Washington State Grapples with Drug Possession Laws

Despite Gov. Jay Inslee (D) having just commuted a number of drug-related sentences, the state Senate last week passed SB 5476 to reinstate criminal penalties for low-level drug offenses. Scheduled for an executive session on Wednesday, the Washington House heard testimony Monday on a striking amendment to SB 5476.

The governor’s executive action

In response to the Supreme Court’s February decision in State v. Blake that struck down the state’s felony drug possession statute, Gov. Inslee last week signed the commutations of 15 incarcerated people who were convicted of drug offenses, the Seattle Times reports.

Taylor Wonhoff, deputy general counsel for Gov. Inslee, told the Times, “We’re really focused on getting people who otherwise would be out of prison, but for the fact these since-invalidated convictions are keeping them there.”

Wonhoff said when they first compiled a list of eligible prisoners, they found roughly 70 people. By the time the governor was ready to act, however, most of them had already been released by local authorities, leaving just about two dozen prisoners. Additionally, in order for Inslee to commutate the sentences, the prisoners had to individually petition him.

“So what we did, was created a very basic petition … which basically says, ‘Here’s my name, here’s my signature, I want a Blake commutation,” Wonhoff said.

Lawmakers consider reestablishing drug penalties

Meanwhile, lawmakers’ push to re-legislate criminal drug penalties is shaping up to be more complicated than an ad hoc petition and the governor’s signature.

SB 5476 moved quickly through the state Senate but by the time it left for the House, the bill’s primary sponsor state Sen. Manka Dhingra (D) said she could no longer support the measure; she voted no on the bill because she argues that help should not come “through the criminal justice system.” But Sen. Jamie Pedersen (D) — who sponsored the striking amendment to add a misdemeanor penalty and diversion programs for first and second offenses — disagreed, saying the additional penalties will “provide services and treatment for people who are struggling with substance abuse disorders.”

SB 5476 received a hearing in Washington’s House on Monday.

According to presentations by Washington’s Office of Program Research (OPR), the bill would set the charge for knowingly possessing “a controlled substance, counterfeit substance, or legacy drug” to a misdemeanor. Furthermore, alternatives to arrest would be extended to mentally ill Washingtonians and those experiencing substance abuse disorders.

SB 5476 would require diversion on possession charges one and two, and recommend prosecutors seek diversion on the third and “subsequent” charges. The misdemeanor provision would sunset in 2023 and “personal” drug possession would then become a $125 civil infraction that could be waived if defendants submit to a substance abuse assessment.

According to the staff briefing, any money collected from these civil infractions would be used to reimburse cities and courts for the fiscal note associated with the legislation.

The bill would also create a substance abuse advisory committee tasked with developing a Substance Abuse Plan for the state by December 2021 and requires the plan to be implemented by December 2022.

The legislation requires each behavioral health administrative services organization — organized in ten regions around the state — and the Washington Health Care Authority to create “Recovery Navigator Teams” based on existing law enforcement diversion programs for intake, assessment, outreach, referral, and long-term case management for people experiencing substance abuse disorders.

Additionally, appropriate funding would be provided to grant programs to help low-income individuals who don’t qualify for medical services with treatment, expand recovery support programs (including education, housing, and employment services), increase funding for homeless outreach stabilization programs for those experiencing behavioral health issues, increase outreach to those experiencing mental health struggles while homeless, and provide more support for people dealing with co-occurring opiate and stimulant use disorders. Finally, by 2022 police would be required to offer classroom hours instructing officers on how to interact with people on substances and how to refer individuals to treatment programs.

Testimony

Many of the groups and individuals who testified during the public hearing acknowledged that the current state of Washington‘s drug policy is not tenable, including James McMahan, policy director for the Washington Association of Sheriffs and Police Chiefs, who said he hopes the legislature’s approach makes prevention, intervention, treatment and recovery options “as available as these substances are in our community.”

Other concerns about the bill expressed by city officials, council members, and mayors from around the state centered on funding and how municipal courts would handle the influx of cases shed by the state’s Superior Court system when personal drug possession is no longer classified as a serious offense.

Those who testified against the bill felt that drug possession should be treated as a health issue, not handled by law enforcement. Rayell Johnson of the Snohomish County Ebony PAC (SEPAC) voiced concerns related to ongoing racial issues and policing, saying that SEPAC is “strongly opposed” to the legislation.

“This bill does nothing to end or mediate the drug war waged on poor people and People of Color for decades. Law enforcement, especially in Washington, are not trained or capable of telling the difference between a misdemeanor and a felony. Regardless of how you classify these possessions, as long as you criminalize them we will continue to be stalked like prey in a forest. Your continued trust in law enforcement to enforce this properly is misguided at best and malicious at worst.” — Johnson, in testimony at SB 5746’s hearing

Although the bill’s exact fiscal note is unknown due to the state not knowing how many people would be charged with “knowingly” possessing drugs, it is estimated the cost to the courts would be around $22.4 million per biennium due to the costs of prosecutors, public defenders, and the transportation and housing of offenders, the OPR staff reported. The Criminal Justice Training commission estimates they will need $1.4 million the first year and $2.1 million the following year to re-train officers.

According to OPR staff, the Navigator Teams spread across the ten regional health districts would cost approximately $10 million each year. However, due to the “indeterminate nature” of the program, they say the teams could cost the state tens of millions per year. Each regional health district would be asked to create a “regional administrator” position, which is estimated to cost up to one million each year for the ten districts.

The remainder of the costs — like the increased funding for low-income grants, homeless services, and other programs — is unknown.