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Advocates, prosecutors and law enforcement weigh in on bill that would address Blake decision

Two questions shaped the format of Sen. Manka Dhingra’s (D – Redmond) bill addressing the State v. Blake decision: does the state need to respond, and what should the response be? What arose from those two questions is the bill that came before the Ways & Means Committee yesterday for a public hearing.

The bill establishes personal use amounts for controlled substances, removes criminal penalties for the possession of a controlled substance that does not exceed the personal use amount, and authorizes law enforcement to refer individuals possessing a personal use amount of a controlled substance to a forensic navigator for the purpose of evaluation and treatment.

There is an understanding that over half a million Washingtonians struggling with Substance Use Disorder need treatment. The bill before you is basically taking the law enforcement assisted diversion program (LEAD) statewide.”

The LEAD program allows law enforcement officers to redirect low-level offenders engaged in drug or prostitution activity to community-based services, instead of jail and prosecution.

Prior to the Blake decision, a person could be found guilty of possession without proof that the defendant knew they possessed the substance. In February, the State Supreme Court found this statute to be unconstitutional, holding that the Legislature’s criminalization of passive conduct with no requirement to prove criminal intent is a violation of due process. This decision invalidated any Washington sentence for simple possession of a controlled substance.

For advocates of the bill, the threat of strict recriminalization measures on the local level is an impetus for statewide action.

Sybill Hyppolite, Legislative Director for the Washington State Labor Council, said:

The war on drugs has particularly hurt Black, Brown, and Indigenous Communities. Without legislative action this session, BIPOC people face aggressive recriminalization in the localities where we have the least representation. This bill provides a minimum statewide standard of protection from this punishment.”

In addition to concerns over inequities that could be exacerbated, advocates say a prerequisite to treating substance use disorder is building “a true system of care.” In order to do so, they are calling for expanded investments in service referrals, outreach, case management, access to housing, and expanded treatments and behavioral health supports.

Stacy Hamlin, a PEER Pathfinder with the Olympia Bupe Clinic Capital Recovery Center, said the bill would mark a step away from a punitive approach and a step toward treating people with “trauma-informed, community-based, Whole Person Care.”

I’m a previous participant in drug court and Washington Recovery and Monitoring Program. Both programs were punitive and a financial burden, and I was unsuccessful at both. I believe the time and money spent during the eight years it took me to get through the court system in my incarceration had been used for treatment and recovery services, my son would have had his mom back at eight years old instead of fifteen.”

According to the St. Joseph Institute for Addiction, Whole Person Care is a long-term approach to recovery that focuses on self-improvement by helping patients identify the causes of their addiction, understand their triggers, and create a recovery plan.

Brian Luedtke of the Washington State Narcotics Investigators Association said his organization opposes the bill. They believe the bill would prevent law enforcement from curtailing bad actors seeking to distribute drugs.

The intended consequences of that are going to be unforeseen. Further, we believe that it victimizes the users even more so because there’s not going to be the ability to stop those that are distributing [drugs] from doing so.”

Rather than moving forward with SB 5476, Luedtke asked legislators to reconsider SB 5475, an alternative proposal which would impose stricter drug penalties than Dhingra’s bill.

At one point during the hearing, Sen. Jeannie Darneille (D – Tacoma) asked those testifying in favor of the bill whether it was problematic to them that the bill creates a gross misdemeanor for offenders under the age of 21.

Advocate Carmen Pachecho-Jones answered that building pathways to treatment and recovery centers is the most important factor, even if it means that pathway has to go through a portion of the justice system.

According to Pierce County Prosecutor Mary Robnett, Prosecutors are near unanimous that possession of a controlled substance “should be recriminalized to some level.”

Robnett testified that felony charges serve as leverage to get people suffering from addiction into drug court and subsequently, treatment programs. Prosecutors have had some success with using misdemeanor charges for the same purpose, though felony charges have been more effective, she continued.

Under the bill, a personal use amount of a controlled substance is defined as an amount that does not exceed:

  • 40 unites of methadone
  • 40 pills of oxycodone;
  • one gram of heroin;
  • one gram or five pills of MDMA;
  • two grams of cocaine;
  • two grams of methamphetamine;
  • 40 units of LSD; or
  • 12 grams of psilocybin.

The bill makes it unlawful for a person to knowingly possess more than the above personal use amount of a controlled substance or counterfeit substance. It would also be unlawful for a person under the age of 21 to knowingly possess a controlled substance or counterfeit substance of any amount.

A person under the age of 21 found guilty of possession of a controlled substance would be guilty of a gross misdemeanor, previously a class C felony.

The Washington Association of Prosecuting Attorneys (WAPA) testified as “other,” but prosecutors support almost all of the previsions in the bill, said Executive Director, Russell Brown.

Benton County Prosecutor Andy Miller said he was most enthusiastic about the treatment component of the legislation, calling it a “comprehensive treatment approach for the entire state, including Eastern Washington.”

It’s nice to be able to encourage people to enter those treatment programs, even if we complement it with a mandatory diversion component, said Miller.

While there was a split among prosecutors over support for decriminalizing personal use, Miller said he was concerned that it would “remove an incentive for drug courts and drug diversion programs.”

Island County Prosecuting Attorney Greg Banks said he supports recriminalizing drug use and possession by juveniles to compel them into treatment programs.

Over fifteen years ago, the courts and Legislature reoriented juvenile justice away from punishment and towards evidence-based therapy programs. They work. But we do need court authority to compel troublde kids into this program. And this bill does that.”

Banks is not opposed, however, to decriminalizing personal use amounts for adults for adults. He also called for a centralized state portal to administer and fund the reimbursement of Blake affected legal financial obligations (LFOs).

Placing the Blake decision and this legislation in context, Dhingra looked back 27 years when drug diversions courts in the state were funded for the first time. Starting then, it would become clear that jails and prisons were not the right venues for treating substance use disorder, Dhinhra said.

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