Drug Possession: Washington Senate Says Make It a Gross Misdemeanor, After Supreme Court Strikes Down Felony Law


OLYMPIA — After an emotional debate that scrambled party lines and revealed deep divisions on how to treat substance use, the Washington Senate Thursday approved a bill to treat drug possession as a gross misdemeanor.

Senate Bill 5476 comes in response to the state Supreme Court's February ruling that struck down Washington's felony possession law.

Should the bill pass the full Legislature and get Gov. Jay Inslee's signature, it would bring back criminal penalties for possession. But instead of a felony, those instances would be treated as a gross misdemeanor.

But deep disagreements remain among lawmakers, who are scheduled to end their regular session on April 25.

The bill — whose original sponsor Thursday spoke out against the new version — now heads to the state House, where it meets an uncertain fate.

February's court decision invalidated felony convictions stretching back five decades and effectively decriminalized drug possession in Washington. The Seattle Police Department, for example, announced shortly after the ruling that officers would stop confiscating drugs, or arresting or detaining people, solely under the simple possession statute.

Since then, state lawmakers have struggled over how to treat controlled substances after a long-running war on drugs that many have acknowledged was a failure, and that had a  disproportionate impact on people of color.

Some senate lawmakers, including many Republicans and a couple of moderate Democrats, supported bringing back a felony possession law with tweaks so it passes constitutional muster.

Many Democrats, meanwhile, have seen the ruling as an opportunity to decriminalize drug possession for personal use and shift Washington more toward substance-abuse treatment.

Much of the debate on either side has focused on how to compel people with drug problems to get treatment, with some believing criminal penalties are necessary to force that to happen.

The proposal that passed Thursday satisfied neither ends of that political spectrum.

The version of SB 5476 that passed  brings back criminal penalties for possession.

It, among other things, also requires prosecutors to divert first- and second-time violations for possession of a controlled substance into drug-treatment programs. The bill then encourages diversions of later violations too, if a prosecutor agrees.

The bill passed on a vote of 28-to-20, with 14 Democrats and 14 Republicans supporting it.

Perhaps the most striking example of that fractured dynamic was the "no" vote by the bill's original sponsor, Sen. Manka Dhingra, D-Redmond.

"The Supreme Court did provide us with an opportunity ... to really think about what we as a state and as a nation have been doing in regards to the war on drugs," said Dhingra in a floor speech. "To really think critically of the impact that this has had, very, very specifically, on brown and Black families."

State data, Dhingra said, showed that people offered drug treatment outside the criminal system, overwhelmingly accepted it and had successful outcomes.

She likened that process to an "A" grade — and called the criminal legal system's drug treatment approach a "C."

"I have higher expectations for my family, for my children and for this state," Dhingra added. "I would like us to adopt a policy that is grade A, and that is not what we're doing today."

Republican Senate Minority Leader John Braun of Centralia, meanwhile, voted in favor of the bill. In an emotional floor speech of his own, he told of a recent suicide attempt by a nephew who has struggled with drugs.

"We need a way, his parents need a way, to get him help that will stick," said Braun. He said he didn't agree with everything in the bill, but called it "a very balanced approach."

Braun also acknowledged that "the war on drugs has not served us well, we aren't getting it right and people are suffering."

Dhingra's original bill would have made it a gross misdemeanor for someone under the age of 21 to be in possession of a controlled substance.

Then, it would have set legal thresholds for the possession of different types of drugs, according to a legislative analysis of the bill. For example, someone could possess as much as 40 units of LSD or one gram of heroin.

People with legal amounts would be connected with workers known as forensic navigators, who provide resources for recovery and treatment services.

For amounts above those personal-use thresholds, her proposal would have reinstated the felony possession law.

It's unclear what House lawmakers will think about the new version of SB 5476. Even though Dhingra's original proposal had decriminalized drugs at certain amounts, her bill had already been considered too moderate for some House Democrats.

On Thursday, House Democrats introduced their own proposal, House Bill 1578, which focuses on expanding for statewide drug treatment.

That bill also creates thresholds for drug possession, said co-sponsor Rep. Tarra Simmons, D-Bremerton. People possessing under a certain amount would get a civil infraction, she said, while possession above the set thresholds would face a gross misdemeanor violation.