A year after Washington's 'Blake fix,' arrests increase but drug treatment remains lacking

April Kelly spent years in and out of jail because of her addiction. Her health suffered, she lost contact with family and eventually ended up homeless. None of it was enough to make her quit.

“They talk about reaching your bottom,” she said, “but it didn’t matter what I lost or how alone I was. I could keep going deeper.”

What ultimately got her into treatment was the threat of serious incarceration. Following multiple months-long jail stints, Kelly was caught driving on a suspended license. Officers found drugs and guns in the car.

Staring down a four-year prison sentence, she requested to enroll in Kitsap County’s Drug Court, a diversionary treatment program for people facing criminal prosecution. Now married, studying to be a veterinarian and an active member of the drug court’s alumni group, Kelly says her arrest and its consequences were the catalyst to sobriety.

“My first motivation for drug court was just that I wouldn’t have to go to prison for four years,” she said. “Maybe the outcome would be I’d change my life, but I really didn’t think I’d be successful.”

Kelly’s arrest came when drug possession was still a felony in Washington, years before a state Supreme Court case known as the Blake Decision. That landmark ruling threw out the state's drug possession law and had Washington legislators spend the next three years debating the best approach to regulating drug use.

For two of those years, state-police operated under a temporary law, taking a mostly hands-off approach and making few arrests. But under the “Blake Fix,” new legislation that took effect last July, police across the West Sound report they are again enforcing drug possession penalties.

In some ways, the law is a return to the status-quo, giving authority to the police to make arrests and raising the penalty for drug possession. Yet it retains softer penalties for drug use than what had been the norm in Washington prior to 2021 and puts a greater focus on jail alternatives.

Across the West Sound there is a general consensus, including among law enforcement, that arrests alone are not enough to solve the region’s drug crisis. But as overdoses continue to rise without sufficient behavioral health infrastructure, officials say police intervention remains one of the few options available to reach people, especially on the street, struggling with addiction.

“This new law is not a return to the War on Drugs. It is really us trying to help people into treatment,” said Kitsap County Prosecutor Chad Enright. “It is not going to solve everything. It will help some people, but for other people they’ll need something else.”

How a court case changed enforcement of Washington's drug possession laws

When the Washington Supreme Court ruled the state’s drug possession law was unconstitutional in 2021, it left no law on the books and sent state legislators scrambling to draft a replacement.

The court threw out the possession law on the grounds that it criminalized, as a felony, the unknowing possession of a controlled substance. In their ruling justices wrote the law, as written, could penalize a mailman who delivers a package with illegal drugs or a person who shares an apartment with someone who has hidden drugs in the common area of the home.

“The possession statute at issue here does far more than regulate drugs. It is unique in the nation in criminalizing entirely innocent, unknowing possession,” Justice Sheryl Gordon McCloud wrote for the majority.

A year removed from nationwide calls demanding police reform, legislators adopted a temporary, two-year possession law. The bill reduced the penalty for possession from a felony to a misdemeanor and required police to refer people to treatment twice. Only on a third arrest could someone be prosecuted.

Law enforcement said the law, alongside other reform bills restricting use of force, effectively decriminalized drug use. The referral requirements in particular proved difficult to enforce, they said. The state created no system for tracking referrals. Many agencies, including Bremerton Police, relied on SECTOR, a statewide collision and traffic citation database to keep tallies.

Washington was just beginning to recover from the pandemic when the law took effect. Concurrently, law enforcement agencies were experiencing nationwide staffing shortages and, locally, police were adjusting to a flurry of new reform laws. The result was a dramatic drop in arrests for possession as overdoses – particularly from opioids – continued to climb.

In the three years leading up to the stop-gap law, Kitsap County law enforcement arrested roughly 300 to 400 people a year, according to data compiled by the Washington Association of Sheriffs and Police Chiefs. Under the new law, they reported just 56 arrests in 2021 and only 19 the next year.

Gig Harbor Police went from arresting an average of 24 people per year, over the same three-year span, to just two arrests in 2021, according to WASPC.

“Our ability to make arrests was severely curtailed,” said Poulsbo Police Chief Ron Harding.

There is now greater focus on drug enforcement compared to last year, he said. For all possession cases, they are encouraging prosecutors to write diversion agreements that send people to the North Kitsap Recovery Center, a treatment facility in Poulsbo.

“Having the ability to interject ourselves opens the door to talk about resources,” he said.

Arrests and criminal charges increasing a year since 'fix'

Between 2021 and 2022, Enright, the county prosecutor, said his office charged almost no one for simple possession, although was unable to provide specific numbers. The law at that time was almost unenforceable, he said.

About six months into 2024, the prosecutor’s office has filed 89 gross misdemeanor charges for simple possession.

