What's Next for Washington's Drug Possession Law?


OLYMPIA — State lawmakers are facing a July deadline to decide whether drug possession will remain a crime in Washington.

In February 2021, the Washington Supreme Court struck down as unconstitutional the long-standing state law that had made illegal drug possession a felony.

The Blake decision, handed down as that year's legislative session was underway, threw a vast array of drug convictions into question, and left lawmakers scrambling to agree on how Washington should treat possession of drugs, including cocaine, heroin and methamphetamine, moving forward.

Under the stopgap law passed last year, Engrossed Senate Bill 5476, a person is offered treatment for the first two drug-possession offenses, and charged with a misdemeanor on the third offense.

The law expires July 1, and lawmakers plan to act on the issue in the 2023 legislative session, which convenes in early January.

Lawmakers, public safety officials and advocates seem to agree that the current system, at minimum, needs work.

Amid growing skepticism of punitive drug possession laws among politicians on the left and right, lawmakers seem unlikely to vote to make illegal drug possession a felony again.

But a specific policy that can both get consensus in the Legislature and effectively tackle the complexity of addiction isn't yet clear.

State Sen. Manka Dhingra, D-Redmond, who chairs the Senate Law and Justice Committee, said that she and state Rep. Lauren Davis, D-Shoreline, plan to introduce a bill to decriminalize drug possession, to reflect the recommendations of a committee convened to study the issue. But Dhingra acknowledged the Legislature is unlikely to pass decriminalization.

Dhingra said that while lawmakers may disagree on where on the criminal penalty scale drug possession should fall, they will likely designate it as either a misdemeanor or gross misdemeanor. But offering treatment "has to be the primary focus," she said.

Steve Strachan, executive director of the Washington Association of Sheriffs and Police Chiefs, said he feels "a criminal sanction is necessary at this point in order to unlock resources and to help people access services safely," adding that a civil system of "immediate, effective treatment is simply not there yet."

"I don't think anyone's looking to drive people with addiction issues into the criminal justice system, to create permanent criminal records, and to, in effect, make it even harder for them to get healthy and off the street," Strachan said.

Some lawmakers and advocates point to the lack of a central place where treatment referrals are tracked and counted under the 2021 law, and many to the long-standing general lack of treatment options and other key supports, like housing, for people facing drug addiction in Washington.

"So many important narratives and efforts have intersected here, but in a way that is very, so far, problematic and frustrating to almost everybody," said Lisa Daugaard, co-executive director of the Public Defender Association. "And so whether we can dig our way out of it as a state and get on a logical, sustainable and satisfying path, is the question for 2023."

Lawmakers set aside $88.5 million for treatment services in ESB 5476 in 2021.

Those resources are just starting to make their way into Washington communities, Davis said, including money to expand local behavioral health support for people struggling with addiction.

Some lawmakers feel that a criminal penalty of some kind is needed. State Senate Republican Leader John Braun, of Centralia, said that the current referral system isn't getting people into treatment.

"It doesn't help save people's lives," Braun said. "It's just a miscarriage of justice, in my view. So we need to get back to some penalties."

The legislative negotiations will take place against a backdrop of rising overdose deaths in Washington.

In April, the state Department of Health reported that provisional data showed 2,000 people in Washington died of a drug-related overdose in 2021, an increase of about 66% since 2019.

King County has seen the rate of drug and alcohol poisonings per 100,000 residents increase from 22.5 in 2020 to 31.4 in 2021, according to county data. As of November, 837 people have died of an overdose in that county this year, exceeding the 2021 total of 709.

Davis said that prior to the Blake decision, people who were arrested for drug possession rarely got treatment. She said she opposes criminal penalties for drug possession for both moral and practical reasons.

"One of the diagnostic criteria for substance use disorder is continued use despite negative consequences," Davis said. "And so the idea that if you just put people in a cage and give them more pain, that that's going to prompt behavior change, that defies everything we know about the disease process of addiction."

Daugaard says the specific penalty matters less than those alternative ways of treating and helping people facing addiction, and hopes most of the legislative energy is spent on the latter.

"No matter what the formal legal structure is that emerges from the 2023 session, we have to do the work of building an alternative response that is strong, effective, widely supported, legitimate and well understood, and very accessible," Daugaard said. "That's what we have to build. So where are we on that? Not very far."

Rep. Dan Griffey, R-Allyn, who retired from his decades-long career as a firefighter in June, said he wants to "reenvision" Washington's system for addressing drug addiction "from the ground up" and put people first.

"We cannot have a system that is, 'Republicans said this, and Democrats said this, and independents...'" Griffey said. "We have got to have a system that is systematically written to save humans."