WA House APP - Committee Meeting
(April 19, 2021) - SB 5476 - Public Hearing

Criminalization of Drug Possession

No one spoke in favor of a bill re-criminalizing drug possession and expanding treatment diversion programs; critics said it reinstituted prohibition while government advocates stressed the costs of implementation.

Here are some observations from the Monday April 19th Washington State House Appropriations Committee (WA House APP) meeting.

My top 5 takeaways:

  • Staff gave a thorough briefing on SB 5476, “Responding to the State v. Blake decision by addressing justice system responses and behavioral health prevention, treatment, and related services.”
    • The legislation was heard by the Washington State Senate Ways and Means Committee (WA Senate WM) on April 5th which passed the bill without recommendation on April 10th. The Washington State Senate (WA Senate) passed the bill after incorporating a striking amendment on April 15th.
    • Washington State House Office of Program Research (WA House OPR) Community and Economic Development Counsel Cassie Jones went over the particulars of a House striking amendment which “makes a series of changes” in response to State v. Blake. She noted the case found the State controlled substance possession statute unconstitutional due to the law’s “strict liability nature.” Jones added this decision invalidated both the law itself and the “prior convictions for the offense.” She said the bill had “two main categories” of effects on the “criminal legal system” and the “behavioral health system” and indicated she’d be addressing the former (audio - 3m, video):
      • Co-author of the WA House APP bill analysis, Jones said SB 5476 made “changes to the offenses and penalties related to drug possession,” and added "mens rea or a mental state element” to offenses “prohibiting possession of controlled substances, counterfeit substances, or legend drugs.” The legislation would require the individual “knowingly be in possession” of drugs in order to be convicted, she told the committee.
      • Penalties for the offense would be changed, Jones explained. Currently ranging from “misdemeanor to a class B felony depending on the substance,” the bill would change penalties uniformly to misdemeanors. “Additionally, the prosecutor must divert the first and second offenses to treatment and is encouraged to divert the third, or subsequent offense” as well, she stated.
      • “However, on July 1st, 2023 these criminal penalties expire,” Jones said, and the penalty for possession “becomes a civil infraction carrying a $125 fine.” Those receiving an infraction “must be referred for evaluation and services for substance use disorder” (SUD), but would not have to pay the fine if they undertook that “assessment within 30 days.” Drug paraphernalia laws would be revised to “exclude use or delivery for the purpose of introducing a controlled substance into the human body, or for testing, analyzing, or storing the substance.”
      • Jones reported that SB 5476 would create a state financial account to receive “the proceeds of the infractions created in the bill to offset state and local costs resulting from the Blake decision and to reimburse legal financial obligations that are associated with invalidated convictions.”
      • The legislation expanded a “current law provision that allows alternatives to arrests for persons with mental health disorders to include persons with substance use disorder” Jones commented, and required “starting in July of 2022 that basic law enforcement training include training on interactions with persons” having SUD. It would also permit courts to employ “commissioners to handle vacations and sentencing hearings related to the Blake decision,” she noted, “and the bill clarifies the circumstances under which a person who is entitled to a shorter confinement period due to the Blake decision may be released from the [Washington State] Department of Corrections pursuant to a court order.”
    • Washington State House Healthcare and Wellness Committee (WA House HCW) Counsel Chris Blake provided a briefing on “substance use disorder services” potentially altered by the SB 5476 House striking amendment (audio - 3m, video). 
      • Blake established that the bill created a “Substance Use Recovery Services Advisory Committee” that would make “specific recommendations related to the implementation of a substance use recovery services plan.” He explained that the striking amendment retained the advisory group while leaving “the membership unspecified and it directs” the Washington State Health Care Authority (WA HCA) to “collaborate with the advisory committee to develop a substance use recovery services plan for the state.” There were changes to the criteria for the plan, primarily “additional topics related to how persons with substance use disorder access and interact with a behavioral health system,” he said. The plan would be due in December 2021 and must bee implemented by WA HCA “by December 1st of 2022.”
      • The amendment mandated the creation of a “Recovery Navigator Program" by “each Behavioral Health Administrative Services Organization” (BHASO) based on the State law enforcement assisted diversion pilot programs (LEAD), Blake reported. Additionally, the amendment established “a series of programs for the Health Care Authority to administer that are all subject to appropriated amounts:”
        • “A grant program to provide treatment services to low income individuals with substance use disorder who are not eligible for medical assistance programs and to provide treatment services that are not eligible for federal matching funds to individuals who are enrolled in medical assistance programs.”
