OLYMPIA — Like elsewhere in America, debates have percolated at the Washington Capitol over the years about shifting the response to drug use toward treatment and away from criminal punishments.
But the state Supreme Court’s decision in February striking down Washington’s drug possession statute – essentially invalidating decades of felony convictions – changed the discussion overnight.
In that ruling, known as the Blake decision, the justices said the tough penalties and stigma from a felony conviction are a violation of due-process guarantees in situations where an individual’s possession of drugs came from unintentional or passive conduct.
Immediately afterward, the Seattle Police Department announced officers would stop confiscating drugs, or detaining or arresting people, solely under the simple possession law.
Now, lawmakers face urgent decisions about how to treat substance use after a decades-long war on drugs has created barriers to getting housing or jobs and disproportionately affected people of color.
Legislators don’t have much time. The regularly scheduled 105-day legislative session ends April 25.
Some Republicans, joined by a handful of Democrats, have put forth bills to restore the felony drug-possession statute in a way that might pass constitutional muster.
Meanwhile, some Democrats had already been eyeing a bill by Rep. Lauren Davis, D-Shoreline. Introduced before the court’s decision – which came as a surprise to many – House Bill 1499 would create a statewide approach to treating substance use disorder.
At the moment, the focus is on Senate Bill 5476, a sort-of middle ground approach.
Sponsored by Sen. Manka Dhingra, D-Redmond, and co-sponsored by several Democrats along with GOP Sen. Ann Rivers of La Center, the bill is scheduled for a public hearing Monday in the Senate Ways and Means Committee.
The bill would make it a gross misdemeanor for someone under age 21 to be in possession of a controlled substance.
For people 21 and up, Dhingra’s bill sets legal thresholds for the possession of different types of drugs, according to a legislative analysis of the bill. For example, someone could possess up to one gram of heroin, or 40 units of LSD.
The legislation allows law enforcement to put people with legal amounts in touch with workers known as forensic navigators, who provide resources for treatment and recovery services.
And for people who knowingly possess drug amounts beyond the legal threshold spelled out in the bill, the legislation makes possession a felony.
Dhingra, a senior prosecuting attorney for King County, said many simple drug possession cases are not going through criminal courts anymore anyway, as the system begins to focus more on treatment.
“What I try to do with my policy is be practical and logical and really reflect what is going on,” said Dhingra. “The extreme left and extreme right, neither of them are happy” with the proposal.
Even as some Republicans want to focus more on drug treatment, many also want to bring back the felony criminal statute.
Sen. Mike Padden, R-Spokane Valley, has sponsored Senate Bill 5471, which would bring back a felony possession statute for people who knowingly possess illegal drugs. Similar legislation was also filed by a pair of moderate Democrats and other Republicans after the Blake decision.
“If a guy has a $1,000 dollar a month drug habit and isn’t working, they’re going to be committing robberies and burglaries … to feed that habit,” said Padden. “And now, with this case, we don’t have the leverage” to hold them accountable or compel them to get treatment.
Many lawmakers in both parties agree the state must create a strong, statewide drug-treatment infrastructure.
In fact, Republicans have praised the part of a bill by Davis, the Shoreline Democrat, that would create a statewide approach for drug treatment.
In mid-February, before the court’s decision, Davis introduced HB 1499 to fundamentally shift the state’s response from criminalizing drug possession to treatment for substance abuse. It laid out a road map for how the state could do that.
“It was a big idea, saying that we need to come up with a concept and a state plan to address substance disorder, which we currently do not have,” said Davis.
House GOP lawmakers have put forth ideas of their own, such as House Bill 1559. Sponsored by Rep. Gina Mosbrucker, R-Goldendale, it would direct law enforcement officers to take juveniles found consuming substances to evaluation and treatment centers.
Lawmakers will also need to provide tens of millions of dollars – and potentially even more – in the new state budget to help the courts vacate or resentence thousands of people and pay back legal financial obligations that convicted individuals had paid.
The court system is already experiencing unprecedented backlogs due to the COVID-19 pandemic.
That backlog includes approximately 1,042 criminal jury trials across the state, according to a recent letter to lawmakers from the state Superior Court Judges’ Association, each taking one week on average to complete.
Now, the courts will have to vacate or resentence tens of thousands of drug-possession convictions, potentially all the way back to 1971.
The association is requesting $77 million to handle the combined workload of the pandemic and the Blake decision, which would provide for additional judges, court staff, office space and equipment.
In a news conference last week, Democratic lawmakers were already warning that a full response to the Blake decision could take years.
Rep. Jamila Taylor, D-Federal Way, said lawmakers don’t want to rush everything this session because “we could have unintended consequences that could be worse for communities of color.”
