WA Senate WM - Committee Meeting
(April 5, 2021) - SB 5476 - Public Hearing

Washington State Supreme Court - State v. Blake (Feb 25, 2021) - En Banc - Excerpt
[ Event Details ]

Repercussions from a court ruling which struck down state drug possession laws came into focus for lawmakers through sharply divided testimony around a proposed legislative response.

Here are some observations from the Monday April 5th Washington State Senate Ways and Means Committee (WA Senate WM) meeting.

My top 4 takeaways:

  • A Washington State Supreme Court ruling declaring the state drug possession statute unconstitutional required lawmakers to address anticipated costs and draft legislation in response.
    • On February 12th, Washington State House Public Safety Committee (WA House PS) members heard HB 1499 which proposed to dramatically remake state drug policy by legalizing possession of ‘personal use’ amounts of all state controlled substances while redirecting resources towards substance use disorder (SUD) treatment. The committee received a lot of public comment, then subsequently revised the bill and recommended passage on February 15th. HB 1499 was referred to the Washington State House Appropriations Committee (WA House APP) but was not taken up for further action.
    • Following HB 1499’s initial policy committee consideration, a ruling by the Washington State Supreme Court on February 25th in the State of Washington v. Shannon Blake case (State v. Blake) found the State statute criminalizing drug possession unconstitutional. The Court found the law was indifferent to the intent of the accused to “knowingly” possess a drug and therefore denied some individuals a constitutional right to due process.
    • Following State v. Blake, numerous state and local law enforcement agencies issued statements on how they planned to address the judicial decision. The Washington Association of Sheriffs and Police Chiefs (WASPC) issued a call for action following the ruling, and later a statement calling for legislative “action to address the constitutionality of the simple possession statute. The Legislature, however, should not stop there. We ask our policy makers to take this opportunity to also make prevention, intervention, and treatment services as readily available in the community as drugs may be.”
    • WA Senate WM Chair Christine Rolfes’ proposed substitute to SB 5092, the biennium operating budget for fiscal years 2021-23, identified State v. Blake in several budget appropriations:
      • Section 1121(6)(f) for the Washington State Department of Corrections specified that “$250,000 of the general fund—state appropriation for fiscal year 2021 is provided solely for the department to provide rapid reentry services to incarcerated individuals releasing early as a result of the supreme court decision in State v. Blake.”
      • Section 115(9) pertaining to Legislative Agencies indicated “$10,500,000 of the general fund—state appropriation for fiscal year 2022 and $500,000 of the general fund—state appropriation for fiscal year 2023 are provided solely for the office to provide support to local courts to address impacts from the supreme court decision in State v. Blake.” $500,000 goes towards a state work group which would “develop recommendations for strategies and processes to be implemented at the local level to expedite case reviews and hearings to implement.” The remaining $10 million goes to “grants to the superior courts for excess court-related expenditures related to implementing” the ruling based on formulas developed by the work group.
    • The Washington State House of Representatives (WA House) striking amendment to SB 5092 appropriated even more State monies in response to the case.
      • In Section 115 for the Administrator of the Courts:
        • (4) “$44,500,000...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.”
        • (5) “$23,500,000...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 ruling.
      • The Department of Corrections would be appropriated money in
        • Section 1122(6)(e) provides $1,300,000 for the current fiscal year of 2021 for “staffing and to provide release assistance, including limited housing and food assistance, and other costs associated with individuals ordered released from confinement” due to the case.
        • Section 222(6)(c) “$3,300,000...solely for staffing and to provide release assistance, including limited housing and food assistance, and other costs associated with individuals ordered released from confinement as a result of the State v. Blake decision.”
    • WA Senate WM Fiscal Analyst Kayla Hammer provided a briefing from the bill analysis for SB 5476 (“Addressing the State v. Blake decision”). She offered background on criminalization of the possession, distribution, or production of controlled substances in the state Uniform Controlled Substances Act and the sections that had been rendered unconstitutional. Hammer said the possession statute ruled upon by the Supreme Court, RCW 69.50.4013, had allowed for people to “be found guilty of possession without proof the defendant knew they possessed the substance” resulting in “criminalization of passive conduct” which was deemed “a violation of due process.” She explained State v. Blake had “invalidated any Washington sentence for simple possession of a controlled substance” (audio - 4m, video).
