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Spokane, Washington  Est. May 19, 1883

Legislature approves bill sending first-time drug offenders to treatment, not prison

Daffodils bloom outside the Legislative Building, Wednesday, April 21, 2021, at the Capitol in Olympia, Wash.   (Ted S. Warren/ASSOCIATED PRESS)

OLYMPIA – Possessing illegal drugs would more likely send offenders to treatment than to jail under legislation approved this weekend.

Possession of smaller amounts of drugs would no longer be reduced from a felony to a misdemeanor in Washington under the bill passed Saturday.

The bill, which would overhaul the state’s drug possession laws and behavioral health system, was a response to the state Supreme Court’s decision in February that ruled the state’s possession law unconstitutional. The Legislature could have changed the law to maintain felony charges for possession, but there was wide agreement among legislators in both parties that the state should refocus more on treatment than jail – even if there was disagreement about how to achieve that.

The proposal makes possession a simple misdemeanor, punishable by up to 90 days behind bars, a $1,000 fine or both. It also focuses on treatment, by increasing funding for community-based recovery programs and giving offenders two chances before the misdemeanor charge. For the first two offenses, those possessing drugs would be diverted to treatment instead of jail.

Prior to the Supreme Court’s ruling, a person found guilty of simple possession could be sentenced up to five years in prison and a fine of up to $10,000 under state law. Since the high court’s ruling, many police agencies, including in Spokane, have stopped arresting people on drug possession charges.

“We know the war on drugs is a failed policy,” Rep. Jamila Taylor, D-Federal Way, said on the floor Saturday. “We know we have better options, community-driven options out there.”

The bill leaves open the possibilities that the misdemeanor penalty could also be eliminated in 2023. Over the next two years, the Legislature will set up a committee to review the state’s drug laws and come up with a long-term plan. If no fix is implemented by 2023, the state would end all prosecutions for simple drug possession.

Simple drug possession is having drugs meant for personal use, as opposed to drugs intended to be sold.

After the State v. Blake decision in February, lawmakers scrambled to pass a fix to the state’s simple possession law.

The court found Washington’s law unconstitutional because it made possession a felony, even for people who did not know they had drugs on them. The ruling effectively decriminalized drug possession in Washington.

Shannon Blake, the woman who brought the case, claimed at trial in Spokane County that a pair of pants she was wearing upon her arrest had been given to her, without her knowing a baggie of methamphetamine was in the coin pocket.

The debate in the Legislature highlighted the divisions among legislators in both parties on drug policy.

Some have pushed for at least some form of criminal punishment in addition to better access to treatment. Others want to use the Blake decision as an opportunity to decriminalize all drugs and move the state away from the decades-old war on drugs approach.

In the end, the Legislature passed a bill that keeps a criminal punishment on drug possession for now but focuses heavily on funding treatment and behavioral health. It passed 80-18 in the House, but in a much more divided Senate, it only passed 26-23.

The “sunset clause,” which lifts the criminal penalties in 2023, was a subject of debate on Saturday. Senate Minority Leader John Braun, R-Centralia, said he could not be more disappointed with the version that ended up before the Senate.

“People will die,” Braun said in an emotional floor speech. “They will die because of the path we’re taking.”

House Democrats said including an end date for criminal penalties shows the people that lawmakers will continue to be working on this issue even after the session ends on Sunday.

Rep. Roger Goodman, D-Kirkland, said lawmakers need to continue working for the next two years to come up with a long-term fix, which he said should continue to focus on outreach and recovery.

On the other hand, Rep. Gina Mosbrucker, R-Goldendale, said two years is not enough time to figure out another fix.

Members of both parties in the House and the Senate could agree that funding behavioral health and treatment is a must, but there was disagreement on how to get there. Some said treatment needs to come from a place outside the criminal justice system while others argued the only way some people can receive help is from intervention by the criminal justice system.

The House version sets up a Substance Use Recovery Services Advisory Committee to adopt a substance use recovery services plan for outreach, treatment and recovery support. It requires behavioral health administrative services organizations to provide a system for community outreach, intake and assessment. It also includes $88 million to expand access to treatment and recovery services.

Rep. Lauren Davis, D-Shoreline, said the bill would be the most substantial investment in outreach the state has ever made.

Many of those who voted for the bill only did so because they felt something needed to be done to address the Supreme Court decision, which has left many local jurisdictions wondering how to handle drug arrests and cases.

Sen. Jamie Pedersen, D-Seattle, said voting against the concurrence, which would have killed the bill, would be “a vote for the Wild West with no criminal penalties.”

Rep. Kelly Chambers, R-Puyallup, voted in favor of it, but said more work will need to be done, especially on the prevention side.

“This is just the start,” she said. “This is not the final decision.”

Similarly, Rep. Brad Klippert, R-Kennewick, voted in favor but said it was only because he thought the bill was “much better than the Washington State Supreme Court decision.”

The bill now heads to Gov. Jay Inslee for his signature.

Laurel Demkovich's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.