As One State Strides Forward on Evidence-Based Drug Policy, Another Slides Back
June 28, 2023
Overview
Unlike how they regulate the far more deadly drug products tobacco and alcohol, states overwhelmingly continue to treat individuals who use illicit drugs as criminals, and state law is oriented towards arresting, prosecuting, and incarcerating them. A few states, however, have made more significant changes, and some have made less drastic but still important changes.
States, acting as laboratories of democracy, continue to make changes to their drug laws. Most of these changes, while notable, are relatively minor. Unlike how they regulate the far more deadly drug products tobacco and alcohol, states overwhelmingly continue to treat individuals who use illicit drugs as criminals, and state law is oriented towards arresting, prosecuting, and incarcerating them.
But there have been changes. Most states have increased access to the overdose reversal drug naloxone, for example, and states continue to make it easier to access fentanyl test strips and other drug checking equipment. Since we last updated our drug checking equipment document last August, at least seven states (Kentucky, Mississippi, Ohio, Oklahoma, Pennsylvania, South Dakota, Utah) have legalized at least some drug checking activities.
A few states, however, have made more significant changes. Most notably, in 2020 Oregon voters legalized the possession of small amounts of all drugs and allocated tens of millions of dollars to evidence-based prevention and treatment initiatives. In this post, I want to briefly discuss two states that made less drastic but still important changes.
Let’s start with the positive. Despite overwhelming evidence that ready access to new syringes and other injection equipment reduces bloodborne disease infection and doesn’t increase drug use, many states insist on restricting access to such syringes by criminalizing their possession and distribution except via heavily regulated syringes services programs. These laws serve no public health or public safety purpose; rather, they intentionally and needlessly cause harm to people who inject drugs, their families, and their communities.
Minnesota recently decided to end this harmful paradigm. A law that goes into effect on August 1, 2023 legalizes the following previously prohibited activities in the state:
- the possession, use, and delivery of all drug paraphernalia
- the sale of an unlimited number of syringes by certain medical professionals
- the possession of a residual amount of a controlled substance in drug paraphernalia
This change will likely increase access to syringes and related equipment, decreasing bloodborne disease infection and reducing arrests of people who use drugs. These changes should be a model for other states.
On to the bad news. We previously reported that Washington had made changes to state law that dramatically reduced drug possession arrests, through both requiring pre-arrest diversion for minor drug possession and improving prevention and treatment. That law was set to sunset in July 2023, and the state legislature had to decide whether to continue the status quo, fully decriminalize the possession of small amounts of drugs (following the recommendation of a legislatively-created, bipartisan commission), or take some other action.
Unfortunately, the legislature decided to open door number three. At the request of prosecuting attorneys, the legislature re-criminalized drug possession and public use of drugs. Instead of being referred to treatment and other resources, these individuals can instead be arrested and charged with a “gross misdemeanor”. The state Fraternal Order of Police praised the change, claiming that it “will provide additional influence to get people off the streets and into treatment.” The law, of course, does no such thing: it imposes the violence of arrest and incarceration on people who inject drugs; it was the previous law that directed them to treatment. The new law, which will likely result in hundreds more arrests for drug possession each year and likely increase preventable overdose deaths, goes into effect July 1.
This blog post was written by Corey Davis, Director of the Network for Public Health Law’s Harm Reduction Legal Project.
The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.
Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.