        • “An expanded recovery support program to fund increased access to recovery services for individuals in recovery from substance use disorder,”
        • “A homeless outreach stabilization transition program to expand to the access to modified assertive community treatment services to people who are homeless and have severe behavioral health conditions the limit the ability to access and receive conventional behavioral health services,”
        • “A project for psychiatric outreach to the homeless program to expand access to behavioral health medical services for people who are experiencing homelessness or who are living in permanent supportive housing but who are at risk of homelessness,”
        • Finally, WA HCA “must increase contingency management resources for persons with co-occurring stimulant use and opioid use disorders.”
    • WA House WM Fiscal Analyst Yvonne Walker provided insight on the latest fiscal note, which was released in relation to the initial bill language, particularly the “criminal justice side of things” (audio - 3m, video).
      • Walker described how the legislation added a mens rea “element to the crimes relating to drug possession” and established “new crimes with reduced penalties.” She said the Washington State Caseload Forecast Council had “no information regarding how many individuals would be charged with the offense of knowingly possessing a controlled substance, and as a result cannot reliably predict the state bed impact resulting from the bill.” This made the fiscal impact for the Department of Corrections “indeterminate at this point,” she said, adding that the Council pointed out that in 2019 there were “approximately 5,000 individuals charged with drug possession” in Washington.
      • Walker said that, as of July 2022, “the bill requires that all law enforcement officers receive classroom training on how to interact with persons with” SUD that included “how to refer them to treatment and recovery services.” The Washington State Criminal Justice Training Commission (CJTC) would be expected to add “online courses available” to all Washington law enforcement agencies, she explained, and CJTC staff expected they’d need to add two full time employees (FTEs) costing “an estimated $1.4 million in the [20]21-23 biennium and $2.1 million per biennium thereafter for this training.” Walker commented that some of the cost would “be picked up by local jurisdictions as locals are required to pay 25% of the costs for law enforcement training.”
      • Walker outlined how SB 5476 would permit “criminal commissioners to conduct resentencing hearings and to vacate convictions” with an indeterminate budget impact to local governments, “but it is estimated that the fiscal impact to the courts...would be about $22.4 million per biennium.” This didn’t include costs for “prosecutors, public defense, potential legal financial obligation reimbursements, and potential costs relating to transporting and housing offenders for resentencing,” she told lawmakers.
      • “Lastly, the bill creates a reimbursement account which will include a deposit of any funds collected as a result of any civil infractions imposed under the bill,” Walker stated. The money deposited into the account could be “used only for state and local government costs resulting from the Blake decision and to reimburse individuals for legal financial obligations.” She observed that the amount the account could collect was indeterminate as it was “hard to predict the number of individuals who will be required to pay and who will actually pay the civil infraction penalties.”
      • Representative Joe Schmick asked if the account would “pick up the county, county’s portion of the court costs or will they be left to pick up the difference?” Walker replied that the bill language hadn’t addressed who would “actually pick up the cost” and there would need to be “funding that would have to be put in separately, either in a budget bill or in [an] appropriation in this bill” (audio - 1m, video).
    • WA House WM Fiscal Analyst Andrew Toulon spoke to the striking amendment’s fiscal impact on the behavioral health system, indicating the WA HCA fiscal note had been “requested, but is not yet available” (audio - 6m, video
      • The recovery services navigator program would mandate that “this program is established in each of the ten” BHASO regions based on the LEAD program model, Toulon said. “For getting some estimate of the magnitude on this one, I estimate the costs for one of these LEAD teams inclusive of some component for technical assistance required by the bill is going to come in somewhere between $800,000 to $1 million,” stated Toulon, or “approximately $8 to $10 million per year” to cover all ten teams established. He continued, saying it was unknown “what the minimum number of teams needed would be to meet the response requirements in the bill,” but costs were “very likely significant and potentially in the several tens of millions” of dollars annually. Toulon reported that he’d been in conversations with WA HCA representatives to “determine whether any component of these teams would be reimbursable under Medicaid, but in a best case scenario right now I think this would be fairly limited.” The program would additionally need a “regional administrator,” costing “roughly one million per year” to cover all the regions “depending on the educational level of the person hired for these positions.”
