The Washington State Supreme Court recently struck down the state’s main drug possession law, effectively decriminalizing simple possession of controlled substances.
The court ruled last month that the law is unconstitutional because it lacks an intent clause, which criminalizes even “unknowing possession” of a drug.
Before the court’s decision, Washington was the only state in the nation with this type of strict liability drug law, a law which leads to thousands of arrests and prosecutions each year and that disproportionately impacts people of color.
Not surprisingly, the decision is prompting calls to rush through legislation that would re-criminalize these cases. That would be a mistake.
With the new ruling, Washington is now positioned to lead the way in re-imagining our collective approach to drug policy.
Lawmakers should view the court decision as an opportunity to take a hard look at the failures of the war on drugs and instead invest in effective public health alternatives. This ruling is not surprising given what we already know about the high cost of these laws — to individuals and the state. Responding to the Supreme Court’s decision will require greater legislative spending on courts, treatment options and public education.
These investments serve the public better than building more jails and prisons.
More than 20 years ago, the King County Bar Association led a comprehensive effort to examine and reform drug laws. Multidisciplinary task forces conducted extensive research and prepared reports with recommendations for reform, resulting in the release of a major report in 2001, “Is It Time to End the War on Drugs?” It found that current drug policy is fundamentally flawed and is associated with numerous negative societal consequences.
There have been changes to Washington’s drug laws in the last two decades, including sentencing reforms and the legalization of cannabis for adults. But fundamentally, the laws have remained the same. Drug use is still a crime — and it should not be.
Substance use disorders ravage lives and present significant challenges to our society, but decades of arrests and incarceration have only made matters worse.
Communities of color are particularly harmed by our current approach, as the court noted in its decision. According to information compiled by Treatment First Washington, Black defendants are 62% more likely to be sentenced to prison than white defendants for felony drug offenses. Drug arrests also reveal stark racial disparities. In 2018, for example, Native Americans made up 1.9% of the population and 3.4% of drug arrests. At 4.3% of the population, Black people represented 11% of arrests.
Substance use disorders cost Washington some $6 billion per year, but research reveals that investing in treatment leads to significant criminal justice and health care savings. Continuing to treat drug possession as a crime ignores these realities.
The Supreme Court’s decision provides an opening for dialogue and change. It also reached many of the same conclusions the KCBA report identified decades ago.
As a former prosecutor, I understand the urge to clamp down and “fix” the constitutional issue the court exposed. But such a legislative “fix” would cement a system that treats drug use as a crime, disproportionately harms communities of color and wastes public resources.
Instead of re-criminalizing possession cases, the Legislature should identify resources to secure pathways to recovery for individuals with substance use disorders. This approach would center the unique needs of individuals, providing professional and experienced support, including case management and proper medical care. A focus on recovery will result in safer and healthier communities and aligns with public opinion. In Oregon, for example, a new initiative approved by voters last year decriminalizes possession of certain drugs for personal use and emphasizes support services over jail.
Rather than reigniting a lost war on drugs and doubling down on a system we know does not work, Washington can opt for a transformative approach — one that builds and funds systems to replace arrest and prosecution with public health solutions.
The court’s decision brings our state to a crossroads. It is up to all of us to commit to a more humane and effective path forward.