Each year, there are more than one million drug possession arrests in the United States, according to the Drug Policy Alliance. Some public health professionals argue that the criminal justice method to address drug use is not effective in fixing the problem. Instead, they suggest an alternative solution that focuses less on punishment of the individual and more on their health—the decriminalization of drugs.
What is drug decriminalization?
Drug decriminalization is the elimination of criminal charges for drug possession and individual use, possession of equipment used to consume drugs and low-level drug sales.
What is the difference between drug decriminalization vs. legalization?
Decriminalization is the elimination of criminal penalties for an activity while legalization eliminates all penalties. In places where drugs are decriminalized, individuals may face civil penalties for use or possession of a drug (e.g., fines or required counseling) but will not receive criminal charges, which can lead to incarceration and a criminal record.
By taking criminal charges off the table, advocates for drug decriminalization hope to decrease the stigma around drug use and guide substance users toward treatment and support services instead of incarceration, which can have lasting effects on individuals’ financial stability, social support system and physical and mental health.
However, this sort of policy change requires a nuanced approach and a comprehensive support system that recognizes the needs of individuals who use drugs. As public health professionals and other leaders explore the possibilities of drug decriminalization, it is important to consider the potential benefits and drawbacks of this approach and to understand the communities that are most affected by drug use.
Why Decriminalize Drugs?
There are many ways in which the criminalization of drugs affects public health. People who use illicit substances, including those experiencing substance use disorder, are often handled by the criminal justice system but not the healthcare system, which perpetuates problematic drug use and can lead to poorer health outcomes, including death.
“Criminalization keeps people in the shadows. It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem.”
–Mike Schmidt, district attorney for Multnomah County in Oregon, in an NPR interview.
In fact, the Centers for Disease Control and Prevention (CDC) notes that approximately 92,500 people in the United States died from an accidental drug overdose in 2020.
Data shows that out of the 2.3 million people who are currently experiencing incarceration, one in five are serving time for a drug offense. When examined in the context of social determinants of health, these levels of incarceration play a major role in health outcomes as people who have experienced incarceration are more likely to develop chronic health conditions.
When looking at the connection between health disparities and the criminalization of drugs, it is important to consider who is most affected by these laws. By and large, arrests for drug possession disproportionately affect communities of color. According to a report on the connection between race and the war on drugs:
It is twice as likely that a prosecutor will pursue a mandatory minimum sentence for Black people as they will for white people who have been charged with the same offense.
Nearly 80% of people in federal prison for drug charges are Black or Latino.
Although Black people make up 13% of the U.S. population, they make up 24% of those arrested for drug offenses.
Experiencing incarceration can negatively affect individuals’ health, as well as their ability to secure employment, stable housing and other necessities when they are released back into their community. These disparities can also trickle down to affect their family members.
- According to a report from the Office of Disease Prevention and Health Promotion, both men and women experiencing incarceration are more likely to have high blood pressure, asthma, cancer, arthritis and infectious diseases such as HIV.
- Research has shown that .
- Children whose parents have experienced incarceration have higher rates of learning disabilities, speech and language disorders and aggressive behaviors, according to a study on stress proliferation across generations.
Fear of incarceration may also prevent an individual from seeking help for their substance use problems.
“Criminalization keeps people in the shadows,” said Mike Schmidt, district attorney for Multnomah County in Oregon, in an NPR interview. “It keeps people from seeking out help, from telling their doctors, from telling their family members that they have a problem.”
How Does Drug Decriminalization Work?
Supporters of drug decriminalization advocate for the elimination of criminal penalties for drug possession and use, possession of equipment used to consume drugs and low-level drug sales.
By prioritizing health over punishment, these advocates suggest that decriminalization policies can help:
- Save money and resources through decarceration and redirection of law enforcement services to promote health and safety in other ways
- Destigmatize drug use so individuals with substance use disorder feel safer seeking help
- Reduce incarceration rates and the corresponding health risks
Decriminalization can also remove barriers to harm reduction, which aims to meet individuals where they are in order to improve health outcomes.
What Is Harm Reduction?
The goal of harm reduction programs and practices is to minimize the negative health effects of drug use, as well as the social and legal impacts of existing drug laws.
What is harm reduction?
Harm reduction services aim to minimize negative health outcomes associated with drug use, including overdose, death and infectious disease.
How does harm reduction work?
Instead of focusing on abstinence, harm reduction provides care to people who use drugs so they can do so more safely. An example of harm reduction is providing clean syringes to people who use drugs to minimize the risk of contracting HIV or another transmittable disease.
What are the types of harm reduction?
Types of harm reduction include overdose prevention and safer drug consumption services. Harm reduction programs may also offer referrals to treatment for individuals who are interested in achieving abstinence.
While harm reduction can include referrals to services for those who want to reach sobriety, the ideology does not make access to care conditional based on abstinence. Instead, it addresses harms related to problematic substance use through evidence-based interventions.
