WA Governor - Bill Action
(May 13, 2021)

Here are some observations from the Thursday May 13th Washington State Office of the Governor bill signing.

My top 8 takeaways:

• Introduced late in the session on March 24th, SB 5476 (“Responding to the State v. Blake decision by addressing justice system responses and behavioral health prevention, treatment, and related services”) established new treatment and recovery pathways for those with substance use disorder, arranged court support for individuals with sentencing impacted by the ruling, set a timeline to decriminalize personal amounts of controlled substances, and allocated new spending to accomplish these goals.
  • The February 25th ruling in the case by the Washington State Supreme Court found the State statute criminalizing drug possession unconstitutional as it negatively impacted a person’s right to due process. SB 5476 was one of several legislative vehicles responding to the court’s finding.
  • See the Washington State Senate (WA Senate) committee public hearing and executive session on SB 5476 before it was amended and passed by the WA Senate on April 15th. In the Washington State House of Representatives (WA House), the bill received a committee hearing and executive session. On April 24th, the day before the scheduled end of the 2021 legislative session, WA House further modified and passed SB 5476. Senators voted to concur with the revisions later that day.
    • The Municipal Research and Services Center (MRSC) developed a page on The Status of Drug Possession in Washington State.
  • The final Senate bill report on SB 5476 from April 27th summarized the effects of the bill:
    • “It is unlawful for a person to knowingly possess a controlled substance or counterfeit substance unless the use is subject to a valid prescription.
    • A person who is guilty of possession of a controlled substance or counterfeit substance is guilty of a misdemeanor. Unlawful possession of a legend drug remains a misdemeanor. When a case involving possession is legally sufficient, the prosecutor is encouraged to divert cases for assessment, treatment, or other services.
    • The statutory provisions addressing possession of controlled substances, counterfeit substances, and legend drugs expire July 1, 2023, at which time the statutes revert to the current language.
    • Using or manufacturing drug paraphernalia is not illegal to the extent the drug paraphernalia is for personal use. A person who would otherwise be subject to arrest for possession of a controlled substance, counterfeit substance, legend drug, or 40 grams or less of marijuana shall be offered referral for assessment and services by law enforcement in lieu of jail booking and referral to a prosecutor. If a person has been diverted on two previous occasions, law enforcement is not required to make additional diversion efforts.
    • The Health Care Authority (HAC) [sic] is required to establish a substance use recovery services advisory committee. The HCA must appoint members to the committee who have relevant background related to the needs of persons with substance use disorders and be reflective of the community of individuals living with substance use disorders. The committee shall include four legislative members representing each of the two largest caucuses of the House of Representatives and the Senate.
    • The committee shall establish a substance use recovery services plan with a preliminary report due on December 1, 2021, and the final report due on December 1, 2022. The plan shall be implemented by December 1, 2023. Subject to appropriation, the HCA shall create a grant program to provide treatment services to low-income individuals, establish an expanded recovery support services program to increase access to services for individuals in recovery from substance use disorder, and establish a homeless outreach stabilization transition program.
    • Each behavioral health administrative services organization (BHASO) must establish a recovery navigator program that provides community-based outreach, intake, assessment, and connection to services to youth and adults with substance use disorders. The HCA must provide funding to each BHASO for the recovery navigator programs, subject to appropriation.
    • Court commissioners may be appointed by presiding judges of superior courts to assist the court in adult criminal cases including resentencing hearings and to vacate convictions pursuant to State v. Blake
    • Persons confined in correctional facilities entitled to vacation of a conviction or recalculation of an offender score pursuant to State v. Blake may be released from confinement pursuant to a court order.
    • All law enforcement personnel required to complete basic law enforcement training must receive training on interaction with persons with substance use disorders including persons with co-occuring substance use and mental health conditions. The training must include referral to treatment and recovery services for adults and juveniles.
    • Appropriations are made to the Health Care Authority Community Behavioral Health Program, the Administrative Office of the Courts, the Department of Commerce, and the Criminal Justice Training Commission.”
  • Governor Jay Inslee was presented with the bill for signing. He acknowledged the court case which prompted the legislation and called SB 5476 a “fix by the legislature” adding an “element of criminal intent the court said was missing” requiring “proof that a suspect knowingly possessed a controlled substance.” He said under the bill the offense would be a misdemeanor “rather than the felony offense it was prior to the Blake decision and it also requires the first two offenses to be diverted to treatment” (audio - 3m, video).
    • Inslee described this change as addressing “the disparate impact of the previous drug possession statute on people of color” as well as reforming the “system from responding to possession as a felony to focusing on the behavioral health response, which is a much more appropriate and successful way to address the needs that underlie drug abuse.”
