In February 2021, two states decriminalized drug possession. One was much anticipated; the other seemed to come out of nowhere.
On February 1, Oregon’s ballot Measure 110 became law, making possession of small quantities—less than 1 gram of heroin, for example—no longer criminally punishable.
Then, to the bewilderment of many, drug possession was decriminalized in Washington state on February 25. In an opinion authored by Justice Sheryl Gordon McCloud, a majority of state Supreme Court Justices found the statute RCW 69.50.4013—establishing felony criminal punishment for drug possession—to be unconstitutional.
Washington is the only US state to criminalize the unknowing possession of drugs, subjecting defendants to up to five years in prison and large fines. McCloud determined that this violated due process protections.
“The Court correctly recognized the injustice of convicting people for innocent conduct,” said Richard Lechich, a staff attorney at the Washington Appellate Project who argued the case, in a press release. “While the decision cannot rectify the harm this law caused to so many communities, particularly communities of color, it at least puts an end to it.”
The implications are far-reaching. Law enforcement all across the state—from the Seattle Police Department to rural sheriff’s departments—announced they would no longer arrest or detain people solely for drug possession.
The Department of Corrections (DOC) and the state’s attorney general are now reviewing the decision’s “potential impacts on currently incarcerated and supervised individuals, as well as on agency policies and practices,” a DOC spokesperson told Filter. Sentences including coerced substance use disorder treatment could also be impacted.
Prosecutors were ordered by the the Washington Association of Prosecuting Attorneys to drop relevant charges, vacate convictions and recall arrest warrants. In the state’s most populous county, Seattle’s King County, prosecutors had already been scaling back simple drug possession cases. At the time of the Supreme Court decision, there were only six people in the King County Jail on the now-eliminated charges.
In 2020, the Office of the King County Prosecuting Attorney had filed 580 felony drug cases. This historically low number was the result of over a decade of policy change. Since 2008, the Office has been charging simple drug possession as a misdemeanor, not a felony. In 2018, King County Prosecuting Attorney Dan Satterberg announced that people found to be in possession of less than 1 gram of any drug would not be prosecuted, except in cases where “police […] ask prosecutors to charge someone who is a danger.”
“It is imperative that we stop handing down felony possession convictions that compound shame and create barriers to recovery.”
For drug policy reform advocates, the unexpected change is exciting. It gives “the Legislature a unique opportunity to completely rethink the state’s approach to drug possession,” Theshia Naidoo, managing director of the Drug Policy Alliance’s* Department of Legal Affairs, wrote in a press release.
Competing Efforts in the Legislature
One state lawmaker, a main sponsor of a current bill to decriminalize possession for personal use (in quantities yet to be defined) agrees with Naidoo. “Last week’s Supreme Court decision gives renewed urgency to the conversation about our state’s response to untreated substance use disorder,” Representative Lauren Davis told Filter. “It presents an opportunity to continue the discussion that was begun in the legislature this session with HB 1499.”
“It is imperative that we stop handing down felony possession convictions that compound shame and create barriers to recovery,” she continued. “We must stop criminalizing symptoms of a treatable brain disease. [Last week’s] decision does that.”
On February 15, the House Committee on Public Safety passed a substitute version of the bill and referred it to the Appropriations Committee. According to the latest draft, the state’s Health Care Authority (HCA) would determine the quantity of the decriminalized “personal use amount” on a substance-by-substance basis by September 1, 2022. Drug “paraphernalia” would also be decriminalized, and some convictions could be vacated.
Similar to the Oregon’s Measure 110, Davis and her allies advocate for more than just decriminalization; people who use drugs also need revamped health care and social service supports. “It is equally important that we build out a response to substance use disorder that truly works—a robust and fully funded continuum of care ranging from outreach to treatment to recovery support services,” she said. “I look forward to continuing to fight to forge pathways to recovery for all.”
The bill would task the HCA with developing a Substance Use Recovery Services Plan. This would have to ensure that “continual, rapid and widespread access to a comprehensive continuum of care is provided to all persons with substance use disorder, regardless of the point at which they present within the continuum of care,” wrote the Public Safety Committee in the bill’s analysis.
“Most Washingtonians are open to discussing how to deal with drugs in our criminal justice system. It is clear that the current system isn’t working.”
Not all of Davis’s colleagues in the state’s Democratic Party are advocating for statutory decriminalization this session. Two state senators, Mark Mullet and Steve Hobbs, introduced legislation (SB 5468) on March 1 to restore criminalization by making a single amendment to the law: inserting “knowingly” in the sentence making drug possession unlawful.
Mullet does not approve of the way the state received decriminalization. “I have never seen the State Supreme Court make a sweeping change to state law as impactful as this through a split decision,” he wrote to Filter. But he doesn’t necessarily oppose decrim in the long-run.
“Most Washingtonians are open to discussing how to deal with drugs in our criminal justice system. I am one of them. It is clear to most people that the current system isn’t working,” he continued. “[SB 5468] is not about the merits of criminalizing drug possession. That is a discussion that the Legislature should have in the proper venue, in the public square where it can be debated.”
“[W]e need a support system in place before we make wholesale changes, as Oregon did. Those changes should be thoughtful and they should come from the Legislature so that the public understands the new policy and has an opportunity to weigh in before it is enacted.”
The deadline to pass non-budgetary bills out of committee has now come and gone. SB 5468 has been referred to the Law and Justice committee; at publication time, it appeared not be scheduled for review at the committee’s next meeting on March 4.
Mullet believes his bill to restore criminalization could succeed. “If enough voters contact their legislators, I believe the bill has a chance. Legislators should work on it while we are in session to ensure the broadest set of voices are heard.”
* DPA previously provided a restricted grant to The Influence Foundation, which operates Filter, to support a Drug War Journalism Diversity Fellowship.