Editorial: Lawmakers can reach accord on drug possession law

By The Herald Editorial Board

With state lawmakers expected to return to Olympia later this month to take another swing at passing a better balanced drug possession law, some are suggesting they not start from scratch but return to a version of legislation that passed out of the state Senate in early March.

The legislation crafted during the recently completed 105-day session was intended to respond to the call of city and county officials and others seeking a permanent fix to a state Supreme Court ruling in 2021 that found the state’s felony law on drug possession was unconstitutional because it could convict someone who unknowingly possessed narcotics. The Legislature adopted a stop-gap measure that reinstated possession as a misdemeanor, punishable by jail time of up to 90 days and a $1,000 fine.

That punishment — if it could be prosecuted at all — wasn’t seen as adequate in convincing those found in possession to agree to treatment programs seen as necessary to reducing the incidence of addictions and a rising tide of overdoses and deaths.

Senate Bill 5536, sponsored by state Sen. June Robinson, D-Everett, looked like an acceptable deal that would have increased possession to a gross misdemeanor with a stiffer penalty — including up to a year in jail and a $5,000 fine — as well as encouragements for diversion programs and other provisions that had bipartisan support in the Senate and broad acceptance from local jurisdictions.

“We very much supported the compromise that came out of the Senate,” Everett Mayor Cassie Franklin said in an online meeting earlier this week with other county mayors. “The Senate’s version was really good. It was supported by 15 Democrats and 15 Republicans, right? I mean, you can’t get more bipartisan than that.”

But by the end of the session when a final amended bill was before the House, it was defeated 43-55; the opposition split among some Democrats who found the bill’s punishments too harsh and Republicans who said the bill wasn’t tough enough. The bill also no longer had support from mayors and county officials across the state and in Snohomish County, who issued a news release objecting to the bill on the session’s next-to-last day.

With the stop-gap measure expiring July 1, jurisdiction quickly moved to begin consideration and passage of local ordinances. Both Marysville and Everett have adopted ordinances setting possession as a gross misdemeanor, and Snohomish County also is considering its own measure. Snohomish County cities, to their credit, coordinated what they are seeking in ordinances, avoiding what could have been an inequitable and unworkable mix of approaches.

Gov. Jay Inslee said this week that he will call a special 30-day session, starting May 16, but jurisdictions are acting responsibly to pass their own ordinances, in the event that lawmakers again can’t adopt a compromise.

Rewinding the legislation a few steps could offer that acceptable compromise.

The House-amended version, Franklin and Marysville Mayor Jon Nehring said, weakened an approach that would have allowed local law enforcement and prosecutors to hold people accountable to agreeing to and completing treatment, instead recreating what had stymied law enforcement and outreach since the court decision.

Nehring said the amended bill also would have required officers to witness people using a drug before making an arrest for possession. “Prosecutors are either going to say ‘I can’t prosecute this,’ or the judge is going to throw it out because we didn’t witness the use,” Nehring said.

The county mayors’ group also objected to amendments that, they said, would have compromised their ability to head off some “harm-reduction” and other programs that they believe their communities would not support, specifically those that would allow drug use by minors.

“The deal-breaker was a reference to ‘safe-consumption’ sites for youths,” Franklin said.

Franklin, who ran the Cocoon House youth shelter nonprofit prior to her election as mayor, was blunt about the amendment. “There is no safe consumption site for youth. There’s no possible way that youth can consume fentanyl safely, or heroin or any of these other drugs,” she said.

Among the harm-reduction programs that cities might have had to allow access were safe-consumption sites and programs that distributed supplies for drug use. The amended bill didn’t require those programs but would have made it difficult for jurisdictions to prevent their set-up if proposed.

Legislation that is prepared in advance of the special session needs greater detail on the types of harm-reduction programs that are being discussed, while allowing cities and counties greater discretion in what will be set up in their communities. Clearly, what works for one community, won’t necessarily be an option for others.

For example, Franklin said, she’s comfortable with needle-exchange programs, independent programs that allow injectable-drug users to exchange used needles for new ones, lowering the incidence of disease from shared needles and limiting the illegal disposal of needles in parks, sidewalks and other public areas. But, she and others say their communities aren’t ready for safe-injection or safe-consumption centers.

At the same time, there is a need to streamline the process for establishment of clinics and facilities that offer medically assisted drug treatment programs, including the distribution of methadone and Suboxone, which have been shown effective in treating opioid addiction by reducing the craving for drugs and blocking their effects. Paired with counseling, the medically assisted treatment is allowing those formerly addicted to illegal drugs to return to productive lives.

Residents and some local officials in Lynnwood attempted at the start of this year to block the move of such a clinic to Lynnwood from Bothell, operated by Arcadia Healthcare, which has opioid treatment centers throughout the state. That clinic opened in late January, but the Lynnwood City Council last month imposed a six-month moratorium on similar facilities.

Any compromise that is presented to the Legislature should recognize the differences and proven potential between medically assisted treatment clinics and other harm-reduction programs, such as safe-consumption sites, that have less of a record of success.

But keeping much of the provisions outlined in the legislation adopted by the Senate — with additional investments in programs that were included in the House version — should allow enough support from both parties and both chambers to adopt a compromise on drug possession and cap a largely successful 2023 legislative session.