In 2023, WA lawmakers will decide the legal future of drug possession

This is part of a series updating our readers on some of our top stories from the past year.

As a setback in the wake of the court’s decision, lawmakers and Inslee passed legislation that year that made illegal possession of a drug a misdemeanor crime on the third offense, with officers supposed to present treatment options the first two times. Never intended as a permanent solution, that law expires in July 2023.

Now lawmakers and Inslee must decide how the state handles drug possession and dealing — and they have a deadline.

As they return to Olympia in early January, lawmakers now seek a long-term solution to a thorny issue that has muddled party lines and raised a host of complicated questions.

The drug debate comes after a bitter midterm campaign in which Republicans attacked Democrats as soft on crime behind progressive laws to reform police. Meanwhile, drug overdoses in Washington and across the country have increased.

All of this has come amid a broader overhaul of drug-crime laws, which over the years have raised barriers for people applying for jobs or housing and disproportionately affected people of color.

Even before the Blake decision, some progressive lawmakers were pushing to decriminalize the drug, a step Oregon has taken. On the other end of the spectrum, conservative Republicans in the minority have wanted to see the felony possession statute reinstated in a way that goes beyond the constitutional requirement.

People at both ends of the spectrum may be disappointed with the final solution.

“I think there’s a diversity of views in the Legislature about what the right approach is,” said Senate Majority Leader Andy Billig, D-Spokane. “But I think there’s consensus building to do something that’s focused on public health, but also a slightly increased role in the justice system.”

One option is to make drug possession a serious misdemeanor, which would be a slightly stronger penalty than the current prohibition law, but still less than a felony. Senate lawmakers first proposed the move last year in an early version of the Blake ban bill. It was one of the most unconventional Senate votes in recent memory: 14 Democrats and 14 Republicans combined to vote in favor to pass it 28-20.

At the heart of much of the debate is how to force people who need treatment to get it, without the penalties of a criminal system that could ultimately make life harder for people living on the border.

Sen. Manka Dhingra, D-Redmond, said Washington already has many of the necessary tools — from drug courts to the Involuntary Treatment Act, a law used to civilly commit people after mental health episodes — to force individuals in treatment. She will co-sponsor a bill to decriminalize drug possession, but Dhingra has already admitted she doesn’t have the votes to pass it in the Democratic-controlled legislature.

A former King County deputy prosecutor, Dhingra said political narratives and messages on crime make it harder for many politicians to think clearly about policy solutions.

“It’s fear and politics,” said Dhingra, chairman of the Senate Committee on Law and Justice. She added: “The lay person actually does a better job of having a nuanced conversation and wants to have that, rather than a politician. Because they fear an attack ad.”

Drug overdose deaths in America have quintupled in the past 20 years, according to the US Centers for Disease Control and Prevention, with nearly 107,000 deaths nationwide last year.

In 2020, Washington saw 1,733 overdose deaths, according to CDC data. That’s a nearly 60% increase from the 1,094 overdose deaths the state saw in 2015.

Law enforcement officials and Republicans argue that some kind of criminal penalty is needed to force people into treatment who won’t go voluntarily. They say the temporary misdemeanor statute has left law enforcement with few options to force people into treatment.

More serious charges can allow a suspect to receive treatment through the legal system, such as a drug court, said Steve Strachan, executive director of the Washington Association of Sheriffs and Chiefs of Police. But people with serious addiction problems may not go when an officer refers them to voluntary treatment. Meanwhile, misdemeanors can be charged by different cities, meaning three violations in different places may not count.

“Short-term bar fixing … has proven to be quite ineffective in delivering positive results,” Strachan said.

“Law enforcement is not just looking to recriminalize it and put people in jail and think that’s the best outcome for addiction,” he added. “It’s never been the best outcome for addiction and we all know that.”

Some Republicans would likely still want to see the felony statute rewritten in a way that passes constitutional muster, though it’s almost certain that Democrats won’t allow it.

Senate Minority Leader John Braun, R-Centralia, noting that his caucus may disagree, said he has been convinced over the years that a crime bill is not needed.

“I’m willing to support something other than a felony … but we can’t go from that to nothing at all,” Braun said, adding, “Our policy on hard drugs, we’ve got it wrong and people are dying when we have is wrong, it is the simple truth.”

In the Blake decision, the justices ruled that the stigma and societal penalties of a felony conviction violate due process guarantees in scenarios where a person’s possession of narcotics resulted from unintentional conduct.

Officials in the legal system also now must return to about 260,000 cases touched by Washington that need to be released or re-sentenced, according to Christopher Stanley of the Administrative Office of the Courts. It can take up to a decade to go back through all those cases, according to Stanley, especially the older cases that are on paper rather than online.

Since the court’s decision, $112 million has been budgeted to help with these cases.

So far, Washington’s 39 counties have been reimbursed for paying $5.3 million in restitution to people whose convictions are being cleared. The state has now paid another $4.2 million to clean up felony possession convictions and re-sentence people who were serving time for multiple convictions.