WA Senate - Session - Afternoon
(April 15, 2021) - SB 5476 - Second and Third Reading

Senators debated a legislative response to the State v. Blake decision and adopted a striking amendment making possession of controlled substances a misdemeanor, creeping further back towards criminalization of public health concerns.

Here are some observations from the Thursday April 15th Washington State Senate (WA Senate) afternoon session.

My top 3 takeaways:

• The WA Senate response to the Washington State Supreme Court decision overturning the state drug possession statute reached the senate floor with significant costs projected over the coming fiscal years (FY) due to the unconstitutional law and the bill’s proposal to refer those with personal amounts of controlled substances to forensic navigators.
  • SB 5476 (“Addressing the State v. Blake decision”) received a public hearing on April 5th by the Washington State Senate Ways and Means Committee (WA Senate WM). On April 10th, the committee chose not to consider several amendments during executive session. After a protracted question and answer session, Chair Christine Rolfes announced that “rather than going through all the amendments and motions...we’re going to move that we move that to the [Washington State Senate] Rules Committee without rec[ommendation]” in order to “continue in-depth policy discussion and preparation for floor action” (video).
  • Lieutenant Governor Denny Heck, President of WA Senate, asked the Secretary of the Senate to read the bill (audio - <1m, video), which, according to the WA Senate WM Bill Report:
    • Establishes personal use amounts for controlled substances.
    • Removes criminal penalties for the possession of a controlled or counterfeit substance or a legend drug that does not exceed the personal use amount.
    • Authorizes 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 Washington Department of Social and Health Services (DSHS) currently uses a limited forensic navigator program as court appointed handlers “to transform how people with mental illness are treated within the criminal court system.” The enacting statute does not require qualification as mental health counselors or substance use disorder professionals.
  • The latest fiscal note from April 13th suggested the only cash receipts were due to the Washington State Office of the Attorney General (OAG) billing of DSHS “for legal services rendered.” The majority of the fiscal note estimated operating budget expenditures the state faced:
    • OAG:
      • FY 2021-23 - $41,000
      • FY 2023-25 and FY 2025-27 - $32,000
    • DSHS:
      • FY 2021-23 - $24,831,614
      • FY 2023-25 - $32,540,024
      • FY 2025-27 - $33,346,636
      • The significant cost was due largely to the DSHS Behavioral Health Administration (BHA) to both expand and redesign the forensic navigator program, with the analysis stating that “Currently, forensic navigators serve to help guide, support and advocate for Outpatient Competency Restoration Program clients. The forensic navigator current workload does not include acting as care coordinators for those with [substance use disorder] SUD’s. Based on this new workload, it is assumed DSHS BHA will need additional staff resources to meet the condition of serving in this new capacity.” 
        • Learn more about the DSHS restoration program and its clinical screening process.
    • Washington State Department of Health (DOH):
      • FY 2021-23 - $17,000
    • Washington State Department of Corrections would incur “Non-zero but indeterminate cost and/or savings.” The discussion by Corrections representatives assumed “this bill would likely result in an Average Daily Population (ADP) increase, although the impact cannot be reliably estimated. Therefore, the fiscal impact is indeterminate, assumed to be more than $50,000 per FY” and outlined multiple underlying assumptions made by staff to reach that determination. 

• A flurry of remarks on amendments revealed senators’ views on adult drug possession and the overall trajectory of the State’s controlled substance policy, ultimately voting forward a significantly revised striking amendment despite mostly Democratic opposition - including the bill’s original sponsor.
  • Amendment 870 by Senator Mike Padden would have taken out “the provision that allows the director of the health care authority to establish by rule personal use amounts for other controlled substances, counterfeit substances, or legend drugs not already established” (audio - <1m, video). 
    • Padden said the bill gave authority to WA HCA’s director “to establish, by rule, personal use amounts” and Amendment 870 would keep that agency from being “in the business of establishing by rule personal use amounts of drugs..and make that legal. That is not authority the legislature should cede to bureaucrats” (audio - 1m, video).
    • Deputy Majority Leader Manka Dhingra, the prime sponsor of SB 5476, described her opposition to the amendment because “this bill has...a lot of ways to go right now and there is going to be a striking amendment coming right up” which would have its own amendments. She urged a no vote “on this particular amendment” (audio - <1m, video). 
    • Heck had staff take a roll call vote and reported that the “noes have it, the amendment is not adopted” (audio - 1m, video).
