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‘Worst of both worlds’: No easy fix for WA Supreme Court decision legalizing drug possession

A little over 2 grams of meth. Pierce County Sheriff's detectives took this evidence into custody in October 2018, along with scales and bags used for dealing the drug. (Pierce County Sheriff's Office)

From police, prosecutors, and judges to lawmakers and those championing a decriminalization effort, last week’s ruling from the Washington State Supreme Court took most by surprise. It was such a surprise, that the reaction has been exceptionally subdued for what is warranted, depending on who you ask.

Lawmakers scramble to close drug possession loophole created by court ruling

“The Supreme Court found the statute for possession of all drugs — methamphetamine, heroin, cocaine — unconstitutional, and that means it’s not against the law to possess any of those drugs,” said King County Superior Court Presiding Judge Jim Rogers, detailing three major impacts for the courts.

“First is that in the midst of a pandemic, we have the biggest backlogs in decades; we have usually 3,000 pending criminal cases, right now we have 7,000,” he described. “The Legislature is about to pass bills for re-sentencing of many people who are incarcerated. Now, we also have to deal with this, this change in the law — [that] will mean a lot of cases will either be vacated or re-sentencing will take a tremendous amount of time.”

Then there are all of the fees collected when those sentences were done.

Those will likely have to be refunded, according to Rogers and others who worry counties won’t have the budget to deal with those refunds.

“The third issue are drug courts,” Rogers said. “Drug courts have typically dealt with people who have drug crimes of course.”

But many getting treatment through drug courts only qualified based on their crime of possession, which now is removed, meaning many no longer have access to those services.

While King County has not had as much of an issue with that due to expanding the crimes it uses to qualify a person for drug court to things like property crime fueled by addiction, Snohomish County’s prosecutor had to kick eight people out of drug court, and it’s a similar story across the state.

One of the biggest challenges is the retroactive component connected to this ruling.

“So in some cases, people can have possession of drugs easily vacated, even though there’ll be thousands of those,” Rogers explained. “But for other cases that might have been sentenced for a more serious crime — but drug possession might have been one of the many counts you were convicted or pled guilty to — that person needs to be re-sentenced, because one less crime might now lower the sentencing score and a lower sentence overall.”

Prosecutors and judges are still trying to determine the exact number of cases expected to need to be vacated or resented, but it’s believed to possibly be in the tens of thousands.

There’s also another major problem.

“Other counties really probably should go to the Legislature and ask for money for any fees that are going to have to be refunded. It’s a serious problem, especially [for] some of the smaller counties. Statewide, that dollar amount is anticipated to be in the millions for fees required to be refunded,” Rogers noted.

Once again, Rogers says this one is not likely to hit King County particularly hard, because most judges and prosecutors here have moved away from charging fees to those struggling with substance use disorder.

As far as the impact to those struggling with SUD, getting help one way or another because they’ve been diverted or been sent through the LEAD program, is still being determined.

Like so many others, LEAD Director Lisa Daugaard never saw it coming.

“The broad coalition that was working on a plan for the eventual decriminalization this year, had in mind that we would create  a new system of care and response for drug-related problems over the next couple of years, and then there would be a commitment to decriminalize at that point. So this sequencing is not what anybody really had in mind,” explained Daugaard.

“However, it is a call to action, and it is that sort of opportunity that doesn’t come all that often, to really step definitively into what we know, is a better way of doing things and tackling problems,” she added.

“I am seeing a sort of critical mass of people embrace the challenge, which is, is a big challenge to build an appropriate infrastructure to respond to drug related issues, which are dire for many people and in many communities,” Daugaard continued. “And it’s exactly the right work and the work that we need to be doing, so we all need to accept this invitation and get busy.”

Daugaard and Snohomish County’s prosecutor both got behind HB 1499, aimed at decriminalizing personal amounts of drugs.

The bill is sponsored by Democratic state Rep. Lauren Davis, who hoped to get it passed this session while focusing on two main areas.

WA Rep explains deeper goal behind bill to decriminalize drugs

“One of the parts was about decriminalizing personal amounts of drug possession for personal use, and the other part was about building out a robust service response to untreated substance use disorder in our communities,” stressed Davis.

After an initial committee hearing, not much had happened on the bill despite wide support, including from prosecutors, even after tweaks that push the plan out two years to allow time to get the necessary support systems up and running before taking that decriminalization step.

But that bill stopped moving this session largely due to the massive amount of other priority bills such as police accountability, and now it looks like HB 1499 may be off the table in that form, although it also could be a central part of the solution to the state Supreme Court decision, according to Democratic state Sen. Manka Dhingra.

“She really in that bill has a lot of the framework that’s needed,” said Dhingra. “And again, it builds upon the work we’re already doing. So absolutely, I think, let’s take a look at that as the roadmap and making sure we’re finding a lot of those resources and really having that strategic plan.”

Democratic state Senators Mark Mullet and Steve Hobbs dropped a bill that they believe could be a quick fix to the court ruling, simply by adding a single word into the state statute to clarify that the person would have to know they had the drugs on them in order to be charged.

Several Republicans have signed on to the bill, but there has been zero movement. Asked about the possibility, Dhingra made it clear that criminalizing anything is not the direction she and a majority of Democrats want to go.

“For 10 years, our state has been moving towards a public health approach to address substance use disorder for a very, very long time, and we have to continue on that trend,” said Dhingra.

Republicans do not see things that way, especially with so many police groups calling on the Legislature for swift action to address the state’s lack of a drug possession law.

“The legalization of controlled substances without substantial commitments to build and fund the infrastructure to address the root causes of addiction represent the worst of both worlds,” reads a statement from the Washington Association of Sheriffs and Police Chiefs.

“While we are deeply troubled by the Court’s ruling, the Legislature now has an opportunity to make meaningful improvements to help those who need help,” the statement continued. “At the very least, the Legislature should take action to address the constitutionality of the simple possession statute. The Legislature, however, should not stop there. We ask our policy makers to take this opportunity to also make prevention, intervention, and treatment services as readily available in the community as drugs may be.”

As for Republicans…

“I disagree with the court decision,” Republican state Sen. John Braun said. “I do think there is a pretty straightforward fix. The fix proposed by Senator Mullet is a good fix and we should act on it now.”

“I’m frankly disappointed that we don’t have more urgency in the Legislature to take it on,” he added.

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