For all the good news this spring about an unexpectedly robust state revenue forecast — returning revenue to pre-pandemic levels — circumstances keep cropping up with new financial obligations for the state beyond those lawmakers expected at the start of the session in January.
Among those unforeseen costs was a 5-4 decision by the state Supreme Court in February that held that the state’s law enforcement agencies could no longer make arrests for possession of small amounts of heroin, methamphetamine, cocaine or other drugs, a law that made possession a felony with penalties of up to five years in prison and hefty fines. The court’s majority found that the fines and prison time violated due-process guarantees because the state law didn’t require prosecutors to prove defendants knowingly or intentionally possessed illegal drugs.
While the ruling does not affect arrests or prosecutions for amounts of drugs intended for sale and delivery, the case — called the Blake decision — forces a change not only for law enforcement but will require courts in the state to go back decades to repay fines to former defendants and re-adjudicate or re-sentence cases. Estimates are that the state will have to allocate tens of millions of dollars so that courts can vacate some cases, re-sentence others and pay back fines from convictions.
“We think this is a $100 million issue,” Juliana Roe, policy director for the Washington State Association of Counties, told Crosscut last month.
Those upfront costs won’t be cheap, but the court’s majority — along with serving justice by requiring the state to move beyond the unproductive “war on drugs” — may have also done the state and its taxpayers a favor by forcing it to go cold turkey on its costly dependence on favoring arrest and prosecution over treatment and recovery.
It’s a system that has disproportionately arrested and imprisoned Black, Indigenous and other people of color, according to a 2012 report by a race and criminal justice task force led by Seattle University’s Korematsu Center; Black Washingtonians facing drug charges are 62 percent more likely to be sentenced to prison than white defendants; and as 4.3 percent of the state’s population account for 11 percent of arrests. Likewise, members of tribes — only 1.9 percent of the population, account for 3.4 percent of drug arrests.
And it’s a system that has spent far too much, with not enough to show for it in turning lives around.
A study by a University of Washington researcher in 2013 found that substance abuse cost the state about $6.12 billion annually in direct and indirect costs; that figure would be more than $7 billion today, including more than $1 billion in criminal justice costs and $866 million in health care costs.
Yet arresting our way out of addiction and substance abuse is far more costly than treatment and recovery services. Research of substance abuse treatment programs in California found that every dollar spent on treatment for substance abuse saved $4 in health care costs and $7 in criminal justice costs.
The state and its local governments, in particular, have for several years wisely been moving to increase access to treatment for substance abuse and mental health disorders, including the pairing of social workers with police patrols, for example. And some have made the argument that the threat of arrest has helped by providing those teams with an incentive they can use to coax those with addictions into treatment.
Restoring that leverage was why the city of Marysville, just weeks after the Blake decision, passed its own ordinance to make possession a gross misdemeanor. But to meet the Supreme Court’s new standard, the ordinance requires the prosecution to show a person “knowingly” possessed the drug and had intent to use it, as The Herald’s Zachariah Bryan reported. That could be a high bar to clear, the city’s attorney informed the city council.
“The jury is going to have to be convinced the person knew they possessed the controlled substance,” City Attorney Jon Walker said.
Marysville might not be the only local jurisdiction to consider what should come after Blake, but a statewide solution would be best. Yet, there’s only a little more than two weeks remaining in the Legislature’s regular session.
While several bills have been proposed to address the Blake ruling, two show the most promise and should be the focus for legislators in the sessions’s remaining days.
Senate Bill 5476, sponsored by Sen. Manka Dhingra, D-Redmond, would establish personal use amounts for specific controlled substances and would remove criminal penalties for possession when those amounts are not exceeded; and it would authorize law enforcement agencies to refer those possessing small amounts to a “navigator” for evaluation and treatment of substance abuse.
House Bill 1499, sponsored by Rep. Lauren Davis, D-Shoreline, would also eliminate criminal penalties for “personal use amounts,” with those amounts to be established by the state Health Care Authority, which also would be mandated to establish a plan to assist those with substance use disorder in obtaining treatment and recovery services. Davis’ bill, in offering an alternative to arrest, would have law enforcement refer those possessing drugs to a crisis responder for an involuntary treatment evaluation, similar to how those with mental health disorders are now referred to mental health professionals for evaluation and treatment.
Davis, whose legislation was filed in advance of the Blake decision, is the strategy director and co-founder of the Washington Recovery Alliance. Before becoming a legislator, she was instrumental in the passage of “Ricky’s Law” in 2016. Named for a friend of Davis’ who struggled with opiate and alcohol addiction, the law allows for involuntary crisis commitment of youths and adults with life-threatening addictions.
Arrest and prosecution, Davis said during a hearing for her legislation before the House Public Safety Committee, is not a suitable path toward treatment and recovery.
“One of the diagnostic criteria for substance use disorder is continued use despite negative consequences,” she said. Although she admitted there are exceptions, the legal system’s consequences are rarely enough to change behavior for many with addictions, she said.
Successful care for substance use disorder, Davis said, has three parts: outreach, treatment, and recovery and support services.
“We fund one leg of a three-legged stool,” she said. “We pay for treatment over and over because insurance covers it, but we fail to fund the outreach on the front end and the recovery support services on the back end that are absolutely foundational to fostering sustained recovery.”
The state Supreme Court has effectively removed the option of arrest and prosecution in addressing substance use addiction. State and local governments and state lawmakers must now make the necessary investments in all three legs of recovery.
Doing so will — more effectively and more affordably — save and restore lives.