  • Amendment 831 from Senator Jamie Pedersen was a striking amendment that proposed 13 changes according to the listed bill effects (audio - <1m, video):
    • Amends the title;
    • Adds intent statement, including intent to increase funding for substance use disorder treatment programs;
    • Reinstates criminal penalties for possession of personal use amounts of controlled substances, counterfeit substances, and legend drugs;
    • Decreases criminal penalty for possession of controlled substances and counterfeit substances from a felony to a gross misdemeanor;
    • Requires the prosecutor to divert a person's first and second violations for possession of a controlled substance, counterfeit substance, or legend drug and encourages diversion thereafter when agreed by the prosecutor;
    • Retains provisions removing criminal penalties for possessing drug paraphernalia for personal use;
    • Removes provision directing funds from the civil infraction be deposited in the State v. Blake reimbursement account;
    • Requires the Health Care Authority (HCA) to adopt rules establishing maximum personal use amounts of controlled substances by October 1, 2022;
    • Defines personal use amount in statute as the amounts established by the HCA;
    • Requires the HCA to establish the substance use recovery services advisory committee to make recommendations for implementation of a substance use recovery services plan, including recommended reforms to the law;
    • Authorizes the presiding judge of the superior court of any county in the state to appoint court commissioners to assist the court with adult criminal cases, including the authority to conduct resentencing hearings and vacate convictions pursuant to State v. Blake;
    • Clarifies a person may be released from confinement if State v. Blake results in vacation of the person's conviction or resentencing and the person has served a term of confinement in excess of the new sentence;
    • If the legislature does not act by July 1, 2023, institutes provisions removing criminal penalties for possession of a personal use amount of a controlled substance, counterfeit substance, or legend drug for persons 21 years of age or older and creating a civil infraction for using controlled substances in public.
  • The first of eight proposed changes to Amendment 831 was Amendment 866 by Padden which (audio - 1m, video):
    • Removes the intent statement.
    • Retains the knowingly standard for possession of controlled substances.
    • Provides for a civil infraction for possession of controlled substances.
    • Removes provisions relating to the HCA and their authority to adopt rules on personal use amounts of controlled substances.
    • Removes the definition of personal use amounts of controlled substances.
    • Removes the Substance Use Recovery Services Advisory Committee.
    • Removes provisions relating to resentencing and releasing persons impacted by State v. Blake.
    • Removes the contingency in the striking amendment relating to the Committee's report.
    • Dhingra spoke up to oppose the changes, saying the amendment “gets rid of a very critical resentencing authorization that is needed to ensure that our Department of Corrections and the courts can have the authority to resentence and release those individuals who are now being held under an unconstitutional statute” (audio - 1m, video).  
    • Following a roll call vote Heck reported that the amendment was not adopted (audio - <1m, video). 
  • Padden subsequently asked to withdraw Amendment 867 (audio - <1m, video) and Amendment 868 without any objection (audio - <1m, video).
  • Amendment 899 by Majority Caucus Chair Bob Hasegawa (audio - <1m, video) would have modified the striking amendment as follows:
    • Removes the definition of personal use amount.
    • Makes possession of a controlled substance, counterfeit substance, or legend drug by a person 21 years of age or older a class 2 civil infraction. To the extent resources are available, the court must refer the individual for diversion or treatment.
    • Makes possession of a controlled substance, counterfeit substance, or legend drug by a person under the age of 21 a class 3 civil infraction, subject to a fine or participation in four hours of community restitution or both. The court may also require chemical dependency treatment evaluation.
    • Makes possession of drug paraphernalia for personal use a class 2 civil infraction for a person 21 years of age or older and a class 3 civil infraction for those under the age of 21.
    • Creates a class 1 civil infraction for disposing of drug paraphernalia in a public place.
    • Requires HCA and DOH convene a work group to develop recommendations for reforming laws and practices to align with the goal of treating substance use disorder as a disease rather than a criminal behavior.
    • Expires provisions modifying drug possession penalties on June 1, 2023.
    • Hasegawa mentioned a depiction of Chinese characters hanging in his office “that describes crisis, but it also describes opportunity.” He said the State v. Blake ruling was perceived by some “as a crisis, but I view it as an opportunity.” The “once in a lifetime” situation meant the State could “address some serious social injustices that have ruined lives for decades” (audio - 4m, video).
      • Hasegawa argued, “with all of our modern thinking about behavioral health” and “substance use disorder,” legislators should seize “the opportunity to right that wrong.” He added that “disparities within the system” contributed to destroying “not just families but communities, really” and the drug war was one of the “failures of the past.”
      • Hasegawa sought to use his amendment to not “totally decriminalize simple possession but it takes it down to a civil infraction level” as opposed to a criminal charge, where a conviction “affects your ability to apply for housing afterwards, it affects your ability to get a job afterwards.” Both of those civil needs were “crucial to preventing recidivism,” he stated.