      • SB 5476 would “establish personal use amounts for controlled substances” and “makes it unlawful for a person over the age of 21 to knowingly possess more than a personal use amount of a controlled substance or a counterfeit substance.” It would be illegal for any amount “to be possessed by someone under the age of 21,” Hammer added.
      • Knowing possession by adults over personal amounts would remain a “Class C felony or a gross misdemeanor for anyone under the age of 21” under the bill, Hammer told the committee.
      • A “class 3 civil infraction for opening a package or using a controlled substance or counterfeit substance in view of the general public or in a public place” would be established with a fine of up to $125 dollars, she said.
      • “It creates the State v. Blake reimbursement account in the state treasury collected as a result” of the new civil infraction, Hammer stated. She said the money in the fund was “only to reimburse state and local governments for costs resulting from the Supreme Court’s decision” in the case.
      • The bill would authorize law enforcement “to refer individuals possessing a personal use amount of a controlled substance, counterfeit substance, or legend drug to a forensic navigator for the purpose of evaluation and treatment.” The analysis stated that forensic navigators would receive “information alleging a person was in possession of a personal use amount of a controlled substance, counterfeit substance, or legend drug,” and “must attempt to contact the individual to provide resources for evaluation, treatment, recovery, and support.”
      • Hammer remarked that the fiscal note had been released minutes earlier and “the cash receipts are indeterminate” as treasury staff were unable to “estimate how many individuals will actually do the civil infraction that would collect the dollar amount.” She noted that the “only determinate amounts that are in the fiscal note available is $17,000 one time to the Department of Health.” The Administrative Office of the Courts would incur indeterminate costs “expected to be less than $50,000 per fiscal year,” Hammer remarked, while Corrections officials reported an indeterminate impact likely to be “greater than $50,000 per fiscal year.”
      • “There are also indeterminate local impacts reported due to a likely decrease in jail beds,” according to the fiscal note, Hammer observed.
    • The primary sponsor, Senator Manka Dhingra, said that SB 5476 was hastily written during session because the ruling “was really unexpected.” She commented that the legislation addressed “two questions.” First, “‘does the state need to act?’ and overwhelmingly the response was ‘yeah.’” And second, “what should this response be?” (audio - 2m, video)
    • At publication time, SB 5476 was scheduled for an executive session in WA Senate WM on Saturday April 10th. Given the substantial budget implications associated with the legislation and the pressure on lawmakers to act, it’s reasonable to assume this bill has been designated “necessary to implement the budget” (NTIB) and can be advanced outside of scheduled cutoffs.
  • 11 people spoke and 108 signed in support of the bill, suggesting it would help those with substance use disorders while promoting a more equitable criminal justice system.
    • Sybill Hyppolite, Washington State Labor Council (WSLC) Legislative Director (audio - 1m, video)
    • Stacy Hamlin, Olympia Bupe Clinic PEER Pathfinder (audio - 1m, video)
    • Carmen Pacheco-Jones, Health and Justice Recovery Alliance Executive Director (audio - 2m, video).
      • Pacheco-Jones was “a peer counselor trained in forensics” and had endured foster homes, the juvenile justice system, “human trafficking, and ultimately, drug addiction.” She said she’d had to detox from substance dependence in jail but received no treatment and returned “to a life of addiction” despite several arrests. Pacheco-Jones had become a “dedicated advocate for treatment, not incarceration” and supported HB 5476.
      • “Traumatized individuals need humanized treatment to begin the road to recovery,” she testified, citing her work with Treatment First Washington. She believed that “racial injustices created by the war on drugs must be addressed” due to disparate impacts on “Black, Indigenous, and People of Color” which had “devastated communities.” People recovering from SUD needed “access to employment, housing, and community connection.”
