OLYMPIA — Two proposals emerged this week to update how Washington law deals with possession of illicit drugs, a quandary the state has faced since the Washington Supreme Court struck down the state’s drug possession statute as unconstitutional in early 2021.
That year, in State v. Blake, the justices threw out the state’s drug possession statute because it criminalized possession even when a person did not knowingly have drugs.
That left the Legislature to decide whether having illicit drugs like cocaine and heroin should remain a crime.
Lawmakers arrived at a temporary fix, rewriting the statute to specify that “knowingly” possessing controlled substances was illegal and treating drug possession as a misdemeanor rather than a felony. But before being charged, a person must be referred to treatment twice.
That arrangement expires this summer.
While the two bills that dropped this week differ, both would make drug possession a gross misdemeanor, a step up from its current misdemeanor status, and would involve more formal nudges to get people who are charged with drug possession into treatment.
A proposal released Friday, Senate Bill 5536, sponsored by Sen. June Robinson, D-Everett, would require courts to inform people charged with drug possession that diversion programs are available, and if a person completes the program, the charges would be dismissed. If a person doesn’t complete treatment, a judge would decide the appropriate next step, Robinson said in an interview.
The bill would allow a person convicted of drug possession to ask a court to vacate the conviction after completing treatment.
The measure would decriminalize providing drug paraphernalia, like pipes, and preempt local governments, like cities and counties, from making that illegal in conflict with state statute. Providing drug paraphernalia is currently illegal, and selling it would remain illegal under SB 5536.
The bill would encourage police to offer treatment options to people who could face arrest for drug possession, Robinson said.
It’s also being sponsored by the leader of the Senate Democrats and by the Democratic chair of the Senate Law and Justice Committee, suggesting it will likely be the proposal that gets traction.
“This legislation is the result of many conversations with community members, law enforcement, local government leaders, behavioral health providers and more,” Robinson said in a statement. “We know our state must continue to invest in systems based in real solutions like treatment, so we can foster strong, healthy communities and put care over criminalization — that is exactly what this bill does.”
It’s not the sole proposal dealing with the fallout from the Blake decision.
On Thursday, Sen. Jesse Salomon, D-Shoreline, introduced Senate Bill 5467, which bears similarities to Robinson’s bill, but in the event a person sentenced to treatment “willfully abandoned or demonstrated a consistent failure to comply with the recommended treatment,” the court must require the person to spend at least 45 days in jail.
Fifteen other lawmakers, including four Republicans, have signed on to co-sponsor that bill.
“I believe we need to encourage and fund treatment, but I understand that people in the throes of addiction can’t always make the best choice for themselves and their families,” Salomon said in a statement.
A third approach will likely be introduced to acknowledge the work of the Substance Use and Recovery Services Advisory Committee, made up of lawmakers, service providers and members of the criminal justice system, which recommended decriminalization.
But it’s unlikely that decriminalizing drug possession would accrue enough support to pass.
