Last week, another round of amendments further complicated SB 5536, the Blake bill, on its journey through the House.

If you took the week off for spring break and missed it, two weeks ago the House Community Safety, Justice, & Reentry committee changed the charge from a gross misdemeanor to a simple misdemeanor, added public use of a drug to the list of potential criminal charges, allowed for judicial discretion for imposition of jail, and added a new state preemption for drug paraphernalia regulation. To read more about these changes, check out last week’s article.

After the House Community Safety, Justice, & Reentry committee passed SB 5536 with those changes, it went to the House Appropriations committee for fiscal considerations, where it received additional amendments. AWC has significant concerns with the version of the bill as passed out of the House Appropriations Committee.  Foremost, we do not believe the bill in its current form will function to encourage people into necessary substance use disorder treatment, and the bill will be more burdensome, costly, and ineffective than the prior version of the bill.

Here’s a brief description of what the current bill does:

• Someone who knowingly possesses drugs and/or knowingly possesses and uses those drugs in a public space can be charged with a simple misdemeanor. The House amendments dropped the charge from a gross misdemeanor to a simple misdemeanor and added possession and use in a public space. The House amendment and RCW 3.66.068 would still allow for court jurisdiction for a two-year period (in situations of a suspended or deferred sentence). Making knowing possession of most drugs a gross misdemeanor gives adequate time for court monitoring. As a gross misdemeanor, municipal and district courts will have a sufficient length of time (up to two years) to monitor an individual’s compliance with substance use disorder treatment.
• Emphasis on treatment. The bill has many offramps from the criminal justice system into treatment and services. Previous versions of the bill placed individuals into substance use disorder assessments, treatment, and services while the newest version would require that individuals receive a biopsychosocial evaluation leading to a complicated decision tree of options. For example, individuals found without a substance use disorder could serve community restitution instead, criminal charges could be vacated if the individual does not have any additional criminal arrests or convictions in a year, and individuals who are enrolled in treatment would only be required to show meaningful engagement with the treatment for six months. While earlier versions of the bill paired substance use treatment with robust accountability mechanisms, AWC is concerned that the newest version of the bill is overly complicated and does not have the accountability piece that cities are looking for. AWC supports the previous version’s standard of “substantial compliance” with treatment. Substantial compliance is a clear and known legal standard, whereas meaningful engagement is difficult to define. AWC has requested that legislators modify the requirement for a defendant to “meaningfully engage” in treatment to the known legal standard of “substantial compliance” with treatment.
• A new state preemption for drug paraphernalia regulation. This is in addition to the public health provisions contained in both bills, allowing public health disbursal of syringe equipment, safe smoking supplies, drug testing equipment, and others. The Senate version does not contain a state preemption of drug paraphernalia law. AWC has requested that the legislature remove the preemption language, and believes it is unnecessary. Both versions contain language regarding public health uses of these items, and we believe this is sufficient to ensure that the state is promoting public health while discouraging harmful uses of the paraphernalia items.
• Removal of the requirement for DOH to hold a public hearing in the community where an opioid facility is to be located. The Senate version maintained the current law requirement for the Department of Health to hold at least one public hearing in the community where a new opioid facility is to be located. AWC has requested that the legislature maintain current law. Transparency and public participation are important, and we would like to see this provision of current law restored.

AWC prefers the prior version of the bill that emphasized judicial discretion, within a solid framework, to treat each individual, each case, and each community situation, in the unique way required. AWC has requested that the legislature reinstate these provisions.

For a longer description of changes and AWC’s position, check out an updated side-by-side.