When Policy Isn’t Enough: Recriminalization in Oregon

This was my first experience in policy. The thought that we could go back to arresting thousands of Oregonians starting this year breaks me.

Oregon made a fundamental break with the War on Drugs three years ago.

Measure 110 decriminalized the possession of small amounts of drugs—hard drugs like heroin, meth, and fentanyl. Instead of punishment and jail, hundreds of millions of dollars were earmarked for treatment. As the ballot measure declared: "a health-based approach to addiction and overdose is more effective, humane, and cost-effective than criminal punishments."
 

That short-lived experiment has now been called off, with Oregon’s legislature voting to recriminalize drug possession. 

Morgan Godvin was at the front lines of getting Measure 110 passed, and of trying to implement it. And that’s part of what went wrong: implementation. A policy victory is one thing, but how do you make a sweeping new approach work on the ground?

Complicating that task, the last three years in Oregon have been filled with the kind of upheaval that manifests in despair and disorder in the streets: the pandemic and the rise in housing instability it triggered, and the arrival of fentanyl on the West Coast and the brutal spike in overdose deaths that followed. Opponents of decriminalization have eagerly blamed all of that on Measure 110.

A lifelong Oregonian, Godvin has experienced the harms of the drug war firsthand. She has since become a forceful advocate for an evidence-based approach to drug use.

"Almost immediately after getting out of prison," she tells New Thinking host Matt Watkins, "I had an opportunity to campaign for a measure that essentially destroyed the system of harm that my friends and I experienced, many of whom did not live to see the day."

Now, she says, "we have come to a fork in the road"; progress towards a health-based approach to drug use "has fallen prey to fear-based policy."
 

The following is a transcript of the podcast:

Matt WATKINS: Welcome to New Thinking from the Center for Justice Innovation. I’m Matt Watkins.

Three years ago, Oregon made a fundamental break with the War on Drugs.

Measure 110 decriminalized the possession of small amounts of drugs, hard drugs: heroin, meth, fentanyl. Instead of punishment and jail, hundreds of millions of dollars were earmarked for treatment.

Today that short-lived experiment has been called off—Oregon’s legislature voting to recriminalize drug possession.

Morgan Godvin was at the front lines both of getting Measure 110 passed, and of trying to implement it. And that’s part of what went wrong: implementation. A policy victory is one thing, but how do you make a sweeping new approach work on the ground?

Making that task more difficult, the last three years in Oregon have been filled with upheaval: Covid and homelessness, and then the arrival of fentanyl on the West Coast and a brutal spike in overdose deaths. Opponents of decriminalization have eagerly blamed all of that on Measure 110.

Godvin has experienced the harms of the drug war firsthand. She has since become a forceful advocate for an evidence-based approach to drug use and is the founder of the harm reduction organization, Beats Overdose.

I started by asking her: when punishment is the primary response to drug use, what does that make daily life like for drug users? 

Morgan GODVIN: It makes their daily life just completely permeated by fear. And they learn that it's constantly a game of cat and mouse. The police are not there to protect them, but rather to persecute and arrest them.

They're not being criminalized because of any willful behavior. They're being criminalized for the state of being addicted to drugs—them having some drugs in their pocket that they require to get through their day without going into withdrawal—and it has nothing to do with their actual behavior. And so, there's this ever present fear because you can't actually change behavior to reduce your risk of arrest. 

WATKINS: We know there's lots of evidence that punishment is not an incentive for people stopping using. Forced treatment is not an incentive. For people who do want to stop using, where does that incentive come from?

GODVIN: You have to want it. Addiction is defined as continued use despite repeated negative consequences. And the most successful way to incentivize people into recovery is to give them hope, hope for their future. When people have better options, they make better choices. 

WATKINS: It feels to me like the timelines and even the philosophy of recovery is just completely different from the timelines and philosophy, if we can call it that, of the criminal legal system. I mean, recovery is not a linear process.

GODVIN: But if you do not stop using drugs exactly on someone else's timeline, you go to jail in this country, which is exactly counter to medical opinion and the known science around the trajectory of recovery.

WATKINS: If we turn to look at Measure 110, this decriminalization law in Oregon, how much do you see that as being a real attempt to break with this kind of War on Drugs approach?

GODVIN: Incredibly. It meant that drug users could walk around without fear of being criminalized simply for the fact that they're drug users.

