PRESIDENT'S PAGE COLUMN FOR March, 2001, King County BAR BULLETIN
DRUG LAWS (Part 5)
A COURAGEOUS FIRST STEP IN OLYMPIA
There is a growing national awareness that the antidote to drug abuse and addiction is
not long prison sentences. My hat is off to Senators Patterson, Long, Hargrove, Kline,
Winsley and Kohl-Welles and Representatives Kagi, Ballasiotes, O'Brien, Dickerson, Darneille
and Wood. And to King County Prosecutor Norm Maleng and his deputy, Dan Satterberg. And to
Joe Lehman, head of the Department of Corrections, Dave Boerner, chair of the Sentencing
Guidelines Commission, King County Superior Court Judge Gain and Trickey, and the many
others who have worked to Washington's policy makers current and even take a leadership role
In December, it was unthinkable that the Washington legislature would tackle such a
controversial challenge. As this column is being written, it is too soon to know what the
final product of the 2001 legislative session will be. But one thing is certain - a paradigm
shift has begun, from viewing drug abuse and addiction as primarily a challenge of the
criminal law to viewing and treating it as a public health challenge. As the protracted
"war on drugs" winds down, that is an enormous first step.
The shift in Olympia began with Senate Bill 5419 and House Bill 1863, introduced by the
bipartisan sponsors named above. Both bills proposed a reduction in prison sentences for
some but not all drug law offenders, with the savings from lowered costs of imprisonment
earmarked for treatment of drug addiction. Supporting the direction of these bills, the KCBA
trustees approved and sent to the Senate Judiciary Committee a set of principles to guide
legislation. See, www.kcba.org/Drug_Law/principles.htm.
Next came King County Prosecutor Norm Maleng, who worked to convince other prosecutors
and law enforcement officials from around the state that the tide for change could not be
stemmed. Mr. Maleng's proposed substitute language for Senate Bill 5419, and a new House
Bill 2003, reflected the views of the prosecutors and law enforcement people he sought to
bring into the dialogue. Both bills differed from the initial bills by giving counties the
option of refusing to implement treatment programs and putting the treatment money under the
control of the Department of Corrections and county sheriffs, prosecutors and judges instead
of the Alcohol and Substance Abuse division of DSHS.
MALENG IN OLYMPIA/ NIXON IN CHINA
Although his proposed legislation represented a step backward from the two steps forward
in the proposed legislation it sought to supercede, Prosecutor Maleng has made a crucial
contribution to the dialogue. His endorsement of the need for change was likened by many to
President Nixon's trip to China. And as the Chinese proverb points out, "a trip of a
thousand miles begins with a single step." A copy of Mr. Maleng's White Paper, "Beyond the
'War': Using the Criminal Justice System to Bring Addicts Into Treatment" is found at
We remain hopeful that the legislature will amend Mr. Maleng's proposal and adopt the
principles that treatment for substance addiction should be available statewide and run by
medical, not law enforcement, professionals. Our trustees have also voted to support two
additional pieces of legislation: Senate Bill 5417 (Senators Patterson, Long, Hargrove,
Stevens, Kline and Winsley), would mandate expansion of addiction treatment by methadone
and other opiate substitutes; House Bill 1995 (Representatives Dickerson, Cairnes, Grant,
Dunn, Campbell, Kagi, Pearson, and Wood), would require conviction of a drug related offense
before a person's assets can be seized and most of the money generated by asset forfeitures
would go to drug addiction prevention and treatment instead of law enforcement.
THE PERVASIVE POWER OF FEAR
Testifying before the Senate Judiciary Committee on President's Day, I was painfully aware
of my own naivete about a process I was seeing for the first time. What I saw was
legislators struggling with their own legitimate questions and fears, just as the people
they represent are filled with questions and fear. While fear itself may have been the
only thing the country had to fear in the Great Depression, in the matter of drug policy
fear is only one of the motivations driving bad laws. Lack of knowledge and misinformation
underlies the fear. After so many years of misinformation it is no wonder that we have to
work so hard to open our minds.
