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News / Courts & Crime

Inside the stunning fall of Washington’s drug-possession legislation — and what comes next

By Claire Withycombe, The Seattle Times
Published: April 25, 2023, 8:08am

OLYMPIA — Finger-pointing and frustration reigned in the Capitol after a proposed deal to penalize drug possession fell apart on the final day of the legislative session.

The bill’s dramatic rejection by the state House late Sunday thrust the future of the state’s drug laws into question. It could also mean a special session, where Gov. Jay Inslee could call lawmakers back to the Capitol to hammer out and vote on an agreement.

Without action, Washington’s drug possession law will expire July 1, leaving no penalty in state law and leaving cities free to adopt a hodgepodge of local ordinances.

The Legislature has been contending with how much to penalize drug possession since 2021, when the state Supreme Court, in the State v. Blake decision, threw out the state’s felony drug possession statute as unconstitutional. That year, lawmakers passed a stopgap measure classifying possession of drugs like cocaine and methamphetamine as a misdemeanor.

After the House and Senate approved diverging “Blake fix” proposals earlier in the session, negotiators announced a compromise deal Saturday that would make drug possession a gross misdemeanor while appropriating millions toward treatment, housing and support for people with substance use disorder.

But when the proposal was brought to the floor Sunday evening, no House Republicans supported it, and 15 Democrats also gave a thumbs-down — a rare instance of legislative leaders bringing a major bill up for a vote without accurately counting votes to ensure it had enough support.

Blame game

Both parties cast blame at one another for the failure.

Despite Democrats controlling the House with a 58-40 majority, Inslee singled out House Republicans as culpable.

“Not one single Republican helped on this so that we wouldn’t decriminalize drugs,” Inslee said Sunday, appearing flustered by the bill’s failure. “I was led to believe we would have the votes earlier in the day. It did not transpire.”

House Republican Leader J.T. Wilcox, R-Yelm, shot back at Inslee for blaming the minority party.

“The Governor talked to no Republicans and we indicated many times there was a compromise available that would get many Republican votes,” Wilcox tweeted in reaction to Inslee’s comments.

House Speaker Laurie Jinkins, D-Tacoma, told reporters Sunday after the bill failed that House Democrats had hoped there would be some Republican support.

Three House Republicans had voted for an earlier version of the legislation that would have maintained possession as a misdemeanor, but no Republicans in the House supported the tougher law on Sunday.

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“The fact that we are not going to have a piece of legislation on this means that their failure to provide any votes for this bill is going to result in methamphetamines, fentanyl and heroin … possession of those drugs being legalized across the state of Washington,” Jinkins said.

“I guess they better sit and think about what it is they’re doing,” Jinkins said of the Republicans. “Because I know what I’m doing. I’m not making political points, trying to play a political game.”

Republicans, meanwhile, foisted blame right back at the Democrats, who control majorities in both the House and Senate, in addition to controlling the governor’s office.

“There should have been no surprise about the result,” Wilcox said at a briefing with reporters Monday. He said House Democrats “got caught up in an unfortunate ideological conflict and didn’t have a way out of it.”

Wilcox announced Sunday he was stepping down as House GOP Leader, and on Monday, state Rep. Drew Stokesbary, R-Auburn, was elected to the position.

Compromise path

Senate Republican Leader John Braun of Centralia also said Republicans “provided a very clear path” for Democrats to secure Republican support.

As lawmakers were negotiating a new version of the bill last week, Braun said his caucus worked with Republicans in the House and solicited feedback from cities, prosecutors and law enforcement to come up with a list of provisions in the bill they wanted to change, like a provision that would preempt local governments from creating their own laws regulating drug paraphernalia.

“Those folks have to believe this is workable,” Braun said. “And it wasn’t. It simply wasn’t. [Democrats] knew that and they still brought it to a vote.”

Meanwhile, Democrats in the House who voted against the proposal said they couldn’t support raising the penalty to a gross misdemeanor, with some likening that to the failed war on drugs.

Rep. Tarra Simmons, D-Bremerton, had voted for an earlier version that would have kept the law as a misdemeanor.

Simmons, who was formerly incarcerated, said it became clear she could not to support the legislation on Saturday, after the compromise was publicly announced.

“I just feel like there’s no way I could in good conscience take this vote to replicate this type of harm on people when I know what jail is like,” she said. A gross misdemeanor comes with a penalty of up to 364 days in jail, higher than the maximum under a misdemeanor of 90 days.

Rep. Liz Berry, D-Seattle, said raising the penalty would disproportionately harm people of color, while wealthy white people accused of drug possession would get lawyers and bargain penalties down.

“I loved the treatment options and funding” in the proposal, “but that penalty was just too much,” Berry said.

Inslee ineffective

A late appeal by Inslee urging approval of what he called the “sound compromise” in a tweet and brief video Sunday afternoon did not sway lawmakers.

“Now Gov. Inslee’s going to weigh in?” Braun said Sunday afternoon, after the governor’s video but before the bill was voted down. “He’s been absent from this discussion for 105 days.”

State Sen. Jamie Pedersen, D-Seattle, also said the governor’s appeal had no apparent impact. “It’s great that he weighed in,” he said. “I think we can say it didn’t move the needle.”

Pedersen voted against a Senate version of the bill imposing the gross misdemeanor penalty when it passed last month, but said he’d have been willing to vote yes on a compromise bill if his vote was needed to pass it.

“The governor met regularly with Democratic leadership and individual legislators all throughout session,” Mike Faulk, a spokesperson for Inslee, said in an email Monday. “They never indicated a need for his direct intervention on this issue. The governor’s policy advisor for public safety met with legislators routinely over the 105-day session discussing the Blake bill.”

Inslee is scheduled to meet with legislative leaders, both Republicans and Democrats, in the next couple days “about next steps,” Faulk said.

Inslee has not specifically said whether he will call lawmakers back for a special session, but he said Sunday he was not OK with allowing the current stopgap drug possession law to expire with no replacement.

“It is unacceptable to me. … It is unacceptable to the state of Washington,” he said.

Soft or cruel?

By the time the House was considering the last-minute deal, it was getting pummeled by outside critics on both sides.

A coalition of Snohomish County mayors and business leaders on Sunday urged lawmakers to vote against the plan, issuing an open letter calling the proposal soft on illicit drug use plaguing communities.

“We continue to believe that a meaningful solution must effectively balance legal consequences and treatment options to reverse the impacts of Blake, and that the current version of the legislation falls short of that test,” their letter said.

From the opposite side of the debate, critics viewed the compromise bill as a cruel return to tossing people in jail in order to push substance use disorders out of public view.

A more effective approach would involve standing up and funding a system of treatment and harm reduction services to keep people alive, said Alison Holcomb, political director for the ACLU of Washington.

“It’s just building the parallel but very different system that we need to do, and that’s going to take serious investments. As long as we rely on police and jails to disappear people, we are not going to get there,” Holcomb said.

With the failure of the Blake compromise and no clear path to a special session, some local communities are already preparing to adopt their own drug laws.

On Sunday night, with the compromise deal barely dead, Snohomish County Councilmember Nate Nehring announced he will introduce an ordinance criminalizing drug possession in the county.

“The scourge of deadly drugs on our streets is among the most pressing public safety issues our communities face. I look forward to working with my colleagues at Snohomish County to adopt reasonable regulations which lead with compassion and emphasize treatment while also holding individuals accountable for their actions,” Nehring said in a statement.