WA Senate - Session - Evening
(April 24, 2021) - SB 5476 - Concurrence Vote and Final Passage

LEAD - Law Enforcement Assisted Diversion
[ Event Details ]

In concurring with revised legislation to re-enact drug possession offenses while expanding treatment and recovery offerings, lawmakers positioned Washington state to move away from a punitive approach to issues of drug use while further dismantling the so-called war on drugs.

Here are some observations from the Saturday April 24th Washington State Senate (WA Senate) evening session.

My top 4 takeaways:

  • 16 senators, a third of the chamber, put their opinions on the record regarding government roles in the drug war, offering remarks on incentivizing or coercing treatment for people found in possession of controlled substances ahead of a vote to concur with House revisions.
    • Deputy Majority Leader Manka Dhingra, the prime sponsor of the bill, moved that the Senate concur with the changes made by WA House. Lieutenant Governor Denny Heck, President of WA Senate, acknowledged the motion and opened the floor to remarks (audio - <1m, video).
    • Dhingra asked for concurrence as she recognized in the revisions by the other chamber “something that I have heard from...nearly every member in this body, regardless of their political affiliation, and that is their desire for people to get access to treatment.” The changes included an “opportunity for pre-diversion treatment” requiring law enforcement to refer individuals to treatment programs before an arrest and “really robust” access to treatment including “assertive community engagement,” she said. Dhingra argued the differences in the bill ensured “that the responsibility for that treatment comes from the State by making sure the [Washington State] Health Care Authority is involved” (audio - 1m, video). 
      • Dhingra voted against the Senate changes in the bill during initial passage of the legislation by the chamber on April 15th (audio - 3m, video). 
    • Senator Mike Padden was against concurrence because the WA House amendments “reclassified the criminal penalties” for drug possession to a misdemeanor “rather than the felony in current law or a gross misdemeanor.” He explained that prosecutorial diversion had been struck and “instead, there cannot be an arrest but law enforcement is required to offer, only offer, individuals a referral for treatment.” This was the process for someone’s first two encounters with law enforcement involving simple drug possession, Padden stated, “on the third time law enforcement has the option of offering it again” or issuing a misdemeanor charge. He reported that someone from the  Washington State Narcotics Investigators Association (WSNIA) alleged there was  “a very serious problem out there...some of the patients, or people that they work with” were claiming “really, by not making it a felony...without the hammer you are signing a death sentence to us because we’re not able to stop, we’re addicted.” Padden concluded the “serious matter” meant lawmakers “should not go down this route and that we do not concur” (audio - 2m, video). 
    • Republican Whip Keith Wagoner rose “to speak against concurrence.” While agreeing on the need for “access to treatment,” he understood there was a “big step” between that “and actually getting the treatment.” The changes to SB 5476 removed the State’s “power to make somebody get the treatment that they need.” Regardless of “the old adage” that one “can lead a horse to water but you can’t make him drink. Well, we want these people to actually get the treatment” (audio - 1m, video). 
    • Republican Caucus Chair Ann Rivers told senators she’d cosponsored every proposed bill seeking to address State v. Blake “because I do think that it's something that we need to take care of” yet she was “gravely concerned” the revised bill didn’t do that in a way she liked. She referenced comments in “earlier debate about the rampant drug problem in Seattle, as it relates to homelessness” and expressed skepticism that SB 5476 was taking “a program that Seattle’s using and we’re going to make that the law of the land.” Even if the policy were effective for the Seattle area, Rivers said “it is not great for Vancouver” and other cities in her Clark County district. She stated that “parents” in her constituency “did not send me to Olympia to create a situation where children think it’s A-OK to do drugs.” Rivers insisted, “that is what this bill does. When there is no hammer there is no opportunity to teach a child that heroin is not the right course for them to take. Indeed, parents don’t even need to know” (audio - 2m, video).
    • Senator Jamie Pedersen reminded everyone that the legislative session would end the following day and “shared the frustration of many members that our supreme court waited for a year with this decision and then dumped it on us after policy committee cutoff.” That said, he noted the bill reinstated criminal sanctions for “knowing possession of drugs and then makes a dramatic investment in treatment and other services and help for the courts in dealing with the consequences” of the ruling. The bill in its current form “was one option,” with the other being “not to have a bill.” He questioned Rivers’ supposition that voting for SB 5476 “was a vote for legalization....the vote for the bill is a vote for re-criminalization.” Without the legislation, Pedersen predicted a “Wild West with no criminal penalty for the possession of drugs” as well as “no services, no treatment for the folks who are suffering from substance use disorder” (SUD). Though he still had concerns, he noted “we are setting up a committee that will deliver us a policy and a strong incentive for the 2023 legislature to make a permanent policy” lest personal possession of drugs be decriminalized (audio - 2m, video). 
