenorphine Taskforce, which is responsible for assessing the impact of the new law and reporting them back to the governor.
Policy makers anticipate these laws will help address historic overrepresentation of people of color in corrections systems: Oregon estimated that its new law will result in a nearly ninety-one percent overall decrease in convictions with a projected 93.7% reduction among Black Oregonians and 94.2% reduction among Native American Oregonians. Washington’s newly created Substance Use Recovery Services Advisory Committee is tasked with creating recommendations on the collection and reporting of drug possession-related interactions with law enforcement and prosecutors; the Committee will report on racial, demographic, and geographic disparities therein. New York’s proposed legislation acknowledged that Black and Latinx communities have been disproportionately affected by drug criminalization laws, noting that policy change is intended to shift the state’s “approach to drug possession from one based on criminalization and stigma to one based on science and compassion.”
As overdose deaths have continued to rise – both before and during the COVID-19 pandemic – decriminalization represents a shift in how states might address the SUD crisis. New policies have the potential for far-reaching impact not only within state treatment systems but also across courts, pre-trial services, and incarceration settings as well. As these laws take effect, states will be evaluating the outcomes of decriminalization on programs, budgets, and systems alignment, and NASHP will continue to monitor these efforts and their outcomes.