WA raises penalties for drug possession, criminalizes public use of drugs

OLYMPIA — After a whirlwind one-day special session, Gov. Jay Inslee signed a bill into law Tuesday that will raise the state’s penalty for drug possession to a gross misdemeanor and criminalize public drug use.

The new law was a hard-fought compromise after lawmakers’ stunning failure to get a deal done last month. It also marks a turning point as communities wrestle with a substance-use crisis and the fallout from the state Supreme Court’s Blake decision in 2021, which ruled the state’s felony drug possession law unconstitutional.

After the regular legislative session ended April 23, leadership and several other lawmakers from both parties met in a series of what Rep. Roger Goodman, D-Kirkland, described as “intense” private negotiations.

“This bill represents a tough compromise on a tough issue,” said Rep. David Hackney, D-Tukwila, a former prosecutor. “And as Neil Young has sung, I’ve seen the needle and the damage done.”

As he signed the bill Tuesday afternoon, Inslee was flanked by many of the Democratic lawmakers who negotiated the deal.

Tuesday’s special session unfolded in short order, with the Senate approving the policy 43 to 6 and hours later the House approving it 83 to 13.

It raises the penalty for drug possession from a misdemeanor to a gross misdemeanor and criminalizes public drug use, also classifying it as a gross misdemeanor. Most of the law’s provisions take effect July 1, when the state’s current drug possession law expires.

Many Republicans and majority Democrats supported the bill on Tuesday.

“I don’t think that it’s going to solve all our problems,” said Senate Republican Leader John Braun, of Centralia, in a speech on the Senate floor. “I think we’re going to have challenges ahead, but it’s a strong step in the right direction.”

Republicans sought and won several concessions, including to weaken a provision concerning local regulation of drug paraphernalia.

“I think this is a really excellent case study in what happens when the majority caucus listens to the minority caucus,” said House Republican Leader Drew Stokesbary, of Auburn.

Goodman, speaking to reporters after the bill’s passage, said Washington communities would see an impact since police will again be able to arrest people in violation of drug-possession or public-use laws on the first encounter.

The 2021 law that legislators passed after the Blake decision required that police refer people to treatment twice before they could face an arrest.

“Police will not feel like their hands are tied, where they can’t do anything with the person in front of them,” Goodman said. “They will be able to interact right away.”

A gross misdemeanor falls in between a misdemeanor and a felony in state law, and typically comes with a penalty of up to 364 days in jail and an up to $5,000 fine. However, under the new bill, a person would face a maximum of 180 days in jail for first and second convictions for drug possession. Upon the third conviction, a person would face the higher maximum of 364 days.

Some Republicans urged going back to a felony penalty for drug possession, which had been state law until 2021, when the state Supreme Court overturned the state’s drug possession statute because someone could be prosecuted even if they didn’t know they had drugs.

Some Democrats also expressed reservations about criminalizing addiction.

“I think this bill is better, but we’ve got a long way to go,” said Sen. Yasmin Trudeau, D-Tacoma.

While the state is barring local governments from making rules that regulate paraphernalia more broadly, some advocates worry that local governments’ ability to regulate harm-reduction services, including services that provide sterile drug-use supplies, will pose a barrier to providing care for people struggling with addiction.

The bill would also require the state Department of Health to notify media outlets in the area when the agency is deciding whether to certify or license an opioid-treatment program.

That provision drew criticism from Rep. Lauren Davis, D-Shoreline, who argued on the House floor that it could be harder for such treatment programs to be established in communities that need them. Two-thirds of Washington counties lack an opioid treatment program, Davis said.

“This bill not only handcuffs suffering people, but it handcuffs the two tools that we have to combat the fentanyl crisis,” Davis said, referring to harm-reduction services and methadone, which can only be dispensed at opioid treatment programs. “We were called back here by the governor to solve a problem. This bill doesn’t solve the problem, Madam Speaker. It makes it worse.”

Concerns about criminalizing drug use were echoed by the ACLU of Washington, whose director of political strategy, Alison Holcomb, said in a statement, “We cannot punish people into recovery.”

“Lawmakers spoke in both chambers today in favor of using handcuffs and jail cells to punish those who use drugs, ignoring the lessons of the past 50 years,” Holcomb said, adding the approach would fail and funnel more people of color into the criminal legal system.

Marco Monteblanco, president of the Washington Fraternal Order of Police, called the bill a “reasonable solution.”

“Raising drug possession from a misdemeanor to a gross misdemeanor will provide additional influence to get people off the streets and into treatment,” Monteblanco said. “The bill provides peace officers avenues to keep folks in need of treatment out of jail and our emergency rooms.”

Washington Attorney General Bob Ferguson, now running to succeed Inslee as governor, came out strongly for decriminalizing drug possession following the Blake ruling in 2021. But this session, Ferguson remained comparatively quiet as lawmakers wrestled with a Blake bill compromise.

Asked about his position on Tuesday, his spokesperson, Brionna Aho, wrote that Ferguson “has had a number of conversations” with legislators updating him on negotiations.

“Attorney General Ferguson supports the Legislature coming together to craft a bipartisan solution that holds individuals accountable for selling drugs, engaging in public drug use, and refusing court-ordered treatment while dramatically expanding our public health response to individuals suffering substance use disorder,” Aho wrote in an email. She added that Ferguson supported a provision in the bill that encourages prosecutors to divert simple drug possession cases to assessment, treatment or other services.

The proposal, which backers released late Monday, tacks on $19.6 million more in spending than a prior version, for about $62.9 million total. The additions include $9 million toward the Office of Public Defense to provide public defenders in certain areas for people charged with possession or use in a public place.

Seattle Times staff reporter Jim Brunner contributed to this report.

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