Did the decriminalization of drugs like fentanyl lead to an increase in opioid overdoses?

The opioid epidemic in the United States has developed in deadly waves, starting with prescription painkillers, increasing with heroin, and accelerating further with the synthetic opioid fentanyl.

Some signs suggest that overdose deaths are finally starting to decline. Overdose deaths fell 10% overall between April 2023 and April 2024, and fentanyl deaths fell 12%. But national statistics inherently mask regional trends, such as the rapid increase in fentanyl-related deaths in Western states.

“I’ve been working in harm reduction for over 20 years,” says Haven Wheelock, who runs a syringe exchange program for Outside In, an Oregon-based nonprofit. “Never in my career have I seen a change in the supply of drugs, in the way people relate to drugs, how they use them, as rapidly as I have over the last three years.”

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In February 2021, the Drug Addiction Treatment and Recovery Act (also known as Measure 110) went into effect in Oregon, becoming the first US state to decriminalize hard drugs. Wheelock, who spearheaded that ballot initiative and secured funding for his program under the new system, called it a brave effort to try something new, given the failure of the era’s war on drugs and policing Nixon as a solution to addiction. Under the new system, people carrying small amounts of drugs like heroin, methamphetamine, and fentanyl were fined $100 — essentially the cost of a parking ticket — instead of being arrested.

But that experiment ended last month when Oregon recriminalized the drugs after overdose deaths soared — 41 percent in a year of Measure 110, compared to 13 percent nationally — and voters they attacked each other with decriminalization. A new study a Open JAMA Network contests the narrative that decriminalization caused this increase and instead suggests that it had no impact. Wheelock’s previous research had similar findings, but the new study also found that the arrival of fentanyl in Oregon could explain the state’s increase in overdose deaths.

“This is the study we’ve all been waiting for,” says Todd Korthuis, chief of addiction medicine at Oregon Health & Science University, who was not involved in this study. Instead of decriminalization leading to the spike in deaths, “fentanyl was the whole story,” he says. Other factors, such as lack of access to treatment, only exacerbated the situation. “We need to do a better job of reducing the barriers to starting methadone treatment, buprenorphine treatment” — standard therapies for opioid use disorder — “and creating pathways and systems to help stay on those medications,” says Korthuis.

The new study was funded by the National Institutes of Health and Arnold Ventures, a philanthropic organization that supported the passage of Measure 110. But Brandon del Pozo, lead author of the study and a public health researcher at Brown University , says Arnold Ventures had no role in initiating this research or input into the analysis.

Using data from forensic labs, del Pozo’s team showed for the first time something obvious: In every state, as fentanyl began to saturate drug markets, overdose deaths rose in response. In New England, the tipping point for fentanyl came around 2014; in Oregon, it happened in early 2021, just as Measure 110 went into effect.

To clarify these effects, del Pozo’s team looked at how many overdose deaths increased after each state’s unique fentanyl saturation point. Using data from 48 states that never decriminalized the drug, the team estimated that fentanyl should have caused Oregon’s drug overdose rates to rise from 11 per 100,000 deaths in early 2021 to 18 per per 100,000 by the end of 2022. The actual data from Oregon lined up almost perfectly with this prediction. , and follow-up analyzes confirmed that after accounting for fentanyl, there was no association between decriminalization and overdose deaths.

Washington state provided a natural counter-experiment to Oregon: fentanyl dominated in both states at the same time, but Washington recriminalized the drug in 2021 after a four-month period without criminal penalties. “If you really think it was decriminalization that led to overdoses, you should see them moderated or evened out after recriminalization,” says del Pozo. “Instead, overdoses accelerated” from fentanyl after Washington’s recriminalization.

Keith Humphreys, a psychologist and co-director of the Stanford Network on Addiction Policy, who was not involved in the new study, cautions against reading too much into the Washington experiment because the period of decriminalization was so brief and unusual. But he’s also skeptical about the study’s main finding. “There’s an inference that’s probably wrong, which is that the rapid spread of fentanyl is completely unrelated to politics,” Humphreys says. Decriminalization, for example, could have increased access to fentanyl throughout Oregon, especially given the outdoor drug markets that have sprung up in recent years, he says.