    • He talked about how the “behavioral health aspects” of SB 5476 “include historic investments in our state substance use treatment and recovery services.” This would prioritize “diversion and treatment and creates a system of recovery navigators to help people get connected to support and services in the community,” Inslee said.
    • Inslee remarked that the proposal “enhances and expands programs like the law enforcement assisted diversion program (LEAD) and the homeless outreach stabilization transition program (HOST) which supports people in need of substance use services as alternatives to incarceration.” He said the legislation applied “prospectively, that means prior convictions are still invalid and resentencing still need[s] to occur.” SB 5476 would allow judges to “appoint court commissioners to conduct resentencing hearings and vacate prior convictions.”
    • Inslee chose to veto section 21 of the bill, with a veto letter stating the legislation “creates a new account that will not be used, therefore it is unnecessary.” He also credited the work of Senator Manka Dhingra for leading on “an extremely complex issue.”
      • Section 21 reads “The State v. Blake reimbursement account is created in the state treasury. Moneys in the account may be spent only after appropriation. Expenditures from the account may be used only for state and local government costs resulting from the supreme court's decision in State v. Blake, No. 96873-0 (Feb. 25, 2021), and to reimburse individuals for legal financial obligations paid in connection with sentences that have been invalidated as a result of the decision.”
  • In an uncommon move, lawmakers appropriated money related to the court ruling both in SB 5476 as well as SB 5092, the State biennium operating budget. SB 5476 allocated $82.157 million to the WA HCA Community Behavioral Health Program, and $6.3 million for other state agencies. SB 5092 allocated $84.8 million for court costs, public defense, legal aid, and the Washington State Department of Corrections. In total, lawmakers allocated $172.857 million relating to State v. Blake for FYs 2021, 2022, and 2023. The law takes effect on July 25th.
  • Earlier in the legislative session, Ruth Dreifuss, Global Commission on Drug Policy (GCDP) Chair and Former President of the Swiss Federation, testified about drug users, saying “most are able to control their consumption and stay well integrated in society and professional life” and that the “free choice of those who control their consumption and don’t harm others should be respected.” On a personal level as one of these infrequent drug users I’ve been disappointed that lawmakers speaking about SB 5476 ignored or disregarded this perspective.
    • Many legislators voiced frustration at how the timing of the State v. Blake ruling affected their agendas, annoyance at the complications to the police and court systems, sympathy for those struggling with substance use disorder (SUD) and their loved ones, and the need for more treatment and recovery options. However, no lawmaker in any hearing on this bill I’m aware of voiced regret for those harmed by the prior enforcement of a law denying them due process rights for an unintentional act. It has been easy to disregard those caught up in the system for illicit, but otherwise non-problematic, drug use because their circumstances aren’t dramatic enough to evoke the emotions and attention given to those experiencing SUD.
    • It is sensible to focus on policy solutions for those with the most serious health problems and it’s human to lament the tragic situations associated with some addictions while wanting better for our communities. This law showed legislators rightfully concerned about SUD and it makes sense that people with these needs receive the vast majority of the consideration and funding in social safety nets. But, as I heard lawmakers remarks, several were less sensibly assuming that treatment and recovery options would be needed for any drug possession. I feel it is troubling that officials could incentivize treatment and recovery options to the point that they’re the sole policy alternative to incarceration. Presuming SUD for all drug possession, and requiring treatment, shifts the policy failure of prohibition from the criminal justice system to the healthcare system. Discretion should not just be between arrest or treatment, but should regard the circumstance of possession. Anything else wastes taxpayer health dollars, potentially limits treatment and recovery options for those with SUD, and in all likelihood, will be disproportionately applied to disadvantaged populations. LEAD programs, in Washington and beyond, have been found to focus on at-risk population groups and include officer discretion. I hope these values will be at the forefront of the training authorized by this bill now that Washington will expand this program across the state.
    • I’m someone who has occasionally used illegal drugs and who has lost friends to drug and alcohol use, witnessed complications due to use, seen friends relapse from sobriety, and known someone whose permanent health conditions were significantly impacted by past SUD. I’ve also known someone who stopped methamphetamine abuse through their own will power and without formal treatment or arrest. The public can’t expect a perfect system for a long-standing social condition, but we must insist the process distinguish personal, non-problematic substance use from SUD. A system that fails at this is destined to continue the inequitable and cruel impacts decades of drug prohibition have already wrought.
    • At the heart of the Blake case is a policy and criminal justice process that allowed drug possession to serve as a proxy for a public safety threat, so much so that the intent of the accused became legally meaningless. The callousness of this process, and those impacted by it, wasn’t given the same weight as the inconvenience of the court’s timing in rendering their judgement and the impact that timing had on lawmakers’ agendas. At the very least, someone who created or enforced the law Shannon Blake spent years successfully challenging could offer her an apology for what she went through - and thank her for helping begin a needed process of reconciliation.

