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:
3rd Reading & Final Passage
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:
3rd Reading & Final Passage
Washington State House
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.