December 2009

The WSBA: Leader, Follower, or Bystander?

by WSBA President Salvador A. Mungia

In my younger days (much younger), I used to climb mountains. You either led or followed. If you led, you had to break the trail through snow, test the integrity of snow bridges, and place the protection in rock. It was both harder and often riskier to lead than to follow, but leading was always more satisfying. The worst, however, was missing the climb.

Save $2.3 million in municipal court costs. Add an additional $2.19 million in county court savings. How about $4.5 million in prosecution costs and another $5 million in savings in defense costs?

That, and a little more, is how much Senate Bill 5615 would produce in savings — approximately $16 million overall. (As the old saying goes, $16 million here, $16 million there, and pretty soon we’re talking some real money.) In addition, if passed, SB 5615 would raise approximately $1 million, with close to $600,000 being made available for drug treatment and prevention programs. Should the Legislature pass it? Should a drowning man reach out for a life ring?

SB 5615 would reclassify possession of 40 grams [1] or less of marijuana from a misdemeanor to a civil infraction. And despite the fact that there are savings of over $16 million (that’s according to the Washington State Office of Financial Management), passage of SB 5615 is as uncertain as a dry June day in the Northwest.

Why?

It’s not as if SB 5615 is a huge policy leap. Shoot, it’s about a small a step that can be taken while still claiming movement. It doesn’t change the existing system where there are criminal penalties if you sell marijuana — in any amount. It doesn’t change criminal penalties for those under 18 years old possessing marijuana — in any amount. It doesn’t provide society’s stamp of approval for possessing marijuana — in any amount. Even if you possess the small amount of 40 grams or less you will still pay a penalty. However, under SB 5615, the penalty is a civil infraction — no criminal convictions, no jail time (currently, you must serve at least one day in jail), no criminal record, no appointed counsel.

Instead, SB 5615 would shift resources (about $16 million worth) currently used to prosecute those possessing 40 grams or less of marijuana and devote those resources to other needs of the criminal justice system. As stated in the Senate Bill Report in the staff summary, those testifying in favor of SB 5615 noted:

Police are unavailable to apprehend the real criminals for committing real crimes because their time is spent chasing after people possessing marijuana. Time should be spent on domestic violence, pedophiles, burglars, and robbers who are truly infringing upon others’ rights. The costs increase because the persons arrested and convicted of these low level crimes spend the rest of their lives struggling to get jobs and homes and are prohibited from receiving federal student financial aid. These people then become a burden on society for the rest of their lives. Making this crime a civil infraction would greatly reduce the costs attributable to these crimes. This legislation is not soft on crime, nor does it encourage drug abuse. Rather, it makes more resources available to address the real crimes and allows for a more efficient, fair, and proportionate use of resources.

There are those who argue that marijuana is so bad that its possession, even in small amounts, must be punishable by criminal sanctions to stop people from using it. And others argue that it is a gateway drug to harder drugs and thus criminal sanctions are appropriate. Leaving aside the dangerousness of marijuana (for some reason, those same people have no problems with alcohol and cigarettes — substances that result in much more harm to society) and whether it is a gateway drug (there is no evidence of this occurrence — instead, most drug users start with alcohol or nicotine), there is a flaw the size of Montana in those arguments: criminal sanctions aren’t working. Despite increased resources, increased arrests, and increased penalties, marijuana usage has remained the same for the past seven years (prior to seven years ago, usage historically increased). So not only are we not getting a bang for our 16 million bucks, we aren’t even getting a little fizzle.

Should the WSBA voice an opinion on this issue? Especially when the state Legislature fails to fund the court system so that both criminal and civil cases have to wait years before being heard, court staff have to be furloughed, and deputy prosecutors and public defenders laid off, our Association has the duty to advise the Legislature regarding how scarce resources should be used in funding the justice system. Just as this Association has weighed in on issues of court funding, compensation for assigned counsel in death penalty cases, and the need for public funding for civil legal aid, it has the duty to provide its guidance on the prudent allocation of resources for the justice system.