We talk about stigma as if it were nebulous. It's not nebulous! It is the tangible, direct production of criminalizing substance use: people's mugshots running in the paper, calling them criminal, collateral consequences that follow them for the rest of their life. Stigma is not nebulous. It is caused by calling drug users criminals. And Oregon was able to interrupt that process.

Now it's imperfect. Drugs were still technically illegal. Police were still stopping—could confiscate people's drugs, write them a ticket. And that part of the measure was flawed, deeply flawed, because people still shouldn't have to pass through police contact, which is incredibly fear-based. I cannot tell you how many times I have been held at gunpoint—not because I was a criminal, but because I was a drug user.

That doesn't need to be happening, and yet it does all across the country. But for a little while, we weren't doing that in Oregon, and we were treating addiction as a health issue.

WATKINS: How do you think that interruption came about in Oregon? How was that victory achieved? I mean, it passed with almost 60 percent support of voters in Oregon, so it really feels like a pretty momentous victory.

GODVIN: Oregon's always been on the cutting edge of drug policy. We were the first state to decriminalize cannabis, I believe in 1973. We're one of the first states to legalize cannabis. And this comes from a tacit recognition that the War on Drugs is an absolute failure.

After decades of the War on Drugs, over a trillion dollars of taxpayer money, more people are dying of drug overdose every year in the United States than ever before in human history. And drugs are cheaper and more available than ever before in American history.

But also, Oregon is famously bad at providing treatment and mental health, behavioral health resources to people. So, what really allowed this measure to pass was linking cannabis tax revenue—being the new and very large fund for treatment, harm reduction and peer mentor services in the state—linking that component to decriminalization. 

Because that really emphasizes that this is a health-based issue. Not just it shouldn't be a criminal legal system issue, but immediately pivoting it to a health-based issue. And that's why the measure passed.

WATKINS: What was the organizing like and the mobilization on the ground level in the run-up to passage?

GODVIN: There were immense amounts of support: people who knew the harms of criminalization viscerally such as myself, people who knew it by proxy because a loved one had struggled with it, Black and brown people who told of being heavily criminalized, including having drugs planted on them by the police. These stories started to go viral and built a groundswell of public support. 

And the timing of this is very relevant. This was voted on in November of 2020. George Floyd's murder was in May, and then Portland became the epicenter of racial justice protests that went on every single night for over a hundred days, more so than any other city in the country.

We are known to be progressive, and so there was this absolute groundswell of support seeing the War on Drugs as an extension of the criminal legal system’s oppression of Black and brown people. And because of this confluence of events, that sentiment was still very present in November of 2020.

WATKINS: It was a pitched battle to get the law passed, but then it's been a pitched battle ever since to try to continue to make the case for it.

Do you think that there was a tendency among some in the organizing and the advocacy community to think, "Well, we got this policy victory, sort of, spike the ball” at that point and not anticipate the challenges that were to come with implementation?

GODVIN: Campaigning for a law to pass is much more fun than the rote work of implementing that law. Of the hundreds of hours that I spent in Measure 110 Oversight and Accountability Council meetings, reading hundreds of grant applications and scoring them—all that stuff is terrifically boring.

So, we lost many of our volunteers and that groundswell of public support once the measure transitioned into implementation. And that really harmed us, because there wasn't very much good news about the things that Measure 110 was doing, which was some incredible stuff: talking about how it affected the lives of drug users, increased treatment access, detox center being built, a huge, enormous spike in the availability of peer mentors.

This is creating huge amounts of jobs with community-based organizations for people in recovery, some people in active use. And these things were not making the news because we had lost a lot of the fire that comes from the campaign.

Into that void, into the absence of good news, negative news rushed in because there were powerful people and business interests that were opposed to the measure from the beginning.

Law enforcement said that we had taken a tool out of their toolbox because if drugs are not a criminal offense, they're only a civil offense, it means that your Fourth Amendment right to refuse a search is intact and they can't arrest people and threaten them with a felony to extort them into snitching on the person who sold them their drugs.

And police will actually boldface say this in public, as if that is a reasonable reason to maintain criminalization, that we need to maintain a system that produces human suffering, so that we have pawns to make their job easier so that they can more easily arrest drug sellers.

WATKINS: The law ended up making police the gatekeepers to treatment to some degree, right? And obviously drug users have no shortage of reasons to distrust police. And police are not necessarily, shall we say, completely on board with decriminalization. That seems like an obvious area that made implementation of decriminalization a real challenge.

