Washington Senate passes bill making drug possession a gross misdemeanor

OLYMPIA – In a vote that split members of the same party, the state Senate late Friday passed a bill to make drug possession a gross misdemeanor in Washington and give the judicial system flexibility to help offenders get treatment.

The final version passed 28-21, but it was not unanimous in either party. Fourteen Democrats and fourteen Republicans voted in favor, while 15 Democrats and six Republicans voted against it.

In an emotional debate on the floor, supporters of the bill said it would provide a balance between compassion and accountability. Opponents, on the other hand, said the bill does not do enough to help those suffering with substance abuse, and that criminalizing the illness is not the answer.

“This is a very challenging public policy to talk about, to think about and to try to solve,” bill sponsor Sen. June Robinson, D-Everett, said. “There’s not a single or perfect solution to the problem before us.”

After the state Supreme Court ruled two years ago that Washington’s felony drug possession law was unconstitutional, the Legislature scrambled to come up with a temporary fix. In a similar split vote, lawmakers agreed to make knowingly possessing drugs a misdemeanor, punishable by up to 90 days in jail and a $1,000 fine, with offenders diverted to treatment instead of jail for the first two arrests.

Law enforcement and local communities have said the “fix” was not working, as access to behavioral health and substance abuse treatment is still scarce across the state.

The law sunsets in July, and if the Legislature does not pass a plan this session, the state will likely be left with no law for simple drug possession.

The bill that passed Friday makes possession a gross misdemeanor, punishable by up to one year in jail and a $5,000 fine. However, offenders have multiple opportunities to get treatment to avoid arrest, prosecution or time in jail.

It encourages prosecutors to divert cases for assessment and treatment, and encourages law enforcement to offer similar referrals for those caught with drugs. The court is also encouraged to advise offenders of pretrial diversion programs.

People can also have their convictions vacated after successfully completing treatment.

However, if offenders “willfully abandon or demonstrate a consistent failure” to get treatment, the court can reinstate their sentence, 21 days for their second offense and 45 days for their third offense. If they fail to get treatment on their first offense, the court can use its discretion when deciding a sentence.

Sen. Noel Frame, D-Seattle, said the Legislature is going beyond its scope in determining these sentences.

“We’re picking the days,” she said. “These are arbitrary numbers we just made up.”

The debate on Friday again showed that lawmakers have mixed feelings on any solution. Some say decriminalizing drug possession is the only way to help people get treatment, while others say some sort of penalty, in this case a gross misdemeanor, is needed to get them help.

Frame voted against the bill, saying it would result in people dying.

Sen. T’wina Nobles, D-Fircrest, said jail time will not help people who are suffering. She pointed to her mother, who she said has struggled with substance abuse disorder for all of Nobles’ life. Ending up in jail has never helped her mother, who still struggles with addiction, she said.

“I will never criminalize her because she has an illness,” she said.

Still, a number of Democrats supported the proposal. Sen. Jesse Salomon, D-Shoreline, said the bill pushes for people to get treatment, which can be done in “innumerable ways.”

“We just want you to do treatment,” he said. “We want you to get better.”

Only six Republicans voted against the bill, including Spokane Valley Sen. Mike Padden. Padden had pushed for making possession a felony, which would’ve had a higher penalty than gross misdemeanor.

Padden said the bill doesn’t go far enough to add some accountability and leverage to get people into treatment.

The bill also funds a number of priorities for increasing access to treatment and services across the state, including constructing recovery residences in all regions of the state, expanding access to opioid medication in jails and establishing crisis relief centers.

The bill now heads to the state House of Representatives, where it could get reworked before the end of the legislative session.