      • Hasegawa praised Dhingra’s bill and Pedersen’s striking amendment, but said “this crisis is too big an opportunity for us to let go without considering a reboot of...this discriminatory system that we have in place right now.” Hasegawa observed that the bill featured “suggestions by the [Washington] Superior Court Judges Association” (WASCJA) but claimed “[public] defenders, you know, don’t think it's the best because they want full decriminalization.” While he was sympathetic to this goal, he doubted “that's possible” at least “if we’re going to have any chance” of passing the bill. Hasegawa was prepared to settle for the ability to “direct people into counseling and therapy programs if that’s necessary” by maintaining a civil infraction for possession.
      • He asked for support for looking at substance use as “a behavioral health and substance abuse issue” confident that “nobody has sympathy for the pushers and the dealers.” 
    • Padden called for senators to vote against Hasegawa’s amendment as he didn’t “believe there’s really a safe level at [which] these drugs could be allowed at.” He acknowledged Hasegawa’s good intentions but believed all the substances in the state Uniform Controlled Substances Act were “all very dangerous, very highly addictive” and there were existing treatment options for those who needed them. “I don’t think we want to go down this route,” Padden commented, as he considered it a “route to legalization of hard, hard drugs and the addiction and the problems and the other crimes that go with it even if it's possession” (audio - 1m, video).  
    • Following a vote, Amendment 899 was not adopted (audio - 1m, video).
  • Amendment 869 from Padden would restore “possession of a controlled substance or counterfeit substance to a felony instead of a gross misdemeanor” (audio - <1m, video).
    • Padden explained that his proposal “restores the language that we had before the State v. Blake decision that had been on our statute for years.” Possession of controlled substances had been a “class C felony,” and Padden claimed that “we know that these cases are plea bargained down, dismissed, or they can be charged as a gross misdemeanor” at a prosecutor’s discretion. He added that some prosecutor offices set their own policies on “the amounts that, that can result in these cases going into district court.” The “other advantage” of maintaining the status quo for possession according to Padden was “that it allows folks to get into drug courts for the treatment” which he said “worked well” and allegedly had “general support among pretty much all members of the senate” (audio - 2m, video).
    • Pedersen asked senators to vote against the amendment as “the use of a felony has been an abject failure in our war on drugs, over the last several decades, and we are suffering the consequences of that.” He said the “dramatic racial disproportionality in enforcement, lives ruined” meant there was need “for a different approach.” Noting there was “a substantial minority” in the senate that “prefer no criminalization,” Pedersen said he didn’t feel “that that’s where the majority is” and maintained that his striking amendment’s “balance” of a gross misdemeanor was appropriate, making Amendment 869 unneeded (audio - 1m, video). 
    • Padden reiterated that making personal possession a felony was “a key provision because without it we are throwing aside the laws that has [sic] existed for a long time...and we’re making it more difficult, far more difficult to get the treatment that’s available in the drug courts.” He argued those institutions were “a therapeutic court,” stating he’d had “the privilege of running a therapeutic court when I was a district court judge.” Padden argued that “they work, they’re evidence based, they’re successful in helping people, even people that have failed before to rid themselves of addiction” and asked for support of his amendment (audio - 1m, video).
      • Drug Court programs have long been deemed more cost effective than prison by federal officials and government data, though some analysis of the programs has shown a tendency to overestimate their overall effectiveness.
      • The Washington State Institute for Public Policy (WSIPP) has evaluated drug court impacts since 1999, most recently in December 2019 where benefit-cost statistics estimated the program saved the state $9,438 per participant as compared to “traditional criminal justice system processing.”
    • Senators voted not to adopt the amendment (audio - <1m, video).
  • Amendment 883, proposed by Minority Caucus Chair Ann Rivers, “Elevates a person's 4th violation involving possession of a controlled substance, counterfeit substance, or legend drug as a class C felony that may not be diverted by the prosecutor” (audio - <1m, video). 
    • Rivers asserted it was common knowledge there was “a substance use disorder issue in our state” that had affected every family, “or, if it hasn’t, it will. We know this to be true.” She said that the “primary hope” of the government was “to get people into treatment.” However, “for some people, you can help them once, help them twice, three times, four times and they may need an extra impetus to become serious about getting clean and staying clean,” Rivers argued. She considered her amendment a way for lawmakers to show they wanted people to not use controlled substances and “if you make bad decisions after, you know, going through diversion and treatment time after time, then maybe you need a little bit stronger recourse.” She considered the “graduated approach” to be “another tool to help create accountability for individuals who are trying to kick their substance abuse habit” or otherwise found to be in possession of a controlled substance by authorities on four occasions (audio - 2m, video).