      • Toulon next reviewed the proposed WA HCA grant program in the bill “to provide services not covered under the Medicaid program” for low-income individuals would be “subject to availability of amounts provided so the cost would be scalable depending on the amount appropriated.”
      • WA HCA would be required to “establish an expanded recovery support services program” including “housing, employment, and transportation services,” Toulon said, and was also “subject to availability of amounts provided, so [the program would] again be scalable.”
      • WA HCA would additionally set up “two different programs,” he explained, one for homeless outreach and another for increasing “contingency management resources for opioid treatment networks.” Those programs would also be “subject to the availability of the amounts provided,” Toulon informed the group.
      • The implementation and staffing costs to WA HCA for the Substance Use Recovery Services Advisory Committee covered “development and implementation of the substance use recovery plan, development of rules and standards required under the program, and establishment and oversight of the new programs established under the bill,” Toulon stated. They could cost “on the low end” eight to ten FTEs, he estimated, but the authority’s next fiscal note “may come in higher on this area.” With potential Medicaid funding, Toulon’s presumption was that this would cost “in the range of $1 million” from the state general fund to “$2 million total funds.”
      • Toulon pointed out that the “implementation of this bill is likely to result in some increased utilization of Medicaid covered” SUD services that were indeterminate but “would get captured in actuarial adjustment for Medicaid managed care organization capitation rates.” Based on WA HCA data he’d reviewed, “it looks like the weighted federal match for services across all Medicaid clients is somewhere between 75 to 80% of the total costs on an ongoing basis and would be even higher in FY ‘22” as Washington would be receiving an “enhanced federal match rate as part of the federal stimulus legislation.”
  • Four people signed in to speak against passage of the bill, but only three were available in the hearing; two more people signed in as opposed to the measure.
    • Riall Johnson, Snohomish Ebony PAC (audio - 2m, video)
      • Johnson testified that “this bill maintains the criminalization of drugs possession; we are strongly opposed to this bill as it is now” as it did not “end or mitigate the drug war.” Law enforcement “especially here in Washington state” were not “trained or capable to determine the difference between a felony or a misdemeanor,” he said, adding that so long as possession of a controlled substance was a crime “we will continue to be stalked by law enforcement.” Legislators’ faith in the criminal justice system “to enforce these properly is misguided at best, and malicious at worst,” Johnson said, and the lack of specifics about how police could be trained to take on this role without bias was revealing of the likelihood that “they’ll continue to profile” disadvantaged or minority populations. 
      • He said the Supreme Court’s “landmark decision has finally given us a chance to end the drug war and here you are restarting it with even more options...for police to criminalize us with.” Johnson wondered if lawmakers were “willfully refusing to see what’s happening here and around the country” and the “double and triple standards” around how “people of color are treated under these laws.”
      • Johnson called attention to “the people getting killed over and over on live television because of law enforcement having negative interactions and unnecessary interactions with people, on a daily basis.” He perceived the misdemeanor and felony charges SB 5476 would enact to “criminalize these missed victims as a justification for their murder. Unless you’re living under a rock we are currently seeing this play out” with the murder trial for George Floyd by a Minneapolis police officer, Derek Chauvin. “The irony is I watched many of you campaign on breaking...this system up and reforming it, but what you are doing now is just patching it up after we finally made a crack,” Johnson argued, urging the committee to “find a conscience or some courage to vote no on this bill.”
        • Chauvin was convicted of Floyd’s homicide on April 20th. The U.S. Department of Justice (DOJ) announced an investigation into “all types of force used by MPD officers, including uses of force involving individuals with behavioral health disabilities and uses of force against individuals engaged in activities protected by the First Amendment. The investigation will also assess whether MPD engages in discriminatory policing.”
        • In 2012, the City of Seattle received a federal Consent Decree directing “specific requirements that the Seattle Police Department agreed to implement and institutionalize” following a “pattern or practice of excessive force and discriminatory policing.” The Department stated a 2018 review by the court found "full and effective" compliance with the decree, though a two-year ‘Sustainment’ period was ongoing at time of publication.
