Drug Possession Is Officially A Crime Again In Washington, But As A Misdemeanor Instead Of Felony

Nearly four months after the state Supreme Court struck down Washington’s felony drug possession law as unconstitutional, Gov. Jay Inslee (D) signed legislation on Thursday to recriminalize simple possession, this time as a misdemeanor.

The governor did partially veto one section, however.

The new law, which takes effect immediately, reestablishes criminal penalties but requires that individuals be referred to a health evaluation and possible treatment for their first two violations, allowing them to avoid arrest and a criminal record. It also earmarks nearly $100 million for drug use disorder treatment, outreach and recovery services across the state.

At a signing ceremony Thursday, Inslee called the legislation “a much more appropriate and successful way to address the needs that underlie drug abuse.”

“This legislation will help reduce the disparate impact of the previous drug possession statute on people of color,” he said. “It moves the system from responding to possession as a felony to focusing on the behavioral health response.”

Watch Inslee’s signing of Washington’s new drug law, about 18:00 into the video below:

One new program will establish a statewide “recovery navigator” program, designed to connect people with drug use disorder with “continual, rapid, and widespread access to a continuum of care.” Other investments expand outreach programs to unhoused people and provide funding to expand opioid use disorder medications in jails.

After two years, on July 1, 2023, the new law’s criminal penalty provisions will evaporate under the bill as passed by lawmakers, again leaving the state without a law against drug possession. The behavioral health services established by the new law, however, will stay in place.

The expiration date is meant to bring lawmakers back to the table to renegotiate a path forward after experimenting with the new approach. Rep. Roger Goodman (D), who introduced the idea in an amendment, has said he expects lawmakers to be even more open to broader reform once they see the benefits of treatment over criminalization.

“The conversation on the failure of the drug war only keeps going the same direction. We’re almost at the tipping point now where we are at a completely new paradigm,” he told Marijuana Moment last month. “Two years from now, that conversation will mature further and be even more progressive. The voters and the legislators and the public will be moving that direction.”

Lawmakers rushed to pass the legislation, SB 5476, following the state Supreme Court’s unexpected decision in late February, State v. Blake, that threw out the state’s law against drug possession because it failed to require that a defendant actually knew they had the drug.

When the ruling came down in late February, more than halfway through the state’s legislative session, some progressive lawmakers opposed reestablishing criminal penalties at all. As originally introduced by Sen. Manka Dhingra (D), SB 5476 would have formally decriminalized drugs, removing all penalties for possessing small, “personal use” amounts.

State Attorney General Bob Ferguson (D) also eventually came out against reinstating criminal penalties.

Statement on criminal penalties for simple drug possession: https://t.co/YfX3RoaCDn #waleg pic.twitter.com/17mL8qiYaQ

— Washington State Attorney General (@AGOWA) April 20, 2021

Moderates and conservatives, however, insisted that the possibility of penalties was necessary to incentivize people to enter treatment. Others warned that without preemption by a law at the state level, local governments would adopt their own laws against drug possession—creating a patchwork of wildly different approaches across the state.

While Inslee generally praised the new law during his signing ceremony Thursday, he nevertheless vetoed a small portion of the bill that would have created a state fund to reimburse local governments and individuals who incur legal fees as the result of resentencing under the Blake decision.

“I am vetoing Section 21 of this bill,” the governor said without elaborating at the event.

“An earlier version of the bill created a new penalty and had that penalty go into the new account that was created,” a spokesperson for Inslee told Marijuana Moment. “The account would then be used to fund the activities provided in the section creating the account. In the final version of the bill, the new penalty was not included. Therefore, there is no revenue source that is directed into the account.”

“The account would stand without funds and without revenue slated to go into the account,” he said. “The activity was funded instead using the general fund.”

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Washington voters are generally supportive of decriminalization, according to a statewide poll commissioned by reform advocates and released last month. Nearly three in four voters (73 percent) said the state’s approach to problematic drug use has been a failure. Just nine percent called it a success.

Asked about the Blake ruling, 59 percent of those surveyed said lawmakers should use the court decision to “reconsider and replace past drug possession laws with more effective addiction and treatment alternatives.” Only 35 percent favored making a technical change to return to the past system.

So far, neighboring Oregon is the only state in the U.S. to have decriminalized all drugs, the result of voters’ passage of a ballot measure last November.

Organizers at the advocacy group Treatment First WA were also hoping to qualify a similar initiative for Washington’s ballot last year, but that campaign was scuttled after the COVID-19 pandemic interrupted signature-gathering.

Earlier this year, allied lawmakers introduced a bill based on the ballot measure proposal that would have decriminalized simple possession and reinvested in broader treatment and recovery services. That measure passed a House committee but failed to meet a mid-session legislative deadline to advance further.

Treatment First WA did not immediately respond to questions about whether the group planned to pursue another decriminalization measure in light of the new misdemeanor law.

Outside the Pacific Northwest, lawmakers in both Maine and Vermont have recently unveiled legislation to decriminalize small amounts of controlled substances. In March, a Rhode Island Senate committee held a hearing on legislation that would end criminal penalties for possessing small amounts of drugs and replace them with a $100 fine. And in New Jersey, Gov. Phil Murphy (D) recently said he’s “open-minded” on decriminalizing all drugs.

In California, meanwhile a bill that would legalize possession of a wide range of psychedelics passed its second Senate committee last month.

Minnesota House Approves Marijuana Legalization Bill

Photo courtesy of Jernej Furman