    • “I rise in opposition to this amendment,” Dhingra said, even though she knew “everybody in this body wants treatment for individuals...the fallacy here” was an “assumption that [it] can only happen through the criminal justice system. We don’t need a felony.” She argued that the “most effective way to get people the treatment they need...is by providing them multiple avenues to access treatment, and that does not need to go through the criminal justice system.” Dhingra said access “through civil commitment, voluntary access to treatment, has shown to be much more effective than a felony.” Additionally, she objected to “the impact that it has on prosecutors' discretion on how they handle the criminal cases” as the amendment would limit the power of elected prosecutors “by saying they may not offer diversion” (audio - 1m, video).  
    • Gesturing in support of Rivers’ amendment, Padden indicated it was a way to get individuals “in to a drug court” after giving them “three other opportunities to get things resolved, but if they can’t on the fourth time” a felony charge diverted to a drug court would help. He noted that as a judge he’d encountered people with repeated driving under the influence (DUI) charges (“which is a, you know, a gross misdemeanor”) who ultimately were “successful in the therapeutic courts.” Considering the public safety implications of personal possession and operating a vehicle under the influence of alcohol or controlled substances equivalent, he supported graduation to a felony as the “best opportunity to get a treatment...that’ll work” (audio - 1m, video).
    • Senator Perry Dozier offered his support to Amendment 883 after his “years of watching young kids in our small home town work theirselves [sic] up through the drug cycle, I call it, starting with marijuana” before “graduating to higher and higher levels.” He commented that minors who did this “needed to get in trouble with the law, they truly did.” Dozier explained how a “friend of my sons finally worked his way up through heroin and ended up being found dead with a needle in his arm.” He worried, “we need to get these kids help, there are too many young kids whose lives need to be intervened with” by the State (audio - 1m, video).
      • Dozier’s description of the gateway drug effect where cannabis use is a causal factor for someone’s subsequent use disorders has been popular with government experts for decades though drug policy organizations outside the government and treatment industry have noted the theory oversimplifies societal and health factors to focus on cannabis, the most commonly used federally illicit substance.
    • Senator Mark Schoesler also supported the amendment, believing the debate senators were having wasn’t “about pot, it’s not about small quantities, it’s about hard drugs, large quantities.” He alleged that “many, many people support their habit through sales.” Additionally, Schoesler found the personal use amounts in SB 5476 to be indistinguishable from amounts people with substance use disorders might possess, meaning amounts alone wouldn’t demonstrate problematic substance use. Nonetheless, “sometimes you have to get their attention,” he said. Schoesler thought that since the amendment applied to an individual’s fourth conviction, and WA Senate had “voted more times than I can count for felony DUIs,” they should oppose simple possession that he equated with those who “abuse drugs.” He reiterated that anyone with a controlled substance was “in almost all likelihood” engaging in illicit sales and argued that three strikes laws in criminal justice policy making would be “four now” under Rivers’ amendment (audio - 1m, video).
    • Following a vote, a majority of senators chose not to include the amendment (audio - 1m, video).
  • Amendment 894 from Frockt “Institutes graduated penalties and treatment options for possession of a controlled substance, counterfeit substance, or legend drug” (audio - <1m, video).
    • Senator David Frockt described how “preliminary remarks that we’ve had on the bill so far tell me, unfortunately, that we are falling into the usual, sort of, silos of treatment versus a sterner response” which “don’t lead us to perhaps the best response.” He said State v. Blake had resulted in lawmakers “rushing into policy that could have ramifications that we don’t even understand” in an attempt to solve “a forty or fifty year problem, or maybe a hundred year problem...in 30 days because of a decision” from the State Supreme Court. Frockt’s problem “with all the bills that I’ve seen so far is that we are moving so quickly...we may want to make distinctions that we don’t have” between drugs before designating amounts for personal use. Frockt’s bill would establish a workgroup within WA HCA on “how to classify personal use amounts...a blue ribbon, very innovative workgroup designed to come back to us with recommendations.” He argued the process had worked for a Joint Legislative Taskforce on Deadly Force in Community Policing, which was also a “complicated, divisive bill.” Frockt said his amendment would “pull forward the recommendations of the HCA and the advisory committee from October one of ’22 to December 31 of 2021.” He appreciated the group would “have to do a lot of work between now and then, but it can be done” to provide the legislature insight “when we have taken a breath to think through the ramifications of this bill and the policies we are about to pursue.” Closing with a warning that officials didn’t “even know at scale what it’s going to take to do diversion and treatment,” Frockt said senators were “about to vote for an amendment on the capital budget that’s going to have massive amounts of behavioral health treatment but it is nowhere near the scale of what may be required under this bill” (audio - 3m, video). 
