WA Senate LAW - Committee Meeting
(January 31, 2022)

Here are some observations from the Monday January 31st Washington State Senate Law and Justice Committee (WA Senate LAW) Committee Meeting.

My top 3 takeaways:

• WA Senate LAW Counsel Joe McKittrick led the staff report on SB 5927, "Concerning the safety and security of retail cannabis outlets," a response to criminal activity targeting cannabis businesses.
  • Cannabis licensed premises were appealing targets for theft given federal banking and financial service challenges that relegated retail sales almost entirely to cash transactions as well as the resale value of cannabis items in unregulated interstate markets.
    • In August 2019, Washington State Liquor and Cannabis Board (WSLCB) leaders discussed cannabis business robberies, and in December heard that an interactive map on the former agency Marijuana Dashboard made it “too easy” for persons with malicious intent to target production and processing facilities for robbery or burglary. By January 2020, agency officials removed the map from their site.
      • Similar upticks in thefts were reported in California and Colorado during this same period.
    • In January 2020, SB 6033, “Concerning the safety and security of retail marijuana outlets,” was drafted to require local law enforcement reporting of cannabis business robberies to the Washington State Patrol (WSP) along with sentencing enhancements for persons convicted of a robbery. The bill received a public hearing and was passed out of committee, but wasn’t advanced further.
    • In January, the owners of Uncle Ike's shared a spreadsheet of self-reported cannabis store robberies and burglaries in the state since February 2017 identifying 122 crimes at publication time. Although unofficial, it showed a clear trend:
      • 2019 - 14 robberies and burglaries identified
      • 2020 - 29 robberies and burglaries identified
      • 2021 - 34 robberies and burglaries identified
      • January 2022 - 26 robberies and burglaries identified
  • McKittrick briefed from the bill analysis which stated the legislation “Creates a sentencing enhancement for robbery in the first or second degree of a cannabis retail outlet where the perpetrator committed the robbery as a premeditated act in concert with another individual or individuals” (audio - 3m, video):
    • McKittrick told the committee that cannabis retailers were “frequent targets of robberies, since November 2021 in Washington there have been more than 30 crimes committed against cannabis retailers.” This trend included “coordinated robberies involving multiple armed individuals,” he said. 
    • McKittrick reviewed existing statutory definitions for the crimes, and how SB 5927 would add “a special allegation [and] sentencing enhancement applicable to the crime of robbery in the first or second degree.” If proven in court “beyond a reasonable doubt that a person has committed a robbery of a cannabis retail outlet where the person committed the robbery as a premeditated act in concert with others, the person convicted would face a sentencing enhancement of 12 months in prison in addition to the individual’s underlying standard sentence,” McKittrick explained.
      • Sentencing enhancements and mandatory sentences have been used for years in drug prohibition policy, and have been repeatedly challenged for the racial and social inequalities in their application by the courts. Resources on the topic include:
        • Old Dominion University - The War on Drugs in the American States: Variations in Sentencing Policies Over Time
        • Prison Policy Institute - Fighting against excessive and ineffective geography-based penalties
        • Drug Policy Facts - Mandatory Minimums
        • Equal Justice Under the Law - Opposing Mandatory Minimums
        • U.S. Sentencing Commission -
          • Marijuana
          • Mandatory Minimum Penalties Drug Offenses- in the Federal System (2017)
          • Application and Impact of Section 851 Enhancements (2018)
      • In California, officials had stopped imposing mandatory minimums for drug sentencing in October 2021, but on January 27th, legislation was introduced to increase the penalty for unlicensed cultivation of more than six cannabis plants by a person over 18 from a misdemeanor to a felony.
    • Retail outlets would also be required to report “any attempts or incident of first or second degree robbery” to WSLCB “within ten days of the incident.” The head of the Enforcement and Education Division would be required to “regularly consult” with WSP leaders “to provide details of incidents of robbery and to discuss any evidence that indicates a pattern of, or coordinated effort by a criminal enterprise.” 