    • David Heldreth, Panacea Life Sciences CEO and Ziese Farms CEO (audio - 2m, video
    • Teri Rogers Kemp, Washington Defenders Association (WDA) and the Washington Association of Criminal Defense Lawyers (WACDL, audio - 2m, video
      • Kemp said the groups she represented supported "slowing down this cart" in favor of an “approach that is an inclusive work group” with “those individuals in communities that are most likely to be impacted by these laws.” She explained that the organizations also backed a “work group that is working on developing sound policy” that focused on “behavioral health treatment” that was “fully funded.”
      • Kemp favored the State defining personal use amounts of controlled substances with a “process that ensures an outcome of the least law enforcement contact and oversight.” For this reason, she conveyed that WDA/WACDL preferred civil infractions for possession rather than misdemeanors. “As the bill is written we believe that the people who most need help will be the most harm[ed] by police interaction,” Kemp remarked, wanting to see policymaking “thoughtfully and carefully” developed to ensure those “most impacted by the outcome have a voice in the process.”
    • Debbie Peek signed up to testify against the bill but was unavailable when called upon.
    • Those signed in as opposed to SB 5476:
  • 16 people testified and another 20 signed in as “other,” neither in favor nor against the legislation, many representing governments or law enforcement.
    • Dana Ralph, City of Kent Mayor (audio - 2m, video
    • Angela Birney, City of Redmond Mayor (audio - 2m, video
      • Birney started by giving her appreciation that SB 5476 “continues to engage the criminal justice system to address those addicted to controlled substances.” Her daughter had “struggled” with SUD and Birney had been unhappy that there was “no accountability or consequences” until the justice system “forced her into treatment” and she “was able to recover.” She asked for “more pathways” to state treatment programs “including utilizing civil commitment, navigators, crisis response units” and “enhancing much of the work that has already begun.” While some might not need police to “access treatment,” Birney said those “like my daughter will.”
      • Birney addressed the “additional cost and burden” her City would face under the bill as “my prosecutory will be required to divert these cases for treatment, which to my knowledge is available on a very limited basis.” She asked that misdemeanor possession cases not be handled by the municipal court system as it had “never handled these issues,” instead recommending cases stay the responsibility of Washington superior courts which had drug courts that “facilitated the treatment and recovery of many struggling with substance abuse.” 
    • Breean Beggs, City of Spokane City Council President (audio - 2m, video)
      • Beggs felt that his city had “lots of great problem solving courts” that dealt with SUD and behavioral health, but believed legislation “suddenly putting” more cases in local courts would “be challenging for us.” Nonetheless, he indicated that Washington State Institute for Public Policy (WSIPP) research on drug courts found it was more cost effective to the state than “traditional criminal justice system processing.”
      • Beggs did “like the approach” that lawmakers were taking with the bill even though “it’s going to take some time and transition.” He said Spokane was interested in a "revenue sharing" system for keeping those with SUD in local programs and “in their homes, in their jobs, with their families at a much lower cost and with much better results.” Beggs was in favor of reduced “incarceration and criminalization” in drug policy while urging creation of “an easy on-ramp for cities to take over this and work on it with appropriate funding.” Like many people impacted by SUD, Beggs said “we know” treatment was needed “and jail and prison are not the place for them.”
    • Sharon Swanson, Association of Washington Cities (AWC, audio - 1m, video
      • Swanson conceded that city officials were "a bit torn on this" since the "municipal courts are not currently set up to act as therapeutic courts." Saying it would take “time and expertise” to design and implement diversion processes for district courts, she asked that whatever court system lawmakers assigned jurisdiction over personal possession charges be adequately funded.
      • Swanson suggested one option would be to “extend the jurisdiction of superior courts to allow this population to continue to be served there until such time as our municipal courts can grapple with this.”
      • Additionally, Swanson noted “AWC is very supportive of any efforts you put towards prevention.”
    • James McMahan, Washington Association of Sheriffs and Police Chiefs (WASPC) Policy Director (audio - 1m, video
      • McMahan felt legislative action on the bill was “critically important” as law enforcement was “in the worst of both worlds" due to the State v. Blake ruling. He advocated for an approach that included “prevention, treatment, and recovery” while leaving police empowered “to make meaningful and appropriate responses to the presence of controlled substances." McMahan reported that WASPC’s “favored” legislative vessel for SB 5476 was “as it came out of the senate” and encouraged the committee to give that language “due consideration.”