    • Senator Phil Fortunato told his colleagues he didn’t like having a conversation about “allowable personal use amounts” for drugs like cocaine and heroin. He recalled approaching a family in an attempt to locate their daughter to tell them “we found some revenue that your daughter is entitled to...The parent’s response was ‘we don’t want my daughter to get any money that may be coming to her’” because she’d used cocaine as an adult. Fortunato said the “end result” was a once gainfully employed woman died “homeless under a bridge” and he rhetorically used her story to wonder what “her personal use amount” was. Fortunato went on to claim the family had been “proud of an extremely successful daughter who rose in corporate America, was making big bucks” but ultimately opposed their daughter having money because of their distress about how she’d spend it. Fortunato chalked up the woman’s “horrible” fate to “permissiveness with acceptance of” substance use despite generations of continuous criminalization and social stigma. He suggested that HB 5476 would encode “acceptance of this pattern” of permissiveness, one of the reasons he would “tend to vote no on all amendments that will not reinforce” drug criminalization. Fortunato closed by reminding senators that with a felony conviction “a lot of times these cases are pleaded down. So if you are charged with a felony and scared to dickens” of the implications of a criminal record, he thought “you may accept a plea bargain that includes treatment” (audio - 3m, video).
    • Dhingra noted that Amendment 894 changed the reporting date to the legislature. She encouraged support as it “simply changes the report that is due to the legislature” (audio - <1m, video). 
    • Senator Lynda Wilson stated that the report in question was “on personal use” and she took issue with “any type of personal use” for several of the controlled substances addressed in the bill. Claiming she couldn’t understand “how they could be safe on any personal level,” Wilson said the amounts decriminalized under the bill were “far beyond anything that could kill you.” She was also concerned that “we’re leaving this decision and these discussions up to” WA HCA because substance use was “far beyond” only being a public health issue. Forensic navigators weren’t used “in every county” in Washington, leaving Wilson with the impression that the State wasn’t “ready to deal with this on this level.” Doubtful controlled substances could “ever have a personal use amount,” she thought that allowing “any amount of personal use I really feel that we’re enabling the drug user...I don’t know how else to put it” (audio - 2m, video). 
      • Nicotine poisoning is possible in lethal dosages from a normal pack of cigarettes and, with no restrictions on the amount sold, purchasing or creating enough alcohol for a lethal overdose is legal under Washington law.
    • Frockt had the final word on his amendment, indicating “one of the outcomes of this process could be the HCA and the advisory committee comes back and says for certain drugs perhaps there is no personal amount that they might recommend.” He believed that was “the point of getting the report and doing the work now” to help lawmakers get an idea of “the scale of treatment options that we may need to do” or how the State could “recharacterize our entire substance use” and behavioral health system (audio - 1m, video).  
    • Following the comments of senators, the body voted not to include Frockt’s change (audio - 1m, video).
  • Amendment 871 put forward by Padden “Prohibits the director of the health care authority to adopt personal use amounts for oxycodone” (audio - <1m, video).
    • Padden remarked that Public Health - Seattle and King County had “issued an advisory to stay completely away from oxycodone because it’s being laced with fentanyl all the time...it’s a huge health hazard.” He said “these things are too dangerous to be setting a specific amount” for personal use. “I’m sure it’s a very serious thing in King County or they wouldn’t be issuing the warning,” Padden said, asking for support to prohibit the substance’s inclusion (audio - 1m, video).
      • The advisory focused on fentanyl lacing in several drugs with the only mention of Oxycodone being that “pills that are sold on the street or online likely contain fentanyl” as opposed to legally produced Oxycodone for medical purposes.
    • Dhingra was against the revision while acknowledging “fentanyl absolutely is a huge problem and not just Oxycodone...but fentanyl in all aspects.” However, she felt it was “very important for when we’re talking about a public health approach” to substance use “that we understand all components” including “historically, how they’ve been used, how they’re going to be used, and how they can be used in the future.” Dhingra encouraged a no vote on Amendment 871 so that WA HCA staff could “study this issue so we can be more informed instead of making decisions based on feelings and fear” (audio - 1m, video).  
    • A majority of senators voted not to adopt the amendment (audio - <1m, video).
  • Amendment 895 from Frockt would require WA HCA “to submit a progress report to the legislature on the work of the Substance Use Recovery Services Advisory Committee by December 1, 2021” (audio - <1m, video). 
    • Frockt said his follow-up amendment corresponded to his earlier comments on Amendment 894, and a progress report “is not the permanent report...the work group that still exists would come back to us with at least a progress report of how far they’ve gotten and, kind of, the direction they’re going” by December. He then suggested the change would “still be in order, it will still make sense if there’s another amendment that is taken” and the group would not be focused on personal use. Frockt commented that “if we don’t do this we may not get any formal report...if other amendments are adopted” (audio - 1m, video).  
