As Blake Decision Expires, New WA Drug Law Ushers in Two-Tier System

    On July 1, as Washington State’s embattled “Blake decision” expires, a new drug possession law takes effect. After a winding path through the state legislature, Senate Bill 5536 will make both possession and public use of illicit substances a gross misdemeanor, and allocate considerable resources to coercing people into treatment. At the same, it creates a separate system for non-prescription possession and public use of pharmaceuticals.

    The bill also has far-reaching implications for a number of other areas of Washington drug policy. Mobile methadone units will receive more funding, with an explicit goal of being more accessible to more rural areas. Methadone clinics will be considered essential public facilities, Washington’s designation for sites that provide necessary services but which, for one reason or another, are difficult to match to suitable locations. Shelters are essential public facilities; so are airports.

    But many of the bill’s provisions are ambiguous in terms of whether they’ll expand or restrict access to harm reduction services. And what’s very clear is that way it criminalizes possession is meant to target people living in poverty, and further deputize health care providers to keep them trapped in the criminal legal system.

    The only reason for prosecuting possession as a gross misdemeanor at all is to coerce people into “choosing” treatment.

    The 2021 Blake decision struck down felony drug possession, ruling it unconstitutional to convict someone of such charges without even demonstrating that they knew the drugs in question were in their possession. Ideally, drug possession would have been decriminalized outright. Instead, the temporary law compelled police to refer people found in possession of illicit drugs to treatment services on the first two encounters. On the third, they could be charged with a simple misdemeanor.

    Starting July 1, though nonprescription possession or public use of pharmaceuticals remains a simple misdemeanor, possession and public use of illicit and thus more stigmatized substances, is a gross misdemeanor. Many of us who are currently incarcerated jokingly refer to that charge as “a light felony”—it’s punishable by up to 364 days in jail.

    Going forward, when someone is arrested for possession or public use of illicit drugs they’ll face a choice. Door #1 is prosecution of the gross misdemeanor charge, punishable by up to six months in jail or up to a year if it’s their third arrest. Door #2 is “diversion” from incarceration by way of drug treatment. They have to choose which door without knowing how much time they’d get or what kind of treatment facility they’d be sent to.

    So the people who can afford the comfortable, non-carceral facilities can be relatively sure that Door #2 is for them, even though it requires a full 12 months of “compliance.” The people who can’t afford private facilities, meanwhile, know that what awaits them in drug treatment is potentially worse than a short stay in jail.

    People who buy and use drugs in public often do so because they don’t have anywhere private to go.

    But the language of the new legislation makes clear that the judge and prosecuting attorney are meant to funnel people into treatment. Everyone currently or formerly incarcerated on drug charges knows how this is going to go. If you choose the conviction route, the judge interprets it as refusing treatment, and you’re going get the max jail time. And that’s the point. The only reason for prosecuting as a gross misdemeanor at all is to coerce people into “choosing” the treatment route.

    People who buy and use drugs in public often do so because they don’t have anywhere private to go. This law targets the people who use street supply drugs and not pharmaceuticals, the people who would be sent to public treatment centers rather than private ones, the people who can’t afford lawyers. All of it just keeps them in the system longer.

    “This has been a longer period than many bills to get to my desk,” Governor Jay Inslee stated when he signed the bill into law. “But I do believe this process produced a better bill.”

    It’s hard to imagine that sentiment being echoed by anyone who will be on the receiving end.



    Photograph of mobile methadone unit via New York Governor Kathy Hochul

    • Jonathan covers harm reduction and re-entry. He’s incarcerated at Washington Corrections Center, where he’s a Teacher’s Assistant for re-entry workshops and trains peer educators in HIV and hepatitis C harm reduction. His writing has been published by the AppealTruthoutJewish Currents and the Seattle Journal of Social Justice. His Washington State Department of Corrections ID is #716850, and until WDOC corrects a 29-year-old paperwork error his name in Securus is “Jonathon.”

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