By Andrew Engelson

Democrats in the legislature are making procedural moves that will decide what the state’s new drug possession law will look like—an exercise that became necessary after the state supreme court’s 2021 ruling Blake v. State of Washington invalidated existing law. 

Whatever bill emerges will correct the element of current law the court found unconstitutional:  that someone who “unknowingly” possesses drugs could still be convicted. But the legislature is also taking the opportunity to debate what the state’s approach to drug use, and an unprecedented overdose crisis, will be. Various camps in this debate favor a criminal justice approach; a coercive treatment approach; or a public health approach focused on decriminalization.

The bill that has emerged from committee in the senate favors the “middle” option—coercive treatment—and amendments added in the past few days double down on that strategy.

Sen. Manka Dhingra (D-45, Redmond), who chairs the Law & Justice committee, is a strong supporter of decriminalization and safe supply. But her bill moving things in that direction,  which would implement recommendations in a report issued in December by the Substance Use Recovery Services Advisory Committee (SURSAC), didn’t have the votes to pass the Senate and never made it out of committee.

What did survive is a bill sponsored by Sen. June Robinson (D-38, Everett), that would make possession of a “small amount” of schedule 2 drugs (which include cocaine, fentanyl, and methamphetamine) a gross misdemeanor and require prosecutors to offer defendants diversion to treatment instead of jail time. 

Last Friday, when the bill was in the Ways and Means committee, vice chair Sen. Mark Mullet (D-5, Issaquah) succeeded in adding a major amendment to the bill empowering (and in some cases requiring) judges to impose jail sentences on defendants who fail to complete treatment.

Mullet told PubliCola he filed the amendment with input from Sen. Jesse Salomon (D-32, Shoreline), whose own drug possession bill, which is more punitive than either Dhingra’s or Robinson’s, failed to make it out of committee.

“We’re basically saying: Upon conviction, you’re auto-enrolled in a substance abuse treatment program,” Mullet told PubliCola. “But if for whatever reason you fail, if you choose to exit the program because you don’t feel like doing it—now there’s going to be consequences.”

This sort of language, focused on pushing drug users into treatment and demanding results, mirrors testimony that Salomon, who works as a public defender, gave during a committee hearing for his bill on Feb 6. Introducing that bill, Salomon expressed concerns about an “unacceptable level of public, open drug use,” and then told a story about seeing people using fentanyl outside his child’s day care, lamenting what he called  “a high level of public disorder and a decrease in public safety.” 

“Our current referral system… “ Salomon said in his testimony, “effectively only asks people to get help, but has no consequences when those folks don’t get help.”

Caleb Banta-Green, a researcher on substance use disorder at the University of Washington— and a member of the SURSAC committee that recommended decriminalization—says this approach ignores the realities of opioid and stimulant use. 

“You don’t treat substance use disorder,” Banta-Green said, “You manage it as a chronic relapsing condition. One of the challenges when the criminal legal system is involved is that if you have a return to use, you’re a failure and you’re committing a crime. Rather than: you’re showing symptoms of your disease and we’re going to continue to provide you care.”

Mullet’s amendment would give judges discretion on the first offense, but on the second offense, those who fail to complete treatment will face a minimum of 21 days in jail, and for a third offense a minimum of 45 days—sentences Mullet said are often be knocked down, with good behavior, to 14 days and 30 days, respectively.

“Our hope is that in those 14 days, people can go through that kind of challenging withdrawal process where they don’t have access to substances,” Mullet said. “Then hopefully, at the end of those 14 days, now they’re in a better spot to realize: oh, maybe I should get treatment.”

Banta-Green says this is the approach the state has used for decades, and he believes it’s ineffective and harmful. “Incarceration is not innocuous,” he said. “I think legislators think it’s like having to go to a Motel 6 for the weekend and miss out on some parties.” A drug conviction and jail time can be a “scarlet letter” that limits a person’s future opportunities; it also “dramatically increases [the] risk of overdose,” Banta-Green said.

Two academic studies of people released from Washington state prisons have shown that the majority of deaths among those recently released from prison were overdoses and that within two weeks of release, inmates were 129 times more likely to overdose than the general population. 

Michelle Conley, director of integrated care at REACH, which serves unhoused Seattle residents with substance abuse disorders, says that for many of her clients who end up incarcerated, jail is detrimental to recovery. “People are traumatized by jail,” Conley said. “And then we’re 15 steps back from where they were. As providers we have to engage with them and rebuild trust… to make sure they see us as a provider and not just a part of the system.”

Even the bill’s seeming compromise between criminalization and decriminalization—coercive treatment—is problematic, Conley said.

Conley said the expectation that someone can be pushed into recovery with one session of 30 to 90-day inpatient treatment is unrealistic, especially if they’re released from treatment without ongoing support. “Churning people through this kind of treatment mill, and then sending them back on the streets, really serves as little more than a moment of respite,” Conley said. “Especially when people are released back to the same circumstances that drove them, oftentimes, to aggressive use.”

Not everyone who uses drugs needs to go to treatment, Banta-Green said, and people who would benefit from services “don’t want the treatment we have,” which often takes an all-or-nothing approach to sobriety. Instead of coercing people into conventional treatment with the threat of jail time, Banta-Green believes the state should implement one of the SURSAC committee’s recommendations: aggressively funding “health engagement hubs” that offer a range of services and treatment options to people who use drugs, including comprehensive harm reduction, health care, mental health care, addiction treatment, and medications.

Banta-Green’s research team has worked with local public health agencies to establish pilot hubs in Seattle, Kennewick, and Walla Walla. He says the state would ideally have one of these hubs for every 200,000 residents, for a total of about 38 such facilities statewide.

Robinson’s bill directs the Washington Health Care Authority to “make sufficient funding available” to create health hubs within a 2-hour drive of all residents at the ratio to population Banta Green recommends. The bill also appropriates a $51 million—much of it from the state’s legal settlement with prescription opioid manufacturers—to fund opioid use disorder medications, crisis relief centers, and grants to LEAD and other programs that offer alternatives to arrest or jail time.  

Among other provisions, the bill legalizes handing out drug paraphernalia (such as smoking supplies) statewide, but an amendment added in the Ways and Means committee by Sen. Keith Wagoner (R-19, Sedro Woolley) would allow cities to opt out of that provision.

Dhingra added language to the bill that would set up a working group to study the creation of a safer drug supply system. Canada has incrementally started to experiment with prescribing pharmaceutical-grade drugs such as fentanyl to drug users to reduce the risk of overdose from street drugs, whose contents are unpredictable. However, that language also got stripped out of the bill in Ways and Means.

Following a year when King County had a record 998 fatal drug overdoses, all options should be on the table, Dhingra said.

 “If you want to help people get to recovery,” she said, “you have to make sure they’re alive in order to do that.”

Sen. Robinson, who sponsored the bill now moving forward, told PubliCola she believes her legislation offers a politically viable balance between restoring some criminal penalties and providing options for treatment.

Robinson, who has a masters in public health, said, “I truly believe all the research” about the need for a variety of approaches to drug use and addiction. “I absolutely believe that the criminal justice system is not the right place to deal with addiction,” she said. “It’s just—this is where we are. And we need to move to provide alternatives, to provide other systems, and to fund and destigmatize other ways of helping people through addiction.”

Robinson’s bill will likely get a floor vote this week, and it’s also likely that supporters of each competing approach to drug policy will offer a frenzy of competing floor amendments to shape the final bill.