Washington could become the second state to decriminalize drugs

An Oregon law decriminalizing drug possession took effect last week. Some think Washington state should follow suit.

click to enlarge Oregon voters legalized psilocybin, known as magic mushrooms, for people age 21 and older.
Oregon voters legalized psilocybin, known as magic mushrooms, for people age 21 and older.

By Melissa Santos / Crosscut.com 

Last week, Oregon became the first U.S. state to decriminalize possession of small amounts of heroin, cocaine and other drugs. On Thursday, state lawmakers and advocacy groups in Washington state announced a plan to do the same thing on this side of the Columbia River.

A bill introduced in the state Legislature would make Washington the second state in the nation to legalize the personal use of all drugs, ranging from psychedelic mushrooms to opiates. The measure would also pour state money into treatment and community-based intervention programs, where drug users and people with mental health problems would be referred instead of jail.

The push to legalize low-level drug possession comes after months of protests over how the criminal justice system treats people of color, especially Black people. 

Researchers have consistently found that the harsh sanctions of the past century’s War on Drugs intensified racial disparities in drug arrests. While in 1976 Black people constituted 22% of drug-related arrests nationwide, by 1992, they accounted for 40% of such arrests, according to FBI data

That’s despite Black people making up only about 12% of the U.S population during that time and federal surveys finding Black people are no more likely to use drugs than white people.

Meanwhile, proponents of decriminalization argue that jailing people for drug offenses hasn’t deterred drug-related crime — nor has it helped people with substance abuse disorders overcome their addictions.

"We need a new approach to health and safety,” said state Sen. Joe Nguyen, D-West Seattle, one of the legislators supporting the decriminalization policy. “There’s a lot of reckoning happening right now to make sure we’re undoing the wrongs of the past.”

The new decriminalization measure, which is sponsored by state Reps. Lauren Davis, D-Shoreline, and Kirsten Harris-Talley, D-Seattle, differs from Oregon’s new law in a few ways.

For one, the Washington bill wouldn’t impose a $100 fine for drug possession as in Oregon, where possession remains a civil infraction. It would instead refer people to drug recovery programs, mental health treatment or other community-based social service programs, without imposing criminal penalties or fines. 

Right now in Washington state, possession of an illicit controlled substance is a class C felony, punishable by up to five years in prison and a $10,000 fine. 

"People recover not when we cast them out, but when we bring them in," said Davis, the prime sponsor of House Bill 1499.

The new decriminalization proposal in Washington wouldn’t use revenue from legal marijuana sales to help pay for drug treatment programs and community services, as Oregon’s law does. Instead, the plan’s backers are hoping to get money from the Washington state general fund later this spring, when the Legislature approves a new two-year budget.

Another difference is that the Washington bill wouldn’t immediately specify what amount of a drug would qualify as being for personal use versus for commercial use, which would still be a felony subject to penalties. The specific cutoffs would be worked out in a rule-making process later, should the bill pass.

It’s not clear exactly how much the measure would cost. Because the bill is new, legislative staffers have yet to do a fiscal analysis. Davis said she plans to propose new taxes on opioid manufacturers and drug companies to help raise some money to pay for outreach and treatment programs. She said the state could also reinvest some of the money saved by not arresting people and imprisoning them for drug crimes.

Proponents of the idea say there are successful diversion programs that the state could work to expand or replicate, including the Law Enforcement Assisted Diversion (LEAD) program, which started in Seattle and has become a model across the country. Under the LEAD program, people who commit low-level offenses like drug use, shoplifting or sex work aren’t arrested, but are instead referred to case-management programs to connect them to treatment, housing or other vital services.

Previously, police were mostly the ones referring people to LEAD, but the program’s leaders recently broadened the program so that police don't have to be involved. Since August, about 90% of referrals to the program have come from community sources other than police officers, said Lisa Daugaard, executive director of the Public Defender Association and co-founder of the LEAD program.

Malika Lamont, a project manager with the Washington state LEAD expansion team, said the goal of the decriminalization bill would be to get people the help they need, so they don’t continually bounce between jail and the streets. She sees the plan as a way to help invest in programs that will actually help reduce recidivism and criminal activity in the long run. 

“The continual cycle of arresting people, putting them in jail and then releasing them for low-level drug possession, and the economy that is around the illicit substance market ... that cycle isn’t working for communities,” said Lamont, who is also the program director for VOCAL-WA, which advocates for low-income people and others affected by homelessness, mass incarceration or the War on Drugs.

The idea is to connect people with “the correct service and the correct intervention, so people can change their behavior and no longer engage in law violations,” Lamont said.

Still, decriminalization is likely to receive pushback from law enforcement groups and others who worry its passage would lead to more lawlessness and street crime, not less. In Oregon, county sheriffs opposed Measure 110, the decriminalization measure that went before voters last fall. It passed by a wide margin anyway.

The Washington measure wouldn’t need to go to voters, but instead could be passed with a vote of the Legislature and the approval of Democratic Gov. Jay Inslee.

The Washington Association of Sheriffs and Police Chiefs is reviewing the legislation and has yet to develop a position on the bill, said Steve Strachan, the group's executive director. He noted the organization has opposed most drug decriminalization measures in the past.

In addition to VOCAL-WA, the Public Defender Association and the American Civil Liberties Union of Washington are among the many groups championing the decriminalization bill.

ACLU-WA was a driving force behind a proposed citizen initiative last year, Initiative 1715, which had similar aims, but never qualified for the ballot. Supporters said it was difficult to collect nearly 260,000 required signatures during the early months of the pandemic.

Nguyen, the state senator from West Seattle, said he thinks there is greater momentum to pass the measure in the Legislature after 2020’s widespread protests for racial justice. 

Voters’ embrace of the policy in Oregon last fall also could make Washington lawmakers more likely to give it a chance, he said.

“Certainly, that is a vote of confidence that this is possible,” Nguyen said. 

This article was updated to include a response from a law enforcement group and LEAD co-founder Lisa Daugaard, as well as more information about possible funding sources.


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