Early last Wednesday morning, the House passed SB 5536, keeping drug possession a misdemeanor and creating many
off-ramps into treatment and services.
The bill as it passed out of the House was substantially different than the Senate version. In short, the House version changes the charge from a gross misdemeanor to a simple misdemeanor, adds public use of a drug to the list of potential criminal charges,
creates a complicated and prescriptive diversion process, allows for judicial discretion for imposition of jail, and adds a new state preemption for drug paraphernalia regulation.
Because the Senate and House versions of the bill are substantially different, the bill will likely enter conference committee where representatives from the two chambers will meet to hash out the differences.
AWC sent the message below to legislators who are likely to be part of the conference committee on SB 5536. We are also sharing this with other legislators.
Cities support the need to address drug possession this session. We appreciate the thoughtful work that has occurred throughout this session on this topic. Cities have been supportive of a clear criminal penalty for drug possession with a focus on encouraging
treatment related diversion options for individuals in lieu of criminal penalties and clear accountability for those who willfully opt not to accept treatment. Cities agree with efforts to ensure that individuals have multiple options to vacate convictions
upon completion of recommended treatment. We have also supported further development and funding substance abuse treatment programs in our communities. We appreciate the investments in treatment and in diversion and therapeutic court programs included
in the proposed budgets.
As you work to resolve the different approaches in the House and Senate adopted versions of E2SSB 5536 we would like to share with you our preferences and concerns between the two approaches.
Criminal charge: Gross misdemeanor or misdemeanor
Cities prefer the gross misdemeanor classification of drug possession because we believe it makes it a higher priority for local resources and treatment options. We also believe that
it provides more flexibility to ensure longer-term oversight and support of individuals through the process. We acknowledge that the longer oversight can be accomplished under a misdemeanor as long as the necessary process is followed, but that process
is more complicated.
What is criminalized: possession and public use
Cities are comfortable with including the additional charge of public use, but request that the term public use be statutorily defined to include “actual use or actions that evidence
an intent to use a controlled substance in a public place”.
Diversion options
Cities agree that diversion options that focus on treatment opportunities is the preferred approach. However, we support the Senate version that provides leeway for different types of diversion options that may
exist in the community and would be the best fit for the individual. The House approach mandates use of the recovery navigator program that isn’t yet at a stage to respond to a significant increase in caseload.
Accountability
One of the key aspects of this proposal is the treatment forward approach; however, there must be accountability for those who refuse that opportunity. While we understood the Senate approach as an attempt to break
the cycle of substance abuse with predetermined sentences, AWC is comfortable with the House providing for judicial discretion on appropriate penalties.
Drug paraphernalia
The preemption on local regulation of harmful drug paraphernalia is unnecessary and limits the ability to address dangerous use of drug paraphernalia. Cities recognize the need to allow for public health
programs focused on harm reduction and appreciate those provisions in both versions. We prefer the Senate’s approach that doesn’t preempt local action against harmful drug paraphernalia.
Vacating convictions and the role of the court
AWC supports the clarifying language in the House version that ensures that the neutral role of the court remains intact when it comes to these cases. However, we are concerned about
the requirement for the prosecutor to make the motion to vacate a conviction. This adds a substantial administrative burden for prosecutors.
Pre-trial diversion and community service requirements
AWC is concerned that the pre-trial diversion program as established in the current House version is not workable in many jurisdictions which may lack the necessary resources.
We prefer the Senate version of the bill, with the clarifying changes made by the House regarding the role of the prosecutor, defense, and the court.
Treatment facility siting
AWC appreciates the provision in the proposals to make opioid use disorder treatment facilities essential public facilities. But we oppose the approach of eliminating the requirement for the Department of
Health to hold a public hearing. Transparency and open communication are important for the siting of these facilities.
We appreciate your consideration of city preferences on these components of E2SSB 5536. Attached is a side-by-side comparison of the two versions of the bill along with AWC’s comments. If you have any questions, please feel free
to contact us. We are pleased to be able to partner with the legislature on this critical topic.