The difference between the decriminalization and legalization of substances 

Friday, February 3, 2023
Washington’s drug possession laws are at the forefront of legislators’ minds this session in Olympia. Criminal provisions adopted in 2021 in response to State v. Blake expire July 1, 2023, and lawmakers have to decide whether to decriminalize drugs or maintain or increase penalties for possession.  
Washington has criminalized the acquisition and use of certain drugs for over a century, and this approach has neither decreased rates of substance use disorder nor reversed the current overdose epidemic. Maintaining or increasing penalties for drug possession and relying on jails and prosecution as a pathway to treatment would be repeating the mistakes of the past and continuing the failed legacy and racially inequitable outcomes of the War on Drugs. 
The ACLU-WA advocates for the decriminalization of drug possession, but decriminalization is not legalization. The distinction between these two legal reclassifications often gets lost in discussion. It is important to understand what it means to decriminalize a substance and how that differs from legalizing it.  
Below you can find a breakdown of what each legal practice entails and the key differences between them. 

What is drug decriminalization? 

Decriminalization is the act of removing criminal sanctions against certain activities, including possession of drugs for personal use. The substance is still prohibited generally, but the repercussions for being found in possession of the substance are no longer criminal. Instead of incarceration, those found in possession of drugs could get redirected to services and have the drug seized. The production and sale of the decriminalized drug is still illegal.  

What is drug legalization? 

Legalization is the act of permitting by law use of a substance. In the drug policy context, the term "legalization" gets used in different ways. Generally, though, it implies some type of legal supply, from prescriptions to regulated cannabis shops. People can use the substance without worry of being convicted or fined. Limits can still be set on its use. For instance, the law may require you to be a certain age to use the substance and the government can still limit the amount a person can carry or possess, such as is the case with prescription drugs. Suppliers may need a license to sell the substance, like with cannabis or alcohol. In 2012, Washington became one of the first U.S. states to legalize recreational use of marijuana and to allow recreational marijuana sales. Both the use and sale of the substance are permissible under legalization.  

What are the key differences? 

These two terms are not synonymous. Decriminalization means a person will not face criminal penalties for being in possession of a substance, but the law may still allow police to confiscate it, and there is no structure in place to provide any legal, regulated supply. Legalization means people can now acquire and possess the drug freely under state or federal law, although it can still be regulated.  

What is the argument for decriminalizing drug possession? 

No one should be incarcerated for the use of illegal drugs. In particular, people with substance use disorders, which is a health condition, should be treated in public health settings. Washington has criminalized the acquisition and use of certain drugs for over a century, and this approach has not stopped people from using illegal substances, decreased rates of substance use disorder or reversed the current overdose epidemic. The nationwide overdose crisis and its impact in Washington is a public health emergency that demands our immediate attention, as more Washingtonians die every day. This is a crisis that demands an immediate shift in approach and resources to save lives.   
Support for drug decriminalization is at an all-time high, with a poll from the Drug Policy Alliance and the ACLU finding that 66% of Americans support eliminating criminal penalties for drug possession and replacing them with a new approach centered in public health.  
Oregon was the first state in the nation to decriminalize possession of all drugs and make a massive investment in supportive health services. The measure passed with an overwhelming 17-point margin. By removing criminal penalties for drug possession, thousands of people will no longer be arrested for possession and can instead get health services. Since its passage, drug arrests and incarcerations have dropped. Due to a delay in providing funding for services, there was initially a delay in people accessing recover supports. Now that millions of dollars are starting to flow to service providers, people are accessing services in greater numbers. 
Despite some criticism of the rollout, Oregonians still support keeping Measure 110 in place, according to a survey from Data for Progress. Respondents also attributed increased crime and homelessness to poverty, lack of affordable housing and lack of mental health care, rather than fewer arrests for drug possession.  
While Oregon is the first U.S. state to decriminalize, several European countries, including Portugal and the Netherlands, have treated drug possession as a public health issue instead of a crime for decades. All three of these countries have much lower rates of substance use disorder and overdose deaths than the U.S. 

What is happening in Washington this legislative session? 

Washington legislators are currently deciding how to replace the temporary drug provisions of ESB 5476 (2021) that expire on July 1, 2023. That legislation was passed after the Washington Supreme Court struck down the state's main drug possession crime in a case called State v. Blake. The ruling meant there was no state law making simple possession of drugs a crime until the legislature recriminalized it with ESB 5476. 
ESB 5476 also created the Substance Use Recovery Services Advisory Committee (SURSAC). SURSAC was tasked with making recommendations for how best to help individuals with substance use disorders access services. SURSAC released its final plan Jan. 11, 2023, which included recommendations to decriminalize possession, create a safe supply working group, and expand access to recovery services

Additional resources