    • Pedersen concurred with Frockt’s impression, believing “it would be helpful for the legislature to have a report on progress and who knows, maybe the 2022 legislature will be in a position where it wants to make some changes” (audio - <1m, video). 
    • Heck called for a vote on Amendment 895 and reported that the majority supported the change and “the amendment is adopted” (audio - <1m, video).
  • Frockt withdrew Amendment 898 without objection from his colleagues (audio - <1m, video).
  • The last proposed change to the striking amendment was Amendment 900 by Minority Leader John Braun to remove “sections 7-11. Strikes sections 17-20, which are subject to a contingent effective date in 2023. Strikes section 23, which contains the contingent effective date” (audio - <1m, video).
    • Braun had appreciated the debate on “a tough subject” and said his amendment “removes the expiration date of...the initial policy so it would continue into the future” unless a “future legislature acts.” This would “remove the automatic path to legalization, it removes the automatic path to personal uses but it keeps in the bill the penalty of gross misdemeanor versus a felony, it keeps the diversion in there” which he called a “careful balancing” of the issues in SB 5476. This was a policy area many senators approached “with different worldviews, with different experience, but I do believe we’re serious about trying to get this right,” Braun stated. While he couldn’t be “absolutely” certain lawmakers would “get it perfectly right this session but I believe with this amendment we get, we get much closer than where we are right now” and “give clear direction to our local governments around the state.” Braun felt his amendment potentially “gets us closer to a middle ground” where a majority of senators could approve the legislation (audio - 1m, video).
    • Pedersen found “a lot to like” in Braun’s changes, specifically keeping possession a gross misdemeanor and “establishing court commissioners.” He disagreed with having the “the expiration date removed because I think it would be better incentive for all of us if we had that extra carrot---or stick, depending on how you look at it---to come up with a more durable policy that doesn’t rely on criminalization.” Nonetheless, Pedersen was thankful Braun’s amendment provided “a path for us to try to have a solution for the legislature this session” and was “reluctantly recommending a yes vote on the amendment” (audio - 1m, video). 
    • Hasegawa opposed Amendment 900 while appreciating that Braun was “working really hard and in good faith to try and figure out a pathway” to majority support. But he argued the WA Senate would “likely set in stone the future of our drug policy down the road” and senators were “choosing either criminalize or something less than criminalize.” To pass the amendment would be “taking away any incentive to review the process down the road to see if maybe this wasn’t the best pathway,” Hasegawa argued, which would limit “the bargaining positions down the road to try and perfect our drug policy...to the detriment of the people themselves” (audio - 1m, video). 
    • Rivers disagreed with Hasegawa’s view of the issue, stating the bill was “important for us to do today to save lives.” State v. Blake represented a “paradigm shift” in her mind that “sent a very wrong message to our young people and we’re seeing the ramifications” in her district in Clark County. Rivers noted Frockt’s prior remarks emphasizing treatment, claiming the subject was the “number one topic of discussion” for the WA Senate Republican caucus members who believed “we have to do something about treatment.” She thanked Republican senators who had worked on or spoken to the bill during the debate and claimed “we have to move forward together on behalf of the young people.” Though Braun’s revision “was not perfect,” Rivers said it moved lawmakers “closer to the opportunity for us to all work together to reach an outcome that will contribute to the overall health and welfare of the people of our state” (audio - 2m, video). 
    • Heck initiated a roll call vote that resulted in the amendment being adopted (audio - 1m, video).
  • Finally, senators were ready to consider Amendment 831, the striking amendment from Pedersen “as amended”. Pedersen said the proposed changes to SB 5476 were “not entirely what I intended to be in front of the body.” However, he believed it was “critically important for the legislature to have a response to the Supreme Court’s decision in the Blake case, and I think that this striking amendment will help move us forward as we continue negotiations in these final” days of the legislative session. He asked that senators pass the striking amendment to have “a response that will provide services and treatment and help for people who are struggling with substance use disorder” (audio - 1m, video).
  • A vote of the senate resulted in Pedersen’s striking amendment as amended being adopted and incorporated into SB 5476 (audio - 1m, video).
  • Dhingra moved the amended bill be advanced to its third and final reading. Hearing no objection, Heck approved the motion and opened the floor to remarks (audio - <1m, video). 
