Courtney Allen, policy director for Maine Recovery Advocacy Project, poses for a portrait recently outside the Maine State House in Augusta. Joe Phelan/Kennebec Journal Buy this Photo

She told herself she would break free of the heroin when she broke free of the traffickers who used it to control her.

“But heroin is not something you can just stop doing,” she said.

She was not able to stop for 12 years. She did sex work. She contracted HIV. She was often homeless. And she was arrested more than two dozen times, mostly for drug possession. The Portland Press Herald/Maine Sunday Telegram has agreed not to name her because she works with people who use drugs and is worried about putting them at risk.

“I spent all those years out there hopeless, feeling like nobody gave a crap,” she said. “If somebody, even just one person, had been like, ‘I know somewhere that can help you, I’m not taking you to jail, I want to help you,’ I might have gotten help.”

Maine lawmakers are considering a bill this session that would remove criminal penalties for drug possession, a step only Oregon has taken in the United States. Instead of going to jail, a person who has heroin or other substances on them would be required to pay a fine or get a health assessment, a potential first step to treatment. Selling or distributing drugs would still be illegal, but this bill could mean a dramatic change in the law for people who use them.

At least 1,500 people are charged with drug possession every year in Maine. Advocates see the measure as a way to reduce the stigma created by arrest and incarceration, although some say the proposal does not go far enough. Law enforcement leaders and prosecutors have been saying for years that Maine cannot arrest its way out of the opioid crisis, but some oppose the concept of decriminalization. Stakeholders on all sides agree that something needs to change, especially after a record year for overdose deaths in Maine, but do not have a consensus on exactly what that means.

“The war on drugs has not worked,” Dr. Mary Dowd, the medical director at Milestone Recovery, said. “It hasn’t stopped people from using drugs.”

In 2001, Portugal decriminalized small amounts of drugs. People now get a warning, a fine or a treatment referral instead of a jail sentence. Research there has shown that the number of people receiving addiction treatment rose, while overdose deaths and new cases of HIV among drug users dropped. Some other countries, including the Netherlands and Switzerland, have taken similar steps.

Last year, Oregon voters became the first in the United States to decriminalize possession for personal use. The ballot measure took effect last month, so it is still too soon to know the impact. The criminal penalty was replaced with a civil violation for having small amounts, generally less than one or two grams depending on the substance.

The consequence is a fine of up to $100 or a health assessment, which could include a referral to services that person might need, including treatment for substance use disorder. The person can then decide on their own whether to actually pursue whatever was recommended because supporters did not believe treatment would be successful if it wasn’t voluntary. In most cases, possessing greater quantities dropped from a felony to a misdemeanor, while selling or distributing is still a felony.

The ballot measure did face opposition that could foreshadow the debate here. Law enforcement groups and prosecutors argued that the criminal justice system does offer diversion programs and other alternatives for people who have substance use disorder. And some advocates said the state’s treatment network was already underfunded and would be quickly overloaded by an influx of people.

Maine is not the only state that could follow. Washington, Vermont and Massachusetts are looking at similar bills.

STIGMA FROM THE SYSTEM

A growing body of research has shown that more imprisonment and stiffer sentences do not reduce drug arrests and overdose deaths. People in recovery, advocates and treatment providers said getting arrested and going to jail is hugely disruptive for people who have substance use disorder. Incarceration and a criminal record can cost people their jobs, income, housing and relationships. Studies have also shown people who have recently been released from prison are at a higher risk of overdose.

“What we can see from the research is that moving the public infrastructure of dealing with people who have substance use disorder away from law enforcement and into the public health system has nothing but positive effects,” said Winifred Tate, director of the Maine Drug Policy Lab at Colby College.

“That elevated stigma is what keeps people using in the dark,” said Whitney Parrish, the director of advocacy and communications at the Health Equity Alliance. “It keeps people using alone and in shame, and it is what in part is driving our overdose deaths crisis. Criminalization has a direct link to the overdose deaths in the state.”