    • Seth Dawson, Washington Association for Substance Abuse and Violence Prevention (WASAVP) Lobbyist (audio - 2m, video)
      • Dawson stated that WASPC couldn’t support “any reformation of our state’s approach to drug abuse that omits prevention as a key strategy.” He said he’d sent committee members amended language to require WA HCA “to develop a comprehensive statewide prevention plan.” Dawson also asked for language for WA HCA to “administer local community coalition prevention grants.”
      • Though supportive of substance treatment programs, Dawson observed that "treatment is not prevention, it’s an intervention, something provided after the fact.” He believed people “on all sides of the Blake issue would agree that prevention is preferable to addiction followed by treatment or criminal charges” and the State’s “vision should not be one of surrenduring to drug abuse followed by treatment.” Dawson said the State should be “preventing drug abuse just as much as we possibly can, then followed by effective treatment options, and whatever criminal justice role you decide upon.” He closed by saying “prevention should be the first goal.”
    • Bill Fosbre, City of Tacoma City Attorney (audio - 2m, video
      • Fosbre established that a 1989 law “preempted local governments from setting penalties for violations of the Uniform Controlled Substances Act” and that prior to State v. Blake simple possession was a felony “subjecting violators to a penalty of at least one year in prison upon conviction.” Under this system, charges were tried in county superior courts meaning their costs were “not incurred by the cities and towns,” he noted. But the bill language changed these penalties so that “the state legislature will be effectively transferring the costs and expenses related to prosecution, public defense, court, jail, and treatment costs” to local governments. Fosbre suggested SB 5476 be changed to include a "more streamlined way" for cities to submit costs and request appropriations from the State to cover the needs of the new caseload and responsibilities. 
    • Anne Anderson, Washington Narcotics Investigators Association (WNIA, audio - 1m, video
      • Anderson, while signed in as ‘other,’ said the legislation “as it currently reads, this bill is good” because it kept controlled substance possession illegal, which in turn would “prevent many from becoming victims of the crimes that happen alongside drug use.” In sections two, five, and six of the legislation she asked that legislators replace “‘shall’ with ‘should’” because “although many do need treatment some do not and allowing action personalized for each individual will lead to the best outcomes” as well as making sure “treatment can occur sooner for those who need it.”
      • Anderson said past criminal charges had “provided help and new life to many who are struggling. Most would not have received treatment had they not been compelled to do so.” In all, she found SB 5476 kept “the focus on assistance, avoiding felony convictions and the difficulties they bring” but advised adequate “prevention and implementation funding.”
    • Heidi Wachter, City of Lakewood City Attorney (audio - 2m, video
      • Wachter informed the committee that the Lakewood government passed an ordinance on April 8th to “make possession of a controlled substance a gross misdemeanor.” She said city officials supported the bill language passed by WA Senate as she understood the House proposal would “make it a misdemeanor as opposed to a gross misdemeanor but that cities would be able to exercise authority to locally legislate the offense as a gross misdemeanor.”
      • Like other city representatives, Wachter had concerns about municipalities handling cases formerly under the jurisdiction of the State. She mentioned that a “requirement that prosecutors divert these individuals to treatment assumes an adequate infrastructure” which had not been “routinely available and understood by prosecutors to plug into it.” Wachter said the lack of understanding and training for prosecutors made it difficult to “live up to the worthy policy goal at the heart of this legislation” and likely would require “substantial investment.” She argued the state should keep the cases under drug court purview lest the “once felonious drug offenses that populated our superior court drug courts go away despite the success those courts have had.”
    • Bob Cooper, Washington State Association of Drug Court Professionals (WSADCP, audio - 1m, video
      • Cooper argued that his organization’s members generally liked the bill but were “uncomfortable with some of the criminal penalties that it includes for “simple possession” which the group believed should “be handled as a public health problem, not as a criminal legal problem.” He said drug courts served at an intersection of SUD “and serious criminal behavior, not just drug use.” Cooper asked the legislature to pass “as robust of a public health approach to substance use disorder as possible” while also giving “sufficient resources for treatment and recovery services to succeed in that effort.” Furthermore he requested policy makers not “invoke drug courts as an excuse to continue the use of the criminal legal system to address substance use disorder that is not associated with serious criminal behavior. Drug courts have plenty of work to do to address that intersection rather than simple drug possession.”
