Washington Governor Jay Inslee has called a special session after state lawmakers were unable to reach a compromise on a drug bill during the last day of the recent legislative session.
The session follows over two years’ worth of drug policy discussions, stemming from the Washington Supreme Court in February 2021 striking down drug possession crimes as part of a case called State v. Blake. It translated to no state law making simple drug possession a crime unless recriminalized by the state legislature, and releasing individuals with pending charges from jails while others had their sentences recalculated.
While a temporary state law subsequently passed, its contents—making possession crimes misdemeanors with mandatory diversion to treatment services after being caught at least twice—remain in effect until July 1 and pose a hazier picture should some legislation not be enacted prior to that date.
Inslee, who is against drug decriminalization and has advocated for users to be presented with treatment options, said the special session will begin May 16 and is hopeful of a bipartisan compromise. Special sessions typically last 30 days, though the governor is confident of hashing out a deal in the span of “several days.”
“My office and I have been meeting with legislators from all four caucuses and I am very optimistic about reaching an agreement that can pass both chambers,” Inslee said in a statement. “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.”
Mike Faulk, a spokesperson for Inslee, told Newsweek via email: “If the legislature does not act we will see a patchwork of local laws around the state. We need consistency. The governor is confident legislators understand that and will get a bill passed before the temporary law expires.”
A misdemeanor in Washington State carries a maximum penalty of 290 days in jail and up to a $1,000 fine. A gross misdemeanor carries a maximum penalty of 364 days in jail and a $5,000 fine.
As part of the temporary law in place, it isn’t until the third time that somebody in the state is arrested and charged with drug possession.
Alison Holcomb, director of political strategies for American Civil Liberties Union (ACLU) of Washington, told Newsweek via phone that another important aspect was part of the temporary law passed in 2021.
It required the Washington State Health Care Authority to convene an expert panel with people with expertise from substance use disorder and recovery, housing, medical epidemiology, harm reduction strategies, and people that have lived experiences of substance use disorders and of having been incarcerated.
That 28-member panel was tasked with producing a report and recommendations to the Washington legislature by December 1, 2022, to consider recommendations before the legislative session began January 10. The report wasn’t published until January 11.
Of four drug-related bills that were introduced in session, only Senate Bill 5536 made out of committee. It proposed to enhance the penalty from a misdemeanor to escalate it up to a gross misdemeanor.
The negotiated compromise containing no amendments failed because 15 Democratic legislators “did not want to impose the gross misdemeanor penalty, and none of the Republicans voted support it because the penalties weren’t harsh enough,” Holcomb said.
“The political dynamics are such that it’s not clear to anybody on the ground that [Inslee] can secure the votes for something to pass when he does actually set a special session without making harsher penalties and moving in a more conservative direction because the Republicans have locked up on the measure that was in front of the House last Sunday,” she added.
Washington State already has a law on the books allowing for law enforcement to confiscate and seize drugs. But if the special session doesn’t lead to a new state law, local jurisdictions have a say as Washington is a home-rule state.
“Because the state would be silent on that question, that gives every local jurisdiction across the state to operate the opportunity to decide for itself whether it wants to adopt an ordinance making either drug possession or public use of drugs, or both, a crime,” Holcomb said. “Cities and counties have jurisdiction or criminal penalties up to a gross misdemeanor. They are not allowed to pass laws that would create a felony any law that would be subject to over a year of incarceration.”
Some local jurisdictions have already begun drafting their own policies.
The city of Bellingham voted to criminalize drugs, leading to potential citations, misdemeanors or arrests, according to Seattle-based KOMO-TV. A council member in King County, Washington’s most populous county, introduced a similar ordinance, according to KING 5 News.
The Center Square reported that other counties, including Thurston, Cowlitz, Kitsap and Yakima, are also consulting with attorneys and weighing their options.
“Frankly, I don’t think the local governments are very interested in having their own local laws,” Hugh Spitzer, a law professor at the University of Washington, told Newsweek via phone. “They’re talking about doing it just for lack of anything else going on, but they’d much rather see a legislative action.
“My hunch is that the legislature will get something worked out. Either the
moderate and liberal Democrats will work things out among themselves, or the moderate Democrats and the moderate Republicans will get something worked out among themselves. One way or another, they’ll probably cut some deal.”
Jonathan Hutson, senior director of public affairs and communications at the National Association of Criminal Defense Lawyers (NACDL), told Newsweek via email that local ordinances from a public health standpoint “could prove ineffective.”
“Modern medicine understands that incarceration, which is harsh, ineffective and relatively expensive, inflicts more harm than benefit for individuals with substance abuse and mental health issues, or their families or our communities,” Hutson said. “The failed War on Drugs, which disproportionately impacts individuals who are Black, Brown or poor shows that a punitive approach is counter-effective since as a society what we really want and need is treatment and services as a just, humane and medically valid, measurably effective approach.”