      • Senator Jeannie Darnielle asked whether structuring underage possession as a gross misdemeanor was “problematic,” wondering how such an offense would have impacted Pacheco-Jones as a juvenile. Pacheco-Jones felt that “building pathways to...treatment and recovery is important” even if some had “to go through that portion of the justice system” (audio - 1m, video).
    • Victor Mendez (audio - 2m, video) 
    • Malika Lamont, Voices of Community Activists and Leaders Washington (VOCAL WA) Director (audio - 1m, video) 
      • Lamont told senators she led “the technical assistance work for LEAD expansion across” the state “and my family has also been impacted by the war on drugs.” She said she’d worked with local governments to expand LEAD programs and, following State v. Blake, “I reached out to every jurisdiction that I worked with to make sure that there was Narcan [Naloxone] available...to prevent overdose when people were going to be exiting incarceration.” Lamont had been told by Mason County officials that, following implementation of their LEAD pilot program, they “had nobody that was locked up as a result of simple possession because everybody had been diverted into LEAD...that is the approach that we need to expand across the state, it is effective.”
      • Lamont relayed “equity concerns” with the bill’s language that were “laden within our criminal legal system.” Nonetheless, she concluded that SB 5476 was “an opportunity to start moving forward to create real change and make investments in communities.”
    • Arthur Rizer, Civil Survival (audio - 1m, video)
      • Rizer told the committee that he was a former prosecutor with the Narcotic and Dangerous Drug Section (NDDS) of the U.S. Department of Justice (DOJ) and a former Washington State Police (WSP) officer. He said that “the principles of this bill are laudable” but suggested changes like “reducing the class C felony language to simple misdemeanor for mere possession” in excess of personal amounts since “I think there’s no victims, typically, when you’re talking about mere possession.” Rizer went further, saying the felony offense “runs afoul to the...ideals” of the bill, which he viewed as “creating a new paradigm of community-based care” for substance use disorder.
    • Lisa Daugaard, Washington Defenders Association Director and the Care First Washington Coalition (audio - 2m, video) 
      • Daugaard stated that she’d forwarded senators information from her Coalition showing “Washington voters strongly support taking the opportunity of the Blake decision to make a fundamental shift, leaving behind the criminalization framework.” She claimed the public wanted “a better response to the serious issues related to drugs in our communities” and preferred “definitive change” to any “small adjustments” to the status quo.
      • Daugaard didn’t favor “stopping and searching” those under 21 because it “isn’t the right way to address their drug use” and advocated for a “health frame for young people that doesn’t involve a police encounter.” She also acknowledged concerns about the use of forensic navigators but trusted that Dhingra intended “that the navigators just route people to a new system of care.”
      • Without SB 5476, Daugaard anticipated that “many if not most local jurisdictions will pass their own ordinances criminalizing drug possession” and she said “compelling legal analysis” suggested “they legally can do so.” She expected that possession of drug paraphernalia “will be a proxy for possession across the state” without the passage of SB 5476.
      • Daugaard was one lawyer representing the Civil Survival Project in a class action lawsuit against the State seeking “monies collected, received, and retained by–-or owed to–-Defendants State of Washington, King County, and Snohomish County, and 37 other Washington Counties, as a result of convictions under Washington’s strict liability drug possession statute...and for further monetary, equitable and injunctive relief necessary to make impacted individuals whole with respect to the harms they suffered.” At publication time, the initial trial date was scheduled for March 2022.
    • Jerri Clark, Mothers of the Mentally Ill (MOMI) Founder (audio - 1m, video) 
      • Clark expressed her support for the bill, saying she’d founded MOMI while confronting her son’s “severe form of mental illness combined with” SUD. She said she’d avoided discussing his SUD in part “because there were so many times that that information would have led to certain jail time or prison time instead of help.”
      • As a supporter of the forensic navigator system, Clark was receptive to the potential for increased access to treatment offered to individuals. She called it a “wonderful expansion of that program” and encouraged lawmakers to adequately fund it.
