Push to decriminalize fades as WA Senate considers new drug law

Lawmakers are starkly divided over how to handle substance possession, even as one bill moves forward.

A picture of the Capitol building in Olympia.

The Washington State Capitol and Supreme Court buildings, photographed from Heritage Park on Wednesday, Oct. 21, 2020, in Olympia. (Jovelle Tamayo for Crosscut)

As Washington lawmakers try to reshape how the state deals with substance-use disorder, a Senate bill is advancing that would make most drug possession a gross misdemeanor instead of a felony, while also encouraging substance-use treatment. Lawmakers earlier this month voted Senate Bill 5536 out of the Senate Law & Justice Committee. The proposal – sponsored by Sen. June Robinson, D-Everett – is now scheduled for a public hearing Saturday in the Senate Ways & Means Committee.

But the bill has a long way to go before it can become law, and lawmakers remain sharply divided over how Washington should treat drug use and treatment.

Legislators have remained split over how to respond to the state Supreme Court’s February 2021 ruling, known as the Blake decision. That ruling struck down the state’s felony drug possession law, essentially invalidating decades of criminal convictions and related penalties, like orders to pay restitution for such violations.

Caught by surprise halfway through that year’s legislative session, lawmakers crafted a temporary solution. They approved a new statute that made unlawful possession of a drug a misdemeanor crime on the third violation, with officers supposed to present treatment options the first two times.

The difference between a felony – a more serious charge that could involve time in prison – and a gross misdemeanor is a matter of degree. A regular misdemeanor – which is in place under the temporary law – is an even lower level, and those charges don’t make it to the types of courts that have existing drug-diversion programs.

That temporary measure lapses in July. That gives lawmakers an incentive to act before this current legislation session is scheduled to end in late April.

If approved, Senate Bill 5536 would make the knowing possession of a controlled substance a gross misdemeanor for people aged 21 and up, according to a legislative analysis of the bill. That’s a step up from the current crime of misdemeanor, but less than the felony penalty that the court struck down.

Under Robinson’s proposal, possession of an ounce or more of cannabis – or for people under age 21, any amount of cannabis – would stay a misdemeanor, which carries a maximum sentence of 90 days jail, or a $1,000 penalty, or both.

The bill also creates a pre-trial diversion program for anyone charged with possession of controlled substance. Under that approach, the defendant would have the charge dismissed if they agree to get treatment for substance use disorder, according to the legislative analysis. 

Law enforcement officers are also encouraged under the bill to offer referral at the point of arrest, instead of putting the individual in jail and referring that charges be filed.

That offer for help would come “immediately, as soon as a police officer interacts” with an individual, Robinson said in an interview.

“If that doesn't happen, they get arrested,” she said.

The current version of the proposal contains several other things to help with substance-use treatment. The bill would make it harder for local governments to stop opioid treatment facilities from being built by giving them a designation known as “essential public facilities.” That point has already drawn opposition from one conservative, Sen. Keith Wagoner, R-Sedro Woolley.

The bill also would spend about $47 million to provide medication for opioid-use disorder in local and tribal jails, among other things, and to expand crisis-relief centers across the state.

If the bill is voted out of the Senate Ways & Means Committee, it would go on to a debate before the full Senate. From there it would go to the House, whose lawmakers will have their own thoughts on what approach should be taken.

“I expect it will change come every step of the way,” Robinson said.

Robinson said she has been in touch with Rep. Jamila Taylor, D-Federal Way, who is helping lead negotiations on the House side.

In a question-and-answer session with reporters last week, House Speaker Laurie Jinkins, D-Tacoma, said House lawmakers were just getting started on briefings on possible approaches to a new law.

“We’re expecting the Senate to send over a bill to us, so we’re going to see what their bill is,” she said.


Broad disagreement

The four Blake bills featured in a Feb. 6 public hearing in the Senate Law & Justice Committee put the fractured political landscape among the 49-member Senate on full display.

