Washington officials trying to stop a wave

Oct. 14—Fentanyl use is growing all across the nation, but in Washington, law enforcement is being hampered by changes in the drug laws, which are exacerbating drug use and distribution.

On Feb. 25, 2021, the Washington Supreme Court struck down the state's main drug possession statute in State v. Blake, declaring it unconstitutional. The decision opened the door to change the state's law for simple possession of drugs to a misdemeanor, with mandatory diversion to services for at least the first two offenses, according to the ACLU Washington. The law is in effect only until July 1, 2023, and its future is uncertain.

Asotin County Chief Deputy Prosecutor Curt Liedkie said the way the current law is written makes possession charges difficult to enforce. Prosecutors are encouraged to divert people to inpatient treatment programs, but there isn't a way to enforce the requirement for treatment or to track and make sure people are receiving it. Also, because people aren't tracked, if someone is charged in another jurisdiction, law enforcement and prosecutors wouldn't know if that person had a case somewhere else.

"It's a law that doesn't have a whole lot of teeth," Liedkie said.

For Whitman County Sheriff Brett Myers, the law prevents law enforcement from charging people with drug possession unless it's at the trafficking level.

"Right now, it's kind of a tough game out there to catch people and hold people accountable," Myers said. "It's kind of a free-for-all."

According to an article from The Associated Press, in the state of Oregon — where personal-use amounts of drugs were also decriminalized, similar to Washington — people who possess the small amount of drugs are given a citation and a maximum fine of $100 that is waived if they call a hotline for a health assessment. Out of 16,000 people who accessed services in the first year, only 0.85% entered treatment. Although supporters of the law are hoping more access to treatment will help that percentage.

However, the low numbers don't surprise Liedkie and he suspects numbers in Washington would be similar.

"The threat of a misdemeanor doesn't seem to encourage people to get treatment," he said.

Liedkie said that when he was prosecuting drug cases in the early 2000s, most of the time people only became interested in seeking drug treatment options when they were facing incarceration.

"Drug treatment's no joke," he said. "It's not easy to just get clean."

It also affects law enforcement and the prosecutor's office investigating cases. Without the threat of jail time, drug users are unwilling to share details on how they obtained their drugs.

"There isn't the incentive," Liedkie said. "They're not going to burn that bridge and be labeled a snitch."

Asotin County has had to get more help from U.S. attorneys investigating drug dealers elsewhere because of the restrictions in Asotin County. Even though simple possession is harder to enforce, possession with intent to deliver is still a felony with a potential sentence of as much as 10 years in prison. It's the main drug law being used to stop drug use.

The other way is by charging a person with another offense. Often, Liedkie said, drug users commit other crimes like burglary, assault and theft, so pursuing those charges is another way to suppress drug use.

With the new laws, the prosecutor's office has seen an increase in overall crimes against persons and property. Liedkie said when they were prosecuting drug possession, there were fewer property crimes.

He calls it the "broken window policy" — if someone goes into a town and sees a house with the windows broken, it must be because no one cares about the house. So if another window is broken, it's no big deal.

"If you don't take care of the little things, the little things turn into big things," he explained.

It's also affecting the drug trade on the Idaho side of the border, with a large number of fentanyl pills coming from Washington into Idaho. However, Nez Perce County Prosecutor Justin Coleman said his office works with the U.S. attorney's office in Spokane and the FBI, and those agencies report that people try to avoid dealing drugs in Idaho because of the stricter laws.

Lewiston Police Detective Tyler Crane reported the same thing and said drug dealers he's encountered say they try to avoid Idaho and sometimes will ask people to come to Clarkston to purchase drugs.

"Drug dealers are saying they're really trying to avoid our area because people are getting busted and people are getting time," Coleman said. "People are facing the consequences for dealing here (in Idaho), where it's not as risky in other places."

In Idaho, it's a felony for possession of a controlled substance like fentanyl, which includes jail time. The state also has laws on possession with intent to deliver as well as trafficking laws on certain drugs.

"We still have at least strong support for prosecuting drug cases here and so I think it is different from Washington at this point and I'm glad for that," Coleman said.

Myers said that while drug dealers will go wherever they wish, despite the laws, they also know that it's safer to deal drugs in Washington, which is reflected in the large amounts of drugs he sees on the Washington side.

While the laws in Washington affect all different types of drugs, it's being largely felt with law enforcement's efforts to curb fentanyl. Myers, who also serves on the Quad Cities Drug Task Force that includes Asotin, Latah, Nez Perce and Whitman counties, has seen an increase in the dangerous drug.

"Fentanyl is alarming and it's coming out of almost nowhere. It's almost a tidal wave on us," he said. "We're seeing just an onslaught."

Three years ago, they didn't encounter fentanyl — now, the drug task force as well as the various agencies they work with are all noticing the increase. This year, the task force has confiscated more than 1,000 fentanyl pills, and that amount has doubled in size from year to year.

Myers said there are multiple factors contributing to the prevalence of the drug in Washington, and no single one can shoulder all the blame. One of the contributors is the drug trade from the Mexican border that comes up through the West Coast through California, Oregon, and Washington, which all have more relaxed drug laws than elsewhere in the nation. Drugs don't stop at state borders but also head into Idaho and Montana, according to Myers

The Blake decision by the Washington Supreme Court and other adjustments by the legislature is another factor.

"(It) has kind of pushed the drug problem, in my opinion, in the wrong direction," Myers said. "Law enforcement is doing everything they can, but certain aspects of the law make it difficult to deter and hold people accountable."

All of these various pieces are coming at a time when fentanyl, which is 50 to 100 times more powerful than morphine, is in high demand, is profitable for drug dealers and is inexpensive for drug users. Myers said that law enforcement is having to work twice as hard to fight the drug problem now than before.

"What we're seeing is a perfect storm," Myers said. "It's the next step of the opioid epidemic — opioids laid the foundation."

Myers doesn't expect the situation to change until Washington's drug laws return to charging people for possession. That will require law enforcement and local officials to push the legislature to enforce drug possession laws. Myers noted that even in Idaho, which has more strict drug laws, fentanyl is still coming in often.

"It's a serious health epidemic," Meyers said, "and we're doing everything we can to stop it in its tracks."

Brewster may be contacted at kbrewster@lmtribune.com or at (208) 848-2297.

EDITOR'S NOTE: This is the second in a series of articles about fentanyl. Today's story focuses on how officials in southeastern Washington are dealing with the emergence of the drug.