Rather than embrace a recent state Supreme Court decision and fully adopt a public health approach to drug addiction statewide, during the final days of the 2021 session lawmakers in Olympia decided to pass a bill that re-criminalizes simple drug possession as a misdemeanor for the next two years. People convicted of misdemeanors face up to 90 days in jail.
The proposal does, however, give offenders two chances to escape that fate, in that it directs cops to divert a person caught with drugs to a treatment program, unless that person has already been diverted to treatment twice before. After the third offense, the cop decides whether to book the person or send them back to treatment.
The legislation also spends almost $90 million to expand treatment and diversion programs across the state, establish homeless outreach teams, stand up an advisory committee to come up with a "substance use recovery services plan," and add therapeutic courts to municipal and district courts, which will now have to deal with all the drug possession cases coming their way.
In a press release, Sen. Manka Dhingra, who sponsored the legislation and navigated the freaky egos of the pearl-clutching suburbanites who populate both chambers said, “This bill is not an ideal solution, but it is a thoughtful step forward."
"Compassion and opportunity are stronger than iron bars"
The state used to classify drug possession as a Class C felony, which carried a penalty of up to 5 years in prison or a $10,000 fine. But last February, the Washington State Supreme Court struck down that law, mostly because it was dumb and cruel as hell. The Court's ruling ultimately decriminalized drugs and rendered prisoners convicted under that statute eligible for lower sentences.
Criminal justice advocates hailed the so-called Blake decision as a victory, noting that the criminal punishment system applied the law—and its extreme consequences—to Black and brown people at disproportionally high rates.
Despite the fact that the Legislature could have fixed the problem the Court found in the law literally at any point in the last 40 years, news of the ruling shocked the body mid-session.
In response, leaders in the Democratically controlled chambers had a decision to make. Should they do nothing and let a patchwork of local drug law rule the land? Should they codify the Court's decision and just rapidly accelerate proposals to expand treatment and recovery services statewide? Or should they resume the failed and racist war on drug users out of sheer fear, myopia, and the authoritarian notion that you can jail your way out of social problems? Ultimately, lawmakers ended up doing a little bit of all three.
Sen. Dhingra led the charge in the Senate, proposing a bill that would re-criminalize possession as a gross misdemeanor but only for those under 21. Over in the House, Democratic Rep. Roger Goodman's bill reduced the penalty to a civil infraction. Under pressure from conservatives and the limitations of the time-space continuum, the House ultimately took up the Senate bill, reduced the penalty to a simple misdemeanor, and then tossed it back to the Senate, which approved the House changes.
With very few exceptions, discussion on the floor this weekend was hot but repetitious. Republicans and conservative Democrats essentially argued that jail cures addiction. Progressives disagreed. Republicans and conservative Democrats relied on paternalism and anecdote. The progressives didn't as much.
Of all the appeals to pathos and good sense, Democratic Rep. Jessica Bateman's remarks hit particularly hard. (Start at 56:40) She told the story of her own struggle with addiction and untreated trauma, and argued that a felony charge and its associated prison time would have rendered her recovery impossible. She needed a home, Saboxone, "countless hours of therapy," and a Pell Grant—all of which would have been much more difficult to attain with a felony on her record. "You’re listening to living proof that we are more than our worst moments, and that compassion and opportunity are stronger than iron bars. Every person can thrive if they are given a chance at redemption and healing," she said, before voting yes on the bill.
For his part, Republican Senator John Braun presented the strongest anecdote during his speech in opposition to the bill. In the last few days, he said, he'd learned that his nephew, who lived in a place that "had no method to get folks and keep folks... in treatment," had recently checked himself out of rehab and was later found dead in hotel room. "This bill in front of us is a path to that. And people will die, people will die because of the path we're taking," he said.
The story Braun told was tragic and tough to hear, but the story data tells about what jail does to addicts is horrific and crystal clear. And the stories of lives cut short or ruined by felonies are legion.
At a press conference after the close of session, Sen. Dhingra accurately and succinctly diagnosed the problem lawmakers couldn't overcome in their thinking about issue: "The problem is that what people know is the criminal justice system. So many of our members simply don’t understand that there are other avenues to treatment. That in our state we have laws around assisted outpatient treatment. We did Ricky’s Law....A lot of the comments that were heard were based on fear and not understanding the entire spectrum of options that are available to people," she said.
The bill ultimately passed the Senate 26 to 23. Seattle state Senators Bob Hasegawa and Joe Nguyen were the only Democrats who voted against it. (Democratic Sen. Tim Sheldon also voted against the bill, but he caucuses with the GOP and opposed it for Republican reasons.) The legislation passed the House by a much wider margin—80 to 18—with Democratic Reps. Frank Chopp, Nicole Macri, and Tara Simmons declining to lend their support for re-criminalizing drug possession.
What is Seattle and King County going to do about this?
After Governor Inslee signs the bill, which he's likely to do, cities and counties will need to decide how to respond. According to the spokesperson at the King County Prosecuting Attorney's Office, cops will refer simple possession cases occurring in the county to the relevant City Attorney's Office in cities that have codified the state law in their own code, though the KCPAO will handle cases in unincorporated King County, which route through the district court.
Since 2018, King County Prosecuting Attorney Dan Satterberg decided "generally" not to charge simple possession cases involving less than one gram, though "there were some exceptions for those cases and defendants with extenuating circumstances," the spokesperson added. Since 2008, Satterberg has decided to charge most simple drug possession cases as misdemeanors instead of felony crimes. Now those cases will be referred directly to the Seattle City Attorney’s Office for determination.
A Seattle City Attorney's Office spokesman said their office will have no authority to prosecute the state law unless the city council passes an ordinance to criminalize drug possession as a misdemeanor in the municipal code. They could, however, refer the misdemeanor to KCPAO, who could prosecute the case in district court.
When asked if the Council might want to pass such a law, Seattle City Councilmember Andrew Lewis, speaking for himself, said, "Hell no."
He added that finding one vote to criminalize drug possession as a misdemeanor in Seattle would be difficult, let alone five. "Our municipal court is already jammed...None of us are down with the war on drugs...And why should we go down this route of even a token criminalization of public health matters?" he said, after pointing to Oregon's recent and successful drug decriminalization initiative, as well as the popularity of the idea in Washington.
Criminalizing possession at the city-level would also cost a lot of money to enforce, Lewis warned. He described the state's new law as "a caseload transfer from the county to the city" but without any attendant funds to hire more attorneys to deal with these new drug cases. Lawmakers in other cities who might be quick to reflect state law in their own codes, he argued, should prepare for how expensive it will be to take on drug misdemeanors on top of DUIs, trespassing charges, shoplifting charges, and all the other stuff municipal courts handle.
Lewis harbors some concern about a precedent that suggests Seattle would need to pay the county to prosecute the possession cases if the city doesn't write the law into its books, but he thinks the circumstances between this Blake response and that other case are different enough that the precedent may not apply.
"There is a jurisdictional issue that has to get solved," he added, and it will get solved mostly through conversations between Satterberg and Seattle City Attorney Pete Holmes. But if those two need a signal from the Council on how to handle this, he's a firm no on criminalization.