Washington should be a leader in ending the War on Drugs 

Monday, November 7, 2022
How Washington state addresses drugs and substance use disorder will be a focus of the 2023 legislative session. Washington state can be a leader in drug reforms that center proven public health solutions. It is critical that lawmakers not go backwards and further criminalize a public health problem. Doubling down on the War on Drugs would be a tragic mistake. It will also be out of step with what the public wants: A June 2022 poll of likely Washington voters found that 85% believe that drug use should be treated as a public health issue, not a criminal justice issue.[1] 
We need to do more to address public health harms like the overdose deaths crisis. Too many people are dying in Washington, especially people of color and the young.  Some politicians are spinning a false narrative that overdose deaths are up because of the 2021 State v. Blake state supreme court decision, which found Washington’s drug possession statute unconstitutional. But this problem is not unique to Washington; states across the country are dealing with the emergence of fentanyl and continued easy access to other drugs like methamphetamine. Overdose death rates are up in 43 out of 50 states, with only South Dakota, Alaska and Oklahoma having a larger percentage increase in overdose deaths between May 2021 to May 2022 than Washington.[2]  It’s important that we learn from past mistakes, including the failure to fully invest in public health responses to substance use. This post revisits recent drug policy reforms and highlights what lawmakers should consider in 2023. 

Washington’s long War on Drugs 

Washington state has criminalized the acquisition and use of certain drugs for over a century.[3] Public health responses to people with substance use disorders have also been enacted, but the allocation of the necessary resources for non-criminal approaches never materialized. Ultimately individuals are viewed as committing a criminal act every time they use an illicit drug and face huge barriers to accessing services. For example, people with substance use disorders still struggle to find treatment services, especially in rural areas, and even more basic needs such as stable housing. The results of this approach have been catastrophic. Drugs are still readily available, people with substance use disorders are stigmatized and fear punishment, and the criminal response leads to racially disparate outcomes and lifelong criminal records. These records make it harder to get an education, find a home or get a job.  
The War on Drugs has never worked. The ACLU of Washington supports efforts to replace the failed policies of the past with proven approaches that address substance use disorder through prevention, outreach, and recovery services. This approach should also include the decriminalization of drug possession and replacing it with public health responses.  
State v. Blake and SB 5476  
In February 2021, the Washington State Supreme Court struck down RCW 69.50.4013, the statute that made possession of a controlled substance a felony punishable by up to five years in prison. The court ruled the statute was unconstitutional because it allowed people to be convicted of possession without any mental state requirement, i.e. the person didn’t realize they had drugs in their possession. This ruling in State v. Blake meant there was no state law making simple possession of drugs a crime unless the Legislature recriminalized it. The Legislature did just that in the 2021 legislative session with the passage of Engrossed Senate Bill (ESB) 5476. This legislation also required that a person be offered services at least twice before being criminally charged for possession and set up some new statewide services including expanded use of the LEAD model. LEAD is a community-based diversion program which originated in Washington state. The services set up in SB 5476 are just getting off the ground. It is too early to tell whether they will be a success or not, but some locations are showing promising outcomes already.  
Importantly, SB 5476 also created the Substance Use Recovery Services Advisory Committee (SURSAC),[4] tasked with creating a “plan” for the 2023 legislative session. Adding more urgency to the issue, if the legislature doesn’t take action in 2023, the criminal law changes in SB 5476 will expire in July of 2023, meaning drug possession would be decriminalized.  

Listen to community and those directly impacted by the War on Drugs 

Many community members will once again press the legislature to stop treating drug use as a crime in 2023, building off similar efforts from previous years. For years, a coalition in Washington made up of people who are struggling with substance use disorder, leaders from BIPOC communities, public health experts and more have been working to decriminalize drug possession and expand public health impacts. 
In 2020, many hoped that Washington would join Oregon[5] in passing a ballot measure that decriminalized drug possession and expanded public health responses instead. Unfortunately, the Washington measure, I-1715,[6] couldn’t move forward in Washington due to the pandemic.  
But momentum continued into 2021 with introduction of the Pathways to Recovery Act (HB 1499)[7] and a coalition in support of passage.[8] This legislation made it out of committee but didn’t go any farther. Undeterred, a coalition growing out of previous efforts[9] pushed for another ballot measure in 2022, I-1922,[10] but it too didn’t make it on the ballot due to pandemic-related issues. Throughout these efforts, public opinion has been clear that voters in Washington want public health responses. A June 2022 poll found that 67% of voters would have approved I-1922 were it on the ballot.[11]  
An essential element of the multi-year effort to change drug laws in Washington is that the policy proposals have gotten better over the years, in large part due to community members getting more involved in the process. HB 1499, and then I-1922, were improvements over previous policy proposals because they included more input from directly impacted people. They also benefitted from some of the initial outcomes of Oregon’s Measure 110. No matter what the legislature does in 2023, it should be informed by people with lived experience and not the political whims of the day. Additionally, the legislature will be provided with a roadmap for what to do in 2023 via the SURSAC plan, which was part of SB 5476 passed in 2021.  

SURSAC and the 2023 legislative session 

SURSAC, led by the Washington State Health Care Authority, has been meeting throughout 2022 and will issue a “substance use recovery services plan” to the governor and legislature by Dec. 1. The recommendations within the plan are starting to take shape and have been approved by SURSAC. They include many of the policies that were included in HB 1499 and I-1922 and other worthwhile ideas. These include recommendations that drug possession should be decriminalized and that the state provide additional funding for public health responses.[12] It also recommends that the state create a workgroup to examine policy options for a “regulated, tested supply of controlled substances to individuals at risk of drug overdoses,” known as a “safe supply.” The legislature should introduce and pass legislation to enact the SURSAC plan in 2023.  
Washington lawmakers should learn from the past century of failed drug policies and finally make the necessary investments in proven approaches that address substance use disorder through prevention, outreach and recovery services.  
[3] See – Session Laws 1923, Chapter 47 - https://leg.wa.gov/CodeReviser/documents/sessionlaw/1923c47.pdf