Drug possession laws and the aftermath of State v. Blake

Friday, June 9, 2023
An image of a finial on a pillar of a courthouse
Since the Washington Supreme Court decision in State v. Blake in 2021, the state’s approach to drug possession has been front of mind for Washingtonians. The ruling gave the Legislature the opportunity to reconsider 50 years of failed drug policy and find a path forward that will better serve our communities.

Before the Blake decision, drug possession for one's own use was a felony that carried a standard sentence range of 0-6 months for the first three offenses, assuming no other criminal history. Comparing demographic data regarding who uses drugs with who is arrested and charged for using drugs in our state reveals that drug law enforcement disproportionally saddles Black and Indigenous people with criminal records that erect barriers to employment, housing, and full enjoyment of civil liberties and rights. When the Court struck down Washington’s strict liability possession statute for violating state and federal due process rights, it also acknowledged that making drug use a criminal matter "has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard."

The effect of the ruling was that we would have no state law making simple possession of drugs a crime unless the Washington state Legislature recriminalized it, which it did with the passage of ESB 5476 three months later.

ESB 5476 made possession crimes misdemeanors, which carry a maximum penalty of 90 days, with mandatory diversion to services for the first two occasions. This law was a placeholder, set to expire on July 1, 2023, to allow a new Substance Use Recovery Services Advisory Committee (SURSAC) to provide recommendations to the Legislature, including what criminal laws, if any, should be part of Washington’s strategy going forward. SURSAC, a 28-member panel of healthcare, substance use disorder, recovery, and law enforcement experts convened by the Washington State Health Care Authority, released its recommendations in early January, which included decriminalization of possession, creation of a safe supply working group, and expanded access to recovery services.

The ACLU-WA entered the 2023 legislative session with hope that legislators could be persuaded to look beyond the War on Drugs, lean into the SURSAC recommendations, and choose solutions proven to save lives rather than derail futures.

On February 6, 2023, the Senate Law & Justice Committee heard four bills proposed to replace the criminal provisions scheduled to expire July 1. One of those bills, SB 5624, would have implemented the recommendations of SURSAC and decriminalized possession of drugs for personal use. However, the three other bills all proposed new criminal penalties, including SB 5536, the only bill of the four to advance.

The ACLU-WA and community partners mobilized to advocate for an agenda that followed the SURSAC recommendations and emphasized a science-based, public health approach to substance use disorder. Before any bill moved, 39 community organizations across the state delivered a letter to members of the Senate Law & Justice Committee asking them to “pass legislation that codifies the recommendations adopted by the … SURSAC.” Over the course of session, 835 individuals and organizations signed in to vote against SB 5536 in the Senate Law & Justice Committee, 701 in Senate Ways & Means, and 850 in the House Community Safety, Justice, and Reentry Committee.

Ultimately, the House and Senate separately passed two versions of the legislation and could not reach agreement. Two days before the end of the regular session, they appointed three legislators each to a conference committee tasked with negotiating a compromise. The compromise was reported the evening of April 22, and on April 23, the last day of session, was brought to the floor of the House for an up-or-down vote. The vote failed, and the legislature adjourned without having passed a new law criminalizing drug possession.

Gov. Inslee had already gone on record as not supporting decriminalization, and he and several state and local elected officials found the failure to put new penalties on the books intolerable. On May 4, Gov. Inslee issued a proclamation calling for a special session to address this sole issue.

After three weeks of negotiations, in a one-day special session on May 16, the Legislature voted to establish harsher criminal penalties for drug possession than had existed under ESB 5476, making possession a gross misdemeanor with a maximum sentence of 180 days for the first two offenses (identical to the 6-month top of the pre-Blake felony range) and up to 364 days for subsequent charges. The bill is projected to add 12,000 new cases to Washington's courts each year at an annual cost of $46.3 million. An additional $9 million was appropriated for new public defense resources to handle the load. This marks a huge step backwards in Washington’s fight for fair and effective drug laws.

The data and evidence have never supported criminalization as a solution to the public-health crises of substance use disorder and the opioid epidemic. That approach has and will continue to fail and will only funnel more people of color and poor people into our criminal legal system. The War on Drugs has always been profoundly racist, with communities of color bearing the brunt of the impact of discriminatory enforcement of drug laws.

We cannot punish people into recovery. In the interim, we will continue this work with our community partners and directly impacted people to advocate for drug policy that centers investment in our communities and in public health resources. The ACLU-WA remains staunchly in support of treating public health problems with public health solutions and decriminalization of drug possession.

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