As one of the chief petitioners for the Oregon Measure 110 drug decriminalization measure, I’ve often been asked about which states would be the next to follow suit and swing a big sledgehammer at the the failed and racist Drug War and I always mentioned our great friend and neighbor to the north for a number of reasons. Washington and Oregon have both been pioneers on cannabis and other progressive reforms, such as voting by mail, death with dignity, and bottle deposits. Plus, both states have the initiative process that make “controversial” policy changes possible as too many legislators and policymakers tend to be too conservative to pass Drug War reforms until overwhelming voter support forces their hand, about a decade after a majority of the population is ready for the change. If it wasn’t for the COVID pandemic, an initiative similar to M110 would have likely been on Washington’s ballot in 2020 as well.
I expected our Great Northwest neighbors to successfully pass a decriminalization initiative in 2022 or 2024 at the latest, I certainly didn’t expect for Washington to decriminalize drug possession in 2021 because of a state supreme court decision. OPB reported on the landmark case:
Five justices, led by Justice Sheryl Gordon McCloud, said the state law was unconstitutional because it criminalized her passive, unknowing conduct, in violation of her due process protections. A letter carrier who unwittingly delivers a package of drugs, someone whose roommate hides drugs in a common living area, and someone who picks up the wrong bag at an airport could all be convicted under the law, she noted.
“Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers,” Gordon McCloud wrote for the majority.
For more than six decades, the court had affirmed the Legislature’s power to criminalize drug possession without proof of a defendant’s intent to possess them. In a crucial decision from 1981, the court expressly noted that if lawmakers had wanted to require proof of intent, they would have made that an element of the crime.
Theshia Naidoo, managing director for the Drug Policy Alliance’s Department of Legal Affairs issued the following statement in a press release:
This decision is a perfect dovetail to the drug decriminalization bill moving through the legislature, which has already passed out of committee. We urge legislators to immediately consider this bill and the benefits it would bring, including expanded health, harm reduction and recovery services, rather than re-enacting the harmful criminal penalties of the past that have resulted in extreme racial disparities, record drug overdoses, and countless lives ruined.
Oregon has already shown us in the most recent election that decriminalization is not only politically viable, but incredibly popular — as Measure 110, which decriminalized possession of small amounts of drugs for personal use and provided increased access to services — passed by a 17 point margin. Washington should follow suit and provide people with the services they need, rather than the burden of a criminal record they are forced to carry throughout their lives.
Hopefully, Washington lawmakers see the writing on the wall and keep drug decriminalization in place. It is clear that we will not end drug addiction issues by arresting and jailing people. People need education, healthcare, employment, and housing. Let’s invest in people, not more prisons. A sincere thanks to the Washington State Supreme Court. Legislators and Governor Jay Inslee should follow their example, science, and the evidence on the ground from Portugal. If lawmakers rollback this decision and bring back racist drug penalties, I have no doubt that the great people of the Great Northwest will speak loudly and clearly that it is time to just say no to the Drug War. Step by step, state by state.