• Washington State Health Care Authority (WA HCA) Community Behavioral Health Program: $82.157 million
  • SB 5476 appropriated money from the general fund in section 22 for FY 2022 and 2023, with 11 outlined allocations for the money:
    • (1) $45 million “solely for the authority to contract with behavioral health administrative service organizations to implement the statewide recovery navigator program established in section 2 of this act and for related technical assistance to support this implementation.”
    • (2) $8.677 million “solely for the authority to implement clubhouse services in every region of the state.”
    • (3) $12.5 million “solely for the authority to implement the homeless outreach stabilization team program, pursuant to section 5(1) of this act.”
    • (4) $5 million “solely for the authority to expand efforts to provide opioid use disorder medication in city, county, regional, and tribal jails.”
    • (5) $1 million “solely for the authority to expand opioid treatment network programs for people with co-occurring opioid and stimulant use disorder.”
    • (6) $2.8 million “solely for behavioral health administrative service organizations to develop regional recovery navigator program plans pursuant to section 2 of this act and to establish positions focusing on regional planning to improve access to and quality of regional behavioral health services with a focus on integrated care.”
    • (7) $150,000 “solely for the authority to contract with an organization with expertise in supporting efforts to increase access to and improve quality in recovery housing and recovery residences.”
    • (8) $1 million “solely for the authority to provide short term housing vouchers for individuals with substance use disorders.”
    • (9) $500,000 “solely for the authority to issue grants for substance use disorder family navigator services.”
    • (10) $400,000 “solely for the authority to convene and provide staff and contracted services support to the recovery oversight committee established in section 1 of this act.”
    • (11) $5.13 million “solely for staff and contracted services support for the authority to develop and implement the recovery services plan established in section 1 of this act and to carry out other requirements of this act.”

