Latest proposed fix for Washington’s drug possession law aims for compromise between treatment and jail

OLYMPIA – How much jail time a person gets for possessing drugs – if any – remains contested in the Legislature.

A new version of the bill to address the state’s drug possession law would make possession a misdemeanor, punishable by 90 days in jail, a $1,000 fine or both. The proposal still would give some jail time to people found possessing drugs but it also would give addicted offenders opportunities to get treatment instead.

This version passed a state House of Representatives committee this week 6-3, with both parties split in their vote. It now heads to the full chamber for a vote.

In a House Community Safety, Judiciary and Reentry committee hearing on Tuesday, Chair Roger Goodman, D-Kirkland, called this one of the “most consequential bills of the session.”

“This is a massive systems change that’s still underway,” he said.

In 2021, the state Supreme Court ruled the state’s drug possession law unconstitutional because it did not require a person to knowingly possess drugs to be convicted.

The Legislature quickly came up with a temporary fix that made drug possession a misdemeanor, but the law sunsets in July, giving the Legislature another opportunity to rethink Washington’s drug laws.

Some want to see possession made a felony, punishable by five years in prison and a $10,000 fine. Others don’t want to see any jail time for possession charges alone. A compromise that passed the state Senate earlier this year would make possession a gross misdemeanor, punishable by up to one year in jail and a $5,000 fine.

The current version of the bill, as amended in the state House of Representatives, lowers that penalty but still keeps some criminal penalties in place – a move that received pushback from Republicans and some Democrats.

“It’s very difficult for me and a number of my colleagues here to vote to continue criminal penalties,” Goodman said. “This is a health problem, a public health problem.”

However, Goodman said he voted in favor of it because it still emphasizes behavioral health and treatment.

Rep. Darya Farivar, D-Seattle – the lone Democrat who voted against the bill – said the bill did not create an effective way for people struggling with substance-abuse disorder to receive treatment. Incarcerating people is not how the state is going to get out of the crisis, she said.

The proposal would encourage law enforcement to refer those arrested to treatment programs before jail time, but even if law enforcement does book an offender, those charged still would have options to receive treatment over jail time.

If an offender faced a drug charge and no other criminal charges, a court would have to grant their request to enter into pretrial diversion program, if the prosecuting attorney agrees. If an offender is facing another charge as well, a court still could allow a pretrial diversion program but it would not be required.

If a prosecutor found the defendant was “not meaningfully engaging in the recommended treatment or services,” they could ask the court to eliminate the pretrial diversion program.

If a defendant successfully completed it, the charges would be dismissed.

Under the proposal, offenders also would have the opportunity to have their conviction vacated. A court could sentence someone up to 90 days in jail but allow them to complete a substance-use disorder assessment and treatment as a condition of probation, for possible vacation of their conviction.

If it’s found they “willfully abandoned or demonstrated consistent failure” to complete the treatment, a court could consider other sanctions. If they do successfully complete treatment, they could apply to have their conviction vacated.

The version of the bill that passed the state Senate split support from both Democrats and Republicans, but Republican leaders indicated to reporters Tuesday they don’t anticipate many votes from their side on the current proposal in the House.

Rep. Jenny Graham, R-Spokane, voted against the bill in committee. She said she was voting with compassion toward the businesses and families in her district who are struggling because of people who refuse to get help.

“Our communities are no longer safe,” she said. “We’re moving in the wrong direction.”

Rep. Gina Mosbrucker, R-Goldendale, was the lone Republican who voted in favor of the bill out of the House committee. She said she was voting to move it forward with the anticipation that it will continue to get reworked.

She said many questions were left unanswered in the bill.

“This is not the answer,” she said. “We didn’t go far enough.”

The bill would require that local jurisdictions treat safe injection sites and other substance-use disorder treatment facilities as they do other essential public facilities, such as airports or transportation hubs.

That would allow more facilities to be built more quickly across the state. Under the bill, the same “reasonable conditions” that are applied to other essential public facilities must also apply to these.

The proposal also would allow recovery residences across the state to be exempt from any property taxes from 2024 through 2033.

Much of the changes in law would require funding for the state and for local jurisdictions to set up pretrial diversion programs, vacate convictions, increase substance-abuse treatment access and more. Both the House and the Senate Democratic budget proposals include funding to help the state deal with the court decision that changed drug possession law.

The bill still has a ways to go before becoming law. It will now head to the full House of Representatives. If it passes, it must get one last approval from the state Senate before heading to Gov. Jay Inslee’s desk for signature.

The legislative session ends April 23.