Finally Addressing Blake Decision, Legislature Passes Punitive Drug Possession Bill

by Andrew Engelson

On Tuesday, during the special legislative session called by Gov. Jay Inslee, and after hours of emotional testimony, the legislature passed a new drug possession bill.

The legislation was a response to the state supreme court’s 2021 Blake ruling, a landmark decision that invalidated the state law which historically defined drug possession as a felony. Legislators, set on addressing the court’s decision, failed to pass a bill during the regular session. Yesterday, however, Democrats passed their compromise, which focuses on criminal penalties and coercive treatment over a harm reduction-centered approach. The bill was actually less punitive than a previous version that failed to pass, but is still centered on the threat of jail time for drug users.

The vote was 43 to 6 in the Senate, with Democratic senators Bob Hasegawa (D-11, Seattle), Jamie Pedersen (D-43, Seattle), and Rebecca Saldaña (D-37, Seattle) and three Republican senators voting no. The House passed the bill 83 to 13 and sent it to Inslee, who signed it the same afternoon. The House “nay” votes included several Republicans and nine Democrats, all from Seattle or Shoreline: Reps. Emily Alvarado, Frank Chopp, Lauren Davis, Nicole Macri, Gerry Pollet, Cindy Ryu, Sharon Tomiko Santos, Darya Farivar, and Chipalo Street.

“Is this bill perfect? Absolutely not,” the bill’s original sponsor, Sen. June Robinson (D-38, Everett), said before the vote, adding that she believed the compromises were necessary to pass uniform, statewide rules for drug use and possession.

“This legislation offers a balance between accountability and compassion,” said Rep. Peter Abbarno, (R-20, Centralia) who did not vote for a previous version in the House but supported Tuesday’s bill.

Rep. Lauren Davis (D-32, Shoreline), who voted “no,” called the bill ““bad drug policy” on the house floor before the vote. “Harm reduction programs meet people where they are, they don’t leave people where they are. No one can recover if they’re dead.”

In an attempt to win support from left-leaning reformers, the bill does tone down punishment. The bill defines drug possession – and a new offense of public drug use – as gross misdemeanors, but rather than the standard maximum of 364 days in jail, it limits the maximum sentence that can be imposed for each charge to 180 days for the first two convictions, and 364 days for the third or additional convictions. Fines for each instance are limited to $1,000. The bill also encourages local authorities to offer pre-arrest referral services such as LEAD and the state’s Recovery Navigator Program, and also encourages and describes a process for prosecutors to employ post-conviction diversion programs.

“I personally would like to get to a place where we can decriminalize drugs. But I’m also pragmatic and I don’t just represent myself, I represent a district.” —Rep. Tarra Simmons (D-23, Bremerton), who voted “yes.” 

But ultimately, it defers to local prosecutors to decide whether to press criminal charges for drug possession.

“The prosecutors really insisted that they be the gatekeepers and that they be the party that consents to the diversion,” said Rep Roger Goodman, (D-45, Kirkland) who chairs the house Safety, Justice, and Reentry committee and who was a key player in the negotiations that led to the current bill.

Goodman, who in his career as an attorney has worked to shift drug policy from a criminal justice issue to a public health issue, said, “As the chair of the committee, my role was to manage this process, and move through a piece of legislation that’s politically tenable. In doing so, I have permanently tarnished my drug policy reform credentials. But this is only a step in the continued evolution of our drug policy.”

“I’m grateful for the negotiators from all four caucuses for reducing the amount of incarceration,” said Rep. Tarra Simmons, (D-23, Bremerton) in a floor speech. Simmons, who once served time in prison for a drug possession conviction, voted no on the previous version of the bill because she thought its penalties were too harsh, but reluctantly supported today’s version. “I personally would like to get to a place where we can decriminalize drugs,” Simmons said, “But I’m also pragmatic and I don’t just represent myself, I represent a district.”

The state budget, which Inslee also signed Tuesday afternoon, includes nearly $1 billion for behavioral health services, treatment services, supportive housing, and harm reduction for people with substance use disorders. Notably, that operating budget also includes $300,000 to create a “work group” tasked with studying how the state might create a safe supply system that would provide drug users with medical-grade sources of controlled substances such as opioids and stimulants.

A new work group will evaluate “potential models for safe supply services and make recommendations on inclusion of a safe supply framework in the Washington state substance use recovery services plan to provide a regulated, tested supply of controlled substances to individuals at risk of drug overdose

Creating a safe supply work group was one of the few recommendations from the state’s Substance Use Recovery Services Advisory Committee (SURSAC) report issued late last year that survived the current legislative session.

Like SURSAC, the safe supply work group will include representatives from public health agencies, elected officials, prosecutors, law enforcement agencies, harm reduction organizations, housing and treatment service providers, and active and former drug users.

The group will be tasked with evaluating “potential models for safe supply services and make recommendations on inclusion of a safe supply framework in the Washington state substance use recovery services plan to provide a regulated, tested supply of controlled substances to individuals at risk of drug overdose.” The group must present a final report to the legislature by December 2024.

“In order to help people be in recovery, you have to make sure they’re alive,” said Sen. Manka Dhingra, (D-45, Redmond), who chairs the Law and Justice committee and included the work group in an earlier version of the drug possession bill. “I think it’s important to have those conversations about how we can keep people alive so we can help them recover. This work group is going to help us with that discussion.”

