In 2021, the Washington State Supreme Court ruled in the case of Washington v. Blake that Washington’s law making drug possession a felony was unconstitutional. To replace the newly invalidated law, the state Legislature passed a temporary measure to make drug possession a misdemeanor, carrying a penalty of up to 90 days in jail. That bill is set to expire July 1, 2023.
This year, the Legislature shocked everyone by failing to come up with a replacement before the end of the legislative session, setting up a countdown to what amounts to statewide decriminalization of drug possession. Unsure whether Gov. Jay Inslee would call a special session to give the Legislature another try, cities and counties got busy coming up with their own laws.
Cities and counties cannot hand out penalties more serious than a gross misdemeanor, but the difference between a misdemeanor and a gross misdemeanor is a big one. The offenses carry up to 90 or 364 days in jail, respectively. The stopgap replacement bill, Senate Bill (SB) 5536, which failed, would have increased the penalty from a misdemeanor to a gross misdemeanor but would also have included significant funding to expand treatment and recovery options statewide.
For individuals who use drugs and the people tasked with enforcing laws criminalizing drug use or possession, the potential hodgepodge of drug laws that might crop up in the current regime’s place could be a major headache.
For example, Seattle and Shoreline could pass significantly different ordinances on drugs. People choosing to use drugs on the wrong side of North 145th Street could find themselves in jail for almost a year instead of 90 days. This could also happen across county lines.
Under two bills immediately proposed in the neighboring counties of King and Snohomish, that could actually come to pass. Conservative King County Councilmember Reagan Dunn proposed an ordinance to make public consumption (but not possession) of drugs a misdemeanor. In Snohomish County, Councilmember Nate Nehring (who penned a joint letter to the Washington Association of Counties with Dunn to urge more criminalization ordinances) proposed an ordinance that would make drug possession and public use a gross misdemeanor. Nehring’s bill “strongly encourages” arresting officers to refer arrestees to law enforcement assisted diversion (LEAD) programs.
In Seattle, the most conservative members of the council, Sara Nelson and Alex Pedersen, with tough-on-crime City Attorney Ann Davison alongside them, proposed a bill that would be more in line with what Dunn wanted, making public use of drugs a simple misdemeanor.
“The epidemic of drug use is killing Seattle residents and depriving the public of spaces intended to be safe for everyone. We will not give up areas of our city to overt drug use and antisocial behavior, and this legislation will bring a critical tool to disrupt open-air drug markets, reclaim our green spaces and sidewalks, and protect transit riders,” Davison said in a written statement.
Mayor Bruce Harrell, a bit of a public safety crusader himself, wasn’t quite as bullish, reemphasizing his promise to target dealers.
“It is never acceptable for people to smoke fentanyl or consume illegal drugs on Seattle sidewalks and public spaces. However, it is essential that we advance evidence-based policies, programs, and services that help those in need get the treatment they deserve – and continue focusing on arrests of those dealing or taking advantage of people in crisis, both of which are critical to restoring feelings of safety downtown and for all Seattle neighbors,” he said in an emailed statement.
He concluded that statement by saying, in so many words, that he was optimistic the Legislature would hop back in a special session and work it out.
Councilmember Lisa Herbold, for her part, said she wouldn’t vote for the ordinance.
“I believe the State Legislature must find a workable compromise in a special session. I will not consider a local Blake decision fix or any local drug laws while that remains a possibility. A patchwork quilt of different laws across the State would have unwelcome unintended consequences,” she wrote in a statement.
In Bothell, which lies across two counties and where no local ordinance has been proposed, officials said they would also rather wait and see.
“[S]ince Gov Inslee did indeed call for the special session to start on May 16th (right after you sent this email), we are following that process and outcome,” wrote Bothell Assistant City Manager Becky Range in response to an emailed inquiry from Real Change.
In the end, the patient ones got their wish. On May 2, Inslee announced a special session, set to begin May 16. In a statement, he made it clear that its sole goal was to permanently address the Blake decision.
“Cities and counties are eager to see a statewide policy that balances accountability and treatment, and I believe we can produce a bipartisan bill that does just that. Details are still being negotiated, but caucus leaders share the desire to pass a bill. I believe that starting the clock on May 16 will put us on a path to getting the job done this month,” he wrote.
While the governor’s statement seems to assume that criminalization is essential, a viewpoint clearly shared by many local officials, not everyone agrees.
Alison Holcomb, the American Civil Liberties Union (ACLU) lawyer famous for her efforts to pass Initiative 502, which legalized cannabis in the state, is one of them. Since passing that landmark legislation, she’s turned her focus to drug reform in general, working in the other Washington as the director for the ACLU’s Campaign for Smart Justice, which sought to reduce the U.S. prison population by 50 percent. Now she’s back, serving as the political director for the ACLU of Washington. The organization came out firmly against SB 5536, calling it “a cruel and unsound public policy choice” in a white paper.
The Legislature should not have connected what people with substance use disorders need — treatment, recovery and prevention services focused on harm reduction and informed by best practices — to criminal penalities, she said.
“We should not be having that conversation. It should be two separate conversations,” Holcomb said in an interview with Real Change.
While statewide decriminalization would be ideal, she said it was certainly better to leave it to cities and counties than to institute a gross misdemeanor at the state level. But were the Legislature to punt again, what about that patchwork quilt Herbold warned against?
According to Holcomb, that’s already been the case. Noting that places like Seattle and King County have always been more lenient than more rural, conservative areas, like Spokane, she said, “It’s already been the experience of everyone who has used drugs and or struggled with substance use disorder that your experience depends on where you are when you run into a law enforcement officer. That is nothing new.”
She also pointed out that, when it comes to addressing the unpleasant aspects of public drug use, there are a lot of laws on the books that do that. An ACLU fact sheet includes a survey of all the public disturbance laws in the state, listing laws against everything from “potentially dangerous litter” like hypodermic needles to public urination and defecation. Essentially, she said, if someone’s use of drugs is causing problems for anyone other than themselves, they’ve probably already crossed the line into criminal behavior.
Furthermore, the idea outlined by Nehring, the Snohomish County anti-drug warrior, that giving people a choice between jail and rehab will lead to more successful treatment is unsound, Holcomb said.
“We know coerced treatment is ineffective and has in some studies been established to actually cause harm,” she said. “So, if we’re just trying to deal with people whose substance use disorder has escalated into something problematic for them and for broader societal interests, then let’s talk about what’s most effective to treat that, which is not treating them like a criminal and humiliating them and stigmatizing them and pushing them further into the margins. That’s just layering more trauma on, which makes it that much harder to engage them and get them on the path to recovery and keep supporting them.”
Instead, what people suffering from substance use disorder need, she argued, is more long-term support.
“We know that substance use disorder is a chronic illness that people are probably going to be dealing with for most of their life. What they need to do is manage it, not focus on a cure. Having abstinence as a goal is not helpful and sets people up for failure after failure after failure,” she said.
Given the science against it, she said, “There’s no excuse for us to be relying on forced treatment to try to help people get better.”
The fact that the current-state budget does include money for a “Safe Supply” study group is encouraging, she said, as, “At some point we have to make sure that … if people are going to use drugs, how about we help them find drugs that are not going to kill them?”
Keeping drug users alive, she concluded, rather than criminalization, “should be our number one goal.”
Tobias Coughlin-Bogue is the associate editor at Real Change.
Read more of the May 10-16, 2023 issue.