Throwing people in jail for being sick isnt working. A new bill in the Legislature offers a better approach.
If the Governor signs The Pathways to Recovery Act, the state will eliminate the criminal penalty for possessing "personal-use amounts" of illegal drugs. (Looking for the latest on what's going down in Olympia? We've got you covered.) Lester Black

As of last Monday cops in Oregon can no longer arrest people simply for possessing small amounts of illegal drugs. If we know what's good for us here in Washington, then we'll follow suit and do them one better.

We know that throwing people with substance abuse disorder into jail ruins and endangers lives rather than "scaring them straight" or saving them with a forced detox, or whatever nonsense suburban-brained people think jail does. We also know diversion programs such as the Law Enforcement Assisted Diversion (LEAD) program do a good job of reducing recidivism. However, because a toxic mix of puritanism and paternalism still reigns in Washington, we're still wasting money and lives by tossing people in jail for years instead of opening the door to treatment and recovery.

A new bill in the Legislature would help Washington break out of this expensive and punitive cycle, and create a humane recovery support system to help sick people get better.

A three-pronged approach

If the Governor signs The Pathways to Recovery Act (HB 1499), sponsored by Reps Lauren Davis and Kirsten Harris-Talley, the state will eliminate the criminal penalty for possessing "personal-use amounts" of illegal drugs. Cops who catch people with a little bag of something would "refer the individual to treatment and supportive services" rather than book them into jail and send them through the system, where they might face up to five years in jail and/or a hefty fine they probably can't pay.

To determine what a "personal-use amount" for each illegal drug would be, the state would convene an advisory committee of health officials, people with lived experience of substance abuse, a bunch of different kinds of scientists, representatives from various levels of law enforcement, prosecutors, public defenders, and others.

This advisory group would also be responsible for drawing up a big-ass plan to create "a robust system to provide rapid access to evidence-based and innovative substance use treatment and comprehensive recovery support services." By "comprehensive recovery support services," the bill means "housing, education, employment pathways, community connection, and peer support," all of which would need to be "available during and after treatment."

That plan would need to include a diversion program to account for people "who may face criminal consequences for other drug-related law violations," but who clearly require "a response that addresses and attends to the underlying needs and social determinants of health."

Since the people who do this work often make less money than oh let's say the cops, the plan must address "wage and retention challenges" in the behavioral health sector with high turnover rates and low pay.

After the group irons out the use amounts and the statewide treatment and recovery plan, they'll submit their work to the Legislature and to the Governor, who will then adopt all the necessary rules and implement the whole thing by December of 2022.

The bill's three-pronged approach—decriminalizing possession (without imposing a fine), referring to treatment services, and providing access to recovery services—sets it apart from Oregon's law. If passed, the bill's advocates say Washington would stand out as a leader for embracing treatment over punishment, but also for embracing recovery over bureaucratic abandonment.

"Treatment is not always the magical cure that people think it is," said Jesse Rawlins, a representative for Care First WA.

"You can’t just stick someone in treatment and then think that 36 days later their health problems are totally solved, their homelessness issue is solved, their income or lack thereof is solved. This bill goes a bit further and tries to create more responses that account for all the social determinants of health," he added.

So how are we going to pay for it?

If this idea seems somewhat familiar to you, that's because last summer the organizers behind it—the ACLU and a group called Treatment First WA—originally packaged the law as an initiative.

In the initiative version, the bill planned to use $125 million per year in marijuana tax revenues to pay for public outreach programs, expanding treatment programs, and training officers. But at a press conference on Thursday, Rep. Davis said "funding from the dedicated marijuana tax is already accounted for," and so the sponsors will seek other kinds of funds.

Instead, the bill imagines a combination of money from the federal substance abuse block grant "if permissible under the grant," funds from the state suing opioid manufacturers "if permissible," and savings from not jailing people for carrying around little baggies of cocaine.

It's unclear how much money we'd save by not jailing people for small amounts of illegal drugs, though the amount certainly wouldn't be negligible.

According to data the ACLU of Washington scored from the Washington Administrative Office of the Courts, in 2018 "more than 9,000 people were arrested for possessing controlled substances in Washington." That number includes filings for dealing and for simple possession, though, and it's unclear what that breakdown is.

It is clear, however, that those arrests "disproportionately impact people of color and young people." A 2011 preliminary report from Seattle University found that "Black defendants were 62% more likely to be sentenced to prison than similarly situated White defendants" for felony drug offenses.

In King County, before 2007, "taxpayers were spending more than $3 million a year to prosecute 800 to 1,000 drug possession cases," according to the Washington Post.

But that number of filings has gone down since the election of King County Prosecutor Dan Satterberg. In 2008, Satterberg started referring for misdemeanors (rather than felonies) anyone caught with less than one gram, five pills, one syringe, or paraphernalia containing only narcotic residue.

The KCPO's current filing standards prescribe charging for possession with intent to deliver, which is a felony, “only” when cops catch people carrying a quantity of drugs “far in excess of personal use amounts,” scales, “multiple empty packages,” etc.

In 2020, the KCPO filed 580 drugs cases countywide, with 174 filed to Drug Court. Those numbers, however, include all sorts of drug crimes.

A spokesperson for the KCPO said, "It’s pretty rare to have a drug case rise to the felony level only for drugs, especially in small amounts," and added that most cases involve "a warrant, or domestic violence, or significant drug dealing, or a DUI case where multiple drugs were found more than 1 gram."

As of February 4, the KCPO has filed 33 drug cases "averaging a bit less than one case filed per day," but, again, those aren't only small-ish possession charges.

As for other places to find money to pay for the recovery and treatment services sections of the bill, Rep. Davis also suggested we could pass a bill to close a tax loophole for warehousing opioids (which would bring in $43 million every two years, according to staff analysis) and another to impose a fee on prescription opioid producers after they pump a certain amount of opioids into the market (which would bring in over $50 million every couple years).

Neither bill made it to the floor last session, and the former didn't even get a committee hearing. But honestly, the least Big Pharma could do for their role in dumping this crisis in our laps is pay the bill for people to get back on their feet.