Demon­strat­ing what can be accom­plished when lib­er­at­ed from the con­fines of a gru­el­ing one-sea­son ses­sion lim­it­ed to just one hun­dred and five days, the Wash­ing­ton State Leg­is­la­ture today adopt­ed a com­pro­mise bill that more ele­gant­ly responds to the Supreme Court’s Blake deci­sion from 2021 and updates the crim­i­nal code per­tain­ing to penal­ties and con­se­quences for drug pos­ses­sion — though with­out ful­ly piv­ot­ing away from the nation’s failed “war on drugs.”

2E2SSB 5536, prime spon­sored by Sen­a­tor June Robin­son (D‑38th Dis­trict: Sno­homish Coun­ty), received over­whelm­ing sup­port in both cham­bers on the first — and per­haps only — day of the 2023 spe­cial ses­sion. It now goes to Gov­er­nor Jay Inslee, who is expect­ed to sign it. Inslee had sum­moned law­mak­ers into spe­cial ses­sion after the pre­vi­ous ver­sion of 5356 foundered in the House in the last few hours of the reg­u­lar ses­sion only a cou­ple of weeks ago.

(The “2E2SSB” abbre­vi­a­tion pre­ced­ing 5536, which we don’t often see, means Sec­ond Engrossed Sec­ond Sub­sti­tute Sen­ate Bill, which is quite a mouthful!)

“The bill sets the penal­ty for pos­ses­sion of con­trolled sub­stances as a gross mis­de­meanor with a max­i­mum con­fine­ment time of six months for the first two con­vic­tions and any fine for any con­vic­tion is capped at a max­i­mum of $1,000,” explains a news release from the House Demo­c­ra­t­ic caucus.

“It also cre­ates a sys­tem for pre-tri­al diver­sion into treat­ment. Rec­og­niz­ing the col­lat­er­al con­se­quences a con­vic­tion can have, the bill requires manda­to­ry ear­ly con­vic­tion vaca­tion if a per­son can prove that they have com­plet­ed treat­ment or have ‘sub­stan­tial­ly com­plied’ with the recov­ery nav­i­ga­tor pro­gram or sim­i­lar ser­vices for six months,” the state­ment went on to say.

“The bill takes strides toward set­ting up an effec­tive sys­tem for out­reach, treat­ment, and recov­ery while pro­vid­ing avenues for account­abil­i­ty with plen­ty of offramps into treat­ment. To address the prob­lem of peo­ple using drugs in com­mu­ni­ty spaces, the bill cre­ates the crime of pub­lic use.”

State Rep­re­sen­ta­tive Jami­la Tay­lor (D‑30th Dis­trict: Fed­er­al Way), one of the few Black women in the Leg­is­la­ture, served as a lead nego­tia­tor on this com­pro­mise ver­sion. She explained why 5536 mer­it­ed pas­sage in a statement.

“This bill rec­og­nizes the harm that pub­lic use caus­es our com­mu­ni­ties by cre­at­ing the crime of pub­lic use,” said Tay­lor. “More impor­tant­ly, it focus­es on the most up-to-date sci­ence on recov­ery, work­ing to con­nect peo­ple to treat­ment, hous­ing, ser­vices, and employ­ment oppor­tu­ni­ties. The bill includes direct invest­ments of $63 mil­lion; how­ev­er, over­all, we are invest­ing over $1.1 bil­lion in our behav­ioral health sys­tem in addi­tion to the $1 bil­lion we invest­ed last biennium.”

“The recov­ery nav­i­ga­tor pro­gram is up and run­ning in every coun­ty in the state and the 988 sui­cide and cri­sis line, which can serve as an alter­na­tive to law enforce­ment, is also up and run­ning. We are build­ing a statewide sys­tem that cre­ates account­abil­i­ty through com­mu­ni­ty engage­ment and offers hope and con­nec­tion to those in our com­mu­ni­ty who are strug­gling. This is not a prob­lem that will go away eas­i­ly, but if our local, coun­ty, state, and fed­er­al gov­ern­ments work in con­junc­tion with the com­mu­ni­ty we can address this crisis.”