Examples of harm reduction include:
- Syringe programs that provide access to clean needles and the means to safely dispose of them to reduce the transmission of diseases such as HIV
- Safer drug consumption services, which provide designated sites for people to use pre-obtained drugs under the supervision of trained personnel
- Locations for obtaining test strips for drugs that may contain traces of other substances, such as fentanyl, a synthetic opioid that is more likely to cause an overdose
- Training and free access to Naloxone, a medicine that can reverse an opioid overdose
Weighing the Pros and Cons of Drug Decriminalization
Opponents of drug decriminalization worry that such policies will simply encourage individuals to continue their drug use. The potential benefits and drawbacks of decriminalizing drugs are contingent on how policies and interventions are implemented. Factors such as providing adequate access to support services, securing sufficient funding and having community buy-in are important to consider.
Oregon, the first state in the United States to decriminalize drugs, is early in its efforts after passing the law in 2020. Non-criminal violations require the individual to complete a screening for substance use disorder or pay a $100 fine. Some police officials claim that a majority of citations so far have not resulted in people seeking referral programs for sobriety, according to an article in The Chronicle, a local Oregon newspaper.
Drug Criminalization in the United States
On a federal level, use and possession of illegal drugs is a criminal offense in the United States. The determination of how drug use is regulated is based on The Controlled Substances Act, which puts controlled substances into five categories.
Schedule I drugs are defined as having no accepted medical use and a high potential for misuse.
- Lysergic acid diethylamide (LSD)
Schedule II drugs are considered to have a high potential for misuse and the potential for psychological or physical dependence.
Schedule III drugs have a moderate to low potential for developing a dependence and a lower risk for misuse.
- Anabolic steroids
- Products containing less than 90 milligrams of codeine per dosage (e.g., certain cough syrups)
Schedule IV drugs are considered to have low potential for misuse and low risk for developing dependence.
Schedule V drugs have an even lower risk for abuse. Substances in this category also consist of preparations with limited amounts of certain types of narcotics.
- Diphenoxylate (anti-diarrhea medicine)
- Pregabalin (nerve pain medication)
- Products containing less than 200 milligrams of codeine
However, state laws vary on the level of criminalization, including Schedule I and Schedule II drugs, with some states moving toward decriminalization and/or defelonization, according to the Drug Policy Alliance.
The level of criminalization of drug use and possession varies from state to state. The information presented above is based on penalties for the lowest level of possession as determined by law. Go to a tabular version at the bottom of this page.
Portugal became the first country to decriminalize all drugs in 2001. According to reports, the rate of drug use has remained about the same; however, arrests, incarceration, disease, overdose and other harms related to problematic drug use have significantly decreased.
Case Study: Drug Decriminalization in Portugal
Portugal became the first country to decriminalize the use and possession of all illicit drugs in small amounts in 2001.
With this policy change, the country shifted from a criminal justice approach to a public health approach. Instead of facing incarceration for a drug violation, individuals are instead sent to a local commission consisting of a healthcare provider, lawyer and social worker, who provide information and access to treatment and medical services.
In tandem with the decriminalization of drugs, Portugal put funding toward treatment and harm reduction services for people who use drugs. These resources include safe syringe services and other strategies that allow individuals to consume drugs more safely.
The decriminalization of drugs in Portugal has led to some significant gains in health outcomes for individuals who use drugs.
- Since 2001, overdose deaths have decreased by 80%.
- The number of drug users diagnosed with new HIV infections fell from 52% in 2000 to 7% in 2015.
- Between 1998 and 2011, the number of people in drug treatment increased by over 60%.
However, it is less clear how the decriminalization of drugs has affected rates of drug use overall.
One study suggested that between 2000 and 2011, there was an increase in the number of people who experimented with substance use.
What can be learned:
Based on the changes Portugal has seen since decriminalizing drugs in 2001, public health professionals understand that a comprehensive approach to treatment and harm reduction services is an important part of the success or failure of decriminalization efforts.
Portugal’s approach also suggests that decriminalization is not a solution to end drug use. Instead, it can serve as a way to increase access to addiction care for individuals seeking sobriety and to reduce harms caused by drug use.
- Want to Win the War on Drugs? Portugal Might Have the Answer
- 20 Years of Portuguese Drug Policy—Developments, Challenges and the Quest for Human Rights | Substance Abuse Treatment, Prevention, and Policy
- Pointers From Portugal on Addiction and the Drug War (Published 2020)
- A Resounding Success or a Disastrous Failure: Re-examining the Interpretation of Evidence on the Portuguese Decriminalisation of Illicit Drugs
The following section contains tabular data from the graphics in this post.
Level of Drug Criminalization by State
|Drugs have been decriminalized||Drug Decriminalization Legislation Has Been Introduced||Drug possession can result in a felony||Drug possession can result in a misdemeanor|
|North Carolina*||Washington, D.C.|
*Criminal charges can be a misdemeanor or a felony depending on circumstances
Penalties listed are for the lowest level possession or lowest quantities of a controlled substance delineated by law