Some say jail and the courts remain potential motivators for recovery, however.

Cumberland County District Attorney Jonathan Sahrbeck said he would rather people access treatment outside the criminal justice system, but he also believes drug courts and deferred disposition agreements can connect them to resources.

Participants accepted into Maine’s drug court program engage in treatment and meet regularly to talk about their progress with a team, including a judge. Successful completion can reduce a person’s ultimate sentence. About 200 people enter drug courts each year in Maine, and the Maine Judicial Branch has found that people who go through drug court are less likely to be arrested within a year of their graduation than a comparison group outside the program.

A deferred disposition can similarly reduce a person’s sentence or conviction if they complete treatment or meet other requirements.

“I’ve bought into the idea that we can’t arrest our way out of the problem,” Sahrbeck said. “At the same time, I want to use the tools that I have to steer them toward recovery.”

‘THEY DON’T KNOW WHERE TO GO’

Under Maine’s drug laws, possessing less than 200 milligrams of most drugs is generally a misdemeanor, and people convicted face up to 364 days in jail. Having more than 200 milligrams is usually a felony on its own and carries a potential sentence of up to five years in state prison. The amount considered “personal use” varies by drug and by person, but advocates and those in recovery said 200 milligrams is a very small amount, and a person with substance use disorder would likely be using 10 times or more than that in a day.

The charge also can be bumped up to a felony if the person has prior convictions for trafficking, furnishing or operating a meth lab. And people can face more serious furnishing or trafficking charges just for carrying more than 200 milligrams of heroin or fentanyl.

In 2019, prosecutors in Maine filed more than 2,200 misdemeanors and fewer than 750 felonies for possession. Those charges represented at least 1,700 people, the highest in recent years, although the total number was not clear because people can face multiple charges.

The total number of people in Maine’s 15 county jails for drug possession is not clear. But at the largest one in Cumberland County, 21 percent of 321 inmates incarcerated last month were being held for drug possession charges, both felonies and misdemeanors. Out of those 67 people, all but one was still waiting for trial. Prison sentences for drug possession alone are less common. Nineteen people were in Maine prisons in February because their most serious offense was felony drug possession.

The most dramatic reform proposal would bring Oregon’s model to Maine. Rep. Anne Perry, a Calais Democrat and the bill’s sponsor, said she liked that the health assessment would help people with substance use disorder learn about their options for treatment.

“Exposure to treatment eventually gets them to treatment, but if you don’t expose them to that, they don’t know where to go,” Perry said.

L.D. 967 does not set a cap on the amount of drugs a person could possess without facing criminal charges, but Perry said she expects those thresholds will be part of upcoming negotiations. The bill would not erase past convictions or cut short the sentences of people currently in jail or prison.

Another bill that has not been finalized would prevent someone from being charged with furnishing or trafficking solely for possessing small amounts of heroin or fentanyl. People could still face those charges for actually selling or distributing drugs, or for having very large amounts. And a third bill would remove the criminal penalty for possessing more than a certain number of hypodermic needles.

DEBATE TAKES SHAPE

The American Civil Liberties Union of Maine, Health Equity Alliance and the Maine Recovery Advocacy Project are backing the proposals. Other advocates are also likely to testify in support of decriminalization, even though some said they would rather not see a civil penalty or any contact at all with the legal system. They worried that alternative penalties would continue disparate enforcement against poor people and people of color.

“Given the pain and suffering that people in Maine are enduring right now, given the rise in overdose deaths, we can’t afford to wait any longer,” said Meagan Sway, policy director at the ACLU of Maine. “We have to do something.”

Key law enforcement groups – including the Maine Sheriffs Association, the Maine Chiefs of Police Association and the Maine Prosecutors Association – declined interview requests because they have not yet taken a public position on the bill. Last year, the district attorneys supported raising the threshold for a felony charge but not complete decriminalization. Spokespeople for both Attorney General Aaron Frey and Gov. Janet Mils said they are still considering the proposal. Gordon Smith, the state’s director of opioid response, also declined an interview request on the topic.