There are those who claim that this is a political/partisan issue and that there are legislators who will seek retribution against the WSBA if it supports this bill. First of all, this is not a partisan issue. In fact, SB 5615 was voted out of committee with a bipartisan “do pass” recommendation and will be considered by legislators in 2010. There are Democrats who support the bill (Kohl-Welles, Kline, McDermott) and Republicans (McCaslin, Chapin, Nixon).[2] When asked about the reclassification of 40 grams or less of marijuana, King County Prosecutor Dan Satterberg said: “If that’s the way the Legislature wants to go, I wouldn’t have an issue.”[3] Sally Bagshaw, former chief of the civil division of the King County Prosecutor’s Office under Norm Maleng, supports reclassifying marijuana.[4] Retired Whatcom County Superior Court Judge David Nicholas is advocating its adoption:

After serving as a Whatcom County superior court judge for 20 years, I can assure you that the prohibition of marijuana has been a colossal failure. Arresting, prosecuting, and jailing people are an expensive and ineffective way to address a public health issue. [5]

The bill addresses a matter of how we, the citizens of this state, use our limited resources. That answer doesn’t depend on whether you are a Republican or Democrat, liberal or conservative, or reside west or east of the mountains. Instead, the issue is whether we want to spend $16 million of our limited resources without seeing a return for that money.

Thirteen states have already concluded that imposing criminal sanctions for the possession of small amounts of marijuana is not a prudent use of their resources. Those states range in diversity from North Carolina and Mississippi to New York and Oregon.

Second, I find it hard to believe that a legislator would retaliate against the WSBA on other WSBA-supported legislation because the WSBA backed SB5615. Legislators take an oath to uphold the Constitution and to always act in the best interests of society. Legislators would be breaching the duty they owe to the public if they engaged in retaliatory tactics. If a legislator disagrees with our Association’s position on SB 5615, I fully expect that the legislator will still consider, without any bias, other legislative proposals that our Association supports and judge each such proposal on its merits.

There are those that believe that the WSBA should not take a stand on SB 5615 unless our support would make a difference — in other words, we should take a stand only if our support would be the deciding factor in its passage. If that were the test, then the WSBA would rarely, if ever, take a position on proposed legislation. We would be silent in matters of gender and racial equality, civil rights, and even court procedural matters, because it would be unlikely that our voice would ever be the deciding factor in those issues.

Moreover, eight years ago the WSBA took a position such that it would be incongruous for it to now not support SB 5615. In 2001, the Board of Governors, in a resolution regarding drug policies, declared:

2. For many years, society has responded to the problems of drug and alcohol abuse by emphasizing and devoting the majority of resources to imposition of criminal sanctions, rather than to treatment and prevention.
…
4. Despite years of considerable resources being devoted to the prosecution of drug crimes, the problems of drug and alcohol abuse continue to have a significant deleterious effect on the health, safety and livelihoods of many individuals, their families and the communities of Washington State. There also has been a disparate negative impact on communities of color, despite studies that indicate equivalent drug use in non-minority populations.
5. The emphasis on prosecuting persons possessing drugs for personal use or selling small amounts of drugs to support a drug addiction has strained state and local budgets, and has impaired the courts’ ability to administer justice fairly and efficiently.
6. The Washington State Bar Association agrees … that it is time to expand and reorient society’s approach to the problems of drug and alcohol abuse. More emphasis must be placed upon, and more resources devoted to, providing drug and alcohol treatment to those who need it . . . . [“L]ow level” drug crimes, such as simple possession, should be approached as health problems, not criminal problems.

In light of the 2001 Resolution, the question is not whether the WSBA should support SB 5615; instead, the issue is how can the WSBA not support it? Short of rescinding the 2001 Resolution, it’s hard to understand why we would now be silent on this proposal.

As is often true in life, it is much easier to stand on the sidelines, especially when controversy is involved. Following the lead of others is much more comfortable. What takes both courage and conviction — the conviction that you are correct — is to take the first position, to break the trail, so that others may follow. The importance of having the WSBA support this bill shouldn’t be underestimated. The WSBA is a mainstream organization that endeavors, as one of its fundamental duties, to safeguard the administration of justice. The WSBA has the duty to be a leader, not a follower, when it comes to proposals that safeguard the fiscal integrity of the administration of justice. The WSBA cannot afford to shy away from proposals that others may attempt to paint as controversial or political when, in reality, those proposals are about the effective administration of justice. If we break the trail, take the lead, it will make it easier for others to follow. And, trust me, they will follow. 

WSBA President Salvador Mungia can be reached at smungia@gth-law.com.

Editor’s Note: The WSBA Board of Governors will discuss the issue of whether to support SB 5615 at its December 4–5 meeting in Tacoma. You have the opportunity to let the Board know your opinions by contacting your governor at www.wsba.org/info/bog/bog+2009-2010.htm.

NOTES
 1.  For those of us who are metrically challenged, that is about 1.4 ounces.
 2.  Kohl-Welles, Kline, McDermott, and McCaslin all currently serve as state senators. Chapin and Nixon are former state representatives.
 3.  Seattle P-I, March 26, 2009.
 4.  West Seattle Herald, October 28, 2009.
 5.  Bellingham Herald, March 21, 2009.