Caleb Banta-Green, a research professor at the University of Washington School of Medicine, says safe supply isn’t a radical notion if you’re trying to prevent overdose deaths, of which there have already been 524 in King County this year.

“We have a fundamentally unsafe supply, to put it very simply. That is obviously true of fentanyl,” Banta Green said, noting that the state currently has a safe supply system for alcohol, cannabis, and treatments for opioid addiction. “We’ve had methadone for 50 years and buprenorphine for 20 years. And those are forms of safe supply.”

The drug possession/public use bill that passed Tuesday was much less centered around harm reduction. To attract Republican votes, the bill included a provision that allows local jurisdictions to outlaw or restrict harm reduction services. It does, however, decriminalize drug paraphernalia such as syringes and smoking supplies statewide, when used in harm reduction efforts.

“There’s no evidence that a criminal charge is going to help. And there’s lots of evidence that criminal charges and incarceration all have negative consequences, both in the short term and the long term.  I’m saddened.” —Seattle Rep. Nicole Macri, who voted “No.”

The bill also allows those convicted of either possession or public use to vacate their convictions, but only if they enter treatment for substance use disorder and can show six months of “substantial compliance” with those treatment programs. In addition, prosecutors cannot press charges for both possession and use for the same instance, preventing “stacking” of charges for one incident.

Another concession that House Republicans asked for and got was a provision requiring the state let local media know when a methadone clinic or other opioid treatment facility is opening. Such notices can often inflame public opinion: late last year, a new opioid treatment center in Lynnwood faced furious opposition from local residents before it opened in January.

The bill that passed today replaces a temporary bill passed in 2021 that had set possession at a simple misdemeanor punishable by up to 90 days in jail. The temporary law was prompted by the Washington State v. Blake ruling, which tossed out the former statute which defined possession as a felony over a fairly narrow question of “knowing” possession. That temporary law was set to expire in July, thus forcing the legislature to take action this session.

“I wish there were no criminal charges,” Rep. Nicole Macri (D-43, Seattle), who voted against the final version of the bill, told PubliCola, “There’s no evidence that a criminal charge is going to help. And there’s lots of evidence that criminal charges and incarceration all have negative consequences, both in the short term and the long term. And so, I’m saddened.”

The drug bill also includes $62.9 million ($19.6 million more than the previous version of the bill) in spending on an array of services and programs including housing, recovery and treatment services, diversion programs, new mobile methadone clinics, creating pilot “health hubs” designed to lower barriers to treatment and services, and funding to boost the number of public defenders.

Alison Holcomb, political director for the ACLU of Washington, which has been supportive of decriminalization and investigating a safe supply system, says her organization is disappointed in Democrats—who control both houses of the legislature and the governor’s office—for failing to end the war on drugs in Washington state.

“It’s fairly heartbreaking that legislators who negotiated this bill prioritized partisan compromise over what modern science tells us can save lives,” Holcomb said. “We’re continuing the same strategy of holding punishment over people’s heads as a motivator to coerce them into treatment that is of a finite length of time. And both the coercive feature of that approach and the notion that treatment is something that we can get done in 28 days, six months, or even a year, contravenes modern science.”

Holcomb pointed out that a fiscal note prepared for a previous version of the drug possession bill that set drug possession as a gross misdemeanor estimated that 12,000 new cases will be filed each year in district and municipal courts across the state because of the bill.

Rep. Goodman, who described the negotiating process over the final bill as collegial but akin to being “subjected to a series of small surgeries,” said he’s hopeful this won’t be the last time the legislature reworks its approach to drug use. “The conversation on the failure of the war on drugs will continue to progress,” he said. “I think we’ll be demonstrating through these policies that harm reduction works. So I’m not too disappointed. But I’m not living in a fantasy world.”

In Seattle on Tuesday, council members Sara Nelson and Alex Pedersen, alongside city attorney Ann Davison, announced they would introduce a new version of their legislation to criminalize public drug use that will put that proposal in line with the state’s new drug possession and public use laws.

In April, the three proposed a new ban on public drug use at the city level in response to the legislature’s failure to pass a Blake-related drug bill. In a press release, Nelson said, “Now that Olympia has appropriated resources for treatment and adopted a fix for Blake, we’re bringing our legislation into alignment to remove any further cause for inaction on the most critical public health and public safety issue of our time.”

6 thoughts on “Finally Addressing Blake Decision, Legislature Passes Punitive Drug Possession Bill”

  1. The worst outcome would have been no state law at all. A patchwork of laws and therefore disputes over jurisdiction would have been a drain on resources and inequitable outcome for communities and individuals alike. Start yer engines to move the needle your preferred direction next legislative session.

  2. Rep. Marci’s contention (pull quote) about an absence of evidence supporting the role of incarceration is false. There’s tons of data showing that forcing drug abusers into treatment is effective. Those faced with the jail/treatment choice are ten times more likely to complete treatment than those entering treatment voluntarily (“J Subst Abuse Treat” — Coviello, Zanis, et al, NIH), and long term success rates are as good or better than outcomes of those completing voluntary treatment. Success rates of those not completing treatment or those refusing treatment and choosing jail over treatment are dismal, true. But the evidence is very clear that the threat of incarceration is the most effective motivator to get people into treatment and motivating them to complete treatment.

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