Here’s the new approach to drug possession the Legislature is sending to Gov. Inslee
The Washington state Legislature has charted a new course for dealing with drug possession and substance use disorder two months after the state Supreme Court struck down the state’s simple drug possession law as unconstitutional.
The final bill that lawmakers sent to Gov. Jay Inslee’s desk late Saturday drew personal, passionate debate and votes that reaffirmed the difficulty of finding a consensus on the best approach.
In its Feb. 25 decision, known as State v. Blake, a majority of justices found the state’s law unconstitutional because it didn’t require prosecutors to prove a person knowingly or intentionally had drugs. In doing so, the high court “basically blew up our existing system without creating any replacement,” said Sen. Jamie Pedersen of Seattle in a recent phone interview.
The ruling sent waves through the criminal justice system, and it sent the Legislature scrambling.
The Blake decision added an immense challenge for lawmakers in the middle of a mostly remote session already bursting with big tasks, including COVID-19 pandemic response, writing a two-year budget, and tackling climate change and police reform. The court last week denied a prosecutor’s motion to reconsider its opinion, as was expected.
Lawmakers were trying to address the dearth of a law banning possession of drugs such as heroin and LSD, while many also saw an opportunity to rethink and remake a flawed, if not totally failed, system.
The Legislature gave final approval to a bill just one day before the session’s scheduled end.
Where they landed
The bill that gathered enough votes from both chambers to get to the governor’s desk re-criminalizes drug possession for two years, while funding and preparing for a transition to a more treatment-centered system for addressing substance use disorder.
In Pedersen’s words, the Legislature is trying to both “stick together with baling wire and chewing gum something that can work in the interim” and trying to create a process that will be a better long-term solution.
While the struck-down law made possession a felony, a version of the bill that initially passed out of the Senate knocked knowingly possessing drugs down to a gross misdemeanor. The final bill knocked it down further still, to a misdemeanor.
The shift from a gross misdemeanor to a misdemeanor is the difference between a maximum punishment of 364 days in county jail and a maximum of 90 days.
For the first two offenses, though, a person won’t go to jail at all. Law enforcement officers have to refer a person caught with drugs for assessment and services rather than arresting them. After that, the officer can still refer them, but could arrest.
The re-criminalization of possession is temporary: The misdemeanor penalty expires altogether in mid-2023.
In the meantime, an advisory committee of experts will study the issue and make recommendations to the Legislature, which aims to put in place a more permanent approach in 2023.
The state has been building momentum in the direction of an approach to substance use disorder that emphasizes treatment, the original bill’s sponsor Sen. Manka Dhingra and other lawmakers often point out.
They point to recent work expanding treatment options, including funding efforts such as Mental Health Field Response teams that partner with law enforcement and multidisciplinary community teams that get services to people who are at risk of ending up in a hospital or jail.
However, Rep. Lauren Davis said, while the state has invested in treatment, it hasn’t funded all three parts of the “continuum of care” for substance abuse disorders. That would mean funding efforts that come before treatment, such as outreach, along with treatment itself and recovery support services aimed at needs like housing and transportation.
The final bill would send tens of millions of dollars to expanding all three, she said. According to a press release, the bill includes a total of $88 million in new spending for expanding access to treatment and recovery support services.
That includes $45 million to create a “Recovery Navigator Program,” which will take referrals from sources including family members, emergency departments, and law enforcement. According to the bill, the program will offer referred people with substance use disorder assessment, connection to services, case management, and recovery coaching services.
The bill also has $12.5 million to implement a homeless outreach stabilization team program, $5 million to grow efforts to provide opioid use disorder medication in jails, and more.
Davis, a Shoreline Democrat had introduced a bill pre-Blake decision that would’ve transitioned the state to a treatment approach over a few years. She has deep experience in addiction recovery and serves as executive director for the advocacy nonprofit Washington Recovery Alliance.
After the Blake decision dropped mid-session, McClatchy spoke to Kelly Vomacka, a Tukwila defense attorney on the Washington Defender Association’s legislative committee, about its impact. She shared a metaphor: It’s as if you were thinking about remodeling your house, hiring architects, engineers, planning how to finance it — then an earthquake levels it to the ground.