GODVIN: That's actually not true though. Any Oregonian can walk into any Measure 110 funded organization and receive services at no cost.

WATKINS: Sure, I'm reproducing the problematic narrative here in my question.

GODVIN: Right. The law was always meant to get police out of the equation, to not have police be the bridge, to not have police be the bringers of fear into communities where people use drugs. That being said, there needs to be a mechanism to connect people who do have police contact—because that is not a representative swath of drug users. 

Typically, something else is going on. Most often that's going to be homelessness. People that lack housing obviously have no private space in which to use drugs, so they're forced to use within the public sphere because creating safe consumption sites in Oregon is a political non-starter.

Now, for those people particularly, I feel very strongly that someone's choice to use drugs is with their autonomous right to do what they will with their own body, as long as it is not harming or affecting another human being. Now, when you're smoking drugs in front of the grocery store and there's a bunch of children walking by, that's a tad different. Your own choice to use drugs is now affecting others.

Now, not affecting them in a way that causes physical harm, but it is problematic for children to be seeing others smoke drugs. I mean smoking fentanyl and normalizing the smoking of fentanyl. So that's something that should have been addressed.

There should have been some mechanism to bridge the police contact that those people were having, because they were smoking drugs on the bus or at the grocery store, with treatment resources. So potentially, if there was a more effective connection between that police citation and services including housing, perhaps that person could have moved into housing. But this was a total failure and breakdown of the measure.

No police training was mandated. And so all of our various, I don't know how many police departments between all the municipalities, counties and state police in the entire state, were taking their own approach: training, not doing training, letting officers wing it—running the whole gamut. And obviously that resulted in unequal application of the law.

Some police departments very heavily cited people, and that was a test-of-fail experiment: “Look, we're going to cite everybody and it's not going to work.” Other police departments said, "Well, hey, if we can't put people in jail, we're not doing this because what we're here for is to put people in jail. That's the point of a police officer," and they refused to cite outright.

And there was no other way to connect those people with treatment resources. And there was very poor outreach and education being done. That was a malicious negligence on behalf of the Oregon Health Authority who refused to do any media or advertising, showing drug users what was newly available to them under the law.

WATKINS: What kind of resistance did you encounter from people inside the system?

GODVIN: Sabotage fast and slow. And so, the Measure, designed to create a council of 12 or more people, most of whom with directly impacted people, BIPOC people, formerly incarcerated people, reverting power back to the people who were affected. This was an absolutely legendary thing for government to do.

WATKINS: And you were on this Council?

GODVIN: I was on this Council, yes. I was appointed by the Oregon Health Authority to this Council. They ended up appointing 21 Oregonians to the Council—which is another thing: a lot of cooks in the kitchen when the measure mandated 12, but okay.

And the Oregon Health Authority took the following stance: The measure says that "this is supposed to be the community council to lead,” so we're going to take a hands-off approach.

And they let just about everything be decided by the community council, even though I don't have grant-making experience, I don't know how to plug million dollar grants, government grants, into any preexisting funding stream so that we may optimize it and be most efficient.

And they took this hands-off approach under the guise of letting the community lead. But there needs to be infrastructural support, foundational education. There was incredibly poor meeting facilitation, so the group did not mesh from the beginning. Conflict was not resolved.

Conflict was actually exacerbated by the Oregon Health Authority. We wanted to be accessible. We wanted to fund small, grassroots, community-based organizations, BIPOC organizations.

But then with 21 cooks in the kitchen, we ended up creating a behemoth grant application, which was in some ways familiar to them because it was excessively laborious like most government grants are. And in other ways, because it was so different than the questions typically asked on a grant application, it was very challenging for organizations to fill out if they had any grant experience.

WATKINS: So, into this vacuum in a way, where implementation is so difficult, comes pouring in the opponents of the legislation, who have never relented in their opposition to it. And here is where we can talk about the battle for the control of a public narrative about what the law is doing and why the law is needed.

It strikes me that this is also an implementation question. This is also a nuts and bolts question. How do you battle for control of your narrative to ensure the law is implemented and succeeds? I'm just wondering… I mean, we know how that battle is played out, so let me just invite you to talk about that a little bit.

