by Ben Adlin
Right now in Washington State, possession of an illegal drug is in most cases a felony, punishable by up to a $10,000 fine and a maximum five years in prison. For people with drug use disorders or casual users who are arrested and convicted, that can lead to a crush of other consequences, including difficulty finding a job, securing housing, or qualifying for all sorts of public benefits.
For some, those obstacles lead them to return to drugs — often landing them back in the criminal justice system. Others end up victim to a ballooning overdose crisis that currently kills tens of thousands of people each year and appears to have only gotten worse during the pandemic.
Advocates of drug reform have long argued that criminalizing use is a clumsy, ultimately harmful way to treat what they say should be viewed as a public health problem. On Friday they’ll finally get a hearing in the state legislature as Washington lawmakers consider a new bill that would eliminate all penalties for possessing or using drugs and instead expand outreach, treatment, and recovery services.
“Substance use disorder is among the only health conditions for which a person can be arrested for displaying symptoms,” the Washington bill begins. “Incarceration removes access to insurance and behavioral health services, places people with opioid use disorder at extraordinary risk of overdose upon release, and creates criminal records that erect long-term barriers to education, housing, and employment.”
The Pathways to Recovery Act, HB 1499, would take Washington to the leading edge of the growing effort to rethink the war on drugs. Only Oregon has passed similar reform, when voters in November approved an initiative to replace criminal penalties for minor drug possession with a $100 fine or referral treatment services. That law took effect this month.
Washington’s bill contains two primary changes to existing law in the state. First and perhaps most strikingly, it would remove all penalties for small amounts of drugs intended for personal use — not just criminal charges but also fines. Second, it would establish and seek funding for a continuum of care to provide support services to people who need it. Advocates say that would allow more proactive outreach to drug users to refer them to services as well as more meaningful long-term recovery resources, which are currently lacking.
“I want to help people understand that this is more than just taking away the legal penalty for drug possession,” said Heather Venegas, director of the Seattle-based King County Recovery Coalition, one of dozens of community and advocacy groups across the state that has endorsed HB 1499.
Venegas, who later this year will have spent the past 27 years in long-term recovery, told the Emerald that additional punishment doesn’t lead to behavioral change for many people with disorders who have already lost family and dignity to drug use they’ve struggled to give up.
“It does not give them hope, which is one of the things we need to try again,” Venegas said, noting that she herself was 23 the first time she went into treatment and 34 the last time. “It took me a minute. I was in and out. I’m lucky that I didn’t end up in jail.”
Washington does fairly well in terms of funding treatment services, Venegas said, but to succeed, programs need to support people on their entire path through recovery. “Often what happens is someone goes to detox or treatment and then that’s it,” she said.
The Pathways to Recovery Act would invest in outreach and recovery (though exact dollar amounts are not yet available), allowing behavioral health workers more visits to unsheltered communities, where they could refer people to housing and other services, as well as more funding for recovery coaches and other long-term support.
“We know this continuum works when given the opportunity,” Venegas said. “We’ve just never funded all three parts at the same time, together.”
Precisely what the new system would look like if the bill passes isn’t yet clear — many of the details would be left to a process that would unfold during the next two years, guided by a panel of prosecutors and public defenders — as well as, notably, both people who currently use drugs and people in recovery. The inclusion of people who have firsthand, lived experience with drug use is an effort by the bill’s sponsors and organizers to center those who have been most negatively affected by the drug war.
The panel will be involved in making decisions such as how much of any particular drug constitutes a “personal use amount,” defined as the maximum amount of any substance “consistent with personal, nonprescribed use patterns of people with substance use disorder.” Possessing amounts of drugs likely to be connected to commercial sales, as well as actually selling drugs, would remain illegal and unaffected by the change.
To put it in terms of alcohol, the goal is more or less to remove penalties for the amount of liquor an alcoholic might have in their possession — but not for the amount a bootlegger might be sitting on in a warehouse somewhere. By including people with histories of drug use on the panel, the Washington bill aims to hear from people who know what real-life use looks like.
Those same groups would also have a voice in crafting the continuum of care envisioned under the new bill, an effort at acknowledging the need to consult people with real-world experience as regulators build the replacement for criminalization.
HB 1499 was introduced last week and will have its first committee hearing on Friday at 10 a.m., which can be viewed online. Lawmakers in the House Public Safety Committee are expected to hear public testimony but not vote on the bill at the hearing, although the law will need to pass out of committee by Monday ahead of a key legislative cutoff deadline.
In addition to hearing from advocates on Friday, the committee will also hear from opponents. While the list of speakers testifying at Friday’s hearing isn’t yet public, law enforcement groups in particular are expected to argue against the change on the grounds that removing penalties for drug use would make drugs easier to access and lead to higher use rates among young people.
The bill’s prime sponsor is Rep. Lauren Davis, a Democrat whose 32nd legislative district includes Lynnwood, Shoreline, and Edmonds. A member of the committee that will hear the bill Friday, Davis entered the legislature in 2019 after helping pass legislation known as “Ricky’s Law” that, as her House biography describes, “created an involuntary crisis commitment system for youth and adults with life-threatening addiction.” She’s now the executive director of the Washington Recovery Alliance, a statewide organization that advocates for drug policy reform and people in recovery.
Davis is far from an advocate for recreational drug use, despite what opponents might say about the bill. Last year she introduced legislation to limit the potency of state-legal cannabis products to just 10% THC, threatening to eliminate large swaths of popular products.
HB 1499’s cosponsor, Rep. Kirsten Harris-Talley (D), represents much of South Seattle. Her 37th legislative district includes Skyway, Rainier Beach, Columbia City, Rainier Valley, Beacon Hill, and the Central District.