Davis said that’s a fair assessment, but had something to add: There was a “very large emergency preparedness kit” pretty ready for this.
“People who work in substance use disorder, we know exactly how people get better from this disease,” she said. “We’ve just never paid for it.”
Chaos, passion in the final votes
On this issue, lawmakers don’t fit into neat ideological boxes.
Some don’t support any re-criminalization of drug possession. Some won’t vote for anything but making it a felony. And there’s any variation of views between those poles, according to key legislators who’ve been working on the issue. So many have personal experiences that color their views.
As local jurisdictions launched efforts to put their own ordinances in place to re-criminalize possession, it became a common refrain among many lawmakers that they needed to take action to avoid a patchwork.
If anything is the binding aspect of the effort to address Blake, said Senate Republican Leader John Braun of Centralia earlier this week, it’s the recognition that the state needs a system aimed at treatment. But he’s among those in the Legislature who believe there needs to be leverage via the criminal justice system to get people that treatment.
“I think our war on drugs, in many ways, has been a failure — but I don’t think we throw out everything,” Braun said.
The bill that made it through the Senate would have made knowingly possessing drugs a gross misdemeanor and required diversion to treatment by a prosecutor for a person’s first two offenses. It didn’t include an expiration date for re-criminalization. Democrats were split on supporting that bill, and it had the support of many Republicans.
But changes made in the House weren’t received well by Senate Republicans who supported the bill in its previous form, including Sen. Braun. The Senate Minority Leader, who recently spoke emotionally of a nephew who was struggling with substance abuse issues in floor debate, shared the tragic news that his nephew had checked himself out of rehab and had since died.
“People will die because of the path we’re taking,” Braun said in an emotional speech. “This is the wrong direction, we’re better off with no bill.”
Several Senate Republicans expressed that they would rather see a patchwork of laws from local jurisdictions than see the bill become law.
“I would rather roll my dice, and say ‘Whatcom County, protect me, protect the kids, protect the families by elevating this to a gross misdemeanor,’ than to say we’re all going to be like Seattle and have a minimal penalty,” Sen. Doug Ericksen of Ferndale said.
In its final vote before heading to Inslee’s desk, all Republicans voted against the bill, and so did three Democrats — including Sen. Tim Sheldon, a Democrat who caucuses with Republicans.
That partisan atmosphere stood in stark contrast to the debate and broadly bipartisan 80-18 vote in the House just hours before.
In that chamber, there were Republicans and Democrats voting both in support and opposition. While a few Republican representatives expressed strong opposition, others voiced reluctant support and shared their own personal stories.
Rep. Brad Klippert of Kennewick said he was voting for the bill with a “heavy heart,” and that he hoped there would be continued work for a better solution.
“This bill is better than what the Washington Supreme Court gave us, but it’s not the best answer,” he said.
Rep. Jessica Bateman of Olympia shared a strikingly personal struggle with substance use disorder — speaking of it in third-person until revealing the journey was hers. Her story is unique, she said, because she was lucky.
“So many of the stories turn out differently, because for decades we’ve tried a failed policy of punishment and fear instead of treatment and hope,” Bateman said. “I know this story, because that young woman is now speaking to you on the floor of the House of Representatives.
“You are listening to living proof that we are more than our worst moments, and that compassion and opportunity are stronger than iron bars, and that every person can thrive if they are given a chance at redemption and healing.”
Some spoke of the bill as a “down payment” on rebuilding the system.
“We know that it has a disproportionate impact on Black and brown communities,” said Rep. Jamila Taylor of Federal Way. “We know that we have better options, community-driven options, family-driven options out there. And we must make those investments.”
Bill sponsor Dhingra said, “This bill is not an ideal solution, but it is a thoughtful step forward. It achieves three important goals. First, it establishes a statewide approach to addressing drug possession. Second, it prioritizes and funds treatment for substance use disorder. And third, it provides us the time to come up with a public health approach to substance-use disorder that relies on best practices and access to treatment that takes into account equity.”
This story was originally published April 25, 2021 at 5:00 AM.
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