• Washington State Administrative Office of the Courts (WA AOC): $72.5 million
  • SB 5476 allocated $4.5 million from the general fund for the office in section 23 of the bill between FY 2022 and 2023 “solely to fund grants for therapeutic courts operated by municipalities and district courts.”
  • SB 5092 allocated:
    • $44,500,000 from the general fund in Section 115(5) for FY 2022 “provided solely to assist counties with costs of resentencing and vacating the sentences of defendants whose convictions or sentences are affected by the State v. Blake decision. Subject to the availability of amounts provided in this section, the office must provide grants to counties that demonstrate extraordinary judicial, prosecution, or defense expenses for those purposes. The office must establish an application process for county clerks to seek funding and an equitable prioritization process for distributing the funding.”
    • $23,500,000 from the general fund in (6) for FY 2022 “provided solely to establish a legal financial obligation aid pool to assist counties that are obligated to refund legal financial obligations previously paid by defendants whose convictions or sentences were affected by the State v. Blake ruling. County clerks may apply to the administrative office of the courts for a grant from the pool to assist with extraordinary costs of these refunds. State aid payments made to a county from the pool must first be attributed to any legal financial obligations refunded by the county on behalf of the state. The office must establish an application process for county clerks to seek funding and an equitable prioritization process for distributing the funding.”
  • At publication time, jurisdictions had already begun addressing those impacted by the court decision. The Pierce County Council approved an ordinance on April 29th permitting the county prosecutor office to hire temporary staff to manage cases impacted by the ruling.

• Washington State Office of Public Defense (WA OPD): $11 million
  • SB 5092 allocated $5,500,000 from the general fund in Section 116(5) for FY 2022 and $5,500,000 for FY 2023 “provided solely to assist counties with public defense costs related to vacating the sentences of defendants whose convictions or sentences are affected by the State v. Blake decision.”
    • $400,000 in FY 2022 and $400,000 in FY 2023 were provided in (a) “solely for the office of public defense to provide statewide attorney training, technical assistance, data analysis and reporting, and quality oversight and for administering financial assistance for public defense costs related to State v. Blake impacts.” 
    • The balance of the appropriation, $5,100,000 in FY 2022 and 2023, was allocated in (b) “solely for grants allocated for public defense assistance. The allocation of grant funding shall be determined based upon a formula as established by the office of public defense, and must be provided:
      • (i) To assist counties providing counsel for clients seeking to vacate a sentence or to be resentenced under the State v. Blake decision; and
      • (ii) to assist counties that may designate the office of public defense to contract directly with attorneys to represent and assist clients seeking to vacate a sentence or to be resentenced under the State v. Blake decision.”

• Washington State Department of Corrections (WA DOC): $4.6 million
  • SB 5092 allocated:
    • $1,300,000 from the general fund in Section 1221(6)(d) for FY 2021 regarding offender changes “solely for temporary court facilities, for staffing, and to provide release assistance, including limited housing and food assistance, and other costs associated with individuals resentenced or ordered released from confinement as a result of the State v. Blake decision.”
    • $3,300,000 from the general fund in Section 223(6)(d) for FY 2022 for the same purpose.
  • Learn more from the department news spotlight on the case.

• Washington State Department of Commerce: $1.5 million
  • SB 5476 allocated $1.5 million from the general fund for the department in section 24, $500,000 for FY 2022 and $1 million for FY 2023, “solely for the department to provide grants for the operational costs of new staffed recovery residences which serve individuals with substance use disorders who require more support than a level 1 recovery residence.”

• Washington State Office of Civil Legal Aid (WA OCLA): $1.2 million
  • SB 5092 allocated $600,000 from the general fund in Section 117(8) for FY 2022 and $600,000 for FY 2023 “solely to provide online automated plain language forms, outreach, education, technical assistance, and some legal assistance to help resolve civil matters surrounding legal financial obligations and vacating the sentences of defendants whose convictions or sentences are affected by the State v. Blake decision.”
    • OCLA staff released a letter on the availability of funds on May 24th.

• Washington State Criminal Justice Training Commission (WA CJTC): $300,000
  • SB 5476 allocated $300,000 from the general fund for the commission in section 25 of the bill between FY 2022 and 2023, “solely for the commission to compensate trainer time to deliver the curriculum related to law enforcement interactions with persons with a substance use disorder pursuant to section 7 of this act.”