Drug possession laws in limbo after House rejects deal on Blake bill

Democrats and Republicans vote down an agreement with a tougher penalty and paths to diversion and treatment.

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OLYMPIA — In a surprising move, the state House on Sunday rejected an agreement to increase the penalty for drug possession while providing those with substance use disorder numerous paths to receive assistance and avert incarceration.

The deal hashed out by House and Senate Democrats failed to garner a majority, and was defeated by a 43-55 margin. Fifteen Democrats joined all Republicans in voting against the compromise legislation known as the Blake bill.

A short time later, the 105-day session came to an end.

The proposed bill would have made possession of small amounts of illegal drugs a gross misdemeanor, a notch more serious than the current misdemeanor penalty.

Inaction Sunday could leave enforcement of drug possession violations in the hands of cities and counties. Two years ago, after the Supreme Court invalidated a state law making possession a felony, lawmakers temporarily reinstated a penalty of a misdemeanor. That change expires July 1.

Gov. Jay Inslee could call lawmakers into special session before then to address this issue.

A focus on this session was coming up with a broad, long-term strategy. The compromise bill voted down by the House had been seen as the most viable answer.

But in Sunday’s floor debate, Democrats opposed the heavier penalty and Republicans worried it would not hold those arrested accountable. Supporter of the bill worried that not acting would lead to chaos as cities would adopt their own ordinances.

Under the defeated compromise, a person who is arrested could avoid prosecution by completing a pretrial diversion program, and get a conviction for simple drug possession vacated by completing treatment. Prosecutors are urged to back diversion for those arrested on both possession and other non-felony offenses.

As part of the compromise legislation, the state would direct up to $271 million into building out a network of treatment facilities and recovery services, an approach backed by many civic and law enforcement leaders. These new and expanded sites would be deemed essential facilities to help speed up their approval and impede attempts civic leaders to keep them out of their communities.

“I would never say any bill that we bring forward is perfect but I do think what we have here is a really solid policy that represents compromise on behalf of everyone who has worked to craft this legislation,” said Sen. June Robinson, D-Everett, an architect of the agreement approved by Democratic members of a bicameral conference committee Saturday night.

Gov. Jay Inslee threw his support behind it Sunday afternoon, saying in a video message that lawmakers struck a sound compromise that keeps a criminal sanction and provides options for treatment. He urged them to get it done.”

But four Snohomish County mayors urged lawmakers to reject the agreement. They issued a statement Sunday saying it lacks adequate incentives for individuals to seek treatment and could allow some to get their charges dismissed without completing treatment. They asked lawmakers to not act and instead let cities develop their own policies.

“The bottom line is, the bill, in its present form, would do more harm than good in addressing drug use in our communities, and we cannot support it going forward,” reads a statement from mayors Cassie Franklin, of Everett, Jon Nehring, of Marysville, Brett Gailey, of Lake Stevens, and Russell Wiita, of Sultan.

This bill is intended to be the Legislature’s multi-faceted, long-term response to the state Supreme Court’s erasure of Washington’s law making simple drug possession a felony. That 2021 ruling, known as the Blake decision, led to people getting out of jail and getting their possession convictions vacated.

Absent any penalty for possession, the Legislature rushed in with a temporary solution to make it a misdemeanor, punishable by up to 90 days in jail, a $1,000 fine or both, but directed cops and prosecutors to steer individuals to treatment for their first two arrests.

The interim rules expire July 1, which gave lawmakers this session to hammer out a lasting approach. They settled on Senate Bill 5536 drafted by Robinson as the legislative vehicle.

Most of the session has been a debate on what penalty, if any, should one face for possessing and using drugs in a public place.

The bill passed by the Senate on a bipartisan 28-21 vote last month made drug possession a gross misdemeanor, with a maximum punishment of up to 364 days in county jail, a $5,000 fine, or both.

But House Democrats rewrote and passed a different version, on a 54-41 vote, making it a misdemeanor. They included language preempting communities from adopting their own ordinance, a direct retort to cities which had done so like Marysville.

Meanwhile, lawmakers have been pressed to follow the Senate’s lead by elected leaders and law enforcement leaders who contend they’ve seen more people publicly using drugs and fewer acting on referrals to treatment in the current environment. A harsher penalty with potential arrest would restore a degree of leverage to get individuals to seek services, they said.

Notably both bills pour money into bolstering the availability of substance abuse treatment programs and services. And both sketch out pathways for avoiding jail through the completion of pretrial diversion program.

The language in the 46-page bill was approved by a conference committee comprised of four Democrats and two Republicans. Only the Democrats backed it.

Sen. Manka Dhingra, D-Redmond, chair of the Senate Law and Justice Committee and one of the conferees, had opposed the version passed by the Senate. She said Saturday she wondered if the state needed a Blake bill at all.

“I think the answer is ‘yes, we do’,” she said. “If we do not have a Blake bill we are going to see a hodge podge of crimes across the state.”

Possession could be a misdemeanor on one corner, a gross misdemeanor a few blocks away and legal farther down the road, she said.

“That is not responsible in my opinion. What I like about this bill is the fact we have statewide policy,” she said. “The criminal component is a part of it. What we are putting in this bill is a structure, a structure for treatment, a structure for engagement and a structure for recovery services.”

Rep. Jamila Taylor, D-Federal Way, a conferee and author of the House approach, called it “a rare bill where you address an acute crisis in our state.” She praised it for taking a “public health approach” to helping those with substance use disorder.

Sometimes someone is engaging in “behavior that is against the community’s standard,” she said. “That is an opportunity for us to intervene and help. We know we want to get to the root causes. This is the beginning of the beginning.”

This bill envisions stepped-up efforts to connect unsheltered individuals with services, assist parents of children with substance use disorder, provide job training for those recovering from addiction and increase availability of opioid use disorder medication in jails.

Under the bill, a person would be considered to have completed pretrial diversion either by having 12 months of “substantial compliance” with recommended treatment and services, or by completing recommended treatment and services, whichever occurs first, according to the bill. Individuals could also could be ordered to complete to up to 120 hours of community service in lieu of treatment services.

A person can get their conviction vacated with proof of completing a substance use disorder program.

Republicans opposed to the final bill expressed concern it did not provide adequate accountability to compel an individual to seek and complete the services.

Another provision expands the definition of essential public facilities to include opioid treatment programs, recovery residences, substance use disorder treatment facilities, and harm reduction programs excluding safe injection sites.

Cities and counties will be limited in requirements they can impose. And the state Department of Health can but would not be required to hold a public hearing prior to obtaining approval to open such a program.

The mayors, in their statement, expressed concern the bill “condones and facilitates drug use” by allowing local governments to distribute ‘smoking equipment’ and ‘other public health supplies.’

“This is counterproductive in our view and will encourage, rather than reduce the use of illegal drugs,” they wrote..

On Saturday, as Taylor voted, several House Democrats opposed to the harsher penalty watched in the audience.

“Many of my colleague do believe we should decriminalize,” Taylor said. “We know there isn’t the votes in Washington state right now. We also know the community needs accountability. I think people want a response, a response from the state to help folks who are suffering so significantly.”

Jerry Cornfield: 360-352-8623; jcornfield@heraldnet.com; Twitter: @dospueblos.

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