      • Clark concluded SB 5476 was “the beginning of an improvement to support connections instead of incarcerations.”
    • Stephen Eisler (audio - 2m, video) 
    • Kurtis Robinson, Better Health Together, Revive Center for Returning Citizens, and Treatment First Washington Steward Committee Member (audio - 1m, video) 
      • Robinson remarked, “I am a living product of the fact that treatment works and...it is a necessary intervention.” However, he asked lawmakers “why are you doing this now?” and wondered if action was taken “to serve the whole public...or to serve your own agendas?” Robinson urged the committee to act “from a platform of anti-racism, equity, and...health and harm reduction” and not allow continuation of a policy “that has shown itself time and time again to be weaponized against our communities of color.” He asked for support for the “first step” of that change by passage of the bill.
    • Tatiana Quintana (audio - 1m, video) 
    • Individuals signed in as supporting HB 5476:
  • Six people spoke and 138 signed against passage of the measure, including state narcotics investigators, citing concerns including potential costs to local governments and doubts about the overall effectiveness of the bill.
    • Brian Luedtke, Washington State Narcotics Investigators Association (WSNIA, audio - 1m, video) 
      • Speaking for approximately 700 law enforcement professionals focused on narcotic investigations, Luedtke understood “that the Blake decision put us all in a time crunch” but “we do not think that this is the appropriate fix for this.” He was concerned that SB 5476 would “create a legalization for those that distribute legend drugs and that the unintended consequences of that...they’re going to be unforeseen.”
      • Decriminalizing simple possession “victimizes the users even more so because there’s not going to be the ability...to stop those that are distributing it,” he reasoned. Luedtke stated that some of the drug amounts legalized under the bill, specifically fentanyl, would “exacerbate” the number of opioid overdoses in the state, which he indicated were already high. He urged the committee to “reconsider” recommending the bill for passage.
    • Willy Jefferson Jr., Washington Defenders Association (WDA) and the Washington Association of Criminal Defense Attorneys (WACDL, audio - 2m, video) 
      • Jefferson testified that he was opposed to SB 5476 as someone who lost his son in June 2020. He said “part of the reason that he died was around the stigma of, of possession.” Jefferson continued, describing State v. Blake as a “chance to erase” the troubling legacy of substance prohibition “designed to hurt people of color.”
      • Jefferson shared his understanding that “we have issues with preemption” but the court case at issue “did not get rid of the Uniform Controlled Substances Act, it still exists, so preemption is not a problem.” He argued that the bill was unnecessary as “you cannot possess drugs at this point in time because it has to be in something, that’s drug paraphernalia. You can’t give it away, that’s a delivery. And you can’t possess it with intent to deliver, that’s a felony.” He concluded that “these laws will hurt people, we don’t need them.” LEAD, and programs like King County’s Familiar Faces Initiative, were effective, Jefferson said, “without criminalizing people.”
      • Vice Chair David Frockt asked about legal preemption and “how the interplay would work” between the controlled substances act and the Supreme Court decision. Jefferson replied that RCW 68.50.608 spoke to the issue and offered to share “three additional cases that are on point that can help address that issue.” He added that WDA Executive Director Christie Hedman would follow up with lawmakers on the specific cases (audio - 1m, video) .
    • Darya Farivar, Disability Rights Washington (audio - 1m, video) 
      • Farivar told the committee that she opposed SB 5476 since it “continues to use the criminal legal system through multiple methods.” She said forensic navigators already utilized by the Washington State Department of Social and Health Services (DSHS) were “officers of the court and as such should not be engaging with individuals not charged of a crime.” Navigators worked “to divert Trueblood class members from the competency system and have an extremely limited caseload and scope of work focused on this one goal.” As the bill would expand navigator roles beyond those effected under the Trueblood ruling, Farivar observed that “we have not seen funding allocated to match this expansion.”
      • Moreover, Farivar called out the “lack of peer involvement while drafting this legislation. In order to create true change we must have those people with direct, lived experience leading this work.” She then said the work group formed in the proposed operating budget listed “several organizations but does not call out people with direct, lived experience themselves.” Farivar advised amending language so that the work group was “led by those people...who have been impacted by these unconstitutional policies.”
