In Last-Minute Move, Legislature Adopts New Approach to Drug Possession

By Paul Kiefer

After a last-minute rush to pass legislation in response to the Washington State Supreme Court’s decision in February that rendered the existing drug possession laws void, the Washington State legislature passed new legislation on Saturday re-criminalizing low-level drug possession by making it a misdemeanor and requiring local jurisdictions to provide treatment options for drug users. The bill, ESB 5476, directs law enforcement officers to divert people who violate the new law to “assessment, treatment, or other services” for the first two violations; after the second violation, a violator can be referred for prosecution and, potentially, a fine or jail.

After making compromises to pass the bill before the final day of the legislative session on Sunday, many lawmakers are not fully satisfied with the result. But had the legislature not passed a new law regulating drug possession, some lawmakers worried that a patchwork of local policies and enforcement practices would have filled the vacuum.

The decision that precipitated the scramble to adjust Washington’s drug possession laws, called State of Washington v. Blake, ruled that Washington’s so-called “strict liability” drug possession laws—which made no distinction between intentional and unintentional drug possession—violated the due process rights enshrined in both the state and federal constitutions.

Without new legislation to address the court’s decision, the state can’t enforce any of its existing drug possession laws. But local jurisdictions could have passed new laws if the state legislature had not acted, which could range from de-criminalizing drug possession to classifying intentional possession as a gross misdemeanor—the most severe criminal charge a local jurisdiction can impose.

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The bill at the center of the legislature’s ongoing push to respond to the Blake decision began as the work of a group of Democratic senators led by Sen. Manka Dhingra (D-45, Bellevue), who proposed that the state eliminate all criminal penalties for possessing a “personal use amount” of an illegal drug—up to one gram of heroin or two grams of methamphetamine, for example. In its original form, the bill also proposed a system in which law enforcement could pass the names and contact information of drug users to a “care coordinator,” who would then reach out to the drug user to offer treatment and recovery resources.

But in an effort to pass the bill out of the senate, Democratic lawmakers moved to re-criminalize drug possession to win the votes of some Republicans; when the bill came to a vote on the senate floor, Dhingra voted against it, arguing that it no longer reflected her goal of separating addiction treatment from the criminal justice system.

The state house spent considerable time debating whether to make drug possession a misdemeanor (like the bill that ultimately passed) or a gross misdemeanor (the bill that passed the senate over Dhingra’s objections.) Making it a gross misdemeanor would have meant adopting as statewide law the harshest charge a city could impose on its own. While it would require prosecutors to divert people charged with drug possession to addiction treatment for their first and second violations, the bill would also have also given prosecutors leeway to decide whether a person is eligible for treatment after their third violation, reintroducing the possibility of fines or jail time.

Most lawmakers from both parties hoped to avoid devolving this debate to a patchwork of local jurisdictions. Without action by the state legislature, Dhingra told PubliCola last week, leaving counties and cities to pass their own drug possession laws could create disparities in enforcement and treatment.

But some representatives expressed concern that, in the rush to pass a new statewide drug possession law, the legislature could overlook the needs of the state’s poorer rural counties, particularly by requiring prosecutors to divert drug users to treatment. “I worry that we could be creating a false promise,” said Rep. Joe Schmick (R-9, Colfax) during Wednesday’s hearing. “In the smaller counties, we’re already struggling to provide mental health and substance abuse treatment—how would we manage a new caseload?”

From Dhingra’s perspective, part of answer to that question involves increasing support for state investments in local behavioral health programs through the Department of Health and Human Services. However, Dhingra added, the passage of a law requiring prosecutors to refer drug users to treatment would require a sharp scaling-up of services that either do not exist or cannot meet demand in many parts of Washington. The bill that passed the legislature allocates $88.5 million to that purpose, including $45 million for a statewide “recovery navigator program” to connect drug users to treatment and long-term care options.

Ultimately, Dhingra said, the state’s goal should be to stand up programs akin to Seattle’s Law Enforcement Assisted Diversion program (LEAD) in every county to offer harm-reduction services, including possible referrals to treatment, but until then, local prosecutors and caseworkers may be unprepared to handle addiction treatment referrals themselves.

The role of LEAD in Seattle’s response to the new law is still unresolved. However, according to Public Defender Association director Lisa Daugaard, whose organization runs LEAD, the new bill could spur the creation of a “a strong pre-booking diversion program statewide” modeled after LEAD’s operating principles. LEAD, which began in Seattle in 2011, has already spread to Snohomish, Thurston, Kitsap and Whatcom counties; the bill that passed the legislature also sets aside $12.5 million for similar programs statewide.

All lawmakers seem to agree that any new law is only a temporary bandage. “It’s really important to have an expiration date on whatever it is that we pass,” said Dhingra. The bill that passed the legislature the does have an expiration date: it will expire in two years, after which drug possession would no longer carry a criminal penalty unless the legislature acts again.

Others outside of the legislature also hope that the legislature revisits Washington’s drug possession laws, whether or not the bill passes this year. “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,” Seattle City Attorney Pete Holmes told PubliCola in an email. “I urge lawmakers to take a hard look at the impacts of continued criminalization and bring 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.”

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