When Washington lawmakers convene in January, two things are clear regarding the state’s drug laws: Changes are needed; and Washington must not follow the lead of Oregon.
With those caveats, the Legislature should enact legislation that focuses on treatment rather than punishment but reinforces the notion that illegal drugs are, indeed, illegal.
In February 2021, the state Supreme Court ruled in State v. Blake that Washington’s primary drug criminalization law was unconstitutional. As ACLU Washington explains, the court ruled that “the law criminalized ‘unknowing’ drug possession and people could be arrested and convicted even if they did not realize they had drugs in their possession. The majority concluded, ‘The Legislature’s police power goes far, but not that far.’ ”
By overturning the law, the Supreme Court threw a wrench into drug enforcement policy. In addition to having thousands of drug convictions called into question, Washington had effectively allowed the possession of all drugs. Selling narcotics remained illegal, but the state was left without a mechanism for compelling addicts to seek treatment.
The Legislature, with short notice, passed Engrossed Senate Bill 5476 as a stopgap. Under that law, somebody is offered treatment for the first two drug-possession offenses and is charged with a misdemeanor on the third offense. The law expires July 1, and lawmakers have planned all along to address it this year.
Policymakers in Washington and elsewhere — on both sides of the aisle — have increasingly questioned punitive drug-possession laws. Indeed, severe punishment for minor offenses is Draconian and has been applied inequitably by race. The legalization of recreational marijuana use in Washington and 20 other states demonstrates growing public awareness of the deleterious impact of strict drug laws.
But given a growing opioid crisis and the way in which substance abuse contributes to homelessness, legislators must be cautious about a soft approach to drug enforcement.
One example of an overly lax approach can be found in Oregon. There, voters statewide approved a measure in 2020 decriminalizing possession of small amounts of even the most dangerous drugs. The idea was to fund treatment programs rather than jurisprudence, but the reality is that few offenders are seeking treatment.
Keith Humphreys of the Stanford Network on Addiction Policy recently told KGW: “Addicted people usually do not seek treatment and recovery without external pressure from family, friends, employers, health care providers or the law. Why does this matter? It matters because Oregon has removed all legal pressure to stop drug use and seek treatment. Because many addicted people are not working or in touch with their family, those pressures to stop using drugs and alcohol are absent from their lives.”
The Oregon law allows police to write a $100 ticket for possession of drugs for personal use, and the offender can have the ticket wiped away by seeking treatment through a helpline. The system has not been effective.
In rethinking drug enforcement, Washington lawmakers must find a way to mandate and provide treatment for addicts, provide genuine enforcement for the most dangerous drugs, and draw a clear line between penalties for recreational users and dealers.
In short, drug laws should ensure that the punishment fits the crime while paving a path toward treatment for those who need it.
