The state Capitol building in Olympia, where lawmakers will gather for a special session that will begin on May 16. (Bill Lucia/Washington State Standard)
State lawmakers are gearing up for a special session next week with one purpose: setting a new course for how illegal drug possession is handled in Washington.
This overtime period, the first in six years, begins May 16. It could end that day. Or it could last a month.
It depends on whether legislators can do what they failed to do in the 105-day regular session – pass a bill maintaining criminal penalties for possessing and using drugs in public while providing those arrested with paths away from jail and into treatment.
“I anticipate it all getting done in one day,” predicted Sen. Manka Dhingra, D-Redmond, chair of the Senate Law and Justice Committee and a central figure in ongoing bicameral negotiations.
Tuesday afternoon, Gov. Jay Inslee will hold a joint meeting with leaders of the four legislative caucuses to learn the status of negotiations.
How we got here
Lawmakers are trying to map out a multi-faceted and long-term response to the state Supreme Court’s Blake decision erasing the law that made drug possession a felony.
Following the 2021 ruling, lawmakers reimposed a penalty for possession, a misdemeanor, but only until July 1.
By setting the deadline, lawmakers forced themselves to act in this year’s regular session to avoid the prospect of full-blown drug legalization taking effect. And many thought they would do it, until a dramatic hiccup on the final day.
That’s when the House rejected compromise legislation to make possession a gross misdemeanor, provide opportunities for pre-trial diversion and vacating of convictions, and spend $271 million to bulk up the state’s network of treatment and assistance programs for those with substance use disorders.
It went down 55-43 as 15 Democrats and the entire Republican caucus opposed what’s known simply as the Blake bill.
Literally the next day, April 24, caucus leaders and a handful of legislators restarted conversations on how to resolve enough differences to get something passed swiftly in the special session.
In the meantime, across the state, leaders of cities and counties aren’t waiting to see what happens and are enacting local laws criminalizing drug possession in their communities.
Eyeing the obstacles
Three primary hurdles stand in the way of a final bipartisan agreement – punishment, prosecutors’ concerns and preemption.
On the first, blocs of Democrats in both chambers oppose any penalty while most Republicans prefer restoration of a felony. Making possession a gross misdemeanor is viewed as the likely final path because it did receive GOP votes when included in a bill passed by the Senate in March. And several House Republicans have said they could support that version.
A second hurdle involves a concern from prosecutors that it might be difficult to charge anyone with a crime.
Language in the rejected compromise made it illegal to “possess and use” a controlled substance in public. If it made it into law, courts might not allow filing only possession charges, said Russ Brown, executive director of the Washington Association of Prosecuting Attorneys.
“If it isn’t a crime to possess drugs in public without using, officers will only be able to arrest if someone is actually using drugs in their presence,” he explained to lawmakers in an April 23 letter.
Those involved in negotiations said they believe this issue can be easily remedied.
The last hurdle is opposition from local governments, and many Republican lawmakers, to provisions for state preemption on drug paraphernalia laws and limited public notice on siting opioid treatment facilities in communities.
House Republicans, in an April 29 letter to Inslee, opposed preemption and said local communities should have “more control and flexibility” to regulate paraphernalia. They also called for “mandatory public notice” of proposed treatment facilities.
Unlike the other issues, this one may be tougher to solve. Preemption is considered critical by legislative negotiators to prevent a patchwork of approaches around the state on siting decisions and paraphernalia.
Nuts and bolts
Debate in the special session will center on Senate Bill 5536.
The version passed by the Senate on a bipartisan vote in early March made possession a gross misdemeanor and encouraged cops and prosecutors to steer individuals to services. Those arrested could avoid prosecution if they agreed to enter a pre-trial diversion program. And a person could get a conviction for simple drug possession vacated by completing treatment.
Under the bill, if a person, upon a second conviction, agreed to treatment as a condition of probation and then failed to complete it, they would spend at least 21 days behind bars.
In addition, opioid treatment programs, both mobile and fixed-site medication facilities and recovery residences would be deemed “essential public facilities,” which follow a different process for approval in cities and counties. This could speed up the opening of services in areas where there may be local opposition.
The House passed a much different version of the legislation. For example, it restored the misdemeanor penalty. It got rid of the mandatory minimum jail sentences for those who don’t stick with substance use disorder treatment. And it preempted local laws governing drug paraphernalia regulations.
How it will work
When the House rejected the compromise on Senate Bill 5536, known as a conference committee report, it returned to the Senate Rules Committee in the form that passed in March.
At the point legislative leaders think they have an agreement, the bill will be brought to the Senate floor, amended with the language of the deal and voted on.
“I have full faith it will be a bipartisan bill coming out of the Senate,” Dhingra said.
Presuming it passes, it will be sent to the House. If it undergoes any change there, it must be sent back to the Senate for concurrence.
Legally, lawmakers can tackle matters other than Blake in the extra session. But they have no plans to do so.
“I don’t think that it would be right to the people of Washington to have another legislative session or reconsider every topic under the sun,” House Minority Leader Drew Stokesbary, R-Auburn said. “There was a time and place for that. That time and place has passed, and we can focus on Blake. I also think focusing on other issues will undermine our ability to find a common solution on the Blake decision.”
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