Notably, none of those cases have gone to trial yet. The majority of defendants have accepted a pretrial diversion agreement, a contract where prosecutors dismiss charges if the accused gets a substance-use evaluation and completes its recommended treatment.

Kitsap County has been doing these agreements for decades, Enright said, but legislators emphasized their importance again as part of the Blake Fix.

When the stop-gap possession law expired, legislators adopted the Blake Fix as a permanent replacement. They raised the penalty for possession to a gross misdemeanor, criminalized public drug use and removed requirements for referrals prior to arrest.

A person guilty of a gross misdemeanor can be sentenced to up to a year in jail. The Blake fix reduces sentences to a maximum of 180 days for first and second offenses. That remains below the historic penalty for drug use in Washington prior to 2021.

Since the law’s adoption, police are saying anecdotally that there is greater enforcement of drug possession. Some are also reporting numbers that seem to indicate an uptick in arrests compared to last year.

Gig Harbor Police have seen drug possession cases remain “relatively static,” said Chief Kelly Busey. The city’s municipal court had 27 arraignments for possession in the last six months, he said. The department made seven arrests in 2022, all of those generally involved the selling of drugs or a minor in possession of marijuana.

Busey said outside of exceptional circumstances, officers generally do not book people into jail for a first-time possession charge.

“We issue them a citation and expect them to show up in court,” he wrote in an email. “We are finding that they rarely appear.”

Dating back to November 2023, slightly over a third of the 19 people who were not in police custody at the time of their arraignment failed to appear, Busey said. Of the seven who made a first appearance, he said, three – so far – did not arrive for their second hearing.

The Kitsap County Sheriff’s Office made over 140 arrests for the knowing possession of a controlled substance since last July, according to data provided by a department spokesperson.

Bremerton Police arrested 21 people for possession since last July, said Capt. Aaron Elton. They have also made 132 drug-possession related reports, most of which were referred to the prosecutors office for charging decisions, he said.

Compared to data from Crime in Washington, an annual report providing arrest numbers for all law enforcement agencies in the state, that shows an increase in arrests over last year.

The Kitsap Sheriff’s office made 71 arrests between 2021-2022, according to the report. Bremerton police made nine arrests in 2022 and 39 in 2021, according to the report. Data from 2023 is not yet available.

Elton said after seeing the rise in overdoses over the last several years, it's important that police are given the freedom to get involved if they see people who need help.

In 2022, there were 73 overdose deaths in Kitsap County, according to the State’s Overdose Dashboard. Opioids were involved in 57 of those. Preliminary data from last year found 51 people died from opioid overdoses in Kitsap, according to the Kitsap Public Health District.

In Pierce County, overdoses killed 346 people in 2022. Nearly three-quarters of those involved opioids.

“If there’s a chance to intervene I think law enforcement should be given the tools to intervene,” Elton said. “And if there’s a chance to divert that person from the criminal justice system by getting them into treatment or some other program I’m 100% a fan of that. Whatever we can do to decrease the number of drug overdose deaths.”

Drug treatment to avoid charges, but options still lacking

It is difficult to determine if arrests are corresponding with a rise in people seeking substance use treatment. But officials can say with certainty there is a shortage of treatment options across the state for people facing addiction.

One of the last times Elton was out on patrol, he engaged with a person in downtown Bremerton who needed substance abuse treatment. After a long conversation, the man agreed to accept care and allow Elton to drive him to a detox facility.

The closest available bed was in Chehalis.

“That’s a problem,” he said. “We’ve got somebody who’s finally made the decision to get treatment. We need something local. That goes for me in Bremerton and someone policing out in Omak. You need that option.”

The only medical detox center in Kitsap County is the Kitsap Recovery Center. The facility has 27 inpatient treatment beds and 9 sub-acute detox beds. When it is full, the closest similar facility is Tacoma Detox, a 32-bed facility in downtown.

Detox facilities are in high demand across the state. Patients in the West Sound sometimes get driven as far away as Eastern Washington, said Sara Marez-Fields, executive director of Agape Unlimited, a nonprofit substance use treatment provider in Bremerton.

“We’re losing people trying to take them out of county,” she said.

The Kitsap Recovery Center does not have acute detox beds, which provide care for those with severe addiction. Those beds are particularly valuable for opioid detoxes, like fentanyl, which tend to have more intense withdrawals, Marez-Fields said.

Around the time the temporary possession law was adopted, Agape’s service numbers dropped about 32%, Marez-Fields said. Still it remains unclear how much of that loss can be attributed to the temporary Blake law.

“We were pushing [clients] away during COVID at the same time Blake was happening,” she said. “It was challenging to get services during that period, so it’s really hard to tell if it was Blake or COVID.”

