Under a state Senate proposal to regulate the possession of drugs across Washington, first-time offenders may face more jail time than they would have under the old felony drug law that the state Supreme Court threw out as racist and unconstitutional a couple years ago, signaling a reboot of the failed war on drugs in a state controlled by Democrats.
With this year’s legislative session scheduled to end Sunday, lawmakers in the House and Senate continue dickering around with the details that each chamber proposed in their respective bills on the issue. The debate now centers on whether to make drug possession a misdemeanor or a gross misdemeanor. Either way, the new law will add an estimated 12,000 cases to overburdened court dockets across the state, and it will likely be a far cry from the transformative policy some Democratic lawmakers envisioned in the aftermath of the Court’s ruling in State v. Blake.
After that ruling, lawmakers created a short-term drug possession misdemeanor in 2021. In addition to recriminalizing possession, the law directed cops to divert people to treatment at least twice before prosecutors could charge them. It expires in July.
But now, “we are continuing the war on drugs,” said state Senator Manka Dhingra (D-Redmond). This year, Dhringa, who chairs the senate’s Law & Justice Committee, proposed legislation to decriminalize drugs and treat substance use disorder within the public health care system, but she couldn’t even get that bill out of her own committee–such was the mood on the topic in her caucus. At this point, she said, she’s just negotiating ways to minimize harm.
Conservative Senate Democrats and their Republican colleagues crushed the chance for decriminalization early in the session. Senator Jesse Salomon (D-Shoreline) put into the Senate bill, which passed in March, mandatory minimum jail sentences for people who didn’t comply with treatment.
In the House’s version, which the Senate will likely reject, lawmakers removed the mandatory minimums and reduced the charge for drug possession from a gross misdemeanor to a misdemeanor; the former carries a maximum sentence of 364 days in jail, and the latter carries a maximum of 90 days in jail.
If the Senate rejects the House’s version, then the bill will likely go to a conference committee, where a small group of lawmakers will negotiate a final version before presenting it to both chambers for a final vote.
State Representative Roger Goodman (D-Kirkland) argued against the more severe misdemeanor charge because the maximum sentence for a gross misdemeanor would be longer than the jail time a first-time offender faced when the state treated drug possession as a Class C felony.
Though state law sets the maximum penalty for a Class C felony at five years or a $10,000 fine, the most recent sentencing grid classifies possession as a Level I offense, and it prescribes zero to six months in jail for violators with two or fewer prior convictions.
Dhingra said administrative concerns–not moral concerns or evidence-based reasoning–primarily drive some Democratic lawmakers to want the harsher sentence. For a prosecutor to charge someone with drug possession, the state crime lab must confirm the nature of the substance that person was carrying. The House bill encourages the lab to complete drug analysis in less than 45 days, but prosecutors may need more than a year to confirm someone possessed drugs, she said. State law sets the statute of limitations at two years for gross misdemeanors and at one year for misdemeanors, so the harsher charge would give the state more time to analyze substances.
That said, Dhingra acknowledged that some people in the Senate want the gross misdemeanor because they incorrectly believe harsher penalties will motivate a person to comply with treatment.
A sentence of 90 days is “enough,” said Lisa Daugaard, director of the Public Defender Association. “Most of the harm done to people is done in the first 90 days of jail. Everything is gone at that point. Jobs, housing, child custody, and pretty much anything you were working on is gone,” she added.
For a bill criminalizing substance abuse, Daugaard does see some positives in the House version of the law. While the House bill would repeal the requirement for police to refer people to treatment twice before arrest, lawmakers included language encouraging police to refer people to treatment rather than take them to jail.
The bill also does not specify which type of treatment regime the state would require people to complete to avoid jail. So people could enter programs focused on harm reduction rather than abstinence.
In the House version of the bill, the court has the option to send someone charged with simple drug possession through pretrial diversion. If the person engages in treatment or services for six months, then the court is required to dismiss the charge against the person.
Daugaard said policies such as these show a better understanding of how treatment and harm-reduction work. Recovery is an ongoing process and not something a person really completes.
Goodman said he anticipates lawmakers to send a finalized version bill to the floor Saturday afternoon. Both chambers will need to pass the bill, and then it will need to go to the governor for his signature.
If lawmakers do not pass a bill, the current stop-gap law will end and the state will be left with a patchwork of different drug possession laws. House members could use that result as leverage to fight for decriminalization, but Goodman doesn’t think politicians would allow the bill to fail.
Goodman hopes more people will support a public health approach to substance abuse in a year or two, after the panic and disorder coming out of the pandemic subsides, and he argues that the country is on the path to decriminalization.
“Maybe that’s just my wishful thinking,” Goodman said.