Drug Possession To Be A Misdemeanor—For Now—Under Washington State Bill Headed To Governor’s Desk

As Washington State’s legislative session drew to a close this weekend, lawmakers approved a bill that for the next two years would make drug possession a misdemeanor. After that, the criminal penalties would disappear—a move designed to force lawmakers back to the negotiating table.

The measure is a temporary response to a state Supreme Court decision in February that struck down Washington’s felony drug possession law as unconstitutional, ending the prohibition of simple possession. Some progressive lawmakers have called the ruling an opportunity to leave the drug war behind, while moderates and conservatives have insisted that reinstating criminal penalties is necessary to incentivize people to enter treatment.

In an attempt at compromise, the bill’s criminal penalty provisions will expire on July 1, 2023, again leaving Washington without a law against drug possession. The sunset clause is meant to give lawmakers time to craft a more permanent replacement or surrender the issue to local jurisdictions. In the meantime, the state will assemble an advisory committee to develop recommendations on how to best ensure that people with substance use disorder receive care.

It rejects the felony model that does not work & focuses on diverting those with substance use disorder into treatment. Makes possession a simple misdemeanor for the next 2 yrs while #WA builds out our behavioral health system & works to find the best path forward. #waleg 2/2

— WA House Democrats (@WAHouseDems) April 24, 2021

An amended version of the bill, SB 5476, passed the House of Representatives on a 80–18 vote on Saturday. Later that evening, the Senate accepted the House-amended version and voted 26–23 to send the final bill to Gov. Jay Inslee (D) for his signature.

“This bill is not an ideal solution, but it is a thoughtful step forward,” sponsor Sen. Manka Dhingra (D) said in a statement following the measure’s passage. “It achieves three important goals. First, it establishes a statewide approach to addressing drug possession. Second, it prioritizes and funds treatment for substance use disorder. And third, it provides us the time to come up with a public health approach to substance use disorder that relies on best practices and access to treatment that takes into account equity.”

Watch the Senate floor debate and final passage of the bill:

Dhingra initially introduced the bill with language that would have removed all penalties for possession of small, “personal use” amounts of controlled substances, with people instead diverted to an evaluation and possible treatment for substance use disorder. But the Senate stripped out that provision last week and replaced it with a gross misdemeanor charge, which carries up to a year in jail—a move that caused Dhingra to vote against her own bill as amended.

A House committee later reduced the penalty to a simple misdemeanor, which carries up to 90 days in jail and a maximum $1,000 fine.

While the simple misdemeanor remains in the final legislation, most people aren’t expected to see criminal charges for their first few offenses. As passed, SB 5476 requires law enforcement to recommend people to a behavioral health assessment for their first two violations, with the possibility for further diversion after that.

To fund the expanded outreach, treatment and recovery services, an amendment passed on the House floor sets aside nearly $100 million in funding, including earmarking $45 million to establish a “recovery navigator” program, which would provide community-based treatment and long-term case management for people with substance abuse disorder. Among other appropriations, it would also use $12.5 million to establish an outreach program for unhoused people, $5 million to expand efforts to provide opioid use disorder medication in jails and $4.5 million to expand the state’s therapeutic court model to local courts, which have jurisdiction over most misdemeanor cases.

“Our work is not done, but this bill invests in what we know we need, an approach to substance use disorder that treats all our neighbors with the dignity and compassion they deserve.” – Rep. Kirsten Harris-Talley on the House striker to SB 5476 #waleg pic.twitter.com/YI2d2YTqv9

— WA House Democrats (@WAHouseDems) April 24, 2021

Another amendment adopted on the House floor came from Rep. Lauren Davis (D), who earlier this year introduced a separate bill, HB 1499, to decriminalize drug possession and expand treatment. Her change specifies the composition of the state’s substance use recovery advisory committee—which would include a elected officials, substance use disorder experts, treatment and recovery providers, law enforcement, an antiracism expert, a tribal representative and people living with substance use disorders—and requires that the group submit a preliminary report by the end of the year.

A House amendment from Rep. Roger Goodman (D) made a number of changes. One moved the new system’s point of diversion farther upstream, requiring that law enforcement—not prosecutors—refer people to treatment. That, he said, will prevent most people caught with drugs from being booked into jails or charged.

A more notable change in Goodman’s amendment modified the bill’s expiration provisions. An earlier version of the bill would have automatically replaced the misdemeanor penalty in 2023 with a Class 2 civil infraction, which carries a $125 fine and no possibility of jail time. Goodman’s amendment specified that instead the misdemeanor penalty would simply dissolve.

Some drug reform advocates initially read the proposal as a step to further criminalize drug possession. Treatment First WA, a coalition of groups that support decriminalization, sent an action alert to its followers urging opposition to the amendment, which it said “would return Washington to exactly the same failed and racist War on Drugs policies in place today.”

The ACLU of Washington posted a similar action alert against the amendment.

⚠️Deadline: Sunday!
We can’t go back to the War on Drugs.

Tell your legislator to pass a version of ESB 5476 that stops treating people like criminals for drug use and substance use disorder.https://t.co/o7fxwPp263

— ACLU of Washington (@ACLU_WA) April 24, 2021

Goodman told Marijuana Moment in an interview Saturday night that he felt those criticisms were mistaken. The law would not revert to criminal penalties, he stressed, but to what it is today—with no law against drug possession in place.

