More treatment or more jail? Washington lawmakers must approve new drug sentence rules or eliminate jail time for drug possession

OLYMPIA – More time behind bars or less?

As the Washington Legislature begins its work for 2023, lawmakers will have to weigh that and other tough decisions on drugs as they craft new sentencing rules for possession or ending all jail time for those crimes altogether.

In February 2021, the state Supreme Court declared Washington’s felony drug possession statute unconstitutional. The case came out of Spokane after Shannon Blake claimed a pair of pants she was wearing during her arrest had been given to her without knowledge of a bag of methamphetamine in the coin pocket.

The court ruled that Washington’s law was unconstitutional because it made possession a felony even for people who did not know they had drugs on them.

The decision left lawmakers scrambling to come up with a fix by the end of the legislative session.

Their solution made drug possession a simple misdemeanor, punishable by up to 90 days in jail, a $1,000 fine or both. For the first two offenses, those possessing drugs would be diverted to treatment instead of jail.

The new law also focused on treatment, providing more funding for community recovery programs.

But the Legislature’s solution in 2021 was only temporary, with a provision that gave lawmakers until July of this year to come up with a long-term plan. Otherwise, the state would end all prosecutions for simple drug possession.

The Supreme Court decision also created a backlog in court systems across the state of defendants previously convicted and fined under the law. In Spokane County, staff in the court clerk’s office analyzed drug possession cases filed from January 1993 to February 2021, Spokane County Clerk Tim Fitzgerald said. They determined as many as 10,344 people were entitled to some relief on simple possession charges during that time period, with refunds for fines imposed by the court totaling a little more than $2.4 million.

The clerk’s office worked with the prosecutor’s office to prioritize cases where defendants still were in custody, Fitzgerald said.

“We wanted to get those folks before the court as soon as possible, so that we’re not looking at them now, in 2023,” Fitzgerald said.

As of Dec. 1, the most recent date for which Fitzgerald had information available, the courts have vacated or dismissed 2,769 such cases and provided refunds totaling $162,000, an average of about $59 a person. If a fine was imposed by a judge but no amount was paid, the defendant would not get any money back. Some of those refunds were applied to other cases a defendant might have against them, and penalties owed as restitution to victims of the crimes, Fitzgerald said.

Fitzgerald said he anticipates the state will continue to provide money to counties to compensate workers who are putting in additional time to resolve old drug possession cases. The money is provided in the form of a refund requested by Fitzgerald’s office.

Supreme Court Chief Justice Steven González told reporters Friday he understands going through old cases is complicated and time-intensive.

González said he expects courts across the state will comply with the new ruling, but that it probably would take at least five to eight years to get to every retroactive case.

The floor debates in 2021 showed a deep divide, even among those in the same party. Some wanted to move Washington toward a post-war-on-drugs policy that decriminalized drugs, while others said people with addiction needed jail as an incentive to change.

Almost all legislators, however, agreed more funding and resources need to be pushed into recovery and behavioral health treatment.

“I think that there’s a diversity of views in the Legislature about what the right approach is, but I do feel like there’s a consensus building to do something that’s public health-focused,” Senate Majority Leader Andy Billig, D-Spokane, said, adding that some penalties for drug possession likely will remain.

Lawmakers to address penalties, behavioral health gaps

The biggest issue lawmakers need to address is dealing with drug possession.

One option is to go back to the old statute but simply adding the word “knowingly.” That would keep possession a felony, punishable by up to five years in prison and a fine of up to $10,000, but also address concerns from the Supreme Court that someone has to know they are possessing drugs in order to be charged.

Lawmakers also could choose to keep what they passed two years ago, which makes possession a simple misdemeanor, punishable by up to 90 days in jail, a $1,000 fine or both.

Another option would go a step in between and make possession a gross misdemeanor, which would be punishable by up to one year in jail, a $5,000 fine or both.

A bipartisan committee of lawmakers, local government members, public defenders, prosecutors, substance abuse experts and people who have recovered from drug addiction has been meeting over the last year to come up with recommendations for the Legislature to address the Blake decision.

Though all of the committee’s recommendations aren’t finalized, one of its biggest recommendations is decriminalizing possession. Oregon in 2021 eliminated jail time for people possessing small amounts of drugs .

