Drug possession is no longer a felony in Washington as of 2021. Advocates lauded the change, arguing that criminalization of drugs has historically led to disproportionate imprisonment of people of color.
However, lighter consequences for drug possession are pushing more people in Clark County to accept traditional sentences rather than therapeutic treatment programs that would clear the charges and get them into drug treatment, prosecutors and attorneys say.
It’s put prosecutors who wish people would take advantage of alternative treatment options in a bind.
“When we had the threat of prison time, people were really incentivized to get help,” Clark County Senior Deputy Prosecutor Katie Sinclair said. “Now (that) we don’t have prison time, it’s harder to convince people.”
A change for drug court
In 2021, the state Supreme Court ruled that drug possession was no longer a felony under state law — a ruling commonly referred to as the Blake Decision. Officers could charge someone possessing drugs with only a misdemeanor on the third offense after giving them treatment options the first two times.
In July, the state Legislature passed the so-called Blake Fix, making possession of a controlled or counterfeit substance a gross misdemeanor. This set a maximum penalty of 180 days in jail and a $1,000 fine for each of the first two convictions. Beginning with the third conviction, the jail sentence can be as long as 364 days.
When drug possession was a felony and people faced the possibility of years in prison, prosecutors could offer drug court — an alternative to incarceration that requires defendants to attend drug court weekly and undergo treatment with recovery support services.
After the Blake Decision, the drug court program for felony cases had to release around a third of its case load, said Shauna McCloskey, therapeutic specialty court coordinator at Clark County Superior Court.
“Some participants expressed a desire to continue in Drug Court despite having their drug possession charges dismissed, as they valued the treatment and accountability provided,” she wrote in an email.
But that wasn’t possible.
The number of people in adult drug court steadily declined, dropping to around half its usual participants in 2022, according to data from Clark County Superior Court. In 2023, the number of participants began to rise again. (Defendants can be referred to the drug court for other charges if their substance use played a role.)
Opting out
People charged with drug-possession gross misdemeanors have access to a version of drug court called Treatment Alternative Court. Completion takes about a year of showing up to court weekly.
Since July, 245 people in Clark County have been charged with drug-possession misdemeanors. However, prosecutors have made only four referrals to Treatment Alternative Court, according to District Court data.
Sinclair, the senior deputy prosecutor, said this is likely because prosecutors offer diversion programs that require only monthly check-ins along with participation in treatment.
But people aren’t choosing that option frequently either, Sinclair said.
“We’re struggling across the board to convince people to do either program,” she said. “What we’re finding is that either people choose to take that traditional offer or they are on warrant status.”
The traditional offer for simple drug possession is around five days of community restoration, which can include tasks such as gardening at Vancouver’s Veterans Community Garden. This provides little incentive for defendants to choose a longer program, even if it will clear a criminal conviction, Sinclair said.
“Now it’s five days versus up to a year of treatment. It’s a tricky one,” she said. “We need people to want to do it, and I think when people are struggling with addiction, it’s hard to say, ‘Sign me up for a year of monitoring,’ versus some time on community restitution.”
A choice to get sober
Sinclair said prosecutors cannot threaten unusually harsh sentences to coerce people with drug addictions to seek alternative treatment options.
“If we force people into programs, it’s just going to tank the success of the program because they’re not going to cooperate,” she said.
However, people must still undergo drug treatment even after accepting a traditional offer.
If they don’t comply with this condition of their probation, they must return to court, where they face heavier sentences including jail time, Sinclair said. It’s a cycle that can affect both the offender’s future and court resources.
Therapeutic courts, on the other hand, don’t work like revolving doors that let people in numerous times, said Marina Spencer, an attorney with Vancouver Defenders. If people aren’t ready to get sober, they might not want to exhaust that option.
Sinclair said she doesn’t want to see people arrested for drug possession incarcerated if they have other options, but she expects therapeutic courts will struggle in the future if people continue to chose traditional sentences in drug-possession cases.
“If we can convince people to get into therapeutic court, even at the district level, there’s huge gains for them and the community,” she said. “It’s convincing people the long term is worth it versus a short-term fix.”
