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With a drug crisis looming, WA legislature and governor OK fix that avoids decriminalization

After Washington state lawmakers failed to adopt a permanent drug possession law during the regular 2023 session, legislators needed just one day of a special session to pass a bill that will replace the law that would have expired in July.

If the current law had expired without a new law to take its place, drug possession would have been decriminalized statewide.

Senate Bill 5536 first passed the Senate Tuesday with a 43-6 vote. The bill was then sent to the House where it was approved with an 83-13 vote.

Gov. Jay Inslee signed the bill into law late Tuesday afternoon.

“Getting to this point has not been an easy path,” said Sen. June Robinson, D-Everett, during floor debate on the bill. “It has been the most challenging piece of policy that I’ve worked on in my career as a legislator.”

She said one reason the policy was so difficult to navigate was because many lawmakers have had their own experiences with someone who suffered from addiction.

“Luckily we are moving as a society to understand that addiction is a disease. However, unfortunately, we do not have built-up infrastructure and committed and trained staff to suitably address this disease in every corner of our state today,” she continued. “Over and over again we’ve heard that a solution we propose needs to put treatment options in front. I believe this striking amendment does that.”

Additionally, she said, the bill offers accountability for those who use drugs in public spaces.

Some Senate Republicans joined in voting yes on the new version of the bill.

Sen. John Braun, R-Centralia, said he was disappointed that the legislation didn’t pass during the regular session, but he is proud of both parties for sticking to the commitment to pass a bill now. He said he believes the policy is good, but not perfect.

“We have a statewide solution in front of us,” Braun said. “One that is workable by our prosecutors and by our law enforcement, one that provides treatment, one that is absolutely focused on getting people into treatment and keeping people in treatment and hopefully returning them to normal lives.”

Sea-change legal decision

In 2021, in its ruling on the State v. Blake case, the Washington state Supreme Court removed criminal penalties for drug possession after ruling felony possession unconstitutional. Under that decision, convictions were vacated and dismissed across the state by an order from the court.

State lawmakers voted that same year to adopt a temporary fix that would penalize those convicted of drug possession with a misdemeanor, and mandated two pre-arrest referrals for substance abuse treatment by law enforcement officials before an individual could be charged. That is the law that is set to expire on July 1.

Lawmakers acknowledged at the outset of the 2023 legislative session that passing a new drug possession bill was a top priority, yet the version of the legislation that was proposed and passed by the Senate was unable to clear the hurdle in the House chamber. The bill failed with a 43-55 vote in the final hours of the session.

Some local governments were quick to announce that they would pass their own policies if the state could not come to an agreement, meaning that drug possession laws throughout the state could vary.

The version of the bill approved Tuesday was negotiated since the session adjourned on April 23.

What’s in it

The law will increase the “knowing” possession of counterfeit or controlled substances to a gross misdemeanor punishable by up to 180 days in jail and/or a $1,000 fine, lower than the penalty gross misdemeanors typically carry. However, if the defendant has two prior convictions for possession, they could potentially be confined for up to 364 days.

The “knowing use” of controlled substances in a public place also was added to the new legislation and also would be punishable by a gross misdemeanor with lowered financial and jail penalties.

Additionally, in an effort to appease some Republican lawmakers, the new bill would prevent local municipalities from regulating drug paraphernalia, but some exceptions are made that would allow local governments to regulate certain harm reduction services.

The legislation also allows access to pre-trial diversion programs with the requirement that prosecutors must sign off for defendants to avoid charges and undergo substance abuse treatment. Defendants who successfully complete treatment would not be charged with a gross misdemeanor for possession.

Some lawmakers still argued that the bill doesn’t go far enough, with some Republicans noting that they had hoped for drug possession to be punishable with a felony. Some Democrats, however, were concerned that the legislation goes too far, furthering the harm from the decades-long War on Drugs.

Still some holes to patch

Rep. Gerry Pollet, D-Seattle, told other lawmakers during the floor debate that he would vote against the bill, despite voting in favor of the previous version during the regular session, because the prior version ensured that every person who was arrested for possession had a right to pre-trial diversion and treatment.

“But in today’s legislation, prosecutors will not have to agree to diversion and who will they not agree to diversion for? The defendants will not look like me. They will be Black, the defendants will be brown, they will be Native American, they will be poor,” Pollet said.

“And the prosecutors will leverage that threat into defendants pleading guilty on other crimes, and they will leverage that threat into pushing people into incarceration instead of treatment where we know harm is increased and not reduced.”

Republican Rep. Jim Walsh, R-Aberdeen, shared his concerns with the bill as well, saying that it was an improvement but not enough.

He said state lawmakers used the Washington state Supreme Court’s opinion on the constitutionality of drug laws in Blake vs. Washington to open up drug laws to a “broad, wide, deep consideration of many issues.”

“That’s why we have struggled to find the right Blake fix. We are adding more points and public policy than the state Supreme Court suggested that we deal with in remedying the issues it raised in State v. Blake,” Walsh said. “We need to return our focus to that matter of ‘knowingly’ and I think the proper response would be to restore our drug laws as they were pre-Blake, with the addition of ‘knowingly’ as appropriate.”

Another issue that should be considered, he said, is front-line law enforcement. He said clear, strong language was needed in the legislation so that law enforcement officials could know how to do their jobs.

He also acknowledged that lawmakers should be compassionate to the plight of those suffering from addiction, but that lawmakers needed to give them a “clearly delineated path to a better life.”