GODVIN: Well, there has to be good news, because otherwise it's just the opponents releasing bad news. Just before the ballot measures to repeal multiple iterations of ballot measures, to repeal Measure 110, were released after they'd gathered signatures, they did this delightful media campaign. Nobody knew that the ballot measures were about to be released. Or maybe some people knew, but the public didn't know.

And so it looked like randomly in rapid succession there was a Wall Street Journal article, a New York Times article, a Washington Post article, several Fox News, just randomly about decriminalization in Portland. And then the next week: boom, a bunch of ballot measures to repeal it. 

WATKINS: The right was organized, the left less so, in this instance.

GODVIN: Yes.

WATKINS: And then this law emerges at a time of COVID, and homelessness exacerbated by COVID, and then the arrival of fentanyl on the West Coast and Measure 110 is now being associated in the public narrative with all of those things, of almost creating them, but certainly having made them worse.

GODVIN:    I love the 1440 Newsletter, and today I opened it to see that Measure 110 was repealed, Oregon's overdoses rose 40 percent compared to a national average of 2 percent. Now that's true, but it's such a dishonest framing.

Because the Pacific Northwest was black tar heroin's last stand. And when those dominoes toppled, they toppled quickly. We had the fastest transition from a total heroin to a total fentanyl market that occurred anywhere in the United States.

A drug market will always move towards full synthetics. Under the iron law of prohibition, the smallest most compact dollar-for-dollar substance will always be preferred. And we did absolutely nothing to prepare for that.

So, after George Floyd, the Measure was passed on that groundswell of support for Black Lives Matter. By 2023, the entire nation is lurching right. Overdose, homelessness increased exceptionally in Portland during COVID. We're having a record number of evictions every single month.

And all of these myriad social ills are somehow being blamed on decriminalization—right down to homicide, as if not arresting a drug user for a dime bag of heroin somehow could create homicide as a fifth or sixth order of events down the chain.

WATKINS: Is there a way that this level of dishonesty could have been better prepared for?

GODVIN: Research has limitations. Most public policy is designed… It's based in emotion. So, while research, I will always believe, has a place, because I believe in science and facts, we could have done a much better job at the emotional aspect in conveying public policy through narrative storytelling. And unfortunately, progressive policy will always be limited and less effective than conservative policy because we are limited to tell the truth. We tend to be–

WATKINS: It's harder to demagogue the solutions.

GODVIN: Yes, we tend to be bound by facts in science in a way that the right is not. 

WATKINS: The decriminalization is being rolled back in Oregon. How much do you feel that we're back to where we were before Measure 110? How much is left, I guess, is what I'm asking.

GODVIN: Policy-wise, we're back to where we were before Measure 110. As to the heart and soul of the drug policy reform movement and how public opinion feels about that, we have been set back 20 years, and not just in Oregon, across the entire country. And actually, it spanned across borders because it's affecting Vancouver, B.C.'s, similar fight.

WATKINS: Could you say a bit more about that—20 years back: how, what's principally to blame?

GODVIN: Confounding drug decriminalization with homelessness, overdose, and crime has been a very powerful narrative that people actually believe. And so, it's going to take 20 years to extricate those things from the public's mind.

Unfortunately, it's going to take the failure of our recriminalization policy, which will never be scrutinized as heavily as decriminalization was across three years after decades and decades of the War on Drugs. And the outcomes of the War on Drugs were never scrutinized—of course, why would we do that? But three years of policy, of decriminalization policy, are heavily scrutinized.

In 10 years, I think, I'll be able to look at the outcomes of recriminalization and say, "I told you so." But that brings me no solace. But that will at least perhaps be able to turn the tide on public opinion back against the War on Drugs.

We have come to a fork in the road. And unfortunately, panic, the moral panic around fentanyl—which isn't to say that legitimate risk doesn't exist because it does, but it exists mostly around people who are willingly and consensually using fentanyl, and that is getting totally lost in the conversation. It's this emotional-based policy response: things like drug delivery resulting in death, increasingly punitive sentences for fentanyl possession and selling.

Decriminalization has essentially fallen prey to very similar levels of other fear-based policy that are resurging around fentanyl. We're almost seeing a resurgence of the crack era regressive, knee-jerk responses to an emerging drug crisis instead of continuing on the trajectory that we seem to have been on, which was not just a rhetorical shift towards a public health approach to drug use, but an actual policy-pragmatic shift.

And now with Oregon and how that has infiltrated the public conversation and public mind, decriminalization is, again, a non-starter in state houses across the country.