    • Senator Doug Ericksen called the bill “the worst of the ‘we all live in Seattle, now’ legislation” reflective of a metropolitan “mentality and we try to force it on the rest of the state and that’s frustrating because I believe many of us don’t want to live in a Seattle-style state.” Instead, he felt the citizens of Washington state would “be better off without legislation.” Without a state law on drug possession, he understood that “Whatcom County...could put in place a gross misdemeanor penalty” for the offence. Ericksen listed off municipalities that could set their own standards “under local ordinance today” but would not be able to levy more than a misdemeanor charge under SB 5476. He was of the opinion that officials should “roll the dice” in an effort to “protect the kids, protect the families” and allow local jurisdictions to institute more punitive repercussions rather than “say we’re all going to be like Seattle and have a minimal penalty.” Ericksen remarked that if “the city of Seattle, if King County would like to become a mecca for open drug use that’s up to them, I suppose.” He favored cities being able to “steer a different path” rather than submit to the dictates of “a Seattle legislature” (audio - 2m, video).
      • At publication time, Whatcom County participated in the law enforcement diversion pilot program SB 5476 proposed to implement statewide.
      • On April 6th, the Whatcom County Council enacted a moratorium on expansion of outdoor cannabis cultivation.
    • Republican Leader John Braun reported being in “strong opposition” to the bill, stating “I worked hard to help this body come together” on the version passed on April 15th “but I could not be more disappointed with what came back from the House.” He didn’t like the penalties, or their sunsetting, nor that referrals weren’t mandatory which he knew from “personal experience” wouldn’t work. Braun announced in the April 15th debate over the bill that his nephew had a SUD and had recently attempted suicide, referencing this he revealed that he’d learned on April 22nd that his nephew had killed himself. Braun’s nephew resided where “they have no method to use our legal system to get folks and keep folks” in treatment facilities. He insisted that “people will die” due to the proposed law and felt “we’re better off with no bill” (audio - 2m, video). 
    • Republican Deputy Leader Sharon Brown opposed “the underlying bill” because she’d been in Seattle and watched as “a young, beautiful woman took a vial out of her purse and injected her arm right there as she squatted on the streets.” She wondered how it could be compassionate “as a first-world nation” to allow someone to do that to themselves. “How is it compassionate of us to continue to walk right by and just say ‘hey, it’s ok, she gets to do that,’” Brown rhetorically asked. She insisted people will “continue to die” from SUD-related causes with passage of the bill “and they won’t continue to die just in Seattle.” Despite millions in services appropriated in the bill, she viewed it as akin to having “just walked on by” (audio - 1m, video).
    • Senator Reuven Carlyle described being “deeply conflicted and deeply pained” by the choice before him. “All of us want to deal with the issue of addiction with authenticity and to show up with a sense of courage for our community,” he said, but he found some of the comments about Seattle had “a bit of disparaging sentiment” and attempted to “insult the integrity of our community.” In Seattle, “drugs and behavioral health and homelessness are a profoundly serious problem in my community, in my neighborhood.” Carlyle didn’t have a remedy but knew “the war on drugs is a categorical failure” while agreeing that “someone sitting on a park bench in front of a school injecting heroin is wrong.” He said there was support for “holistic” services addressing SUD but not for “criminalizing behavior.” However, as he couldn’t find “a better alternative at this time” he intended to vote in favor of the bill as “an attempt to move forward.” Carlyle wanted experts and stakeholders to “work on this in the weeks and the months ahead so we can find a path forward together” (audio - 3m, video). 
    • Senator Perry Dozier noted he “voted for the bill” the first time since “at least it had a gross misdemeanor on it.” He repeated comments from his April 15th remarks about the death of his son’s friend as well as a classmate due to an overdose, and another young man he knew who was “homeless in Walla Walla” after relapsing, saying “no one intervened.” Dozier blamed the gateway drug effect, where cannabis use is supposedly a causal factor for someone’s subsequent use disorders, for the tragic outcomes from other substances, concluding “we can’t say ‘diversion’ and let them try to find a path” (audio - 3m, video).
    • Senator Jeff Wilson was in the camp of those thinking “we shouldn’t even have this bill” and local control was preferable, despite mixed testimony from city officials at the bill’s last public hearing. He acknowledged that “we haven’t won the war on drugs, that battle’s going to continue until the last person, probably, is located.” Recalling the “just say no to drugs” slogan, Wilson argued the bill “allows the user to say, ‘just say no to treatment.’” Respecting bodily autonomy in this circumstance would be “enabling” drug use, and instead he prefered to have people “helped along through some form of a consequence.” Wilson asked that senators “just say no” to concurrence on the bill (audio - 2m, video). 
