By Andrew Engelson

The legislative battle over Washington’s new drug possession law took another turn last week when Democrats in the house Community Safety, Justice, and Reentry committee offered a new version of the bill, which would make drug possession a simple misdemeanor, offer more options for treatment and diversion instead of jail, legalize harm reduction paraphernalia like syringes statewide, and eliminate punitive jail time for those who fail to complete treatment.

Legislators have been in a vigorous debate this session over the state’s drug possession law after a 2021 ruling called Blake v. Washington. Although the case concerned a fairly narrow question about “knowing” possession, the court ended up tossing out the state’s possession law altogether, prompting legislators to pass a temporary law that expires in July.

Last month, in a surprise move, moderate Democrats significantly modified a proposed replacement for the expiring law with a series of amendments that increased drug possession to a gross misdemeanor and in most cases required judges to impose minimum jail sentences for those convicted who failed to complete treatment.

Rep. Roger Goodman (D-45, Kirkland), who chairs the committee, told PubliCola his striker amendment removes some of the more punitive aspects of the original senate bill, which would have made drug possession a gross misdemeanor—a charge that carries a penalty of up to 364 days in jail and a maximum $5,000 fine.

“Even when your possession was a felony, you could have three or four prior offenses and it still wouldn’t allow up to 364 days in jail,” Goodman said. “[The Senate version] actually increases the confinement time from what it used to be as a felony. So that’s not acceptable.”

“The House Democrats are horrified–including myself—by the prospect of returning to the war on drugs,” he said. “Ninety days in jail, which is what a simple misdemeanor brings, is certainly more than enough.”

On Tuesday, the house Appropriations committee passed an additional striker amendment stipulating that if someone is convicted of possession and either completes treatment or has a clean criminal record for one year, the conviction will be removed from their record. Rep Lauren Davis (D-32, Shoreline) introduced the striker, and wrote the amendment to vacate convictions with help from  Rep. Tarra Simmons (D-23, Bremerton), who is the first person to serve in the legislature who has also served time in prison.

“When you have that stigma of the criminal record on your record forever, it limits where you can go in the future,” Simmons said. 

Simmons also said she’s working with Goodman, Davis, Rep. Nicole Macri (D-43, Seattle), and others on a floor amendment that would require prosecutors to divert a person’s first drug possession conviction to services and/or treatment. That  needs to  happen sometime before next Wednesday, the cutoff date for bills to pass in their opposite chamber.

The current version of the bill eliminates a provision added in the Senate that would require the Washington State Patrol forensic lab to deliver tests of drugs held in evidence within 45 days, and creates new misdemeanor offenses for “knowing” possession and public drug use. The provision on public use could be a carrot for centrist Democrats such as Sen. Jesse Salomon (D-32, Shoreline) who talked at length in testimony for his more punitive drug possession bill about seeing public drug use near his child’s school.

Simmons, who was first elected in 2020, has been actively involved in the drug possession bill in part because of her own experience with substance use and the criminal justice system. After experiencing childhood trauma and teen pregnancy, Simmons struggled with substance abuse disorder, using opioids and methamphetamine. She was convicted of drug possession, possession with intent to deliver, and theft in 2011 and served 20 months in prison. 

“It was traumatic not only for me, but for my children,” who were 8 and 18 at the time. “When you’re in jail, it’s not a trauma-informed therapeutic environment. Nobody’s getting better in jail.”

A nurse by training, Simmons went to law school and successfully challenged a Washington State Bar rule that wouldn’t let her practice law because of her felony conviction. Of the current version of the bill, Simmons said, “I strongly believe that substance use disorder is a health issue”—one that coercion and punishment fail to address. 

The bill is likely to pass the house. The next step will be negotiations between the house and senate about which version will ultimately move forward. Goodman is confident the less coercive version will prevail, and Simmons says if it doesn’t, she won’t vote for it. 

“The Senate version had absolutely no mandatory options for diversion or post-conviction vacation or any of that,” she said. “The Senate version is the worst that we would get anywhere in the state. And so I could not vote for that.”

It isn’t just progressive Democrats who may balk at a compromise bill, Goodman said.

“In the house, we may have a number of Democrats who can’t stand to vote for a bill that has any criminal penalties,” he said. “And you may have Republicans who are not happy with the mandatory jail sanctions being removed and they may not vote for the bill.”

If the legislature fails to pass a law this session (unlikely, but not outside the realm of possibility), the existing temporary law will expire on July 1, leaving Washington in the same place it was immediately after the Blake ruling–with no law on the books regarding drug possession. Simmons expressed concern that in that absence, counties and cities could pass their own possession laws with stricter penalties than any of the proposals legislators are currently debating. “If we don’t do something, then the local jurisdictions will create their own ordinances and we’ll have a patchwork across the state,” she said.  

In the meantime, Goodman says he’s committed to moving away from the war-on-drugs mentality of previous decades. “We need to learn what we did three years ago [passing the temporary possession bill], by starting to build up behavioral health infrastructure and more evidence-based interventions,” he said.