After testing a new method of addressing drug possession over the last two years, Washington state lawmakers may slightly increase penalties, while keeping an emphasis on treating addiction.
If passed by the House, Senate Bill 5536 would make it a gross misdemeanor to knowingly possess illegal drugs.
The bill, which passed the Senate 28-21, increases the punishment from the simple misdemeanor that's been tested since 2021 and removes a requirement for officers to offer treatment during the first two contacts with someone. However, it still encourages police and prosecutors to divert people to treatment.
"Drug possession usually results from addiction," says state Senate Majority Leader Andy Billig, D-Spokane. "And addiction is a health problem, so it makes sense to have a health solution to a health problem."
Billig, one of the bill's sponsors, says the intent is to offer multiple chances for people to address their substance use disorder and avoid the criminal justice system.
Under the proposal, police can offer an alternative to getting booked into jail, giving people the opportunity to go to a crisis stabilization center, addiction treatment center or another similar resource to avoid getting charged with a crime.
"We're basically saying, 'You've been arrested, but we want you to go to treatment, and we are going to give you every opportunity to get better,'" Billig says, "'which is going to be better for you and your family and the whole community.'"
For those who end up getting booked and charged, there's another possible pre-conviction off-ramp, Billig says. Courts would be required to offer defendants the chance to put their case on hold while they get a substance use assessment and complete the recommended treatment program. Successful completion would result in the charges being dropped. The case would continue if people don't comply with their plan, or if they're convicted of a separate violent crime or felony while the case is on hold.
Those who don't take either of the early options and get convicted of a gross misdemeanor punishable by up to 364 days in jail may get one more chance. If the defendant agrees, their jail time can be suspended while they are assessed and go to treatment. Once they prove they successfully completed treatment, the court must remove the conviction from their record.
"There are three points in the process where you get the treatment off-ramp," Billig says.
BLAKE FIX 1.0
In July 2021, drug possession in Washington became a simple misdemeanor (punishable by up to 90 days in jail) instead of a class C felony (punishable by up to five years in prison). Under that policy, which expires this July, officers are required to direct people to treatment at least twice.The pilot program of sorts came about after Washington's Supreme Court completely overturned the state's drug possession law in February 2021.
The case in question involved Shannon Blake, who was arrested in Spokane by officers searching a property for evidence of stolen vehicles. When booking Blake into jail, they found a baggie of methamphetamine in the coin pocket of her jeans. Blake said she had never used meth and didn't know the drugs were in the pants, which she'd received from a friend. She argued in court that "unwitting possession" shouldn't be a crime.
In what's now known as the Blake decision, the state Supreme Court justices agreed, finding that because Washington's drug statute didn't include the words "knowingly possess," like every other state in the country, it could be used to punish innocent people. They noted that felony convictions could be brought against someone who didn't know their roommate had drugs in the house. Or who picked up the wrong jacket after a house party. Or even against a mail carrier who delivered a package they didn't know contained drugs.
The court found Washington's law violated due process and was unconstitutional, voiding the statute and vacating Blake's conviction.
But rather than simply adding the words "knowingly possess" to the previous language, lawmakers who were already halfway through session that year scrambled to pass a new policy with reduced time behind bars and an emphasis on treatment. They set an end date for this year so they'd have the chance to revisit the issue and see how it worked.
BLAKE FIX 2.0
That's where SB 5536 came into play, along with three other options that didn't move forward this session.
State Sen. Mike Padden, R-Spokane Valley, voted against SB 5536 after introducing two amendments that weren't adopted. The first would have returned fentanyl possession to a class C felony, except when prescribed in a medical setting. The second would have ensured those who refuse to comply with treatment serve at least 45 days in jail.
"The fentanyl crisis is so prevalent and well known, and we have deaths from overdoses all the time," Padden says. "I'd favor all hard drugs remaining a felony as they were before the Blake decision came down. This was an effort to highlight fentanyl."
Padden, who served as a Spokane County District Court judge for almost 12 years, says he's in favor of therapeutic drug courts, but he knows those options mostly exist in superior courts, which might require someone to be charged with a higher-level crime to access them.
"They can change that and try to make it happen in district and municipal court, but that's going to take some time," Padden says. "What I'm afraid of is it's not going to be enough leverage if it's not a felony for a lot of them to want to get the treatment."
Billig says that regardless of what happens with the bill, Washington needs to continue investing in substance use disorder treatment and behavioral health and to build up that workforce. He expects that budget proposals released this week will reflect those priorities.
"We can allocate all the money we want to pay providers, to pay agencies, to pay nonprofit providers to do this treatment work, but if there isn't the workforce for those providers to hire to do this work, then the treatment will never get done," Billig says. ♦
