As Washington lawmakers convene in January, two things are clear about the state’s drug laws: changes are needed; and Washington must not follow Oregon’s lead.
With these caveats, legislators should enact legislation that focuses on treatment rather than punishment, but reinforces the notion that illegal drugs are, in fact, illegal.
In February 2021, the state Supreme Court ruled in State v. Blake that Washington’s primary drug criminalization statute was unconstitutional. As the ACLU Washington explains, the court ruled that “the law criminalized ‘ignorant’ drug possession and people could be arrested and convicted even if they did not know they had drugs in their possession. The majority concluded: “Policing the legislature goes a long way, but not that far.” ”
By repealing the law, the Supreme Court has given anti-narcotics policy a wrench. Aside from challenging thousands of drug convictions, Washington had effectively legalized possession of all drugs. The sale of narcotics remained illegal, but the state had no mechanism to compel addicts to seek treatment.
The legislature passed Engrossed Senate Bill 5476 at short notice as an emergency solution. Under this law, someone is offered treatment for the first two drug possession offenses and charged with a misdemeanor for the third offense. The law expires on July 1, and lawmakers have all along planned to address it this year.
Policymakers in Washington and elsewhere — on both sides of the aisle — have increasingly questioned criminal laws on drug possession. Indeed, severe punishment for minor offenses is draconian and applied unfairly depending on the race. The legalization of recreational marijuana use in Washington and 20 other states shows a growing public awareness of the harmful effects of strict drug laws.
But with a growing opioid crisis and the ways in which drug abuse contributes to homelessness, lawmakers need to be cautious about taking a soft approach to drug enforcement.
An example of an overly loose approach can be found in Oregon. There, voters across the country approved a 2020 measure that would decriminalize 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 seek treatment.
Keith Humphreys of the Stanford Network on Addiction Policy recently told KGW, “Addicts typically do not seek treatment and recovery without external pressure from family, friends, employers, healthcare providers, or the law. Why is that important? It’s important because Oregon has removed all legal pressure to stop using drugs and seek treatment. Because many addicts do not work or have no contact with their families, the pressure to stop using drugs and alcohol is absent from their lives.”
Oregon law allows police to issue 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 proven itself.
In rethinking drug enforcement, Washington lawmakers must find a way to administer and treat addicts, ensure real enforcement of the most dangerous drugs, and draw a clear line between penalties for recreational users and drug dealers.
In short, drug laws should ensure that punishment is appropriate to the crime while paving the way to treatment for those who need it.