• 16 people supported the bill, with six speaking to the need to deter further robberies at the cash-only businesses for the sake of retail employees and the public.
  • Senator Jim Honeyford, the measure’s primary sponsor, said he was backing the bill despite a personal vow “that I don't vote for any marijuana bills, but this one is a little different" (audio - 1m, video).
    • Honeyford quoted infamous bank robber Willie Sutton (“who denied the answer” attributed to him) about targeting banks because “that’s where the money is.” Retailers were a target “because they have to deal in cash due to federal banking rules,” Honeyford stated, meaning “that’s where the money is.” He believed the incidents would “continue unless we take action,” and was especially concerned about a “fatal result” from a robbery.
    • Senator Keith Wagoner asked for Honeyford’s feelings on an “enhancement for use of a deadly weapon, specifically firearms,” asking if the situation was sufficiently covered in “existing law, or if there’s room in your bill to stiffen things if you use a firearm.” Honeyford believed there was “room to stiffen it” (audio - 1m, video).
  • Chris Thompson, WSLCB Director of Legislative Affairs (audio - 1m, video)
    • Thompson conceded that although his agency was the lead regulator of retail stores “we don't have super good data on the incidences," but "it does appear like this problematic activity is on the rise." WSLCB leaders supported the bill on the view it made “improvements in terms of both public safety and officer safety.”
  • Mark Johnson, ​​Washington Retail AssociationSenior Vice President of Policy and Government Affairs (audio - 2m, video)
    • Acknowledging his association’s membership included some cannabis retailers, Johnson thanked Honeyford for addressing “increasingly frequent and violent and costly thefts, often committed by retail theft crime rings.” He alleged the state “ranks second in the nation in theft per capita, with over $2.7 billion stolen from retailers every year,” hurting retailers and diminishing state revenue.
      • Resources on robbery, theft, and larceny rates in Washington State:
        • Relentless robbers: State bank-heist rate among nation's highest (Sep 2004)
        • Robbery rate in the United States in 2020, by state and Burglary rate in the United States in 2020, by state (Oct 2021)
        • Porch Piracy to Surge During Record Online Shopping This Holiday Season (Nov 2021)
        • 2022 Crime Rates in U.S. Cities Report (January 19, 2022)
    • Johnson suggested perpetrators used "sophisticated operations, often with ties to human trafficking, drug smuggling, terrorism, pornography, and a myriad of other crimes.” The bill was “one prong in a multi-pronged approach needed to combat retail theft and protect public safety,” he remarked, “and as a tool for law enforcement and prosecutors.”
      • Johnson previously lobbied for retail staff in other industries to be empowered to detain suspected shoplifters should they witness an individual conceal a product. HB 1656 was introduced on January 10th to amend the state’s definition of theft “to include concealing the property of another intending to deprive the other person of its use or benefit.” Johnson expressed the association's support for businesses being able to intervene during a potential theft.
  • James Adams, Mr. Greens Budtender and UFCW 21 Member (audio - 1m, video)
    • Adams felt that retail cannabis crimes often “don’t really get reported to the media.” He had been notified by local police of robberies near him in addition to hearing about other incidents from friends. Adams appreciated how the bill would address a “big problem” that was affecting those in the cannabis industry.
  • Vicki Christophersen, WACA Executive Director and Lobbyist (audio - 1m, video)
    • Christophersen called the legislation “one piece of a robust strategy" state officials “should employ to deal with this issue.” Though crimes were “predominantly” at retailers, she noted transportation licensees as well as producer/processors had also been victims of crime. Christophersen expected this would continue as long as “there is a lot of cash” in the cannabis sector, pointing to the 2017 death of a retail employee “who was kidnapped as part of a robbery and ultimately lost his life.” She called the bill “one piece of a total strategy that could work to thwart these thieves.”
      • Christophersen supported SB 5781 which would expand the definition of organized retail theft. Additionally, SB 5944 would establish “an organized retail theft task force.”
    • Ranking Member Mike Padden asked about federal activity that might mitigate the need for retailers to be “cash-only” businesses. Christophersen mentioned the SAFE Banking Act, saying it passed the U.S. House of Representatives multiple times but needed action by the U.S. Senate, where, “we have the votes, we just sure would like the leadership to bring it up for a vote” (audio - 1m, video).
    • Padden then inquired about Washington state credit unions providing cannabis financial services. Christophersen responded that retailers “still have to collect that cash at the retail store," meaning credit union involvement "doesn't solve the entire problem" (audio - 1m, video).
  • Adán Espino, Craft Cannabis Coalition (CCC) Executive Director (audio - 2m, video)
    • Noting that CCC represented cannabis retailers, Espino said his organization had identified “over 35 robberies at cannabis retail stores since January 1st…more than one a night.” Claiming some retail locations had “more cash than banks do,” he noted that staff were "also unarmed." Espino said that some licensees wished to testify but were “fearful of identifying themselves.”
      • RCW 9.41.300(1)(d) prohibits firearms from the “portion of an establishment classified by the state liquor and cannabis board as off-limits to persons under 21 years of age,” which is the entirety of a cannabis retail establishment. However, section (11) specifies that “(1)(d) of this section does not apply to the proprietor of the premises or his or her employees while engaged in their employment,” meaning cannabis licensees or their staff could possess firearms on the premises. 
  • Shea Hynes, Lux Pot Shop Co-Owner (audio - 2m, video)
    • Hynes explained he’d been involved in cannabis retail “since the medical days in 2001” and while he and his employees had never been victims of a robbery “until recently, we’ve had three armed robberies over the course of the last three weeks.” He cited Uncle Ike’s spreadsheet of robberies in arguing the offenses were “skyrocketing at alarming rates over the last six months” to “one a day” in the state.
    • “This is not just a policing issue…this is a people problem," Hynes asserted, noting the incidents traumatized his staff. He compared the legislation with a statute adopted to respond to pharmacy robberies, saying both establishments sold a “controlled substance.” With cannabis stores providing significant tax revenue, Hynes commented that retail licensees like him wanted “the state to provide some help to this important issue.”
  • Signed in but not testifying (10):
    • Scott Atkison, Zips Cannabis Owner 
    • James Bean, Craft Cannabis Co-Owner
    • Daniela Bernhard, Uncle Ike’s Co-Owner
    • James Gaston, CCC
    • Samantha Grad, UFCW 21 Political and Legislative Organizer
    • Herb Krohn, SMART Transportation Division/United Transportation Union
    • Mellani McAleenan, Washington State Association of Counties (WSAC)
    • Julie Peterson, Foundation for Healthy Generations   
    • Bethany Rondeaux, Falcanna Owner and BC Labs LLC
    • Adam Simon, The Reef Cannabis 