“As a mom and long time advocate for public health solutions, I was excited to co-sponsor the Pathways to Recovery Act because we have a real chance at ending a punitive response to substance use disorder,” Harris-Talley told the Emerald in an email Wednesday. “I, like so many of us, have family and loved ones who have found a way to recovery. But for too many, all we have offered is punishment and incarceration. This policy gives us a way to give hope, care, and a chance to all who need it.”
Though the proposal’s fate this session isn’t certain as Monday’s deadline looms, the bill has amassed 24 total sponsors in the House. All are Democrats except one — Rep. Carolyn Eslick (R-39).
The Pathways to Recovery Act is gaining supporters outside of the state, too, including others in recovery who now advocate for better access to services for drug users seeking help.
Tracey Helton Mitchell, who wrote about her experiences with drug use and living on the streets of San Francisco’s Tenderloin District in the book The Big Fix: Hope After Heroin, told the Emerald that she’s in favor of the decriminalization and expanded services that HB 1499 would bring.
“Our priorities have been backwards,” she said. “If you believe addiction is a medical issue, it makes no sense to lock people up for a behavioral health issue. In my case, I spent months of my life in jail for less than a tenth of a gram of drugs. Yet I was offered treatment once and have not used ever since.”
Like many others who support the bill, Mitchell noted that the war on drugs has disproportionately impacted Black, Brown, and Indigenous people, “as well as those with limited financial resources for things like bail and lawyers.”
Because the current system disproportionately impacts BIPOC communities, the bill’s advocates say the change it proposes is anti-racist on at least two fronts: It would help reduce criminal penalties enforced unevenly against those groups while increased funding for recovery services would allow more equitable access.
The ACLU of Washington, one of the main groups behind the bill, says that in 2018, more than 9,000 people were arrested in Washington for possession of a controlled substance, “disproportionately impacting People of Color and young people.” The analysis was conducted by the ACLU through a data-sharing agreement with the Washington Administrative Office of the Courts.
In materials on the Pathways to Recovery Act’s website, the campaign says that not only are Black defendants more likely to see prison time for drug offenses than white people, BIPOC communities typically have less access to comprehensive recovery services.
“Compared to white counterparts,” the campaign says, “communities of color have less access to behavioral health services and contend with lower quality of care, as well as a dearth of culturally competent treatment programs.”
“Among felony drug offenders in Washington, Black defendants are 62% more likely to be sentenced to prison than similarly situated white defendants,” it adds, citing a 2011 report (PDF).
More effective treatment of drug use disorders could also result in an outsized benefit to BIPOC communities. “Native Americans/Alaskan Natives have one of the highest overdose rates for for opioids in Washington State, and in the nation,” the campaign says, while a 2018 study found that the overdose death rate “for Black people from cocaine is similar to the opioid overdose death rate for white people, yet cocaine overdose deaths receive far less attention.”
Aside from conquering the fear among skeptics of relaxing penalties around drugs, proponents’ biggest challenge may be persuading lawmakers the measure is worth funding. While the bill outlines some potential budget sources — including public and private health care plans, federal grants, and lawsuits against opioid manufacturers — it also relies on money that would be earmarked through separate legislation later this year.
Funding could also come from “the savings captured from the reduced expenses for the department of corrections resulting from this act,” the bill says. According to a 2006 California study cited by the campaign, every dollar spent on substance abuse treatment disorder “saves $4 in health care costs and $7 in criminal justice costs.”
Organizers behind the Pathways to Recovery Act, led by Treatment First Washington, initially hoped to put the decriminalization and recovery plan before voters last November, although the signature-gathering campaign was suspended as the COVID-19 pandemic hit.
Like Oregon’s decriminalization initiative — which successfully qualified for that state’s ballot and went on to pass with more than 58% of the vote — Washington’s proposal originally planned to fund expanded services with tax revenue from the state’s commercial cannabis market. That provision didn’t make it into the legislative version of the proposal, however, suggesting lawmakers are hesitant to tap into the cannabis cash cow.
According to a Washington State University study published earlier this month, tax revenue from retail sales of legal cannabis alone totaled more than $468 million in 2020, with total tax revenues from the entire cannabis sector exceeding $883 million.
Despite an uphill battle to becoming law, HB 1499 presents the legislature with an opportunity to reinvent the state’s approach to drug use. If they don’t take that chance this year, it’s possible state voters could change the law themselves in 2022.
While Treatment First Washington hasn’t said whether it will again attempt to qualify an initiative if the Pathways to Recovery Act fails in the legislature, many are expecting future elections to see drug decriminalization efforts in other states, such as Colorado, California, and possibly right here in Washington.
“Arresting people for drugs is simply inhumane. People in the Northwest understand this,” Peter Zuckerman, the campaign manager for Oregon’s successful decriminalization measure, said at a Treatment First Washington press conference last November.
What little survey data is available suggests he may be right. A poll from December 2019 found that 69% of surveyed Washington voters said they would vote yes or probably vote yes to remove drug penalties and fund expanded treatment with cannabis tax revenue.
“The reason we won in Oregon is the same reason this campaign will win in Washington,” Zuckerman said the day after Oregon’s vote. “The current approach to drugs is failing.”
Ben Adlin is a reporter and editor who grew up in the Pacific Northwest and currently lives on Capitol Hill. He’s covered politics and legal affairs from Seattle and Los Angeles for the past decade and has been an Emerald contributor since May 2020, writing about community and municipal news. Find him on Twitter at @badlin.