After a daylong special session on Tuesday, Governor Jay Inslee signed a new deal to reboot Washington’s war on drugs. The legislation increases criminal penalties for drug possession, creates a new criminal offense for public drug use, gives prosecutors more power to direct people to jail rather than to diversion programs, allows cities and counties to ban harm reduction services, and adds barriers to siting drug treatment facilities. 

The legislation sailed through the House and Senate, passing with wide margins and bipartisan support. Now, lawmakers hope the millions attached to the bill for addiction treatment will be enough to prevent county jails from overflowing with new drug possession cases. Due to staff shortages and overcrowding, the state’s jails currently have some of the highest death rates in the country, according to reporting by the Seattle Times.

Starting July 1, the penalty for carrying a drug or using a drug in public will increase to a gross misdemeanor. Though that charge typically carries a maximum penalty of 364 days in jail, the max sentence for a person’s first and second offense for either crime will be 180 days. For any subsequent offense, the judge can sentence a person to the full 364 days. The bill will always limit the fine to $1,000.

The new law will replace a stopgap measure the Legislature passed in 2021 after the state Supreme Court struck down the old felony drug possession law as unconstitutional in State v. Blake. That stopgap law made drug possession a misdemeanor and required police to refer a person to treatment at least twice before arrest. 

During debate on the Senate floor, Senate Minority Leader John Braun blamed that law for increasing drug overdoses in Washington, even though the state’s numbers match nationwide trends

Treatment-Flavored Criminal Justice

The vote was a culmination of more than four months of Republicans and conservative Democrats pushing for more punitive interventions for people with substance abuse disorder, despite the objections of more progressive members in both chambers. On the final day of the regular session, progressives in the House voted down a bill similar to the one passed Tuesday.

After that failure, Inslee announced he would call a special session to settle on a statewide drug possession policy. While the legislative path forward wasn’t clear, progressives tried to entice their colleagues into an all-Democratic bill.

But as I previously reported, some Senate Democrats believed a bipartisan bill would force Republicans to take some shared accountability for the law, thereby saving Dems from a full political hit when drug addiction issues inevitably persist after lawmakers create new and harsher criminal penalties without first standing up full-scale drug treatment and recovery systems.

Those Democrats got what they wanted. During the floor speeches Tuesday everyone had something negative to say about Senate Bill 5536–the most positive word used was “implementable”–but Republican leadership gave the bill their full support, touting the many “improvements” their caucuses had made to it.

Republicans convinced the Democratic majority not to interfere with communities that ban needle exchange programs, prevented new health hubs from serving people under 18 years old, stopped recovery residences from serving sober individuals alongside people curbing their drug use, and required the Washington State Department of Health to tell the media before licensing an opioid treatment provider (OTP) in a community.

Minority Leader Braun promised the public would start to notice progress on public signs of drug use quickly, because the bill allowed law enforcement and prosecutors to immediately engage people with drug addictions. The bill wouldn’t result in an uptick in the length of jail stays but in more people going to treatment, he argued.

“If all we see out of this is more jail days, we’ll need to rethink,” Braun said.

The Progressive Scraps

Studies show that addressing addiction through the criminal justice system is ineffective and counter-productive. In an interview after the vote, Inslee argued that those studies were based on policies with inadequate provisions that don’t reflect Washington’s plan to provide treatment “big time” across the state, he said.

However, during floor debate lawmakers stressed that the state does not have the resources to meet the needs of all the people the bill will attempt to squeeze through treatment or jail facilities. Though the “option” for treatment is technically available prior to arrest, after arrest, and before trial, that option won’t always be, well, implementable. 

In the three weeks of negotiation before the special session, lawmakers also secured about $20 million in additional funds for youth services, public defense, short-term housing vouchers, and Law Enforcement Assisted Diversion.

The bill also included funding for the overburdened Washington State Crime Lab, which is about to be flooded with requests from law enforcement seeking confirmation of small amounts of drugs, which will probably contribute to the current backlog. 

In total, the bill will cost about $63 million, including $5 million for arrest and jail alternative programs, $4 million for the Washington Health Care Authority (HCA) to create a health engagement hub pilot program, and $3.8 million for HCA to increase the number of mobile methadone units, fixed medication units, and OTPs. 

State Rep. Lauren David (D-Shoreline) pointed out that, despite funding OTPs, the media notice requirements for licensing providers will be a huge barrier to building up resources. She cited an OTP in Federal Way that was disbanded after “NIMBY pushback” and political pressure.

State Senator Yasmin Trudeau (D-Tacoma) said the state doesn’t have the infrastructure to do the treatment promised in the bill. 

“We have so much work to do beyond this bill to actually achieve anything that’s in it,” Trudeau said.

Still, she voted yes.

After rejecting the bill proposed at the end of the regular session, progressives won an 184-day reduction in the maximum jail sentence.

“It’s a bad policy, but it was destined to be much worse,” said Rep. Nicole Macri State (D-Seattle). 

Macri voted against the bill.

On Wednesday, Seattle City Council members Sara Nelson and Alex Pederson introduced legislation to allow the Seattle City Attorney to prosecute the new gross misdemeanors of public drug use and drug possession. Since the stopgap law passed in 2021, the King County Prosecuting Attorney's Office was responsible for charging drug possession and could continue as the sole office responsible for those cases if Seattle did not adopt its own ordinance.