  • Dhingra said she didn’t have remarks on the version of the bill that had emerged from inclusion of the striking amendment, but agreed that the ruling gave the legislature “an opportunity to really think about what we as a state and as a nation have been doing in regards to the war on drugs.” More specifically, Dhingra acknowledged drug prohibition’s impact “on our Brown and Black families” through both incarceration and the social and economic impacts of having a criminal record. “It comes down to the manner in which we have been enforcing our drug laws,” Dhingra stated, which had a racially based impact that “could not be understated.” Considering “the voices that spoke up in regards to our drug policy moving forward” moments earlier, “there was a very clear absence of who was not at the table, whose voices were not being heard,” she commented. Dhingra said the Senate needed to “think about how serious we are about a public health approach. A public health approach does not mean you have to go through the criminal justice system.” She claimed that state data from 2020 showed “that when you offer treatment to individuals outside the criminal justice system they seek that treatment and they’re successful. Over 95% of the time!” By comparison, she said going to treatment through the criminal justice system “they graduated at rates around 60%.” Dhingra regretted that senators were considering “access to treatment through” a program that would be given a C on a public school grading scale: “I have higher expectations for my family, for my children, and for this state. I would like us to adopt a policy that is grade A and that is not what we are doing today.” Though her name would continue to be on SB 5476 as prime sponsor, Dhingra said she “will be voting no on this” (audio - 3m, video). 
  • Padden agreed with Dhingra on “the efficacy of treatment” but was certain that without criminal justice involvement “the folks that were in the DUI court that I ran wouldn’t be there.” His “greatest moments” as a judge had been attending graduations of people who passed drug treatment after being diverted to the program instead of jail. Padden saw the “positive impact” of using the criminal justice process to motivate the end of substance use. He claimed the programs touted by Dhingra did “not appear to be used in King County when I go up there and see all the homeless folks all over.” He alleged the county had “treatment centers that have empty beds because certain people have addictions that are so strong, or for whatever reason, won’t abide by some of the rules to stay there.” Padden had also seen “needles in the street...and worried about children coming in contact with that...that bothers me.” Furthermore, he considered State v. Blake to be a “narrow ruling” that only indicated “you had to have knowledge” you were possessing a controlled substance since “the defendant, she claimed that she didn’t know” she was in possession of a drug. Padden called attention to the fact that lower courts hadn’t ruled the drug statute at issue unconstitutional, and a “motion for reconsideration” had been filed with the Supreme Court. He grizzled about senators rejecting Rivers’ amendment requiring felony prosecution for a fourth possession offense to “be able to get someone into the drug court.” Padden would have preferred WA Senate pass Senator Mark Mullet’s proposal, SB 5475, which “would have put knowingly back in” to state law to maintain the status quo of criminalizing all possession. Without felonizing some possession, “I think we’re going too far down the wrong direction,” he said (audio - 4m, video). 
  • Senator Jesse Salomon explained that he’d spent 15 years as a public defender “and grappled with the effects of drug addiction on my clients” in addition to “the effects of drug policy on my clients.” He said the Senate was struggling with “the dangers of drug use and at the same time how do we come to terms with the destruction that our war on drugs has brought to communities?” Salomon wanted to “unravel what’s been such a disproportionate racial impact, yet ensure public safety” and believed “creative thinking” was needed. “A serious consideration of additional ideas that are not in the bill which have been proposed” was important for him because the public wanted “to know that if their kids or their loved ones need help with an addiction they can get it.” However, people “also want to know that they can call police when somebody is shooting drugs in their park...leaving needles that are a public health risk,” Salomon said. He believed decriminalization “with an infraction for public use was too permissive” and a gross misdemeanor was “ineffectual.” He thought it was possible to “do this through the civil enforcement system, something that’s stronger than a misdemeanor but that has a longer term jurisdiction with no criminal convictions.” Salomon pledged to develop the proposal but could not support SB 5476 as written (audio - 3m, video). 
  • Braun said he supported the bill and appreciated the “perspectives” that had been revealed through their debate. “Ultimately, if we’re going to get this completely right we’re going to have to listen carefully to each one of us,” he stated. The bill would “get it to a place that I think is pretty close” and in “the near term make our communities safer.” Braun thought the bill would benefit those with substance use disorders “and save lives.” He was invested in the topic because he had a nephew who dealt with substance use problems “for many years” and had “attempted suicide” just days earlier (“He was unsuccessful”). Admitting it had happened before, “his parents need a way to help get him help that will stick.” He reported that SB 5476 was “a balanced” approach and that while he didn’t “love all of it but I think that broadly it is the right approach” since it kept “these hard drugs illegal” but reduced the penalty “down to a misdemeanor.” Braun remarked that the bill provided “significant opportunities for diversion to treatment. Two automatic and one additional one possible.” He believed there was support from all senators in requiring treatment for drug possession “but it doesn’t happen automatically so [SB 5476] had this work group” to study “how do we get treatment to these folks more effectively and in different ways where appropriate.” Braun said people of all political affiliations had said “the war on drugs has not served us well, we aren’t getting it right and people are suffering.” After State v. Blake, senators were “called upon to govern and I think that’s what this is” and they would continue to “get it better over time. But I think tonight this is the right answer” (audio - 3m, video). 
