Possession of meth, heroin and other drugs will be misdemeanor in bill headed to governor

It shocked everyone from the criminal justice system to state lawmakers in February when a split State Supreme Court struck down Washington’s drug possession law as unconstitutional because it didn’t require prosecutors to prove someone knew they possessed drugs they were caught with.

During final debate on a fix Saturday night, Democratic Senator Jamie Pedersen noted the timing and unexpected nature of what’s known as the Blake decision that left lawmakers in a tough spot.

“I share the frustration with many of our members that our Supreme Court waited for a year with this decision and then dumped it on us after policy cutoff,” Pedersen said.

The week prior to those comments was filled with a flurry of activity following Senate passage of the original version of SB 5476 from Democratic Senator Manka Dhingra, which removed criminal penalties for small amounts of drugs. She eventually voted against her own bill following Senate changes that created a gross misdemeanor that could mean a year in jail and required treatment for those busted for possession.

That bill was never going to pass the House where the majority favored little to no interaction with the criminal justice system in favor of a treatment heavy approach, but not mandated treatment. The House made those changes and others, and easily passed the bill Saturday with a bipartisan 80-18 vote.

Some in the House reluctantly voted for the bill, which makes drug possession a misdemeanor with up to 90 days in jail and requires police to offer treatment before even letting the case reach a prosecutor. In a change adopted by the House on Saturday, there is also an inclusion of a sunset clause in 2023 that, should lawmakers not come up with a permanent fix by then, would revert to current law – having no law on the books.

In the Senate, sponsor Dhingra applauded changes made in the House.

“The changes that were made really emphasize something that I have heard from every member, nearly every member in this body, regardless of their political affiliation and that is their desire for people to get access to treatment,” Dhingra said.

“They ensured that there is the opportunity for a pre-diversion treatment so that our law enforcement officers can make that referral,” she said. “They make the system really robust when it comes to accessing treatment and the treatment programs that are available that can do assertive community engagement with individuals to get them the treatment that they need. And they really ensure that that responsibility for that treatment comes from the state by making sure the Health Care Authority is involved in making sure the coordinating services for individuals all across the state.”

But many on both side of the aisle voiced concern.

“(It) removes the language requiring the prosecutor to do the diversions during the first two violations. Instead, there cannot be an arrest by law enforcement (and is) required to only offer individuals a referral for treatment, the individual doesn’t have to go to the treatment, they just have to be offered. And that has to be done twice,” Republican Senator Mike Padden pointed out as he called this a serious matter and urged a no vote.

“What this does is it takes away the power to make somebody get the treatment that they need, just having it available. I mean, it’s an old adage, but you can lead a horse to water, but you can’t make him drink,” Republican Senator Keith Wagoner argued.

Republican Senator Ann Rivers noted she had signed on to every Blake fix bill, of which there had been many, due to her sense of urgency to get something done. But this bill she expressed grave concerns about.

“The people of my district, the parents of my district, did not send me to Olympia to create a situation where children think it’s OK to do drugs, and that is essentially what this bill does — make no mistake about it. When there is no hammer, there is no opportunity to teach a child that heroin is not the right course for them to take,” Rivers said before announcing her no vote.

“I want to go back for just a second to remind folks what our options are here at day 104 in this session,” Senator Pedersen said.

“We have a bill before us that reestablishes a criminal penalty for knowing possession of drugs, and then makes a dramatic investment in treatment, and other services and help for the courts in dealing with the consequences of that court decision,” Pedersen explained as he laid out the choices for fellow senators.

“A vote for the bill is a vote for re-criminalization. A vote not to pass the bill is a vote for a Wild West with no criminal penalty for the possession of drugs in our state, and no services, no treatment for the folks who are suffering from substance use disorder,” explained Pedersen, acknowledging his own reservations with the policy.

However, he also pointed out lawmakers will be setting up a committee to come up with a permanent policy backed by the strong incentive to do so by 2023, given the sunset clause that would see the state revert to no drug law without action.

But critics see that as a path to legalization.

Republicans also lamented the lack of local control, as it appears the bill does not allow individual jurisdictions to enact stricter penalties, while doing nothing would have permitted such action.

“I would rather roll my dice and see 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,” Republican Senator Doug Ericksen argued.

Earlier in the week, Republican Senator John Braun had successfully lobbied for changes to the original, tougher bill passed by the Senate.

“I could not be more disappointed in what came back from the House,” said Braun, who earlier in the week had shared the personal experience of a nephew currently in treatment who was struggling with addiction.

“Two days ago while we were on the floor, I got a call from my wife. He checked himself out of rehab. They found him in a hotel room dead. He didn’t live in the state of Washington. He lives in a place where they have no method to use our legal system to get folks and keep folks in treatment. This bill in front of us is a path of that and people will die,” Braun said in an impassioned floor speech.

“People will die because of the path we’re taking. This is the wrong direction. We are better off with no bill,” he added.

Seattle Democrats also had concerns.

“I’m going to support this with deep reluctance because I don’t see a better alternative at this point,” said Democratic Senator Reuven Carlyle.

“I ask my friends, who are experts in this area, to work on this in the weeks and months ahead so we can find a path forward together, as a community, that has grace and dignity behind it for all,” he added.

The bill was narrowly approved in the Senate on a 26-23 vote Saturday night, with Democratic Senators Bob Hasegawa and Joe Nguyen joining Republicans in their no votes.

The bill now awaits Governor Inslee’s signature.

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