In the heated final hours of the legislative session Sunday night, a bill to increase criminal penalties for drug possession failed on the House floor, leaving top lawmakers rattled and with no clear path to reach a deal before the existing law lapses on July 1.

If they don’t pass a bill before then, Washington’s misdemeanor drug possession law will expire and spawn a patchwork of drug policy across the state, ranging from decriminalization to a gross misdemeanors, which can carry a 364-day jail sentence. While some see that outcome as a disaster, others argued that no local policy could be much worse than what the Washington State Legislature was ready to pass with Senate Bill 5536.

During a brisk and somewhat prickly press conference after the bill’s failure, Gov. Jay Inslee said he wanted to see lawmakers pass something before the statewide stopgap bill expires. He tweeted Tuesday he believes a solution is possible, but it’s unclear what that solution might look like. 

Tick, Tick, Tick 

The Legislature started the ticking clock on the existing drug law in 2021. After the Washington State Supreme Court struck down the state’s felony drug possession law in State v. Blake, lawmakers passed a bill that made drug possession a misdemeanor and required police to refer a person to treatment at least twice before arrest. Legislators built in the law’s expiration date because they wanted to create a more thoughtful drug policy in 2023.

However, two years passed and a cohesive plan did not emerge. Inslee wants a bill that criminalizes drugs across Washington, pays for treatment, and creates punishments for those who don’t submit to treatment, but he doesn’t care if the law is a misdemeanor or a gross misdemeanor.

By the end of the session, the majority of the Senate wanted to make drug possession a gross misdemeanor with severe punishments for noncompliance with treatment. The House wanted to leave possession as a misdemeanor offense with lots of chances for diversion out of the justice system. The House also wanted to prevent local jurisdictions from creating anti-paraphernalia laws that could restrict harm-reduction health programs. 

The question Democratic leadership faces now is whether to try to draw House Republicans with a more conservative bill that could pass in the Senate, or try to find votes in the Senate to pass a less punitive bill with only Democratic votes.

House Majority Leader Joe Fitzgibbon (D-West Seattle) sees three possibilities: “A Democratic-only bill. A worse bipartisan bill. Or no bill. A Democratic-only bill looks pretty impossible right now,” he said.

Death on the Floor

The two chambers came together last week in a conference committee to negotiate a final draft, which was published Saturday and sent to the House floor for a vote Sunday.

Compared to the stopgap legislation, the final bill focused more on punishment for substance abuse rather than treatment, making possession a gross misdemeanor, the highest class of crime a local jurisdiction can pass. Lawmakers also eliminated parts of the bill that encouraged prosecutors to put people in treatment rather than send them to jail. That said, the bill would have allowed courts to divert cases out of the criminal justice system without consent of a prosecutor.

Even before the final bill negotiations, many House members began to peel off from the leadership’s goal of passing a compromise bill. 

The Members of Color Caucus (MOCC) met before the conference committee out of concern the bill might stray too far to the right. MOCC Chair Representative Mia Gregerson (D-SeaTac) said some members wanted to make sure the bill prevented cities from passing anti-paraphernalia laws, and others, such as Gregerson, opposed the gross misdemeanor. 

The goal was not to kill the bill, Gregerson said. The goal was to make sure the MOCC’s input was considered in negotiations, she argued.

However, despite the MOCC telling leadership about the uncertainty of its members, Gregerson said the House never did a formal vote tally on the conference committee’s version of the bill. We emailed and called the House Democrats to confirm this and are waiting to hear back.

Ahead of the vote, on Sunday afternoon the American Civil Liberties Union of Washington (ACLU) rallied people to push for a no vote on the bill. In a letter to lawmakers, ACLU Legislative Director Lorena González argued that a patchwork of local drug law wouldn’t be ideal, but she said the statewide policy imposed the “harshest penalty” local governments could establish anyway, which would “produce irreversible harm to thousands of people.” 