As things have changed, Agape has recovered 13% of that patient loss and are now serving around 150 people.

A majority of those clients come from court referrals, Marez-Fields said. Few are self referrals. Almost none of those patients have only a possession charge, most have committed other crimes like DUI or domestic violence.

In response to the Blake Decision, Kitsap also launched its REAL team, Marez-Fields said. The program created a team of street navigators with lived experience who are dispatched by police.

“When individuals couldn't pick up a charge for possession, the REAL team was dispatched to connect with these individuals to see if they wanted to access help,” she said. They are “out there getting people connected to services or knocking down some of those barriers from that initial law enforcement interaction.”

More work needed in regulating drug use

State Rep. Tarra Simmons, D-Bremerton, says the challenge with regulating and policing drug use is there is not a perfect solution available.

Simmons, the first formerly incarcerated person elected to the state Legislature, says she does not believe possession alone should be a crime. Criminal records don’t go away easily and incarcerating people with behavioral health issues like substance abuse is costly and often makes things like getting jobs or housing more difficult.

Yet as things currently stand, there are few alternatives to help people facing addiction outside of involvement in the criminal justice system, she said. The state has to build something new, an intensive and expensive undertaking.

Until there is a more robust system of behavioral health access, more therapists, affordable housing and a host of other services, “the political will isn’t there not to put people out of sight,” she said.

Putting drug use at a gross misdemeanor, Simmons said, is in some ways more humane than what the state had been doing. But she says she doesn't know if it is diverting more people into treatment.

“Although I haven’t seen the data,” she said, “I doubt much has changed because we haven’t built what we really need.”

Steve Strachan, executive director of the Washington Association of Sheriffs & Police Chiefs and a former Bremerton Police Chief, said the new possession law is the return of a tool. He called it a significant improvement over the temporary law.

Law enforcement do not want to go back to the old days of arrest or leaving people on the street, he said. They want more investments in health care and treatment, in addition to the capacity to intervene and keep people safe.

“It shouldn’t be acceptable for people to die on the street. It’s not compassionate,” he said. “The answer isn't to lock them all up. The answer isn't to leave them alone. The answer is what are you going to do with this middle ground to make a difference.”

What criminal penalty really leads to change?

Whether putting drug possession at a gross misdemeanor level is an appropriate punishment, many say, is still unclear.

Marez-Fields and Enright say they are unsure. Harding and Elton say it might be better at a felony level to incentivize treatment. Some members of the Kitsap Drug Court Alumni group also advocate for a stronger consequence.

“If I didn’t have years of prison time over my head and felony charges already on my record, I would have never gotten help,” said Stephanie Hall, a drug court grad who is now seven years sober. “No addict is going to sit in jail for a week and go ‘today, I’m going to get clean.’ That’s not what we do.”

Busey says he thinks the new law is appropriate, at least for first-time offenders.

“Drug addicts don’t belong in jail, but they need to be incentivized to seek meaningful treatment,” he said. “In the long run, it's better for the person and less expensive for the public.”

Strachan says he probably would have preferred a felony, too, partially for the practical effect it has had on the court system.

Felony cases are typically tried at the Superior Court-level. Since drug possession is a gross misdemeanor, cases are being tried at lower courts, which typically have less resources and have been experiencing significant shortages of public defenders.

“The legislation was trying to send a message that ‘we don’t think it should be a felony to be an addict,’” Strachan said. “I understand the message they were trying to send, but I think the effect has been to shift a lot of the burden on the already overburdened local municipal systems.”

At a misdemeanor level, fewer people facing possession charges are enrolling in drug court, Enright said. Drug court is an intensive, multi-year treatment program, and with the penalty for possession often being only a few months, some defendants choose jail or a diversion agreement instead.

“Rational people are not choosing drug court,” Enright said. “Drug court often is only one opportunity, there are some exceptions, but for the most part you get one bite at the apple and frankly some people want to save it for when they’ve committed a felony.”

Marc Gabriel, a Kitsap County drug court graduate and member of its alumni group, says for him, and many others facing serious addictions, consequences were what he needed to get sober. After struggling with addiction as a juvenile, Gabriel got sober when he became a dad, but relapsed when his own father died.

After being arrested, he spent three years in Kitsap County’s Drug Court Program. He celebrated a decade of sobriety in June.

“We have a saying that our disease is smarter than us, stronger than us and is always out in the parking lot doing push-ups waiting for our ass,” he said. “We have to work hard all the time. The majority of us won’t put in that work unless we have some consequences. When we see someone come in and they say ‘I just want to get clean,’ you're like a unicorn.”

Conor Wilson is a Murrow News fellow, reporting for the Kitsap Sun and Gig Harbor Now, a nonprofit newsroom based in Gig Harbor, through a program managed by Washington State University.