Washington State's Capitol Campus in Olympia, from the air
An aerial view of Washington State's Capitol Campus in Olympia, with the distinctive Legislative Building in the center (Photo: Andrew Villeneuve/NPI)

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

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

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.

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

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