WATKINS: This whole experience, what kind of perspective has it given you on just how hard real change is to achieve?

GODVIN: Unfortunately, this was my first experience in policy. My federal prison sentence ended in January of 2019. And by October of that year, I was involved in the Measure 110 campaign, which passed with flying colors in November of 2020. I was then immediately appointed to the implementation council.

So, this is my real first fight where I had skin in the game, where almost immediately after getting out of prison, I had an opportunity to campaign for and pass a measure that essentially destroyed the system of harm that my friends and I experienced, many of whom did not live to see the day. And that was such a point of pride that I almost enveloped my identity around it.

To have that be repealed has been very detrimental to me. And I'm having to pull away from public policy. It's made me just fairly pessimistic about the future. I do believe the long arc of history will prove me right as the overdose crisis is only going to worsen under their recriminalization proposal and arrests and things.

But that doesn't help me in the here and now. And the thought that we could go back to arresting thousands upon thousands of Oregonians starting this year breaks me.

WATKINS: It feels like a very hard debate to know how to win when it feels like evidence just doesn't matter.

GODVIN: When facts fail, right? And I've always, since I was a kid, been such a strong believer in science and facts. When I was 15 years old, I thought I was a libertarian, and I posted on my Myspace blog about being a libertarian, because it was the only presidential candidate that publicly stood against the War on Drugs.

So, even before I was affected by this, I cared in an empathetic way. To have a victory so early on in my public policy career gave me a rose-colored-glasses distorted view on how easy this might be. And people who've been activists for decades tell me, "This is how it goes. You win some, you lose some, you keep up the fight."

But unfortunately, because of that win so early on, I really thought that history was finally coming around and the War on Drugs was going to fall before my eyes, and I was going to be right there on the front lines of it. And that's not how it's going.

We're now marching backwards in time, increasing the level of human suffering, unfortunately creating policies that will directly increase overdose death while people are championing them, saying that they're going to reduce overdose death.

And when they don't and when overdose deaths go up, the media doesn't care. They don't circle back on that one. Everyone's going to turn their eyes away from Oregon now.

After three years of intense media scrutiny, now that drugs are being recriminalized, they're going to find some other target, some other example of a progressive hellscape to turn their sights on, and it just won't matter. The actual outcomes, the actual human consequences, the actual human suffering just doesn't matter.

WATKINS: If you're stepping back from public policy, where does your energy and your advocacy go now?

GODVIN: I'm going to grad school to do research in substance use. Some of my most rewarding things actually, I worked on a Measure 110 research project for several years now in various forms. We spent months and months designing this survey to administer to drug users. And then I actually got to go out in the field in baking heat in homeless encampments, offering people $20 to take a half-hour survey, infusing people with legal money, so they didn't have to do whatever else they were going to do that day for money.

And just getting to talk to people and hear about their lives. And doing this survey that produced such a robust and rich amount of data: we were able to see things that have never been shown before in Oregon, ask brand new questions, see brand new results.

We proved that if someone had been incarcerated for any length of time in the last 12 months, they were twice as likely to have overdosed—twice as likely, even if it was just one night!

And I've done some work with the Clinical Trials Network, which does actual clinical trials, like hard science. And that's also been very inspiring because the perspective, I can share the perspective of a drug user.

Close contact with active drug users profoundly shapes the research question and the study design. Because researchers, no matter how well-intentioned they are, many of them have very little or very distant experience with drugs-drugs: like meth, fentanyl, heroin.

And so, I just want to do that. And the timescale is slower, and I don't have to pay attention to breaking news, and I don't have to take three media interviews a day, and I can just chill, but still get to work with drug users and still do something that I believe is making a difference in the world. But I can't do the policy anymore, tell you what.

WATKINS: Well, Morgan, I want to thank you for taking this media interview. And I want to thank you for all of your work, and I want to wish you the very best going forward. I look forward to hearing more about what you're doing. I hope we can stay in touch. And thanks so much for making the time today.

GODVIN: Yeah, thanks so much. Podcasts are far less intimidating to where my name is going to run in the paper tomorrow, sometimes not because they actually called me, but because they're sifting through my tweets or TikToks. Love that! Gotta love that!

WATKINS: Promise I'm not sifting through anything!

GODVIN:    All right.

WATKINS: We try to be unintimidating. But, yeah, thanks again, Morgan.