A proposal by GOP Sen. Mike Padden of Spokane Valley, SB 5035, to return drug possession to a felony charge had 14 sponsors, and a Democratic proposal to completely decriminalize drugs for personal use drew nine sponsors.

Robinson’s bill and another bipartisan piece of legislation both attempted to find a middle ground – in part by including a gross misdemeanor penalty – and each bill drew 16 sponsors.

Senate Minority Leader John Braun, R-Centralia, was a co-sponsor on that other middle-ground attempt – SB 5467 – but he said he was satisfied so far with how the Democratic majority is approaching the issue.

“It’s not perfected, and it’s not yet supported by a majority of folks on the floor of the Senate, and we will have the discussion and the debate,” Braun said, adding: “I’m hopeful and frankly optimistic that it will get to a place that brings strong support from our caucus.”

The bill is a blow, however, to progressives who wanted to more broadly reshape how the state deals with drugs in the wake of the court decision and amid a broader reckoning with the decades-long war on drugs. Felony laws like the one struck down by the court have long erected barriers for individuals trying to get their lives back together, such as applying for housing or jobs, and they have disproportionately impacted communities of color.

One of the bills that didn’t advance out of the Senate Law & Justice Committee was Senate Bill 5624, which took a public-health approach to treating substance use – and also proposed decriminalizing small amounts of drugs for personal use.

That bill puts forth a series of recommendations to come from the Substance Use and Recovery Services Advisory Committee, which was established in 2021 along with the stopgap Blake legislation.

SB 5624 is sponsored by Sen. Manka Dhingra, D-Redmond, a former King County prosecuting attorney. But in a nod to political reality, Dhingra acknowledged even before the public hearing that the bill did not have the votes to advance.

In the public hearing, Dhingra urged lawmakers and others to think about treating substance use through the civil system, rather than making it a crime again. Lawmakers in recent years have tweaked or added to Washington’s laws to provide assisted outpatient treatment or civil commitment to help individuals get substance-use treatment, Dhingra said.

“And when you take a look at what is happening across the world, that is what people are moving to," Dhingra said, adding: "If your loved one was struggling, what would be the process that you would like for that person to undergo?"

In an interview this week, Dhingra described the bill moving forward – SB 5536 – as combining a “public-health approach along with criminal-justice consequence.”

But, “The Robinson bill mirrors more closely what was happening on the ground before the Supreme Court decision,” she said.

Sen. Jesse Salomon, D-Shoreline and sponsor of the other middle-ground approach – SB 5467 – agreed with Dhingra’s assessment.

“That's almost exactly what we did before Blake, and it wasn't working well,” said Salomon, who has worked as both a public defender and a prosecutor in his career.

Salomon summarized his view with a hypothetical drawn from his career working as a defense lawyer: Salomon has a defendant charged with drug possession who doesn't want to go through heroin withdrawal, the prosecuting attorney is seeking a legal victory, and they're both appearing before a judge who has too many cases already. If the prosecutor offers a guilty plea that ultimately results in no treatment, the defendant can soon be using again, Salomon said, and the judge can move on to other cases.

"It creates this non-virtuous cycle," Salomon said.

Salomon’s bill featured more provisions to make sure treatment was happening through the court system, he said, though penalties would be assessed only if someone didn’t complete their treatment.

He compared his proposal to how lawmakers cracked down on DUIs: “Mandatory treatment, sanctions for violating treatment, it borrows that thinking.”

Salomon’s proposal had four Republican co-sponsors along with Democrats, although some Democrats on his bill also support Robinson’s approach. Given the splits among Democrats, some Republican support might be necessary to get a final bill through the Senate and House to Gov. Jay Inslee’s desk for his signature. 

Other lawmakers, especially those who don’t specialize in the criminal-legal system, are likely still digesting all this, he said.

"I don't think that minds are made up, I think senators will be making decisions," Salomon said. “The Robinson bill is a vehicle ... and we don't know the final form of it."

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