April 2002

A Call for a New Approach to Drug Policy in Washington State

by Ken Davidson
Guest Colunmist

The King County Bar Association, Washington State Bar Association, Washington State Medical Society and Washington State Pharmacy Association held a joint news conference in December, calling for a new approach to drug policy in Washington. Theirs was not a call for decriminalization, but a forceful call, nevertheless, for re-evaluating and refocusing how society addresses drug use. Each of these professional organizations has called for approaching drug abuse primarily as a public- health problem, not an issue of law and order. Each has adopted resolutions calling for more emphasis on treatment and prevention, and less reliance on incarceration, which has proven to be very costly and marginally effective. The WSBA's resolution was featured in the February issue of Bar News.

The KCBA Drug-Policy Study

The action of these professional organizations was inspired by a comprehensive study of drug policy conducted by the King County Bar Association (KCBA) over the previous year. The KCBA drug-policy study grew out of a Bar Bulletin column by its then-President Fred Noland, in which he questioned whether the use of harsh sentences for drug users is wasting tax dollars, clogging the court system, and creating greater hardships for users' families, without reducing drug abuse. His column generated scores of phone calls and e-mails from lawyers, judges, physicians and others working with drug issues who felt the current system was not working and wanted to know what they could do to help.

The tremendous response to Mr. Noland's column led the KCBA to call two open meetings on drug policy and invite participation from many interested groups as well as its membership. Each meeting attracted more than 80 participants, including legislators, prosecutors, public defenders, physicians, police officers, drug counselors, lawyers in private practice, one-third of King County Superior Court judges, and other interested citizens. A consensus was reached that drug-policy issues should first be thoroughly studied. Four task forces were formed to study the effectiveness of drug treatment, drug-abuse prevention programs, the effectiveness of the use of criminal sanctions, and the impact of current drug policy on poor and minority persons. The reports can be found on the KCBA Web site at www.kcba.org/drug_law/druglaw_index.htm.

The Drug Treatment Task Force, chaired by former KCBA President Peter Greenfield, found that drug treatment is effective, but only available to a small percentage of those who need it. The task force cites many studies documenting the effectiveness of treatment, including the Principles of Drug Addiction Treatment: A Research-Based Guide by the National Institute on Drug Abuse (NIDA), which reported:

[T]reatment reduces drug use by 40 to 60 percent and significantly decreases criminal activity during and after treatment.… [D]rug addiction treatment reduces the risk of HIV infection.… Treatment can improve the prospects for employment, with gains of up to 40 percent after treatment.

In conducting a cost-benefit analysis of drug treatment, a 1994 RAND Corporation study found that for every dollar spent on drug treatment, there was a $7.46 savings in societal costs associated with crime and lost productivity. By comparison, RAND found a $.52 savings in societal costs for every dollar spent on domestic law enforcement and incarceration in drug cases. Like other medical treatment, drug treatment may not work in every case, but the clear consensus of medical experts is that it is effective. As the NIDA report concluded: "Treatment of addiction is as successful as treatment of other chronic diseases such as diabetes, hypertension, and asthma."

Unfortunately, despite clear evidence that drug treatment benefits patients and society, Washington currently lacks the capacity to provide treatment to most who need it. In his testimony before the Washington State Legislature in February 2001, King County Prosecutor Norm Maleng stated: "The exclusive currency of the justice system remains incarceration.… [T]he options for treatment within sentencing laws have been mostly illusory — they exist in theory and statute, but not in reality."

There is no drug treatment offered in county jails, even though a survey in one county showed that 43 percent of those arrested on both drug and nondrug charges wanted and needed drug treatment. In state prison, an estimated 20 percent of the inmates who have drug problems receive treatment, and the rest receive none. In 12 counties, drug courts have been formed to monitor supervised treatment in lieu of incarceration in selected cases, but they need much more funding to have a significant impact throughout the state. Outside the criminal justice system, the Washington State Division of Alcohol and Substance Abuse calculates that the current treatment system can serve only 18 percent of Washington residents who need treatment and whose income is under 200 percent of the federal poverty level.

