WA lawmakers consider the future of criminal drug possession ahead of July deadline

One of the top priorities for lawmakers in the upcoming 2023 session will be coming up with a permanent solution to Washington’s drug possession law.

Washington drug policy was governed by one law for most of the last 70 years, ever since RCW 69.50.4013 was enacted into law in 1953, making it a felony to possess controlled substances, even if the person had no knowledge of the drug possession.

The law was tossed out in 2021 by the State Supreme Court which ruled it unconstitutional in what’s commonly referred to as the Blake decision, ruling that “harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers.”

When the state supreme court’s Blake decision came down mid-session in February 2021 it immediately ended our state’s drug possession law essentially making it legal for anyone to have small amounts of any drug on them. Local jurisdictions would be able to pass their own ordinances – and some did – but that created concerns about a system of patchwork laws across the state.

So mid-session lawmakers furiously worked on a fix to at least have a law regulating drug possession on the books.

Some wanted to further remove substance abuse from the criminal justice system, but others – including the Washington Association of Sheriff’s and Police Chiefs – believed retaining that criminal justice system element was vital leverage to get people into treatment.

The rushed temporary fix lawmakers came up with is what we have now – making drug possession a misdemeanor but not until you’re caught for the third time.

The first two times cops find you with any drug on you they must simply make an offer of a referral to treatment and services. It’s up to the person to take it or not, and there is virtually no tracking of what that person actually does.

The law was amended to temporarily address the issue but is set to expire next July – an intentional deadline set to force the Legislature to act and come up with a real permanent solution to the Blake decision.

State Rep. Lauren Davis (32nd Legislative District-D) is part of a group of lawmakers, behavioral health experts, and others who have been working on what that fix could look like, and says there are a couple of possibilities.

“It’s possible the Legislature or the committee could choose to recommend that we entirely remove criminal penalties or remove that particular behavior from the criminal code. These would be a possibility,” Davis said in an interview with KIRO Newsradio earlier this year.

Davis also believes there is room for conversations around the use of the civil system.

“Prior to becoming a legislator, I championed Ricky’s law, which is a civil commitment for substance use disorder. This last year, [Representative Jamila Taylor (30th Legislative District-D)] had a bill related to assisted outpatient treatment, which includes outpatient substance use disorder treatment, and it really kicked the front door open in terms of civil commitment in the state of Washington and will lead to a massive expansion in who is eligible for civil commitment and facilitating access and entry into that system,” explained Davis.

That means more ability to force somebody to get treatment for substance use.

“The criteria to be eligible under that legislation for involuntary substance use treatment is simply that within the past 36 months, an individual has presented two or more times to an emergency department or a jail due to their behavioral health disorder. So that is going to capture a very large percentage of this population that we’re referring to and providing a pathway to treatment with accountability. But that accountability is coming through the Civil Court rather than the criminal court system, which is highly preferable,” said Davis.

Now, with the 2023 session just around the corner lawmakers are trying to educate the public on the situation and get your feedback on what the permanent solution should be.

To that end, Senate Majority Leader Andy Billig (3rd Legislative District-D) is hosting a community forum in Spokane tonight along with lawmakers from both parties, public defenders, the Spokane Police Chief, and others.

“A response to the Blake decision will be one of the most important issues we tackle in the 2023 legislative session and need to receive input from experts and the public to make sure we get the right solution for our community as a whole and for individuals suffering from substance abuse disorder,” said Billig.

During the event, Billig will provide an overview of the Blake decision and current law, the panel of experts will provide their input and there will then be an opportunity for the public to ask questions. The event will also be streamed live starting at 5pm.

Even those who cannot attend in person can share their thoughts on what should happen next through a survey.

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