• Four people signed in as ‘con’ and ‘other’ on the legislation, expressing concerns the robberies were symptomatic of industry challenges that wouldn’t be fixed by reporting and sentencing requirements.
  • John Worthington (audio - 3m, video)
    • Opposed to SB 5927, Worthington called the proposal “evidence of the huge regulatory problem we have" at WSLCB where agency actions kept “old players in the game.” He alleged that a “market glut” had resulted in “a lot” of retail robberies which, “like in the medical marijuana industry, end up kind of being inside jobs.”
    • Worthington questioned the support of Senator Honeyford who “admits he doesn’t really want” better cannabis policies. He added that expanding the law enforcement role and sanctions in legal cannabis crimes was contrary to the will of voters who were “tired of doing that.”
  • Caitlein Ryan, The Cannabis Alliance Interim Executive Director (audio - 3m, video)
    • Ryan explained she arrived at a position of ‘other’ on the legislation after “soul-searching and conversation” among association members who recognized the bill was responding to a “material, and painful, and immediate” issue. She felt the bill was evidence that industry concerns were being heard “as armed robberies continue to escalate,” pointing to a member business, Dockside Cannabis, where a “tragic and brutal attack” left an employee “fighting for their life.”
    • Ryan relayed that her hesitation over SB 5927 was due to a worry it would not lead to an “impactful change other than possibly putting more people in jail with slightly longer sentences.” Being of the opinion that people desperate enough to rob a retailer wouldn’t consider “or even be aware of the nuances of sentencing law,” she also felt there was evidence of a “disproportionate application of sentencing enhancements given to Black and Brown people. We fear this may only serve as another tool for furthering an already inequitable and catastrophic incarceration endemic in America.”
      • Outgoing WSLCB Board Member Russ Hauge, a former chair of the Washington State Sentencing Guidelines Commission (SGC), voiced a similar skepticism when considering changes to fines due to cannabis penalties in January 2020. He observed that monetary punishments have “a place in regulatory regimes like criminal justice” in his estimation, but as most businesses “aren’t planning to violate” rules, fines therefore had an uncertain deterrence value. He also stated “if they are trying to scam us what they’re thinking about is whether they’re going to get caught, not how much the penalty is going to be.” Hauge was lauded by Thompson for his proposal to cut cannabis penalties by half at his last Board Caucus meeting on January 25th.
    • Instead, Ryan advised pursuing “practical approaches to the root problem before contributing to the overwhelmingly high percentage of Americans in prison.” She asked for legislators to “lead a coordinated effort to push on the federal government to once and for all give our business access to credit card processing” thereby diminishing “cash-on-hand” and reducing incentive “for this type of violence.” Ryan also favored “the proposed state bank” as another way of tackling the issue, asking committee members to consider an alternative to “truly help our industry reduce the terrible violence we are facing.”
  • Neil Beaver, Washington Defenders Association and Washington Association of Criminal Defense Attorneys (WACDL) Contract Lobbyist, signed in opposed to the bill and Lara Kaminsky, The Cannabis Alliance Government Affairs Liaison, signed in as ‘other.’