The Task Force on Effective Drug Abuse Prevention, chaired by WSBA Past-President Stephen DeForest, found prevention programs in a time of re-evaluation and regrouping. Recent studies have shown that D.A.R.E. and similar school-based prevention programs have not reduced drug use. While "universal" programs targeted at all youth have not proven effective, there is evidence that "selective" programs aimed at youth who are deemed more vulnerable to drug abuse because of personal and family risk factors, and "indicated" programs providing intensive efforts with youth already abusing drugs, alcohol and tobacco can be cost-effective and efficacious. The task force recommends the formation of a special working group of experts and stakeholders to improve upon Washington's comprehensive substance-abuse prevention plan.

The Task Force on Use of Criminal Sanctions, chaired by former KCBA President and WSBA Governor Mary Alice Theiler, found that the current reliance on long, mandatory sentences to reduce drug abuse has been costly to taxpayers and largely ineffective. In the 1980s, criminal sanctions in drug cases were dramatically increased at state and federal levels. As a result, prison populations have increased at many times the growth rate of the general population. In the last 20 years, there has been a 1,200 percent increase in the number of drug offenders in state prisons. Despite billions of dollars spent on increased incarceration, drug use has remained unchanged. The task force found that heavy drug users have generally comprised slightly less than one percent of the population, and the popularity and use of any particular drug fluctuates without apparent correlation to sentencing laws. At a cost of around $24,000 per year, incarcerating a drug user is an expensive method to curb drug use and, based on recidivism rates for such inmates, a marginally successful one.

A damaging side effect of the increased use of criminal sanctions has been its disparate impact on minorities. The Washington State Sentencing Guideline Commission reported that in fiscal year 2000, African-Americans received felony drug sentences in King County at the rate of 150 per 10,000 persons, compared with seven per 10,000 for Caucasians. Native Americans and Hispanics received felony drug sentences at the rate of 34 per 10,000, and 32 per 10,000, respectively. African-Americans constitute about three percent of the Washington population, but represent over one-third of those incarcerated for drug offenses. Yet, studies have shown that the percentage of drug users who are African-American is the same as the percentage of African-Americans in the general population. The Task Force on Racial and Class Disparity is still working on its study, and we may have much to learn about the collateral damage caused by the "war on drugs" to minority communities and race relations.

In a historic effort, lawyers, doctors and pharmacists have joined together to call for a major shift in drug policy — a shift to a public-health model to address drug abuse. New drug policy can borrow from the successful public-health effort which has dramatically reduced smoking in the span of one generation. Like smoking, drinking and overeating, most people understand that taking drugs is a bad health choice. The challenge is to convince the individual to make a healthy choice. But choice cannot be forced.

The public-health effort to reduce smoking involves education, prevention programs, and treatment for nicotine addiction. A similar investment in prevention and treatment programs is needed in the effort to influence an individual's choice about drug use. Criminal sanctions will still have a role to play, particularly with respect to drug dealers and harm caused to others. However, new and more effective ways must be found to help users overcome their drug habits and convince individuals not to choose drugs in the first place.

Among professionals, lawyers have a particular interest in drug policy because of its impact on the courts. The heavy reliance on criminal sanctions has led to large increases in drug-case filings, most of which involve simple possession and low-level sales by addicts trying to support a habit. These increased filings have clogged court dockets, delayed trial dates in civil cases, and jeopardized court budgets for other important programs such as Court-Appointed Special Advocates and mandatory arbitration. Moreover, judges are complaining that mandatory sentencing formulas in drug cases often deprive them of the ability to impose fair and just results. Poor drug policy may be hijacking the courts.

A Time for Action

Change in drug policy is already in the making. Voters in California and Arizona have approved initiatives which divert nonviolent drug users into treatment, rather than prison. Similar initiatives are being proposed in Michigan, Ohio and Florida. The Washington Legislature is close to passing a bipartisan bill, which would reduce sentencing ranges in certain drug cases and direct the savings in prison costs into drug treatment. President Bush has announced a new emphasis on treatment, prevention and interdiction, and a six percent increase in federal funding for treatment.

These are important first steps, but a change in drug policy will involve action on many fronts. The KCBA is now forming new task forces to translate its studies into action. Those interested in participating in the development of new drug policy and programs should contact Roger Goodman at rogerg@kcba.org or 206-267-1222.

New dialogue, creative solutions and significantly more resources are needed to address drug abuse in Washington. Responsible professionals are calling for a major shift in drug policy for the benefit of individual users, their families, taxpayers and society.