Why a drug decriminalization crisis looms for Washington state lawmakers

If a new law is not passed, Washington would become the second state in the U.S., after Oregon, to decriminalize possession of personal-use amounts of drugs, even as widely available and cheap fentanyl worsens an opioid crisis defined by open drug use and soaring overdose deaths.

Here’s what to know about the crisis.

The Washington Supreme Court in 2021 struck down a state law making drug possession a felony. It was unconstitutional, the court said, because it did not require prosecutors to prove that someone knowingly had the drugs. Washington was the only state in the country without that requirement.

In response, lawmakers passed a temporary measure giving themselves two years to build a long-term policy.

That temporary measure made intentional drug possession a misdemeanor and required police to refer offenders to evaluation or treatment for their first two offenses. There was no obvious way, however, for officers to track how many times someone had been referred, and availability of treatment remained inadequate.

WHAT HAPPENED IN THIS YEAR’S SESSION

As this year’s session ended late last month, Senate Bill 5536 — billed as a compromise — was voted down in the Democratic-controlled House, 55-43.

The law would have done the following:

— Increased potential penalties for drug possession, making it a gross misdemeanor punishable by up to a year in jail, rather than a misdemeanor punishable by up to 90 days.

— Eliminated the requirement that police refer a person for treatment rather than prosecution for the first two offenses. Officers could then arrest someone for a first offense, while also encouraging police and prosecutors to divert cases.

— Allowed judges to impose jail time for people who refuse treatment or repeatedly fail to comply.

— Made clear that public health workers could not be prosecuted for giving out drug paraphernalia, such as clean glass tubes for smoking fentanyl.

— Included funding for drug crisis centers; a pilot program for access to clean drug paraphernalia and other services; and more access to withdrawal medication in jails and prisons.

WHAT’S THE CURRENT CONFLICT?

Many liberal Democrats have objected to criminalizing drugs, while conservative Democrats and Republicans insisted on a threat of jail to provide incentive for people to enter treatment.

Democrat and Republican lawmakers agree on the need to increase services, but Republicans felt the bill didn’t provide enough accountability for offenders and would preempt local bans on drug paraphernalia, among other things.

WHAT ARE LAWMAKERS DOING?

The special legislative session beginning Tuesday gives lawmakers another chance to reach an agreement.

If a new measure is not passed before the temporary drug law expires, cities and counties would be free to adopt their own approaches, creating a patchwork of laws that could undermine efforts to treat addiction as a public health issue.