It’s been six weeks since the state Supreme Court struck down the Washington law that makes simple drug possession a felony.
That ruling, known as the Blake decision, threw a curveball at the criminal justice system — where county prosecutors are now busy getting people out of jail and vacating convictions as a result — and reignited a dialogue on the benefits of treating, not jailing, those with substance use disorder.
Across the state, county prosecutors are endeavoring to get those arrested under the now-defunct law released from custody and charges tossed. They are moving to re-sentence those behind bars whose sentences need recalculating because a drug possession conviction had made it longer.
Gov. Jay Inslee is also helping speed the release of people from state prison by granting them clemency. On Friday, he commuted the sentences of seven men — three from Grays Harbor County and one each from Pierce, Stevens, Columbia and Asotin counties — who had been in custody solely because of a conviction under the invalidated statute.
That number may grow in coming days. Inslee’s staff is working with the Department of Corrections to identify eligible inmates and provide them a petition for clemency. This course of action — which Corrections officials expect to affect as many as 35 people — is in lieu of making those prisoners wait to be re-sentenced.
This jolt to the criminal justice system stems from a 2016 case in which a Spokane woman was convicted on a simple drug possession charge, a felony, stemming from the discovery of a small bag of methamphetamine in the coin pocket of her jeans. She said the jeans had been given to her by a friend and she did not know the narcotics were there.
Justices invalidated the law, concluding it improperly allowed authorities to take “innocent and passive conduct with no criminal intent at all” and punish it as a serious crime.
As prosecutors respond to the rigors of the new reality created by the February ruling, they also are looking to state lawmakers for help. And quickly. They want the state’s commitment to cover counties’ costs of resolving cases, some dating back decades, and any refunds of fines paid by those whose convictions are erased. And they want clarity on the rules for dealing with those seen possessing controlled substances. Arresting them isn’t possible right now. In some cases, neither is getting them into treatment.
“This situation is purely untenable from a public safety and public health situation,” Snohomish County Prosecutor Adam Cornell said. “We are in this purgatory that is absolutely no good for anybody.”
A legislative response, Senate Bill 5476, received a public hearing in the Senate Ways and Means Committee Monday. It is sponsored by Sen. Manka Dhingra, D-Redmond, a King County prosecutor.
One piece — it’s most controversial — sets out what those 21 and older can possess for personal use without fear of arrest. Under the bill, those amounts include up to 40 units of methadone, 40 pills of oxycodone, 1 gram of heroin, 2 grams of cocaine, 2 grams of methamphetamine, 40 hits of LSD or 12 grams of magic mushrooms. Persons nabbed with greater amounts in their possession could face a felony possession charge.
As written, it would be a gross misdemeanor for those under 21 to possess any amounts of narcotics. Prosecutors want changes to make it a felony for juveniles to possess larger quantities, in line with the rules for adults.
“It’s important that they re-criminalize possession of drugs for juveniles,” Island County Prosecutor Greg Banks said. “Right now high school kids can bring a kilo of heroin into schools. It might violate school policy but it is not a crime.”
Another element would encourage law enforcement officers to connect those they encounter with legal amounts of narcotics with needed services. Essentially it would establish on a statewide basis the approach of the Law Enforcement Assisted Diversion, or LEAD, program now deployed in parts of Snohomish and King counties.
“Prisons and jails do nothing to address substance abuse disorder,” Victor Mendez, a recovery coach with Family Health Centers in Omak, told lawmakers at a recent hearing. “Drugs are going to be around, so we need to invest in community-based care programs that will help people, rather than marking people with a felony or misdemeanor (conviction) for the rest of their lives.”
The bill would create an account from which the state can cover costs of counties and courts complying with the decision
Issues raised at last week’s hearing prompted Dhingra to make some revisions. Her amended version was in front of the Ways and Means Committee on Saturday for action.
So too were amendments from three Republicans and one Democrat to axe the provisions legalizing possession of drugs for personal use. Other changes they proposed would restore criminal penalties by making it a crime to “knowingly” possess a controlled substance. And there were amendments to set up a legislative work group to consider the broader impacts on the criminal justice and behavioral health systems.
In the end, the Democrat-led committee took no action. Instead, it punted the bill to the Rules Committee where it can be moved directly to the Senate floor and the debate carried out there.
“It is extremely difficult policy. It is complicated policy and it’s also politically tricky. A solution to it is going to be challenging,” said Sen. Christine Rolfes, D-Bainbridge Island, the committee chair.
Senate Minority Leader John Braun, R-Centralia, said he doesn’t support the bill in its current version. But he voted to send it to Rules to keep the process on track.
“It’s important we address this issue before the end of session, to find a solution that works for all of the state of Washington,” he said.
Earlier in the week, as Dhingra worked on the revisions, she acknowledged it’s going to be a heavy lift.
“I don’t know what the final version of the bill will look like, I just wanted to be sure I had a reasonable proposal out there,” she said. “We have to get a bill out of the Legislature.”
Rep. Lauren Davis, D-Shoreline, one of six House Democrats working on a legislative response to Blake, is in frequent contact with Dhingra.
Davis views the Blake decision as “an incredible watershed moment” to invest in services needed by those with substance use disorder.
She wants a blueprint for expanding and delivering services either added to the bill or put in the budget. She can graft one from her own legislation, House Bill 1499, which the House considered earlier in the session. It blended decriminalizing drug possession with the creation of a sweeping statewide system for helping those with drug addiction.
“We need to build up robust, meaningful, statewide diversion options so we can get these people into services,” she said.
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