    • Majority Leader Andy Billig offered condolences to Braun for his nephew’s death and stated that he’d be supporting concurrence. “Before Blake, very few people were arrested just for simple drug possession,” he said, typically being charged in relation to other offenses. People accused of felonies and other offenses could be tried in drug courts, Billig indicated, “but it's those other crimes, that are still felonies, that get them to that drug court. That was the case before Blake, that’ll be the case after this bill.” The difference the bill would make, he asserted, would include “$170 million of support, of treatment for people who are suffering” along with “support for our communities...making them safer” (audio - 2m, video). 
    • Senator Linda Wilson noted she’d voted for the previous version of the legislation “because I thought that doing something was better than nothing” - which is what she’d learned the Clark County Prosecuting Attorney was doing with possession cases. She said she knew that “crime goes up in the areas where, for the people that are under the influence of drugs.” Because those with SUD “can’t make good decisions...you have to give them the stick and not the carrot here,” Wilson said. She believed that some municipalities “aren’t going to be doing anything” and therefore expected that “crime will go up and then no one will be better off.” She decided not supporting SB 5476 would let local governments “that do want to do something to be able to do it with gross misdemeanor[s]” (audio - 2m, video). 
    • Senator Jesse Salomon empathized with the personal losses senators had endured from substance misuse, saying as a public defender “everyday I find drug addicted people in the jails” charged with possession alongside other crimes. He said these people “almost invariably choose to plead guilty to get out of jail, to go use again, to get in trouble again,” and the cycle continued. Salomon called treatment while incarcerated an option but “it’s not a panacea” and the programs proposed under the bill could make for “a better scaffolding around people who are addicted getting into treatment not necessarily through the justice system.” He believed this approach was “worth spending two years to see” the results even as he had “a healthy skepticism” as to the coercive benefit of a misdemeanor conviction compared to a gross misdemeanor. Additionally, he doubted that the policy of “criminalization helped us in the sense that we haven’t stopped the supply of drugs and we’re not going to so I don’t know what a felony does for a user.” Salomon did think the “energy” created by having penalties sunset would lead to new solutions. He promised to stay open to learning, adding he intended to travel to Portugal, which had “decriminalized their drug enforcement system for 20 years and focused on treatment” (audio - 3m, video).
    • Senator Jeff Holy found himself agreeing with Salomon on many points “but, I arrive at a slightly different conclusion.” He said that SB 5476 “for about 20% of the people out there with marijuana possession, something smaller than that, actually is probably not a bad idea.” However, Holy was skeptical that the other “80% out there with chemical addictions” would honor the two referrals “in lieu of arrest...‘offer’ is the operative term here.” He doubted people with SUD could ever “self refer” into treatment due to the “physical agony” of dependence and to believe otherwise was “idealistically naive to the point of absurdity.” As he was convinced jails could be some people’s only shot at sobriety, he reasoned criminalization gave “more of a running chance of actually getting something accomplished.” Holy said his “career jaundiced cop’s eye” led him to believe that a local assortment of ordinances and penalties would permit “the follow through of forcing people into treatment where they belong'' (audio - 3m, video). 
    • Senator Jim McCune said he’d oppose passage as he was unsure “of the right path to take here” but found SB 5476 had the potential to “be very destructive to our communities.” He seconded other’s remarks that local offenses were preferable. McCune had experience with “drug addicts, and there’s just no way, no way you’re going to get people into treatment on the soft approach this bill presents.” He said treatment and diversion efforts already in place in Pierce County “had done about everything” but “most of them, and a lot of times a hundred percent of them, do not want services.” McCune called SB 5476 an “enabling bill” and would be “a sad road for all of us” (audio - 2m, video). 
    • Heck asked for a vote on concurrence with the WA House changes to SB 5476, after which he declared “the ayes have it, the motion is passed” (audio - 1m, video).
  • Having concurred with the changes to the bill, the vote on final passage revealed all Senate Republicans stood against the legislation, joined by three Democrats.
    • A roll call vote resulted in narrow passage of the bill with a 26-23 majority, with Heck announcing that the bill had been approved. Votes against the bill included the entire Republican Caucus and three Democrats (audio - 3m, video):
      • Majority Caucus Chair Bob Hasegawa 
      • Assistant Majority Floor Leader Joe Nguyen
        • Hasegawa and Nguyen were the final senators to cast their votes.
      • Senator Tim Sheldon
  • The bill as passed by the legislature was delivered to Governor Jay Inslee on Monday April 26th. As it was passed within five days of adjournment, Inslee had 20 days to sign or veto the measure.
    • Should Inslee sign the bill, or allow it to take effect without his signature, Sections 1 through 11 and 13 through 21 have an emergency clause that cause them to take immediate effect. Other provisions would take effect 30 days after signing with the exception of Section 12, which takes effect July 1st, 2022.

Information Set