OLYMPIA — In a late-night vote after hours of deliberation, the Washington Senate voted Friday to step up the criminal penalty for illicit drug possession.
About halfway through the legislative session, the policy's approval in the Senate represents a milestone in deciding one of the thornier issues state lawmakers are contending with this year, even though the policy must still be vetted in the House.
The saga began two years ago. During the 2021 legislative session, the Washington Supreme Court struck down the state's felony drug-possession law as unconstitutional in State v. Blake, because people could be prosecuted for drug possession even if they did not know they had drugs. So lawmakers passed a stopgap measure to punish the possession of drugs like heroin and cocaine, but lessened that punishment to a misdemeanor.
The 2-year-old stopgap expires in July.
On Friday, the Senate voted 28 to 21 to raise the penalty for drug possession from a misdemeanor to a gross misdemeanor, and to create a series of offramps into diversion and treatment programs throughout the legal process — from before someone is arrested to conviction and sentencing.
A mixture of Republicans and Democrats backed the legislation, with 14 Democrats and 14 Republicans voting for the measure.
Sen. Keith Wagoner, R-Sedro-Woolley, acknowledged in a floor speech the time and "angst" that it took to reach a compromise on the bill. While some Republicans sought harsher punishments, a provision to impose jail time in certain circumstances divided Democrats.
"How do you know when you've compromised well?" Wagoner said. "Well, on this side of the aisle, I can tell you nobody is jumping for joy tonight to support this bill because many over here think we gave up too much. I believe it's [an] analogous situation on the other side. Some believe they gave up too much."
Under Washington law, a gross misdemeanor comes with a higher maximum jail sentence and maximum fine than a misdemeanor.
Right now, in Washington, a person must be offered treatment by police for the first two drug-possession offenses before facing charges on the third offense. But generally, the referrals are not systematically tracked or counted in a single place, making it hard to know when someone should be charged.
The bill the Senate passed Friday includes options to choose treatment at each stage of the judicial process.
It would "encourage" police to refer people to alternatives like local services that guide people through the recovery process. It also nudges prosecutors to divert people charged with drug possession to "assessment, treatment or other services."
When a person is first arraigned on drug-possession charges, the bill states, a court must advise the defendant that they can go through a diversion program prior to trial.
The bill requires a court to sentence a defendant to jail for 21 days on the second sentencing and 45 days on the third sentencing for a drug-possession conviction if the court finds they "willfully abandoned" treatment or consistently fail to comply with treatment.
Mandatory jail sentences for certain defendants drew fire from some Democrats who argued that jail time would not help people in the throes of addiction.
"I have watched my parent sit in jail, face prison, and here we are decades later, and they're still struggling with substance use disorder," said Sen. T'wina Nobles, D-Fircrest. "Throwing the book at my mother was not the solution for her, ever. It landed our family in shelters. It landed my siblings and I in foster care. And my mother still struggles with her substance use disorder."
The bill would require courts to vacate convictions for people who complete treatment successfully.
State senators began dispersing after 11 p.m. Friday. Afterward, the bill's sponsor, Sen. June Robinson, D-Everett, said "there's so many opportunities for people to get into treatment" in the bill before a jail sentence would be imposed.
"Hopefully, it [jail time] doesn't actually occur in many cases," Robinson said.
The legislation also aims to make it easier to develop treatment services.
For instance, the bill designates opioid treatment programs, recovery homes and harm-reduction programs like safe injection sites as "essential public facilities" for land use purposes, making it easier to develop these facilities. Cities and counties could no longer impose a maximum capacity on opioid treatment programs.
The bill heads next to the Washington House.