Bill to address criminal drug possession falls woefully short
As the 2023 Legislative Session ends, perhaps the two-most covered issues have both been about public safety. Project 42 has covered the police pursuit debate swirling around the Capitol. But there’s also been a significant amount of controversy regarding the state’s response to public use of hard drugs. Across the state, voters from both parties have raised concerns about the flagrant use of lethal drugs like fentanyl that have stolen so much potential and too many lives. Olympia’s response will be significant in deciding whether this problem worsens, or whether legislators decide to act.
In 2021, the Washington State Supreme Court invalidated the primary criminal drug possession statute in a case called State v. Blake. This decision effectively legalized the possession of hard drugs, including methamphetamines, fentanyl, cocaine, and heroin. The Legislature, at the time, approved a bill to make possession of hard drugs a misdemeanor after two pre-arrest “referrals.” Since 2021, the open use of hard drugs has significantly increased across the state, sparking demands for change from law enforcement, counties, and cities.
During this year’s legislative session, the legislature debated a bill, SB 5536, attempting to rectify the consequences of Blake. The bill treated possession of hard drugs as a gross misdemeanor and created a pretrial diversion program for individuals charged with possession. If they finished treatment successfully, their arrest would be wiped from their record; if they failed, the record would stay. The Senate passed it 28-21 with bipartisan support and opposition. Some Republicans expressed that they thought the bill didn’t go far enough, maintaining that penalties for drug possession can be effective methods for people to get help. Meanwhile, some Democrats voted against the bill, expressing the opposite view: that punishment for substance abuse is inherently inhumane.
However, the House Committee on Community Safety, Justice and Reentry, along partisan lines, further weakened the bill to treat hard drug possession as a simple misdemeanor. Additionally, the weakened version decreased the standards for passing a treatment program, only requiring “substantial engagement”, rather than actual compliance, to have the arrest scrubbed from an individual’s record. It also removes mandatory minimum sentences for certain drug convictions and further restricts prosecutorial discretion in the court process. Legislative Republicans have been critical of these further amendments, arguing it shouldn’t be passed in its current form and will be ineffective at addressing a drug crisis that continues to take the lives of Washingtonians, in addition to negatively impacting cities and small businesses across the state.
But there’s one final twist: the current watered-down Blake bill has a “preemption” clause in it that would prevent local cities from addressing open drug use. You may have seen in the news that some cities, like the Bellingham City Council, have passed ordinances making public drug use an arrestable offense in response to Blake and growing concerns about drug use and crime in urban areas. If SB 5536 is passed by the full House of Representatives and signed by the governor, cities would be prevented from taking their own steps to address open drug abuse in their streets.