The WA Legislature intends to fix drug possession law. There are a variety of options
State lawmakers are wrestling with how severely to punish people caught with drugs.
Some are advocating no jail time for the crime of drug possession. Others want people convicted of possessing narcotics to face lengthy imprisonment.
The debate became necessary after the Washington Supreme Court ruled the state’s drug possession laws unconstitutional.
The most likely outcome will be a blended sentence of jail time and addiction treatment, which has received the most attention and some bipartisan support.
Senate Majority Leader Andy Billig, D-Spokane, said a lot of work is going into building good policy.
“We’ll use the whole session to continue to tweak and adjust and make sure that we get it just right,” Billig said.
The state Supreme Court declared Washington’s felony drug possession law unconstitutional in February 2021 because it did not require someone to “knowingly” possess drugs to be penalized.
The state Legislature passed a temporary fix making possession a misdemeanor, punishable by up to 90 days in jail and a $1,000 fine. Offenders are diverted to treatment instead of jail for the first two convictions.
But the law sunsets in July.
Law and Justice Committee chair Sen. Manka Dhingra, D-Redmond, intends to hold hearings on bills related to what’s called the Blake decision.
House Speaker Laurie Jinkins, D-Tacoma, said most House Democrats want to secure funding for treatment.
Though some Republicans want tougher penalties reinstated, others are agreeable to a focus on treatment.
Lawmakers will look at how they can improve behavioral health and treatment services, but first they must address the penalty question.
Increasing penalties; focusing on treatment
Most of the bills increase the penalty for drug possession, but also focus on treatment.
Dhingra indicated that a Senate bill sponsored by Sen. June Robinson, D-Everett, likely will be used as a foundation in the Senate. Billig is a co-sponsor.
The proposal doesn’t have a Republican co-sponsor.
The bill would make possession a misdemeanor punishable by up to one year in jail and a $5,000 fine.
It would repeal the current system of law enforcement referring someone to treatment on their first two offenses. It would require the court system to notify people of pretrial diversion programs and require charges to be dropped if a person completes such a program.
Attorneys, courts or probation officers would have the power to terminate someone’s participation in a treatment program if they find the person is not completing some of the requirements.
Offenders who complete treatment could seek to have their convictions erased.
The bill also provides funding for treatment programs.
Another bill sponsored by Sen. Jesse Salomon, D-Shoreline, would allow someone to complete drug treatment before their conviction is entered. If successful, the charge would be dismissed.
If the offender abandoned treatment, the court would be required to impose at least 45 days in jail as punishment.
If a treatment program is not available or the offender cannot afford it, the court could not jail the person for not complying.
The bill has the support of 11 other Democrats and three Republicans, including Senate Minority Leader John Braun, R-Centralia, and Cheney Republican Sen. Jeff Holy, a former police officer.
A companion bill in the House, sponsored by Alicia Rule, D-Blaine, has 10 Democratic co-sponsors and nine Republican co-sponsors, including Spokane-area Rep. Jenny Graham.
The Washington Association of Sheriffs and Police Chiefs also has indicated support.
A bill from Rep. Jacquelin Maycumber, R-Republic, would address only the penalty statute.
Maycumber said she wants to fix the possession law and then work on treatment provisions.
Making possession a simple misdemeanor, as the Legislature did two years ago, without having the support in place for treatment was a mistake, she said.
“We are going to see the ramifications of the last two years because people are not getting help,” she said.
The bill would make possession a gross misdemeanor, higher than the simple misdemeanor in place right now. It would be punishable by up to one year in jail and a $5,000 fine.
It also would add the word “knowingly” back into the statute.
Making possession a gross misdemeanor would allow prosecutors to move away from tough sentencing guidelines and opt for drug courts, Maycumber said.
“That allows the prosecutors to really have the opportunity to help people,” Maycumber said.
The bill has support from two Democrats and six other Republicans, including newly elected Spokane Valley Republican Leonard Christian.
Returning to felony
The Legislature also could toughen penalties while adding the word “knowingly.”
A bill sponsored by Spokane Valley Republican Rep. Mike Padden would make possession a felony punishable by up to five years in prison and a $10,000 fine.
The bill would remove the law enforcement referral program currently in place, but it would allow a prosecutor to divert the first two offenses for assessment, treatment or other services.
Padden has said decriminalization is “a definite nonstarter for me.”
Padden’s bill has the support of 13 other Republicans, including Spokane-area Sens. Shelly Short, of Addy; Mark Schoesler, of Ritzville; and Holy, of Cheney.
The Blake Committee, a bipartisan committee made up of legislators, experts and community members, recommended decriminalizing drug possession.
Last year, Dhingra said she was “highly skeptical” that a decriminalization bill would pass the Legislature this year.
The Blake committee ended up with 18 recommendations to the Legislature, addressing housing, treatment, behavioral health services and more.
More bills addressing those final recommendations likely will be filed.
Court fees and vacations
The Legislature may have to address the procedures and requirements for vacating convictions.
Supreme Court Chief Justice Steven González told reporters earlier this month that going through old cases affected by the Blake decision likely will be complicated and time-intensive. He said he expects it may take at least five to eight years to get to every case.
A bill sponsored by Rep. Tarra Simmons, D-Bremerton, addresses some of those concerns, including extra court funding.
The bill would establish the process and requirements for vacating convictions, resentencing and refunding legal fees.
It would require the Administrative Office of the Courts to develop a list of all applicable convictions.
The bill also would require prosecutors to look at the list of qualifying convictions and determine if someone is serving a sentence for one of those offenses, and notify those who may be eligible for resentencing.