    • Dana Parnello, City of Maple Valley Deputy Mayor (audio - 2m, video)
      • Parnello conveyed that the Maple Valley City Council recognized “the immediate need for the state legislature to determine a statewide standard regarding the possession, use, and trafficking of controlled substances.” He believed city officials wanted to work with their state counterparts to address the impact of State v. Blake. However, the Council reviewed provisions of the bill in a public meeting on March 29th and determined that “we are opposed to it in its current form.”
      • Parnello explained that by creating a gross misdemeanor charge for possession by “18, 19, and 20 years olds in our communities, the state is shifting to the cities the incarceration responsibility and the costs.” He remarked that the legislation created “municipal jurisdiction for drug possession gross misdemeanors and this will increase...municipal court, jail, prosecution, and indigent defense costs.” 
      • Parnello summarized that city officials saw SB 5476 as potentially increasing incarceration rates “and will increase costs.” He asked that lawmakers consider impacts and costs shifted “onto our local communities” when judging the bill.
    • Erin Weaver (audio - 1m, video) 
    • Patricia Taraday (audio - 1m, video) 
    • Individuals signed in as objecting to HB 5476:
  • 11 people spoke and 29 signed in as “other” on the bill, neither for nor against passage as written, including many county prosecutors and local government officials.
    • Russell Brown, Washington Association of Prosecuting Attorneys (WAPA) Executive Director (audio - 1m, video) 
      • Brown relayed WAPA members “unanimously support” the majority of the bill but were divided over “the ultimate question of whether personal use, or whether we use some other tool like a mandatory diversion to treatment. Or some graduated penalty”
      • Brown supported an amendment from Dhingra to the WA Senate proposed budget “that provided about $100 million” to fund SB 5476.
        • At publication time, no amendments were publicly available.
    • Andy Miller, Benton County Prosecuting Attorney (audio - 1m, video) 
    • Greg Banks, Island County Prosecuting Attorney (audio - 1m, video) 
      • Banks said that he supported “re-criminalizing drug use and possession by juveniles. Why? Because over 15 years ago the courts and legislature reoriented juvenile justice away from punishment and towards evidence-based therapy programs.” He was supportive of this move “but we do need court authority to compel troubled kids into these programs, and this bill does that.”
      • Banks testified that he was “not against” decriminalizing drug possession for adults “as part of a comprehensive strategy,” and called for a “centralized state portal to administer and fund the reimbursement of Blake effected” legal financial obligations (LFO). He believed only the State had the “uniformity, technical know-how, and funds” to appropriately respond to the Supreme Court decision.
    • Mary Robnett, Pierce County Prosecuting Attorney (audio - 1m, video) 
      • Robnett suggested that prosecutors were “unanimous with many of the policy concerns of this bill” and she supported most of the legislation. She claimed prosecutors supported substance use being “re-criminalized to some level,” citing positive effects her jurisdiction had seen with drug courts. She said, "felony charges serve as, as a real incentive" to usher “people who are suffering from substance use disorder or addiction into drug court and into very effective treatment.” Robnett acknowledged that they’d had “some success with district...drug court where people are charged with misdemeanors but a felony seems to be much more useful leverage” for prosecutors.
      • Robnett favored "juvenile criminalization at least to the level of gross misdemeanor" as prosecutors and parents could use the criminal justice system to “intervene in their youth, who are suffering from addiction.” 
    • Sharon Swanson, Association of Washington Cities (AWC) Government Relations Advocate (audio - 1m, video) 
      • Swanson stated that she’d met with Dhingra the weekend prior and “discussed some of [AWC’s] concerns” including the issues of municipal cost and authority raised by Parnello which she expected would be addressed in a striking amendment on the bill. She said her organization’s concerns “tie pretty much to funding” since some communities “lack in-patient treatment options, some of them even lack out-patient treatment options.” While Swanson was grateful that the legislature had invested in building out “a community based program” previously, she asked that AWC be more involved in drafting the legislative solution to State v. Blake. Beyond participation, she called for a “stable, identified funding source for this change in policy.”
