Lawmakers delivered a final defeat late Wednesday to a bill that sought to make drug possession for personal use a civil violation instead of a crime.
The Senate voted against the measure 18-14, with six Democrats joining all but one Republican in opposition.
The concept had vocal support from people in recovery, medical providers, faith groups and other advocates who argued that Maine needs to stop using law enforcement to solve a public health crisis. But L.D. 967 faced resistance from some legislators, both Democrats and Republicans, and from the Mills administration, which said police and prosecutors have tools that can help people get into treatment and maintain their recovery.
The debate played out in the wake of the deadliest year yet for overdoses in Maine. A record 504 people died of a drug overdose in 2020, a 33 percent increase over the 380 people who died in 2019. Data from the first four months of the year suggest 2021 could be even worse.
“The Senate had an opportunity to provide people with desperately needed relief, and it failed,” said Courtney Allen, policy director at the Maine Recovery Advocacy Project. “We need to change our drug laws if we want to save lives. L.D. 967 would have saved the state money and reinvested resources from the criminal system into access to recovery services. People need treatment and support to enter sustained recovery, not arrest and a criminal record.”
Votes in both chambers were close. The bill passed the House of Representatives two weeks ago on a 77-62 vote.
Even if the Senate had passed the bill, it’s likely Gov. Janet Mills would have vetoed it, and there wouldn’t have been enough support from lawmakers to overturn a veto.
If the bill had become law, Maine would have become the second state to decriminalize drug possession. Instead of going to jail, a person who has heroin or other substances in their possession would have been required to pay a fine of up to $100 or get a health assessment, a potential first step to treatment. Selling or distributing drugs still would have been illegal, but this bill would have represented a significant shift in the state’s approach to the opioid crisis.
At least 1,500 people are charged with drug possession every year in Maine. A fiscal note estimated this proposal would have cost the state $500,000 in court fines but saved the Department of Corrections more than $1 million by imprisoning fewer people.
Under Maine’s current 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 have 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.
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, have taken similar steps.
Last year, Oregon voters became the first in the United States to decriminalize possession for personal use, and Maine’s bill was modeled after that approach. The ballot measure took effect this year, so it is still too soon to know its impact.
Other states considered similar proposals this year. For example, Washington’s governor signed a major overhaul of the law on possession, requiring diversion for the first two incidents and reducing the third from a felony to a misdemeanor. Vermont recently decriminalized the possession of buprenorphine without a prescription, a drug that is used to treat opioid use disorder. Both laws will expire in two years, giving those states time to assess them before making any reforms permanent. Maine’s bill did not include such a clause.
Lawmakers on the Criminal Justice and Public Safety Committee considered a compromise that would have allowed the first two instances of drug possession to be civil violations before a third would be a misdemeanor crime. They ultimately could not reach a consensus about the best approach, with even the Democrats on the committee divided. The Senate considered a similar amendment Wednesday, but still did not pass the bill.
Advocates expressed disappointment with that outcome and said they would continue to push for reform.
“Most Mainers agree that punitive drug laws don’t work and people who use drugs need access to treatment and support, not criminal punishment and stigma,” said Meagan Sway, policy director at the American Civil Liberties Union of Maine. “We need a public health response to a public health crisis, and we will continue to fight until we get it. It’s what Mainers want and it’s what Mainers deserve.”
The Legislature considered two other bills related to drug policy this session, both of which passed.
L.D. 994 decriminalizes the possession of hypodermic needles. Right now, it is illegal to have more than 11 syringes. That bill is awaiting funding before it goes to the governor’s desk.
And L.D. 1675 makes it harder for prosecutors to get a conviction for felony trafficking based only on the amount of drugs. That bill became law without the governor’s signature. Previously, people could face a trafficking charge just for carrying more than 2 grams of heroin or fentanyl.
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