GonzĂĄlez argued the better path was to wait for 2024, when the Legislature could pass laws to tamp down any harmful bills local jurisdictions created in the interim.

However, while the ACLU pushed against the bill from the left, the Washington Association of Sheriffs and Police Chiefs (WASPC), some county prosecutors, and city mayors pushed from the right. Three House Republicans who voted for criminal drug possession to be a misdemeanor when the bill first passed through the chamber jumped ship and voted against the gross misdemeanor bill.

Unlike in the House, Senate progressives such as state Sen. Rebecca Saldaña (D-Seattle) said they’d planned to vote for the gross misdemeanor.

Still, Saldaña said, “Maybe it’s not the end of the world that we didn’t get a bill.” Better the state didn’t go on record saying it planned to keep criminalizing addiction, she argued. 

She said she hoped voting down the bill would give people more time to consider that people with substance abuse disorders don’t need more criminal sanctions. “Addiction is the punishment,” she added.

Purpose Dignity Action Co-Executive Director Lisa Daugaard said that while House Democratic lawmakers may have hoped that tanking the gross misdemeanor could result in a better law, Republicans and conservative Democratic lawmakers may have realized a statewide policy might not help them carry out their aims. 

“If you can pass stricter laws on the local level, why step into the constraints of a state law?” Daugaard said.

She acknowledged the state was far from enacting a good policy at this point, but she expressed concern about what happens when local governments set drug policies. A lot of people still believe the way to get people into treatment is to incentivize them with the threat of criminal sanctions, which is demonstrably false, she argued. If a lot of separate local governments take that approach, “life becomes pretty miserable for people who use drugs.”

What Happens in Seattle?  

If the state misdemeanor drug possession law expires, it would decriminalize drug possession at the state level. Seattle and King County don’t have local drug possession ordinances, so local lawmakers would need to pass laws to criminalize it if they want to take a carceral approach to addiction. 

The King County Prosecuting Attorney’s Office is responsible for prosecuting simple drug possession in Seattle. Spokesperson Case McNerthney said the office is waiting to see what happens at the state level.

On Wednesday, King County Council Vice Chair Reagan Dunn introduced legislation to make public drug use a misdemeanor in King County. He said he planned to introduce the bill to the King County Council’s Law, Justice, Health and Human Services Committee at a later date. Committee Chair Girmay Zahilay’s office did not provide comment on the proposal. 

The Seattle City Council and the Mayor aren’t likely to pass a misdemeanor drug law, said one source close to the Council. On Thursday, Seattle City Council Members Alex Pedersen and Sara Nelson proposed legislation to make public drug use in Seattle a misdemeanor. The council members modeled the law after a similar one in Bellingham. City Attorney Ann Davison said she supported the legislation. However, the law will likely go to Council Member Lisa Herbold's committee, and Herbold said she wouldn't consider a local Blake fix while a workable compromise on the state level remained possible.

City Attorney Ann Davison did not return a request for comment. Mayoral spokesperson Jamie Housen sent us straight to voicemail.

However, other cities are salivating at the chance to start their boutique drug wars. On Tuesday, the new law in Bellingham took effect, which made public drug use a misdemeanor punishable by up to 30 days in jail. When the Bellingham City Council passed the law, Bellingham Police Chief Rebecca Mertzig told council members police still wouldn’t book people into the city’s overcrowded jail. Lakewood passed a similar law earlier this year. Some South King County cities also created workarounds to criminalize drug possession without conflicting with state law requiring police to refer people for treatment twice before arresting them. 

Even with the flurry of cities preparing for the possibility of passing their own drug laws, State Senator Manka Dhingra (D-Redmond) is hopeful people will come to realize state resources are essential to combating substance abuse in local communities. 

“In a few weeks people will gather back together with the intent to solve this problem. I do have faith in my colleagues to get this done,” Dhingra said.

Hannah and Rich helped with a little reporting.