The Washington State Senate replaced the original drug decriminalization bill with a revised version that will reinstate criminal penalties for drug possession.

On Wednesday, a House panel again revised the proposal to slightly downgrade the penalty to a simple misdemeanor.

The amended bill was approved by the House Appropriations Committee in an 18-14 vote. It is expected to be debated, along with more amendments, on the House floor later this week. If the full chamber passes the legislation, it will need to be approved by the Senate again. This will all need to occur before the legislative session ends on Sunday.

During Wednesday’s committee hearing, Rep. Eileen Cody (D) said “I think it’s evident, after discussion on the amendments, that the direction we want to take now is not that same direction that we have had in the past, that we want to treat rather than incarcerate.”

“The bill that is now before us adds a lot of meat to the bone on treatment and how we are going to move forward as a state. I hope that we can be a model that will see this happen across the country,” Cody said.

The Aftermath of Blake Ruling

Both parties agree that it is vital to send a bill to the governor’s desk to replace Washington’s now-invalidated felony law against drug possession. The state Supreme Court struck down the law back in February. As a result this decision immediately halted arrests and prosecutions for drug possession. It has also freed dozens of people incarcerated on drug possession charges.

Since February lawmakers have introduced several bills to replace the old one. Some have proposed reestablishing the past felony penalties, some wanted to end penalties entirely, focusing on assessment and treatment options.

The bill that was introduced on the Senate floor would have decriminalized possession of small amounts of drugs. But the Senate adopted an amendment during the debate that will impose a gross misdemeanor charge. This charge will carry penalties of up to a year in jail along with a max fine of $5,000.

House Makes Amendments

The House committee approved an amendment to the bill on Wednesday. It was introduced by Rep. Cody and will replace the gross misdemeanor with a simple misdemeanor. This charge carries up to 90 days in jail and a $1,000 fine.

Lawmakers pointed out that in some cases a gross misdemeanor could lead to longer sentences than the original felony-level possession charge. This all depends on how state sentencing guidelines are structured.

Like the bill passed in the Senate, the House-amended legislation will require that law enforcement divert a first- and second-time offender caught with controlled substances to behavioral health services. Any other violations could also be diverted subject to a prosecutor’s approval.

The amendment will also expand statewide treatment and recovery services. Lawmakers on both sides support focusing more on treatment than incarceration to address substance use.

Another notable change in the amendment will have criminal penalties set to expire in mid-2023. Possession will drop to a Class 2 civil infraction; this carries a $125 fine and no possible jail time. People will have the option to avoid the fee if they complete a behavioral health assessment within 30 days.

Lawmakers Concerns

Republicans brought up concerns about the bill’s diversion provisions creating promises that some counties cannot keep. The bill was unclear whether there will be funds pledged to expand services and staff treatment and recovery facilities.

“I question whether or not that has been totally worked through,” Rep. Joe Schick (R) said. “For those areas that have the counseling, great… but we don’t have that everywhere, and I am really concerned about that.”

Lawmakers defeated two amendments that would have replaced the old drug felony law with a similar one. Democrats said those proposals would be a step backward.

“I think we can all agree that our current policy of a felony and incarcerating individuals is a failed policy. We have lost the war on drugs,” said Cody. “To try and continue the same thing is just inexplicable.”

Rep. Roger Goodman (D) said he would like to see criminal penalties removed completely for drug possession. But they have to keep in mind that the Senate will also have to pass whatever proposal they create. Getting enough votes in the Senate has to be part of the calculation.

Moving Forward

From now until mid-2023 a state workgroup is going to study drug policy with a focus on decriminalization and behavioral health. Lawmakers will need to act on recommendations from the group in 2023. If the legislature fails to act by the mid-2023 deadline, simple possession will automatically downgrade to a civil infraction.

“There’s going to be a sunset on this,” Goodman said. “It’ll expire in the middle of 2023, and at that point we will have analyzed what the needs are, where the gaps are [and] how this new regime is functioning. And if we can demonstrate, which I believe we will, that the therapeutic approach is more effective than the punitive approach, then we will proceed further, and may even reduce the penalty below a misdemeanor or even to something like what they’ve done in Oregon, where there’s not even the possibility of a criminal conviction.”– original quote

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