The improved pro­vi­sions nego­ti­at­ed by Tay­lor were insuf­fi­cient in the eyes of a num­ber of the rep­re­sen­ta­tives in the Seat­tle del­e­ga­tion, and so they vot­ed against the bill. How­ev­er, their sub­ur­ban col­leagues all joined the yea col­umn, ensur­ing that 5356 could pass the House — even almost with­out any Repub­li­can votes.

The bill first sailed through the Sen­ate, show­ing it was on a robust trajectory.

The roll call there was:

Roll Call
SB 5536
Con­trolled substances
3rd Read­ing & Final Passage
5/16/2023

Yeas: 43; Nays: 6

Vot­ing Yea: Sen­a­tors Bil­lig, Boehnke, Braun, Cleve­land, Con­way, Dhin­gra, Dozi­er, For­tu­na­to, Frame, Gildon, Hawkins, Holy, Hunt, Kauff­man, Keis­er, King, Kud­er­er, Liias, Lovelett, Lovick, MacEwen, McCune, Mul­let, Muz­za­ll, Nguyen, Nobles, Ran­dall, Robin­son, Rolfes, Salomon, Shew­make, Short, Stan­ford, Tor­res, Trudeau, Valdez, Van De Wege, Wag­oner, War­nick, Well­man, Wil­son (Claire), Wil­son (Jeff), Wil­son (Lyn­da)

Vot­ing Nay: Sen­a­tors Hasegawa, Pad­den, Ped­er­sen, Rivers, Sal­daña, Schoesler

Demo­c­ra­t­ic sen­a­tors vot­ing nay were Bob Hasegawa, Jamie Ped­er­sen, and Rebec­ca Sal­daña, all from Seat­tle. Repub­li­can sen­a­tors vot­ing nay were Mike Pad­den, Ann Rivers, and Mark Schoesler, from East­ern and South­west Washington.

In the House, the bill earned almost twice as much sup­port as the last ver­sion did, receiv­ing a big bipar­ti­san major­i­ty and the back­ing of lead­er­ship of both par­ties, like it had in the Sen­ate only min­utes before. Here’s that roll call:

Roll Call
SB 5536
Con­trolled substances
3rd Read­ing & Final Passage
Wash­ing­ton State House
5/16/2023

Yeas: 83; Nays: 13; Excused: 2

Vot­ing Yea: Rep­re­sen­ta­tives Abbarno, Barkis, Barnard, Bate­man, Berg, Bergquist, Berry, Bronoske, Caldier, Callan, Cham­bers, Chan­dler, Chap­man, Cheney, Chris­t­ian, Con­nors, Cor­ry, Cortes, Cou­ture, Dent, Doglio, Don­aghy, Duerr, Enten­man, Eslick, Fey, Fitzgib­bon, Fos­se, Goehn­er, Good­man, Gra­ham, Gregerson, Grif­fey, Hack­ney, Hansen, Har­ris, Hutchins, Jacob­sen, Klick­er, Klo­ba, Leav­itt, Lekanoff, Low, May­cum­ber, McClin­tock, Mena, Mor­gan, Mos­bruck­er, Orcutt, Orms­by, Ortiz-Self, Orwall, Paul, Peter­son, Ramel, Ramos, Reed, Reeves, Ric­cel­li, Robert­son, Rude, Rule, San­dlin, Schmidt, Senn, Shavers, Sim­mons, Slat­ter, Springer, Stearns, Steele, Stokes­bary, Stonier, Tay­lor, Tharinger, Tim­mons, Volz, Walen, Waters, Wilcox, Wylie, Ybar­ra, Jinkins

Vot­ing Nay: Rep­re­sen­ta­tives Alvara­do, Chopp, Davis, Dye, Fari­var, Macri, McEn­tire, Pol­let, Ryu, San­tos, Schmick, Street, Walsh

Excused: Rep­re­sen­ta­tives Kretz, Thai

The nay votes were Demo­c­ra­t­ic Rep­re­sen­ta­tives Emi­ly Alvara­do, Frank Chopp, Lau­ren Davis, Darya Fari­var, Nicole Macri, Ger­ry Pol­let, Cindy Ryu, Sharon Tomiko San­tos, and Chipa­lo Street. Also vot­ing no were Repub­li­can Rep­re­sen­ta­tives Mary Dye, Joe Schmick, Joel McEn­tire, and Jim Walsh.