    • Michele Walker, City of Kent Interim Prosecuting Attorney (audio - 2m, video) 
      • Walker was clear that the City of Kent government was not supportive of legalization “even in personal use amounts as they are defined.” She believed there were wording issues “as far as whether or not all of the types of controlled substances that it deals with are legalized or if it simply allows for the possession of one” substance identified by the bill.
      • Walker recommended the committee “readdress” sections 7 and 8 involving delivery and sales of controlled substances “to ensure that there are legal consequences for the buying and selling of drugs.” She agreed with Parnello’s testimony on the “shifting of responsibilities to municipalities from the state jurisdictions.”
    • James McMahan, Washington Association of Sheriffs and Police Chiefs (WASPC) Policy Director (audio - 1m, video)
      • McMahan considered SB 5476 a “significant improvement over the post-Blake status quo which has left us in the worst of both worlds,” but WASPC could not “support a bill that authorizes the possession of drugs.” He said it would be better for lawmakers to “address both the constitutionality of our possession statutes and ensure that prevention, intervention, treatment, and recovery services” be as “available in our communities as drugs are.”
      • He suggested the bill be amended so “when a forensic navigator has repeated unsuccessful attempts to connect a person with services, the navigator must then refer that person for evaluation and treatment under our involuntary treatment act” within RCW 71.05.
    • Juliana Roe, Washington State Association of Counties (WSAC) Policy Director (audio - 1m, video) 
      • Roe told senators that state courts were “backlogged by two to three years, and Blake intensifies and worsens” the situation. WSAC’s position focused on “the Blake reimbursement account,” she said. It remained uncertain “how the legislature intends to provide funding towards resolving the major hurdles that the state and counties face,” Roe testified. SB 5476 would get Washington “closer to putting money into the system so that we aren’t creating a bigger problem moving forward.” 
      • Roe commented that “the legislature has been moving in the direction of eliminating LFOs,” but was preparing to use the funding mechanism for implementing State v. Blake even as she considered it “an unreliable funding source.” Overall, she said WSAC accepted the bill as “some sort of fix for this decision.”
    • Ruben Alvarado, City of Pasco City Council Member (audio - 1m, video) 
    • Wesley Saint Clair, Retired judge and Washington State Sentencing Guidelines Commission (SGC) Chair (audio - 2m, video).
      • Saint Clair reported the Commission “almost unanimously opposes this bill, except” for the penalties for “youth engaging in substance abuse” as members discussed at an April 2nd special meeting. While opposing the reestablishment of a “failed criminal legal process model,” he encouraged a public health model “that better serves our community.”
      • Saint Clair asked for expanded SUD treatment funding “and court mandated treatment” as well as more reentry program funding to accommodate people who would be released due to the ruling. He advised being mindful that monetary sanctions like those in SB 5476 “have disproportionate impacts” on racial minority communities and also requested money for “the Blake clean up” to pay for the judicial costs incurred. 
      • Criminalization by the State “is not appropriate for youth interventions,” he mentioned. Saint Clair called for forensic navigators to be used “in a fashion that was originally intended, but not solely, for the purpose of law enforcement activities.”
    • Emijah Smith (audio - 2m, video) 
      • Smith said she’d “watched firsthand the devastation of the war on drugs, the war on our community when...the crack cocaine era came into the historical Black community in Seattle.” As an activist, she’d worked “to restore and heal...and take back and revert the bad policies that created such deviation.” 
      • Smith’s concern with SB 5476 related “to the gross misdemeanor to our youth.” Even when done with compassion, such actions were not “dealing with the systems that prevent housing, education, the things that sustain you and keep you stable.” She asked for policies that “take into account the racist system that’s been embedded” and that gross misdemeanor for youth “is just not acceptable.”
    • Individuals signed in as ‘other’ on HB 5476:

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