While del Pozo agrees that Measure 110 impeded the state’s ability to disrupt those markets, he rejects the idea that police could have significantly curbed fentanyl or that Oregon faced anything unique. “Fentanyl has overflowed across the nation, state by state, regardless of how aggressively communities policed ​​it,” says del Pozo, who is also a former police chief in Burlington, Vermont. “If you mapped the states’ percentage of fentanyl and their overdoses and took away the labels, you couldn’t tell Oregon from most other states.”

Ultimately, fentanyl overwhelmed any political effect in Oregon, but the takeaway from this study shouldn’t be that the criminal justice system doesn’t matter, del Pozo adds. Ultimately, fentanyl supplanted heroin in the United States in part because of the “iron law of prohibition,” in which illegal drugs tend to be more concentrated and more deadly in as traffickers create more compact and easier-to-smuggle alternatives. This makes the drugs more potent and deadly in the long term, although this risk must be weighed alongside other factors such as the societal harms of unchecked drug trafficking, says del Pozo.

Humphreys disagrees with this “iron law” because it suggests that there is something absolute and distinctive about illicit substances, even though potency has also increased in legal drugs, such as cannabis and wine. In other words, there are various market incentives to increase potency, and Humphreys argues that decriminalization will not necessarily make drug supply safer.

The main lesson from Oregon might be that decriminalization is not just a switch, and that to be successful, it must be carefully accompanied by well-funded prevention and treatment programs, according to del Pozo. For example, Portugal, which decriminalized all drug use in 2001, spent about two years figuring out how to implement the strategy and increase treatment capacity before it officially changed its law. Portugal also struck a balance in regulating drug possession by neither fully legalizing it nor making it a crime, avoiding the dangers at both ends, says del Pozo.

Oregon, on the other hand, decriminalized drugs on an accelerated timeline, driven by advocates “who believed so passionately and didn’t want the status quo to live another day,” says del Pozo. “We’re in this mess with decriminalization because people were so quick to take a victory lap and lost sight of other key ingredients for success.”

For example, in 2020 the National Survey on Drug Use and Health ranked Oregon as the worst state in the country for access to addiction treatment. While Measure 110 allocated more than $300 million to address this, most of those funds only became available 18 months after the state’s decriminalization law went into effect. And those funds didn’t really go toward traditional treatment services, Korthuis says.

Instead, they primarily targeted harm reduction and community-based organizations, which provide needles, syringes and other clean drug paraphernalia; test for blood-borne diseases such as HIV; the opioid reversal drug naloxone; and other support services. They can be “game-changers for reaching people who are not seeking treatment,” says Korthuis. But without simultaneously expanding access to evidence-based medications or integrating services, many Oregonians who wanted to access addiction care simply couldn’t.

Addressing addiction also requires addressing some of its root causes, such as poverty and homelessness. “Addiction is a maladaptive coping mechanism,” says Wheelock. “I want to make sure people have food in their bellies, roofs over their heads, loving communities around them, where they don’t fear violence.” So she criticizes the “magical thinking” that a policy could fix addiction and what she believes is a cynical effort to decriminalize scapegoating.

Whether a policy failure or a PR failure, Oregon’s flawed experiment may be setting back reform efforts nationwide. “I’ve talked to a lot of state legislators, and the first thing they say is, ‘I don’t like the way things are going in Ohio, but we don’t want to be like Oregon,'” Humphreys says. While this study suggests that decriminalization did not significantly affect overdose deaths, it is skeptical that it will change much because “Measure 110 was not sold to voters on the argument that ‘This shouldn’t make things worse.’

For many of these reasons, if Wheelock could go back, he would have slowed down the timeline on decriminalization to get it right. “I hate to say that,” he says, “because people are dying and going to jail, and those are tragic outcomes.”

For Korthuis, what Oregon needs now is to double down on prevention, naloxone distribution, harm reduction and expanding access to treatment, with law enforcement also part of the solution. “This requires a comprehensive approach from the entire community.”