Sen. Scott Cyrway sits on the Legislature’s Criminal Justice and Public Safety Committee, which will consider the decriminalization bill. The Albion Republican worked in law enforcement for years, including in schools as a D.A.R.E. officer. He worried that drug use and crime would increase if possession was decriminalized because police could not intervene as they do now.

“You’re going to have family members, like little kids, watching their parents abuse and not having any consequences,” Cyrway said. “Then who do they look up to?”

One local police chief said he is torn.

Scarborough Police Chief Robbie Moulton stands in the room at the Scarborough police station where the Operation Hope program is run. The program, which started in 2015, allows people to turn in drugs at the police station without fear of arrest for possession and get referrals and sometimes even scholarships for rehabilitation treatment. The program has placed 475 people since it began. Behind Moulton at right is a board posted with letters of thanks from people who have participated in the program. Gregory Rec/Staff Photographer

The Scarborough Police Department launched Operation Hope in 2015. People can come into the station, turn in any drugs they might have and discuss options for treatment. The program has now placed more than 475 people in various treatment programs.

Chief Robbie Moulton said he knew Operation Hope would fail if officers sent people to jail for drug possession when they came to get help. But he worries decriminalization could make it harder to enforce laws against trafficking.

“In that respect, I am in favor, I think, of not having the criminal penalties for somebody who is possessing small amounts, usable amounts. … I see the humanity in not necessarily making those folks criminals,” he said. “On the other hand, I’ll tell you that I have absolutely no compassion for somebody who wants to bring drugs into our community and sell them and make a profit.”

A ‘GOLDEN TICKET’

Some people in recovery wonder how life would have been different if they had been offered help sooner.

“Rock bottom is a myth,” said Courtney Allen, policy director of the Maine Recovery Advocacy Project. “People do not need to get to the bottom of whatever hole to create change in their lives. … Rehab sets us up to sustain that long-term recovery, whereas jail sets us up for a couple weeks of what feels like safety and security, and then walking back off the cliff.”

Marshall Mercer said he was charged with trafficking cocaine when he was 16 years old. He spent the next 20 years dealing and using drugs, losing friends to overdoses, often getting arrested and never getting help.

Four years ago, he participated in a Bible study through Arise Addiction Recovery in the Washington County Jail. He entered the nonprofit’s residential program, where he found faith and recovery. Now he is a recovery coach in Machias and an organizer for the Maine Recovery Advocacy Project, and he is working toward a psychology degree.

“If my life had changed back then, how many people’s lives could I have changed?” Mercer, 40, said. “How many people would not have died? How many people, instead of following me into the game, would have followed me out of it?”

The woman who was repeatedly arrested for possession said she called her sister in Maine to ask for help after a near fatal overdose. She has been in recovery now for nearly 16 months. She viewed the civil violation as accountability for law enforcement, a way to prove they are making referrals.

“That could be somebody’s golden ticket,” she said. “Not everybody’s, obviously. But if you refer 20 people in a week, and one of them goes to treatment because they didn’t know they could go without insurance or they were reusing needles and they didn’t know a place they could go, the whole point of this is still to lessen the harm on people who use drugs.”

On all sides, stakeholders agreed that Maine’s treatment network needs to grow, especially if these bills were to pass.

Treatment providers in Oregon worried about the gaps in their network, too. So the state dedicated millions in tax revenue from marijuana sales to expand treatment and fund the offices where health assessments will take place. The bills proposed in Maine don’t include such a funding mechanism.

While Medicaid expansion has helped people get access to suboxone and other medication-assisted treatment programs, Maine’s system is lacking in residential programs, especially for women, and detox facilities.

“If we’re going to divert people away from the criminal justice system, we need a place to divert them to,” said Oliver Bradeen, executive director at Milestone Recovery in Portland. “If you took everybody that is being charged right now and tried to divert them to treatment, we would quickly run out of treatment in our state. We can’t just address a part of the system without addressing the whole thing.”

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