But Washington lawmakers already have said they do not think that will pass this session.

Sen. Manka Dhingra, D-Redmond, said she is “highly skeptical” that decriminalization will pass the Legislature. Dhingra, a former prosecutor, serves as the chair of the Senate Law and Justice Committee.

Dhingra said a number of bills will be introduced this session surrounding the Blake decision that will give lawmakers options in terms of penalty.

Rep. Dan Griffey, R-Allyn, said a criminal penalty should be in place to motivate people to seek treatment.

“I still think it might be a mistake to decriminalize,” he said. “I think having legal sanctions gives people better reasons to get better.”

Griffey said the long-term system he envisions doesn’t include permanent prison sanctions, but something more like a two-year program that ends with records being expunged.

Griffey, a member of the Blake committee and a former firefighter, said there needs to be a more robust system in place to help people get better. The first step to that is getting more resources to first responders.

Gov. Jay Inslee said in a December interview that there should still be some penalties for drug possession to incentivize people to get better. The ultimate goal is treatment, and Washington needs to build the capacity for that, he said.

Meanwhile, lawmakers on the other end of the spectrum are looking to increase penalties.

Spokane Valley Republican Mike Padden, the top Republican on the Law and Justice committee, said he wants to go back to the old statute, which made possession a felony, and add the word “knowingly,” which would address the issue the Supreme Court had.

Padden has prefiled a bill for the Legislature to consider with nine other Republicans signed on as co-sponsors.

He said decriminalization is “a definite nonstarter for me.”

Camerina Zorrozua, an attorney with the Spokane-based nonprofit law firm A Way to Justice who has represented Blake defendants across the state, said conversations about future criminal statutes and figures about the number of judgments vacated and money refunded miss the point. Many people still behind bars in Washington may have ended up there because of a conviction on a simple possession charge, beginning a pattern of incarceration that disproportionately affected people of color.

“What’s really missing is the fact that there are nuances to the Blake work that don’t just get processed in a stack of paperwork,” Zorrozua said.

She said the costs to people’s lives for being jailed for crimes now deemed unconstitutional were significantly more than fines that will be refunded. For example, she said, some people were imprisoned and unable to see loved ones before they died. Others face hardships in housing, employment and more because of the consequences of a law that was declared unconstitutional. Addressing those issues will be difficult, but lawmakers could help by establishing a standard system to be compensated by the courts that is uniform across the state, she said.

“Some of these clients have Blake cases in multiple counties,” she said. “That process should not depend on who the prosecutor is.”

Kurtis Robinson, executive director of the advocacy group I Did the Time who was directed to treatment for his cocaine addiction by a probation officer, said that accountability should be part of a person’s path to recovery. But the Blake decision offers lawmakers the possibility of rethinking the punitive approach of law enforcement.

“Maybe we ought to do something that’s more humane,” said Robinson, who is 19 years sober of all substances following that intervention. “I’m living proof that that works.”

Lawmakers will have to address a number of other issues surrounding the Supreme Court’s decision.

One of the biggest is improving treatment services across the state. The law passed in 2021 required law enforcement to refer offenders twice to treatment before arresting them, but at the moment, there are still not enough places for those people to go.

In a Law and Justice Committee hearing in December, Caleb Banta-Green, a researcher at the University of Washington who served on the committee formed to give recommendations to the Legislature, said some people were being referred to treatment by law enforcement on their first two offenses.

But there still aren’t enough resources to provide all offenders treatment they need, he said.

“We have very large treatment gaps,” Banta-Green said.

He said there are huge geographic gaps in treatment and in the type of treatment that people actually want, such as places that are easily accessible and where people are treated well.

Rep. Lauren Davis, D-Shoreline, said the Legislature had no warning that the Blake decision was going to happen. Trying to set up treatment programs and move out millions of new dollars takes time, she told the committee.

Recommendations for treatment include setting up all-in-one health engagement hubs across the state where people can go for medical care, substance abuse and mental health treatment, as well as social services, and expanding rural access to opioid treatment programs in central and Eastern Washington.

Other recommendations from the committee include providing tax breaks for landlords who use their properties as recovery homes; increasing funding for more housing for people in recovery; improving investments into the behavioral health workforce; and implementing law enforcement-assisted diversion.

Staff writer Kip Hill contributed to this story.