“It does not sunset to criminalization,” Goodman said. “That’s absolutely incorrect.”

Watch the House floor debate on and passage of SB 5476, around 6:00 into the video below:

Goodman, a longtime drug reformer, believes that expiring the prohibition on drug possession entirely will encourage his colleagues to revisit the issue and craft a more durable policy. He’s betting that after reforms in SB 5476 take place, and as the legislature begins to hear back from the new advisory committee, skeptics of reform will be more willing to accept a more treatment-focused approach.

“The conversation on the failure of the drug war only keeps going the same direction. We’re almost at the tipping point now where we are at a completely new paradigm,” he said, noting that he’s heard support for reform from both Republicans and police, groups who often oppose easing criminal penalties. “Two years from now, that conversation will mature further and be even more progressive. The voters and the legislators and the public will be moving that direction. We have to go slow and steady, unfortunately.”

Goodman acknowledged that there’s some risk to his proposal. “The legitimate concern is that in 2023, the legislature won’t act, or the legislature’s makeup will be different and the will to act won’t be there,” he said. “I think it’s not likely that the legislature will fail to act.”

But if the House had sent the bill back to the Senate with the misdemeanor set to expire into a civil infraction, he added, senators would’ve rejected it.

He described the final version of SB 5476 as “the best we could do in the raw politics and vote counting, and I think it’s a step in the right direction.”

Goodman told Marijuana Moment last week that with the state legislative session set to end Sunday, there would be no time for the Senate to do anything but either concur with or reject the House version of the bill, “so we are having to confer closely with the Senate to see what they are willing to pass.”

If SB 5476 were to fail, the state would continue on without a drug possession law on the books following the court ruling—but also without the nearly $100 million in additional funding for treatment or any tools to compel people to seek help. While votes fell largely along party lines on Saturday, both Democrats and Republicans in recent weeks have said it was essential the legislature pass a law to fill the hole left by the Supreme Court decision.

On the Senate floor, however, GOP members balked at the House’s amendment to downgrade the possession penalty from a gross misdemeanor to a simple misdemeanor, saying that sometimes it’s necessary to use the threat of incarceration to force people to get treatment they might not otherwise seek.

“You have to give them the stick and not the carrot here, because they’re not going to take that option, they don’t have the capability of making that decision,” said Sen. Lynda Wilson (R).

On the House side, GOP representatives introduced a number of amendments that would have increased penalties, including a pair of amendments brought during floor debate that would have increased returned the simple misdemeanor to a gross misdemeanor, as the Senate had passed it earlier in the week, but House Democrats rejected those changes.

While some Democrats lamented the return to criminal penalties under the bill, they generally supported its passage. They pointed out that decades of criminalizing drug use has failed to meaningfully reduce either use or the negative consequences of substance abuse disorder. It’s also led to disproportionate arrests, prosecutions and incarceration of Black, brown and Indigenous people

“Decades of putting people in jail for drug offenses has been a failure,” Rep. Jamila Taylor (D) said in a statement. “The system today hurts those it should be helping, and it is time for change. Change that puts people in treatment instead of prison.”

Rep. Davis, who repeatedly stressed the need for more investment in outreach and recovery services during hearings on her decriminalization bill, said the new bill represents “the first time in state history that we have ever made substantial improvements in the outreach services that connect people to care on the front end and recovery support services on the back end that help them achieve long-term recovery.”

Because it contains an emergency clause, the bill would take effect immediately upon being signed by Gov. Inslee. He’s politically aligned with many of the bill’s supporters but has not yet indicated publicly whether he intends to sign the it. Inslee’s office did not immediately respond to Marijuana Moment’s request for comment Saturday night.

State Attorney General Bob Ferguson (D), meanwhile, recently jumped into the fray, urging lawmakers on Thursday “to reject criminal penalties for non-commercial drug possession.”

Statement on criminal penalties for simple drug possession: https://t.co/YfX3RoaCDn #waleg pic.twitter.com/17mL8qiYaQ

— Washington State Attorney General (@AGOWA) April 20, 2021

Washington voters, for their part, are generally supportive of decriminalization, according to a statewide poll commissioned by reform advocates and released earlier this month. Fifty-nine percent of those surveyed said lawmakers should use the state Supreme Court decision to “reconsider and replace past drug possession laws with more effective addiction and treatment alternatives,” while only 35 percent favored making a technical change to return to the past system.

Nearly three in four voters (73 percent) said the state’s approach to problematic drug use has been a failure. Just nine percent called it a success.

Some reform advocates have floated the possibility of decriminalizing drugs in Washington through a ballot initiative similar to the one passed in Oregon. HB 1499, the decriminalization measure introduced earlier this session, was itself an offshoot of an effort by Treatment First Washington to put an initiative on last year’s ballot. That campaign, however, was scuttled after the COVID-19 pandemic interrupted signature-gathering.

Outside the Pacific Northwest, lawmakers in both Maine and Vermont have recently unveiled legislation to decriminalize small amounts of controlled substances. Last month, a Rhode Island Senate committee held a hearing on legislation that would end criminal penalties for possessing small amounts of drugs and replace them with a $100 fine. And in New Jersey, Gov. Phil Murphy (D) recently said he’s “open-minded” on decriminalizing all drugs.

In California, a bill that would legalize possession of a wide range of psychedelics passed its second Senate committee earlier this month.

Researchers Slam Drug War At Federally Hosted Psychedelics Event

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