Demo­c­ra­t­ic Rep­re­sen­ta­tives who switched from no to yes were:

• Jes­si­ca Bate­man, 22nd Dis­trict (Thurston County)
• Liz Berry, 36th Dis­trict (King County)
• Beth Doglio, 22nd Dis­trict (Thurston County)
• Mia Gregerson, 33rd Dis­trict (King County)
• Sharlett Mena, 29th Dis­trict (Pierce County)
• Melanie Mor­gan, 29th Dis­trict (Pierce County)
• Julia Reed, 36th Dis­trict (King County)
• Kris­tine Reeves, 30th Dis­trict (King County)
• Tar­ra Sim­mons, 23rd Dis­trict (Kit­sap County)

Many pro­gres­sive activists and orga­ni­za­tions remain dis­sat­is­fied with 5536.

“The com­pro­mise unveiled this after­noon rolls U.S. drug pol­i­cy back­ward decades,” said Ali­son Hol­comb of the Amer­i­can Civ­il Lib­er­ties Union.

“At a time fam­i­lies and com­mu­ni­ties are being rav­aged by fen­tanyl, leg­is­la­tors are throw­ing up their hands instead of rolling up their sleeves.”

A few hours before the vote, Leslie Cush­man tweet­ed: “Lots of mis­in­for­ma­tion about 5536 com­pro­mise to get those yes votes. It will allow local juris­dic­tions to crim­i­nal­ize harm reduc­tion. That’s just wrong.”

State Sen­a­tor Man­ka Dhin­gra, a North­west Pro­gres­sive Foun­da­tion board­mem­ber, told The Stranger that while the bill is far from per­fect, it will allow the state to make incre­men­tal progress on man­ag­ing con­trolled substances.

“I’ll just say this is not a bill where any­body got every­thing they want­ed. It is a bill that is imple­mentable. We can start tak­ing action to help peo­ple,” she said.

“After decades of the failed and cost­ly war on drugs, we have col­lec­tive­ly learned that we can­not pun­ish and incar­cer­ate peo­ple into sobri­ety and well­ness,” not­ed Dr. Susan Collins of the Harm Reduc­tion Research & Treat­ment Cen­ter at the Uni­ver­si­ty of Wash­ing­ton School of Med­i­cine. “And in the wake of the 2021 Wash­ing­ton State Supreme Court Blake deci­sion, we have a once-in-a-life­time oppor­tu­ni­ty to ensure recov­ery, not pun­ish­ment, for peo­ple with sub­stance use dis­or­ders by using the evi­dence-based tools of harm reduction.”

The Leg­is­la­ture’s pre­vi­ous “Blake fix” would have expired July 1st, which could have result­ed in a messy sys­tem of local ordi­nances dif­fer­ing from one juris­dic­tion to the next. Local­i­ties, espe­cial­ly those, under right wing rule would have been in a posi­tion to pass dra­con­ian and puni­tive poli­cies that would have hurt peo­ple. The pas­sage of this leg­is­la­tion will avert a lot of chaos and harm and is, in our view, bet­ter than the alter­na­tive of inac­tion by the House and Senate.

Could the Leg­is­la­ture have done bet­ter? Def­i­nite­ly. But it’s impor­tant to remem­ber Wash­ing­ton does­n’t have a year-round Leg­is­la­ture with appro­pri­ate salaries for full time work. The Con­sti­tu­tion lim­its odd year reg­u­lar ses­sions to one hun­dred and five days, and even year reg­u­lar ses­sions to a mere six­ty days. If we want to empow­er our leg­isla­tive branch to reach the best pol­i­cy out­comes, we need to switch from a part-time Leg­is­la­ture (in name only, any­way) to a full-time one.