SEATTLE – Democratic and Republican leaders in the Washington Statehouse reached a tentative deal on a major new drug policy Monday, one that would avoid making the state the second to decriminalize the possession of controlled substances.
Lawmakers will consider the compromise Tuesday when they return to Olympia for a special session. Gov. Jay Inslee called them back after they failed to pass a new drug policy before adjourning late last month.
Under the deal, intentional possession or public use of small amounts of illegal drugs would be a gross misdemeanor, punishable by up to six months in jail for the first two offenses and up to a year after that.
But police and prosecutors would be encouraged to divert cases for treatment or other services, and the measure provides millions of additional dollars for diversion programs and to provide short-term housing for people with substance use disorders. Prosecutors would be allowed to ask courts to end pretrial diversion in cases where the defendant fails to make substantial progress.
A temporary, 2-year-old law that makes intentional drug possession illegal is due to expire July 1. So unless the compromise passes, drug possession — even of fentanyl and other dangerous opiates — will become decriminalized under state law. The only other state that's tried decriminalizing drug possession is neighboring Oregon, where the experiment is off to a rocky start.
Lawmakers on both sides said the agreement strikes a balance between compassion and accountability for those struggling with substance abuse disorder. Rep. Roger Goodman, D-Kirkland, called it "a fair compromise that addresses urgent concerns about public disorder but follows evidence-based practices in helping people in need.”
Both Goodman and Republican Rep. Peter Abbarno, of Centralia, said much work will remain even if the compromise is approved, because even with additional funding, the state doesn't yet have the treatment or diversion program capacity it needs to deal with the addiction crisis.
"The state of Washington is a decade behind in having treatment providers and having adequate bed space and treatment facilities,” Abbarno said. “Even when we pass this policy, we’re still not going to see an immediate drop in crime or substance abuse, because we don’t have the workforce development and infrastructure to deal with the off-ramps that this bill creates.”
In 2021, the Washington Supreme Court struck down the state law making drug possession a felony. It was unconstitutional, the court said, because it did not require prosecutors to prove someone knowingly had the drugs. Washington was the only state in the country without that requirement.
In response, lawmakers made intentional drug possession a misdemeanor and required police to refer offenders to evaluation or treatment for their first two offenses — but there was no obvious way for officers to track how many times someone had been referred, and availability of treatment remained inadequate.
Lawmakers made the measure temporary and gave themselves until this July 1 to come up with a long-term policy.
But as this year’s session ended late last month, a measure billed as a compromise was voted down in the Democratic-controlled House 55-43.
The standstill put lawmakers against a ticking clock to pass a compromise before that temporary law making possession of small amounts of drugs a misdemeanor expires in July.
Without a major new drug measure passed in Washington, cities and counties would be free to adopt their own approaches to drug possession and paraphernalia, creating a patchwork of laws that could undermine efforts to treat addiction as a public health issue.
Under the agreement, the sale of drug paraphernalia, such as glass tubes for smoking fentanyl, is a civil infraction, but possession is not banned, and public health programs would be allowed to distribute such materials as well as test strips that can detect the presence of fentanyl or other substances in drugs.
Cities and counties would not be allowed to ban drug paraphernalia, but they would be allowed to regulate recovery residences or harm reduction programs such as those that provide methadone or other medication to treat addiction, in the same way that they can regulate other essential public services.
Republican Rep. Gina Mosbrucker, of Goldendale, called the tentative deal a “good compromise” that sets lawmakers up to send a new policy to the governor's desk within several days.
“This bill stops hard drugs in Washington from becoming legal, so I think it’s critical that we move forward,” Mosbrucker said. “That doesn’t mean we can’t have amendments and things that we don’t anticipate that might change that.”