Legislature meeting next week to debate drug possession law

Next week, the Legislature will reconvene in Olympia for a special session with the intent to pass a new drug possession law before the current law expires July 1. Legislators have been meeting to work out a version of SB 5536 that they can agree on, but no proposals have been publicly released.

We encourage city officials to let your local legislators know how important it is for them to reach agreement on a statewide solution that addresses the issues that AWC has identified as important for cities.

AWC has been working with partners and legislators to advocate for:

• Gross misdemeanor charge and clear accountability. AWC supports a gross misdemeanor charge for possession of controlled and counterfeit substances with a focus on encouraging individuals to enter treatment in lieu of criminal penalties. We agree with all prior versions of the bill that possession of cannabis up to 40 grams, as well as possession of a legend drug, should remain a simple misdemeanor as they are under current law. For those that refuse or fail to comply with treatment, there must be accountability within the criminal justice system and judicial discretion to impose a jail sentence if appropriate. A gross misdemeanor will also appropriately prioritize the case for law enforcement, for the prosecutor, and for the state toxicology lab.
• Clarify definition of public use. The House version of the bill added public use as an additional crime in the bill. AWC has let legislators know that we are comfortable with including the additional charge of public use in addition to knowing possession, but request that it not be combined with possession so that they are truly separate crimes. Additionally, the term public “use” must be clearly defined to include “actual use or actions that evidence an intent to use a controlled substance in a public place”. This will allow law enforcement and the prosecutor to effectively take action in cases involving public use. Without this clarification, the language as drafted is not workable and will likely result in cases not being brought forward.
• Clear diversion options that reflect what is currently available in our communities. AWC has advocated for pre-trial diversion to encourage individuals to obtain treatment in lieu of criminal penalties. However, those diversion programs must be workable within what is currently available in each jurisdiction. AWC supported the Senate-passed version of SB 5536 that provides leeway for different types of diversion options that may exist and have capacity in the community and what may be the best fit for the individual. When crafting a pre-trial diversion program, AWC has requested:
  • Prosecutorial and court discretion as to whether to approve a defendant for diversion.
  • Flexibility to utilize therapeutic courts and other existing diversion options.
  • Judicial discretion when an individual is evaluated and found to not have a substance use disorder, rather than a prescriptive requirement to order community service.
  • A standard of 12-months of substantial compliance with all recommended treatment.
  • Flexibility to order a defendant obtain treatment as is available and appropriate within the community, without the requirement to only use a recovery navigator program, law enforcement assisted diversion, or arrest and jail alternative program. The recovery navigator program is not yet at a stage statewide to respond to a significant increase in caseload, and requiring its use may be a bridge to nowhere.
• Clear role for the court and a reasonable administrative burden for prosecutors. AWC supports the clarifying language made by the House to protect the neutral role of the court. However, we are concerned about the requirement in the bill for the prosecutor to make the motion to vacate a conviction. This adds a substantial administrative burden for prosecutors. We support a vacation process similar to others in current law that are initiated by the defendant. Further, the most recent version of the bill includes a requirement for prosecutors to enter data into the statewide database, including information which will not be readily available to the prosecutor. For example, it would not be appropriate for a prosecutor to ask a defendant their race and ethnicity, gender expression, and disability, as it is not relevant to the adjudication of their case.
• Law enforcement assisted diversion. AWC fully supports the change in RCW 71.24.589 to make the law enforcement assisted diversion pilot program an ongoing grant program.
• Maintain public engagement for siting of treatment facilities. We have asked that any legislation maintains the current requirement for the Department of Health to hold a public hearing prior to the siting of an opioid use disorder treatment facility. Transparency and open communication are important, particularly to educate the public about the nature of these facilities, safety measures that will be in place, and other critical pieces of information for neighboring business owners and residents.

Many cities have already begun passing their own ordinances ahead of the July 1 deadline in case the legislature fails to pass SB 5536 during the special session. MRSC has created a webpage with examples of city and county ordinances prohibiting drug possession and public drug use in Washington State.