  • Mullet explained that he supported the legislation. While there hadn’t been any bills introduced in January “that suggested a full legalization of drugs” and drug policy reform was “not the number one goal when we showed up here and went into session,” he agreed with Braun that they had been “put in a situation where now we must govern.” Although his own solution had not been advanced, “I am the first one to acknowledge that if we are to successfully govern that we have to do something today.” Without a legislative solution, a policy “vacuum” would be left and Mullet anticipated “every city or every county in the entire state can pass whatever laws they want” around possession of controlled substances. The resulting ordinance “hodgepodge” would be “a horrible outcome” for citizens if the legislature didn’t set a statewide standard with the “ability to force people into the treatment programs we currently have in place that we’ve already heard about, and how effective they were, if drugs are fully legalized.” He’d explained to his children that “at the age of 48 I don’t know anybody who's really involved with hard core drugs who is genuinely happy.” People using substances had “short term happiness,” he said, “but the long term result is not happiness.” For this reason, legislative inaction and the resulting policy vacuum was not acceptable to him, because it conveyed “all drugs are completely fine and we don’t care about any of them” even as treatment options and prevention initiatives would stay in place. To fail to criminalize drug possession would be “a huge failure of our ability to govern.” Mullet urged senators to keep in mind “they’re not going to get the exact version that they want but we cannot have nothing on the books.” He also liked that the bill mandated “a report back from the work group” prior to the 2022 legislative session “on ways we can move forward” and asked that his fellow senators vote for the bill (audio - 4m, video). 
    • While introduced in February, HB 1499 did propose the legalization of all controlled substances for adults, receiving a public hearing before the State v. Blake ruling was announced. However, the bill was not taken up by the Washington State House Appropriations Committee (WA House APP) and no senate companion for the bill was filed.
  • Heck instructed staff to begin a roll call vote and the result was “28 yea, 20 nay, one excused.” Heck confirmed the bill had received majority approval and was passed (audio - 2m, video)
  • 14 Democrats and six Republicans opposed the amended bill:
    • Senator Jeannie Darneille 
    • Senator Manka Dhingra 
    • Senator Doug Ericksen
    • Senator Phil Fortunato 
    • Senator David Frockt
    • Senator Bob Hasegawa 
    • Senator Sam Hunt
    • Senator Patty Kuderer 
    • Majority Floor Leader Marco Liias
    • Senator Liz Lovelett 
    • Senator Jim McCune 
    • Senator Mike Padden
    • Assistant Majority Floor Leader Joe Nguyen
    • Senator Jamie Pedersen
    • Senator June Robinson 
    • Deputy Majority Leader Rebecca Saldaña 
    • Senator Jesse Salomon 
    • Senator Mark Schoesler
    • Senator Derek Stanford
    • Senator Jeff Wilson 
  • Senator Jeff Holy was excused from the vote.

• At publication time, the legislation was being moved quickly through the Washington State House of Representatives (WA House) just before the end of the regular session.
  • Introduced in the House on Friday April 16th, SB 5476 received a public hearing in WA House APP on Monday April 19th and was scheduled for executive session on Wednesday April 21st at 9am PT. Should the WA House decide to modify the legislation further, the WA Senate would either need to vote to concur with those changes, or appoint a conference committee to produce compromise language before the adjournment of the legislative session on Sunday April 25th.
  • Federally, the White House Office of National Drug Control Policy (ONDCP) released The Biden-Harris Administration’s Statement of Drug Policy Priorities for Year One to lay out a national course on drug policy with priorities which “emphasize several cross-cutting facets of the epidemic, namely by focusing on ensuring racial equity in drug policy and promoting harm-reduction efforts. The priorities are:
    • Expanding access to evidence-based treatment;
    • Advancing racial equity issues in our approach to drug policy;
    • Enhancing evidence-based harm reduction efforts;
    • Supporting evidence-based prevention efforts to reduce youth substance use;
    • Reducing the supply of illicit substances;
    • Advancing recovery-ready workplaces and expanding the addiction workforce; and
    • Expanding access to recovery support services.”
    • Washington State Liquor and Cannabis Board (WSLCB) leadership announced the formation of a work group dedicated to federal cannabis legalization in a briefing to lawmakers on March 25th.
  • The Municipal Research and Services Center (MRSC) has a webpage tracking The Status of Drug Possession in Washington State.
  • On April 20th, Washington State Attorney General Bob Ferguson released a statement describing how “Public health problems require public health solutions — including making significant new investments in treatment that expand our current system. The Legislature now has a unique opportunity to reject criminal penalties for non-commercial drug possession. Let’s focus our resources on treatment and protecting the public from serious and violent crime."

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