    • Linda Thompson, Greater Spokane Substance Abuse Council (GSSAC) and WASAVP (audio - 1m, video
    • Russell Brown, Washington Association of Prosecuting Attorneys Executive Director (audio - 2m, video
      • Brown was grateful the legislation would create “an account to cover the expenses from the Blake decision” and said prosecutors had provided data to justify “about $47 million or more for [legal financial obligation] LFO refunds.” He agreed with others that local courts had no diversion processes in place but noted that juvenile courts had a statutory diversion mechanism already. However, Brown cautioned that, absent reliable funding and infrastructure, many communities would lack “access to treatment” rendering possible citations and referrals “ineffective.”
      • Brown added that prosecutors supported “the concept of prevention."
    • Lisa Daugaard, WDA Director and Care First Washington Coalition (audio - 2m, video
      • Daugaard appreciated lawmakers' work to set a statewide standard and avoid a “patchwork quilt of unequal justice” from local governments, but had “three issues with the current language.”
      • Daugaard asserted, “Criminalizing drug possession by young people is likely to be applied in a racially skewed way as it always has been.” She asked for a bright line in the law indicating “no criminal penalties for young people.”
      • Daugaard said, “To the extent possession remains a crime...the diversion language needs to be adjusted to allow for diversion further upstream” which could “address the court capacity issues” the committee had heard. She believed it was “contrary to diversion best practices to force police to take somebody into custody and to jail” only for prosecutors to later provide information on treatment options. Daugaard felt “that approach won’t be effective” and called for the legislation to include “pre-booking diversion” by police to create “the option in the field to call for a warm handoff then and there.”
        • A relevant amendment was withdrawn due to technical errors during the committee’s executive session on the bill on April 21st, and would likely be reintroduced during the WA House floor debate.
    • Brian Luedtke, WNIA (audio - 1m, video
    • Juliana Roe, Washington State Association of Counties (WSAC) Policy Director (audio - 1m, video
      • Roe focused on the fiscal impact of SB 5476 and said WSAC’s initial calculated cost of $100 million was “based on the very rough numbers that we had at the time.” She said their projected costs for courts was unchanged at around $50 million, and “we are slowly obtaining information as to the legal and financial obligations portion of those costs.” Roe explained that county officials believed $47 million would “be woefully inadequate.” Additionally, she reported that “counties are already having to deal with a criminal and civil court backlog due to COVID[-19] that will take two to three years to resolve.” She said the account to collect infraction fines to cover court costs in the bill would “be totally inadequate and we hope that you provide more funding in the budget.”
    • Robert Wardell (audio - 1m, video)
    • Those signed in as ‘other’ on the bill:
  • While no one signed up to testify in support of SB 5476, there were 31 people signed in supporting the bill.
    • Lynne Ashton
    • Max Bauman
    • Christy Bear
    • Madeline Bishop
    • Harolynne Bobis
    • Theresa Bosworth
    • Joni Brill
    • Sharon Budd, NKIndivisible
    • Tracey Carlos, Olympia Indivisible
    • Shani Cate
    • Robert Clark
    • Kevin Cogger, Indivisible Eastside
    • Gail Frare,
    • Don Hedstrom
    • Janice Hedstrom
    • Sharon Herting
    • Linda Hood
    • Kathryn Keller
    • Judith Konopaski
    • Carolyn Lancet
    • Elizabeth Langeland
    • Dennis Larkin
    • Ruth Lipscomb
    • Mary Mellott
    • Terry Needham
    • Gideon Newmark
    • Nicolette Oliver
    • Lisa Ornstein
    • Dan Santon
    • Sandy Shipley, Indivisible Whidbey
    • Sandia Slaby
    • Daniel Weise
    • Carollynn Zimmers
  • With broad agreement that state law would be preferable to local ordinances regardless of cost, SB 5476 continued its rapid advance through the House.
    • The bill was scheduled for executive session by WA House APP on April 21st  where members amended the legislation further. At publication time, SB 5476 had been referred to the Washington State House Rules Committee (WA House RUL) and awaited calendaring by chamber leadership.
    • Should the House pass the legislation with changes, the Senate could choose to vote to concur with those changes, reject them, or appoint a conference committee to produce compromise language before the adjournment of the regular legislative session on Sunday April 25th.

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