About a month after the Washington Supreme Court struck down the state's drug possession law and effectively decriminalized controlled substances statewide, lawmakers in Olympia have introduced nine pieces of legislation to address the ruling's major ramifications, which include $100 million tabs from courts and prosecutors who now need to clear records and refund fines, plus a suddenly urgent need to expand drug treatment and recovery programs.
All of the proposals suck in their own way—and one of them sucks so much that it's actually kind of funny—but one of them is ultimately pretty good!
The Goldilocks bill
Sen. Manka Dhingra's Senate Bill 5476 comes closest to meeting the moment, and more or less looks like the decriminalization law Oregon adopted earlier this year.
Dhingra's bill recriminalizes drug possession for people under 21, but lowers the criminal penalty for underage possession from a felony to a gross misdemeanor.
Under this proposal, cops who catch anyone over 21 with "personal-use amounts" of drugs would have to refer them to “forensic navigators” for evaluation and treatment services. The "personal use amounts" align with those in Oregon's law—a gram of heroin, two grams of coke or meth, twelve grams of mushrooms—and a "forensic navigator" is an employee of the Washington State Department of Social and Health Services who determines a person's mental health status and then steers them through the court system's bureaucracy.
The bill also imposes a $125 fine on anyone caught using in public or carrying an open baggy of drugs. The money from that fine would funnel into a "State v. Blake reimbursement account," which the state would use to pay cities and counties which must reimburse people for the legal financial obligations they had to pay due to past drug possession convictions.
Details about scaling up treatment and recovery services in concert with this bill remain TBD as lawmakers continue work to figure out how they can use federal funds, but Sen. Dhingra said the Senate's budget will include major federal and state funding for current and proposed behavioral health programs, as well as capital projects in that sector.
For examples of the kinds of capital projects that might see funding, she mentioned the ones discussed in the Behavioral Health subcommittee earlier this year, which include a new detox and recovery center out in Benton County, an 82-unit supportive housing facility and a 32-bed inpatient/outpatient behavioral health facility in Everett, and the Behavioral Health Teaching Facility next to UW Medical Center – Northwest.
Programs that may see "double or even triple" their original funding proposals include clubhouses for people with behavioral health issues, "safe fire stations," and the implementation of the 988 crisis call center system.
All of that seems 1,000 times better than just rebooting Washington's wildly racist war on drugs, though the language restricting public use and carrying open baggies seems like it'll just give some cops the reason they're looking for to harass homeless people who struggle with addiction. Charging people $125 for using drugs outside of a home they don't have just seems counterproductive. And though the courts, the Department of Corrections, and the prosecuting attorneys offices need hundreds of millions of dollars to vacate old drug possession records, reimburse court fines and fees, and adjust sentences for people currently serving time for now-unconstitutional possession convictions, forcing a new group of users to pay for the way we treated the old group of users just feels like bad writing.
The bad bears
The other eight proposals are much worse, but they're worth surfacing and quickly dismissing, if only because they will foreshadow the arguments other lawmakers will use to water down Dhingra's bill.
The funniest bill comes courtesy of Republican state Senators Mike Padden and Keith Wagoner, who wish to add some intent language (known to Latinate classes as a "mens rea") to the old, unconstitutional law and then just put it back on the books.
Under the old law, people caught with drugs faced a felony for possession whether or not they knew they had drugs on them in the first place. Adding intent to the law would solve that problem. But in this proposal, Padden and Wagoner go a step further and add a $3,000 fine for anyone who "unknowingly" possesses drugs. With this provision, these senators clearly hope to deter people from using the "not-my-pants defense" against possession charges, wherein a defendant claims they didn't know they were carrying drugs because the clothing they were wearing when caught by police did not belong to them.
But that scenario raises the question: What if the pants really did not belong to the defendant? Then we're just fining people $3,000 for potentially innocent behavior. And guess which kinds of people we'd fine for this offense at disproportionally high rates? If you said Black people and Native Americans, then you win a prize for having literally read anything about the legal system.
Like the Padden/Wagoner bill, a bill from "Democratic" state Sens. Mark Mullet and Steve Hobbs would add intent back into the old law and recriminalize drugs, but it would also launch a task force to study the issue of decriminalizing drugs. Snooze.
Over in the House, Republicans have offered similar "fixes," plus their own behavioral health bills. HB 1560, sponsored by Republican Jesse Young, just returns the intent language to the old bill. HB 1561, sponsored by Republican Rep. Jenny Graham, maniacally increases the penalties for possession and other drug crimes, presumably under the false assumption that jailing people for long periods of time stops people from using and selling.
HB 1562, sponsored by Republican Rep. Brad Klippert, a friend of the Slog, authorizes cities and counties to recriminalize drug possession if they want. In the wake of Blake, Marysville, Lewis County, and a few other local governments have passed or are thinking about passing their own drug possession bans. The existence of this bill recognizes that those ordinances may contravene state law, and seeks to "remedy" that situation.
Finally, HB 1558, sponsored by Republican Rep. Griffey, would provide some money to train cops on interacting with people who struggle with substance use disorder, and also requires the state to develop a treatment and recovery services plan. Meanwhile, HB 1559, sponsored by Republican Rep. Mosbrucker, allows a cop to detain a child for using drugs and then instructs that cop to march that kid right down to the nearest treatment facility.
Why the bad plans won't work
The paternalistic, puritanical, unscientific idea driving all of these non-Dhingra proposals is that putting people in jail for using drugs will save them from themselves and deter them from using drugs in the first place. The evidence Republicans and conservative Democrats use to support these claims is flimsy, anecdotal, and unsupported by data.
On a call with reporters yesterday, for instance, Sen. Padden told three second-hand stories about cops rendered powerless in the face of people using drugs in public. In one story, women working at a building in Spokane complained about being harassed "transient drug users" who cops could do "nothing about" because of the Supreme Court's ruling. In another story, a cop bemoaned his inability to arrest someone for merely smoking drugs in public. And in another, a cop told Padden they saw someone injecting heroin in a car parked on the side of a road.
Eventually, Padden got to his real point: "Perhaps if there’s a diversion on a first offense or second offense, maybe that’s okay. What I don't support is a diversion into treatment every time. At some point you’ve got to prosecute those cases," he said.
Padden is essentially proposing a three-strikes rule. If a drug user doesn't take to treatment after two referrals, then the best thing society can do for that person is charge them with a felony, send them to prison for five years, and all but completely destroy their ability to find a good job and housing for the rest of their life. Not a very good solution, if you ask me! Especially given the racist way Washington's legal system has applied this particular penalty over the last two decades.
And as for Padden's second-hand stories? They don't make sense. Police can arrest someone for harassment. Police can do something about a car pulled over on the side of the road. And under Dhingra's bill, at least, police can do something about someone smoking drugs in public.
Moreover, anecdotes about drug users who were "saved" by a jail sentence can be easily dismissed with other anecdotes. In that behavioral health subcommittee meeting last February, for example, Benton County prosecutor Andy Miller said, "One thing we’ve learned with these diversion programs and therapeutic courts: Sometimes even just putting someone in jail for a few days can cause setbacks and block progress... We can’t require police offers to be diagnosing whether someone is co-occurring, or fighting addiction, or fighting mental illness," he said.
In a just world, we wouldn’t rely on contact with the criminal justice system to direct people into treatment in the first place. But for now, it seems like Dhingra's bill comes closest to creating a safer and more humane reality here in Washington—a reality that people in Portugal are already enjoying.