As Governor Jay Inslee anxiously waits for state lawmakers to hand him a deal to criminalize drugs across Washington, Democrats in the House and Senate are splitting into different camps with competing demands as they all search for the best way to reboot the War on Drugs without appearing to reboot the War on Drugs. 

At the moment, the main disagreements swirl around the penalty for violating the law and a desire from Democratic leadership to pass a bill with Republican support. Though they initially blocked a compromise bill from passing on the House floor last month, progressives in both chambers say they’re willing to compromise, but the party’s Senate conservatives remain dug in. 

At the current rate, behind-the-scenes negotiations on the issue will likely continue into the 30-day special session, which the governor slated to begin on May 16. The amount of time (and taxpayer dollars) they need to use up during that session depends largely on how effective these backroom horse-trading conversations go. 

And right now at least, they’re going slowly as time is running out. The current law governing drug possession, which lawmakers passed as a stopgap measure after the state Supreme Court struck down the old felony drug possession law in State v. Blake, expires on July 1. Without a statewide policy, drug possession will be left to cities and counties, resulting in a patchwork of laws across the state. 

The Democrats Control Everything. Why Do They Want GOP Buy-In? 

Sen. Noel Frame (D-Seattle) said progressives in the Senate are more willing to negotiate with conservative Democrats this second time around, especially if it prevents the party from making more concessions to Republicans.

However, some Senate Democratic lawmakers believe a bipartisan solution will force Republicans to take some shared accountability for the law, which may save Dems from taking the full political hit when drug addiction issues inevitably persist after lawmakers decide to create new and/or harsher criminal penalties without first standing up full-scale drug treatment and recovery systems. 

Sen. Frame questioned the strength of that political wisdom. Democratic lawmakers chose to negotiate with the Republicans for the last four months, and the result was a fiasco on the House floor, she said. Three Republicans bailed on a more conservative bill after voting for a more liberal bill in the House a few days prior. Frame argued Democrats should be compromising with their colleagues “rather than compromising with Republicans.”

State Rep. Nicole Macri (D-Seattle) said she doesn’t think a bipartisan solution would result in Republicans taking more ownership in the law’s outcome. Republicans and Democrats voted the current “stopgap” law out of the House 80-18, but Republicans turned around and called the law a disaster. Even if the GOP votes for something, Democrats are in charge and “own every problem,” Macri said.

Sen. June Robinson (D-Everett), who sponsored her chamber’s bill, told the Seattle Times Wednesday she still hopes for a bipartisan solution. Senators voted her bill out of the chamber 28-21, with an equal number of Democratic and Republican yes votes. However, more Democratic lawmakers voted against the bill than voted for it. Robinson did not respond to requests for comment. 

Macri said House Democrats have heard some Senate Democrats say they won’t vote for a bill unless it’s bipartisan, but it’s unclear how large of that contingent is. 

Senate progressive Yasmin Trudeau (D-Tacoma) said bipartisanship is important but shouldn’t come “at the expense of good policy.” 

Left-leaning senators don’t have enough votes to kill a more punitive bill without more centrist Democratic support, so they’re still debating the best strategy to use to convince their colleagues to take a partisan approach. 

However, some of the demands from Republicans may be too much for even centrist Democratic lawmakers to stomach, Macri said. Republicans have held firm on increasing the penalty for drug possession to a gross misdemeanor, which carries a maximum sentence of up to 364 days. They’ve also asked for other concessions, such as mandatory public notice before building opioid treatment centers, which could lead to NIMBYs blocking the facilities. Republicans also want the state to allow local jurisdictions to create drug paraphernalia laws in addition to making the current law for drug possession more punitive. 

According to Macri, Republicans are counting on progressives taking a hard line on decriminalization. By clarifying that progressives are willing to negotiate, she is hopeful leadership will reconsider whether a bipartisan bill is the best path.

Gross Misdemeanor vs Misdemeanor 

Aside from debates over whether they need Republican support to pass a bill in a Legislature that Democrats control by wide margins, Senate Democrats also remain split between those who don’t want the justice system overseeing a person’s addiction recovery and those who believe criminal sanctions push people to follow through with recovery despite studies showing that sanctions do not help.

Generally, people in the first camp favor making drug possession a misdemeanor, which carries a penalty of up to 90 days in jail. People in the second camp prefer a gross misdemeanor.

Rep. Macri, who is also the deputy director for Seattle’s Downtown Emergency Service Center (DESC), said people in the House opposed a gross misdemeanor because longer maximum sentences govern the length of probation. The court subjects people on probation to periodic check-ins, drug tests, and searches, all of which can keep people cycling through the criminal justice system, she argued. 

“Spending money on the cycle of charging, convicting, and incarcerating people doesn’t help to disrupt the challenges we see on our streets,” Macri said. “Our resources are better spent getting at the root challenges.”

Frame and Trudeau prefer a simple misdemeanor, but both said they are willing to compromise. Frame said lawmakers could limit the amount of jail-time for people convicted of drug possession. Trudeau suggested keeping drug possession as a misdemeanor but then creating a new law against public use and then making that a gross misdemeanor. 

Gross misdemeanors carry a longer statute of limitations, which gives the state’s slow crime labs more time to deliver results. Some lawmakers point to that issue as another justification for supporting a harsher penalty. But here, too, Frame finds room for compromise. She said they could add a longer statute of limitations for a misdemeanor drug possession. Sen. Manka Dhingra disagrees. 

Democratic lawmakers holding firm on wanting a gross misdemeanor in the final version of the bill include Sen. Jesse Salomon (D-Shoreline), Sen. Steve Conway (D-Tacoma), Sen. Mark Mullet (D-Issaquah), and Sen. Kevin Van De Wege (D-Sequim). For a Democrat-only bill to pass, Senate Dems can only lose four of their own. 

Conway said his prosecutor wanted a bill with “more teeth in it,” so he favored a gross misdemeanor. However he planned to revisit the topic with judges and prosecutors ahead of the special session. Van De Wege and Salomon did not respond to a request for comment. 

Mullet acknowledged he wanted to see a gross misdemeanor in the final bill. In his floor speech in support of Robinson’s initial bill out of the Senate, Mullet said he didn’t support harsher penalties because he wanted to see people go to jail, he just wanted them to complete treatment.

“There is a group, there is evidence we feel vindicates those consequences will actually increase the likelihood of someone actually finishing their treatment regime,” Mullet said, on March 3 on the Senate floor. 

Mullet did not reference specific evidence to support his claim.

Right now, progressives from both chambers are still finalizing demands to share with their full caucuses. A Democrat-only bill was possible in the House, Macri said. She hopes the Senate will take a similar approach during the special session.