As you may recall, back in February the Washington State Supreme Court did a cool thing and struck down the state's felony drug possession law. This so-called "Blake decision" decriminalized drugs statewide and suddenly rendered tens of thousands of prisoners eligible for reduced sentences.
The Legislature could have seen this ruling as a gift and as an opportunity for Washington to accelerate its treatment and recovery programs to meet peoples' needs through the public health system rather than through the criminal punishment system, as Sen. Manka Dhingra (D-Redmond) argued early on. After all, cops, prosecutors, and judges applied the law in racially disparate ways, and addressing racial injustice ranks as one of the top four priorities in the Legislature this year.
But in the last few days the provincial, fearful mommies and daddies who run Olympia have made their intentions clear. In order to avoid doing nothing, which would result in an unacceptable "patchwork" of local drug law, the mostly white body plans to restart the war on mostly Black drug users. The only question is how much destruction they want to cause, and for how long.
When a Senator votes against her own bill
Last Thursday, as I mentioned in Slog PM, the Senate passed Seattle Sen. Jamie Pedersen's version of Sen. Dhingra's proposal, which re-criminalizes felony drug possession as a gross misdemeanor and institutes a three-strikes rule (your first two offenses route to diversion programs, but after that you stay in jail).
That might sound like a penalty reduction, but, according to Rep. Roger Goodman (D-Kirkland), House Democrats think treating possession as a gross misdemeanor rather than as a Class C felony would actually double the confinement time.
State law sets the maximum penalty for a gross misdemeanor at one year or a $5,000 fine. Though the 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 prescribes 0 - 6 months in jail for violators with two or fewer prior convictions.
"We don’t want as a matter of policy to be doubling our confinement time," Goodman said over the phone.
On the Senate floor, anecdotes and paternalism dominated the discussion of the proposal, with lawmakers on both sides leaving no strand of pearls unclutched. Sen. Perry Dozier (R-Walla Walla) called marijuana a gateway drug, and claimed that he'd seen more than one person walk through that very gateway with his own eyes.
The mere idea of a personal-use amount of any drug so deeply shocked Sen. Lynda Wilson (R-Vancouver) that she struggled to string together coherent sentences: "I don’t ever agree that LSD could ever have a personal use amount. Any amount of personal use—I really feel we’re enabling the drug user. I don’t know how else to put it," she said. Hate to break it to ya, Sen. Wilson, but those geniuses in South Lake Union and in Silicon Valley have been micro- and macrodosing their way into those "innovative solutions" you love to celebrate.
Sen. Mark Mullet (D-Issaquah) essentially argued that decriminalizing small amounts of drugs would undermine his parenting style before launching into a brief soliloquy on the subject of whether drugs make people truly happy, as if the people of Washington were his own children.
The Senate voted 28 to 20 to pass the bill over to the House, with, for the most part, conservatives of all kinds voting for it, and with progressives and far-right Republicans voting against.
Notably, Sen. Dhingra voted against her own bill after delivering a pointed, clear-headed speech highlighting the legislation's racial impact.
"The data from our own state, from last year, has shown us that when you offer treatment to individuals outside the criminal justice system they seek that treatment and they’re successful over 95% of the time. When they go through criminal justice system and go through drug court, and veteran’s court, and mental health court, they graduate at rates around 60%...We’re continuing to go down a path that is not supported by data," she said.
The House heard the bill in committee Monday morning, and they'll likely make changes before sending it back to the Senate at the end of the week.
House compromise could still involve jail time
Rep. Goodman, who leads the task force the House convened in response to the Blake decision, seemed unimpressed by the anecdotes some Senators offered on the floor.
"I don’t legislate based on anecdote, based on belief or opinion, or based fear. I legislate based on evidence," he said. Many may claim jail saved them from addiction, but they are "vastly outnumbered" by people "whose lives have been destroyed by these drug laws," which include disproportionally high numbers of poor people and people of color, he said.
Goodman said he'd prefer to treat possession as a civil infraction, as he does in his own bill on the issue.
Though he admits even a monetary penalty would perpetuate "disparate effects on people of color and the poor," he thinks an infraction would "remediate and ameliorate the current harsh system as much as we can as an interim measure" and then allow the Legislature to "do the deliberative work, with a sharp focus on racial equity, of putting something permanent in place in 2023," when the Legislature will next meet for a full session.
In the meantime, Goodman said the House compromise position might be to reduce the Senate's penalty to a simple misdemeanor, which could land violators in jail for 90 days. The compromise would also allow for cops to confiscate drugs from those who use in public places, and also some kind of youth intervention measure.
Though Goodman also understands such measures would disproportionally fall on people who don't have a private place to use drugs, he argued the state would take a "person-centered and therapeutic" approach. "There may be intervention by law enforcement, but there's also no wrong door" to treatment, he said.
South Seattle Rep. David Hackney said reinstating criminal penalties for simple drug possession would result in a "de facto Jim Crow."
Lower-income people, who are disproportionally Black and brown thanks to years of public policy designed to plunder their wealth, use drugs in vehicles and in the streets, while higher-income people use their drugs in their homes, he argued. "The low-hanging fruit is traffic stops and street use," he added. Because that low-hanging fruit is still there, enforcement will still fall on people of color at much higher rates.
As a matter of law, he said the Court's decision in Blake was "100% correct."
"The idea that you would prosecute someone for possession without having to prove that someone knowingly possessed is wild to me," he said, pointing to his years prosecuting "large-scale drug trafficking organizations" at the federal level.
And those who only argue in anecdotes must account for the ones Hackney offers, as well. He said his mom died of cancer that stemmed from her alcoholism and her smoking, two addictions that his family could try to help manage without the extra burden of needing to bail her out of jail for possessing cigarettes and booze. Other members of his family have been sober now for a long time after "years of dark days."
Hackney said they all did jail time, but only the treatment helped. "Incarceration is a rational deterrent system, but addiction is not rational," he added.
"And all these people who want to see less needles," he continued, "if you want less needles, you need less addicts. If you want less addicts, you need more treatment centers. But we don’t have the resources because we’re building jails."
How will Seattle respond?
If the state does end up re-criminalizing drugs as a simple or gross misdemeanor, Dan Nolte, spokesperson for the Seattle City Attorney's Office (CAO), said the responsibility for prosecuting those cases would fall to the King County Prosecutor's Office.
The City, he explained, only holds jurisdiction over misdemeanors incorporated into the Seattle Municipal Code. So, in order to put these prosecuting decisions in Seattle's lap, the Council and the Mayor would need to pass a local law that reflected the state's law.
Given the unclear path forward in the Legislature, Nolte said the City Attorney's Office hasn't figured out how they'd want to handle it, and they'd need to consult with the Council and the Mayor "to determine whether our office would ever handle it."
Driven in part by "racial disproportionality" in drug charging and sentencing decisions, in 2018 the KCPAO decided to stop prosecuting drug possession cases involving amounts less than a gram.
Nevertheless, in a statement, City Attorney Pete Holmes said, "Every day on the streets of Seattle we see the failures of the war on drugs, and the frustrations we all feel at the failures of a criminal justice system that was never intended to facilitate recovery and treatment. I urge lawmakers to take a hard look at the impacts of continued criminalization when bringing treatment services to scale, which is both less expensive and will help people out of the cycle of arrest, incarceration, and relapse. We can do better."