Many who have struggled for years to create a more effective drug policy fear that the
legislature is only offering cosmetic changes to preempt a California Proposition 36-type
initiative. They fear that the small steps being considered now will ultimately delay the
day when our state "gets smart on drugs." I hope they are wrong. If they are not, there
is little doubt that the people are ahead of the politicians and more initiatives will be
HANG ON FOR THE LONG TERM:
Although our "short term options group", headed by former KCBA president Dan Gottlieb has
helped us focus on current legislation, our four task forces (described in my February column
on the KCBA website) are moving ahead with their studies about what works and doesn't work
in prevention, treatment and use of the criminal sanction. Our fourth Task Force on
Disparate Impact and Racial Profiling, a joint effort with the Loren Miller Bar Association,
is preparing a report on those pernicious aspects of current drug laws. By summer, when we
will propose a public dialogue about new ideas for effective drug policies and laws, we hope
to have the support of the Washington State Bar Association, the King County Medical Society,
the Washington State Medical Association and others to promote such a dialogue.
ASKING DIFFERENT QUESTIONS
We will never be able to identify policies that work until we ask the right questions.
Outspoken "tough on crime" radio personalities and politicians in our state and elsewhere
have for decades cast a McCarthy-like chill over the dialogue on drugs. We are, I suggest,
emerging from that McCarthy-like era and are ready to start asking the tougher questions.
I sent the following questions for our nine drug law panelists to think about in preparation
for our March 3rd Bench-Bar Conference. How would you respond?
- Do you agree that people have used mind altering substances in virtually all cultures and
epochs? Why? Do you think there is a humans proclivity to use mind altering substances to
seek pleasure? To avoid pain? To alleviate boredom? To create a social bonding? To "fit
in" with peers? To experiment with the unknown? To defy authority?
- How can we explain the fact that substance use and abuse is higher in the United States
than many other countries?
- Should we consider that people who experiment with drugs have exercised poor judgment or
- Should we view drug use and abuse more as a matter for medical, social, and educational
policy or as the responsibility of the criminal law?
- What seem to be the most effective strategies to educate young people about the dangers
- What seem to be the most effective strategies to reduce the abuse of drugs?
- How can we make principled distinctions between our efforts to control the use of alcohol
and tobacco and our efforts to prohibit the use of the substances we now punish with criminal
- Can we realistically expect to eliminate the manufacture and supply of substances people
demand by use of criminal penalties so long as it is enormously profitable to make and supply
them? Are there any examples of successful supply elimination for any drug from Washington
State or elsewhere?
- Are there alternative ways to control access to prohibited substances that would take
the profit motive away from drug makers and distributors?
- How can we lessen the chance that people who are physically addicted to prohibited
substances will use criminal means to obtain them? Should we make drug addiction treatment
available at public expense for those who can't afford it, including controlled use of taper
ing drugs by medical prescription?
- Do you know of any states or other countries that may be dealing with drugs more
effectively than we are?
- If a consensus forms that the present policies aren't working, do you think we should
experiment with different approaches while keeping the option of returning to the present system if the alternatives prove worse?
ASK YOUR LEGISLATORS TO ASK THE RIGHT QUESTIONS
To keep us moving forward on developing an effective drug policy, communicate with your
legislators about the need to rethink our assumptions. Emphasize the public health component
of drug abuse and addiction. If there is any single road to disaster, it will be for the
legislature to talk about addiction treatment but fail to adequately fund it, allowing
opponents of treatment to claim that it was tried but didn't work. Ask your legislators to
appropriate the needed money. This is an issue that social liberals and fiscal conservatives
can agree on. As Prosecutor Maleng's White Paper notes, "for every dollar spent on
treatment, $7.46 are saved on local crime enforcement alternatives."