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News / Northwest

With no solution to Washington’s drug possession law reached, local governments look to ward off ‘chaos’ with their own rules

By Emry Dinman, The Spokesman-Review
Published: April 25, 2023, 7:38am

SPOKANE — Democrats in the state House of Representatives were stunned Sunday when, at the eleventh hour, the chamber failed to pass a controversial drug possession bill before the conclusion of the session.

Local officials were no less surprised by the turn of events, which Spokane City Council President Breean Beggs called “unprecedented,” with many immediately pledging to pass local laws of their own.

Representatives voted 55-43 to reject a bill that would make the penalty for knowing possession of some drugs a gross misdemeanor, punishable by up to a year in jail and a $5,000 fine. It also would have established a pretrial diversion program for offenders to receive treatment.

The “no” vote came as a surprise to many Democrats, who were confident that this bill, brought forth as a compromise stemming from extensive debate, would be the fix to the current drug possession law that sunsets in July.

Given the Legislature’s failure to pass a bill, there would be no statewide law on drug possession without further action, leaving it up to local control to decide how to punish possession charges and encourage possible treatment options.

Gov. Jay Inslee said he will call a special session if state lawmakers can reach a compromise they are sure will pass.

“I don’t want to take anything off the table,” said Majority Leader Sen. Andy Billig, D-Spokane. “I think a statewide solution is the right way to go.”

Both chambers had their own ideas about possession laws. Disagreements arose over how harsh the penalties for drug possession should be, treatment options before and after a possession charge, and the role of state government.

After extensive back and forth between the chambers, a conference committee of senators and representatives convened to work out a compromise that was brought before the House on Sunday, the last day of the session.

Committee members thought the compromise that included a harsher penalty, favored by Republicans, combined with avenues for treatment, a priority for Democrats, would receive bipartisan support.

But that’s not how it played out — 14 Democrats and all 41 Republicans cast “no” votes.

Democrats weren’t expecting the bill to fail.

“I’m flummoxed,” Speaker of the House Laurie Jinkins, D-Tacoma, said shortly after the vote.

She said she was “trying not to swear” while speaking with reporters.

Rep. J.T. Wilcox, R-Yelm, said he was vocal about the Republican’s distaste for this bill, and their collective “no” vote shouldn’t have come as a surprise to Democrats.

Making possession a gross misdemeanor was a deal breaker for some of the 14 Democrats, who favor a lighter misdemeanor or total decriminalization.

“Having gone to jail and detoxed from drugs in jail, and knowing the conditions and the dehumanization of that experience, and the separation for my children, and the consequences that has had on my life in every way, I can’t vote (for the bill),” said Rep. Tarra Simmons, D-Bremerton, who served 30 months in prison for drug possession and theft charges.

Republicans said they would rather pass no bill and leave it up to local governments to decide, than this “unworkable” proposal.

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“I don’t think that no bill is the best-case scenario, but we don’t think it’s the worst-case scenario either,” Wilcox said. “We all had many of our local governments tell us that they preferred the bill to fail.”

House Democrats who voted to pass the bill said a statewide solution is better than one that would create a patchwork of different laws across the state.

“I want to be clear in this moment that I believe a no vote on this conference report is a vote to legalize drugs on July 1,” said Rep. April Berg, D-Mill Creek. “Chaos will ensue if local governments are allowed to make their own drug use policy city-by-city, block-by-block, neighborhood-by-neighborhood.”

What’s next for the Spokane area?

Spokane-area officials and political candidates agreed Monday that local action would be necessary if state lawmakers failed to move quickly with a special session.

“What I’m hoping happens next is they take a little time off, they call a special session, and they get back to the work of finding a permanent fix, because we need it,” Mayor Nadine Woodward said Monday. “If they don’t, the cities will.”

She pointed to a letter she recently signed, along with the mayors of 27 other cities from across the state, urging the Legislature to establish tougher penalties for drug possession while preserving the ability of local jurisdictions to pass their own laws.

One of Woodward’s biggest policy goals for the year is making public drug use a crime. In the past, public drug use cases were enforced through drug possession laws — a person seen using illegal drugs is implicitly in possession of those substances or paraphernalia.

A measure called the Safe Open Spaces Act was sponsored in Spokane by City Councilmen Jonathan Bingle and Michael Cathcart. It was originally slated for a vote Monday. However, the City Council had deferred first reading until May 1, citing concerns that a local move could be pre-empted in the coming weeks by the Legislature.

“(The Legislature) had a two-year time limit that they put on themselves, so the fact that nothing got done before then is truly egregious,” Bingle said Monday. “I mean, they should all be fired.”

Despite his frustration with a delay of even a few weeks, Bingle said he believed the ordinance should still be first heard May 1 so those planning to speak on it could schedule to come to that council meeting.

Lisa Brown, who is running against Woodward in the upcoming mayoral election, called on the City Council to pass an emergency ordinance criminalizing drug possession, specifically mirroring the Legislature’s failed compromise bill making possession of illegal drugs a gross misdemeanor, funding additional treatment for substance abuse disorder and allowing for treatment to be an alternative to the criminal justice system.

“Open use of illegal drugs is not okay,” she wrote in a statement. “It’s a public health and a public safety issue. It prevents people from using public spaces in Spokane that should be safe and open to everyone.”

Spokane City Council president Beggs said Monday he expected there would be amendments to the Safe Open Spaces Act to more closely match the Legislature’s failed compromise, including language calling out public drug use in particular.

“We’re not going to wait, because if (the Legislature) couldn’t get it figured out — that was unprecedented, what happened last night,” Beggs said.

Beggs said he did not regret supporting a deferral until after the legislative session, saying that the original proposed ordinance had “major legal infirmities” and could have conflicted with the Legislature’s reforms if they had passed.

“If we had committed ourselves to that, it would be giving defendants an easy pass to get cases dismissed or be going up to the state Supreme Court,” he said.

It’s not immediately clear what actions surrounding jurisdictions will take. Spokane Valley Deputy City Manager Erik Lamb will brief the City Council on possible next steps during its Tuesday meeting, said spokesperson Emily Estes-Cross. Spokane County Commission Chair Mary Kuney did not respond to requests for comment.

Spokane County Sheriff John Nowels, who said he was personally disappointed that a compromise hadn’t gone through , said he hoped to see consistent legislation in jurisdictions throughout the county. If penalties varied depending on which side of Havana Street — the boundary between Spokane and Spokane Valley — the crime occurred in, it would cause drug use to spike in whichever jurisdiction had lighter penalties, he argued.

“If the city of Spokane can’t pass legislation that is equally effective, people will flood the city because the penalties are less,” he said. “The same would be true if the county has lighter penalties.”

Nowels added that a jurisdictional patchwork would also be onerous for law enforcement.

Some worry that even county-wide consistency might not be enough, however.

Local criminal defense attorney Steve Graham, who said he has worked with over 20 people to expunge possession convictions ruled unconstitutional, said that inconsistent laws would confuse the public and flood the criminal justice system with minor cases.

“Buckle up, because it’s going to be a big mess for people,” he said.

Graham also said he is worried that patchwork enforcement would be more prone to discrimination, including based on a defendant’s income level.

“If it’s consistent statewide, then the Legislature is going to put safeguards in there to limit discrimination, or at least monitor the practical effect of a law they enact,” he said.

“But what’s enacted by the city council of Ritzville or Colfax is going to be hard to track, and collecting data on that is going to be very difficult.”