In the evening of sine die of the 2023 session, April 23, the “Blake Bill”—the E2SSB 5536 conference committee proposal for replacing the expiring criminal provisions of ESB 5476 (2021)—was brought to the floor of the House and failed, an unexpected result. Much media attention has been paid to the apparent political snafu, but less attention has been paid to the history, evidence, policy options, and principles that underlay the votes taken that evening.
Gov. Jay Inslee has announced his intent to convene a special session to address this legislation, beginning May 16. Washington’s legal community has an immediate opportunity to express individual opinions to Washington’s elected decision makers about whether, and to what extent, use of criminal sanctions against people solely for drug use is consistent with the values and vision of Washington’s and the United States’ promises of justice for all.
On Feb. 25, 2021, the Washington Supreme Court handed down State v. Blake, holding that Washington’s strict liability drug possession statute criminalized unintentional, unknowing possession of controlled substances in violation of state and federal due process clauses, and thus was unconstitutional. Ten days earlier, the House Public Safety Committee (now the House Community Safety, Justice, and Reentry Committee) had voted to advance HB 1499, state legislation that would have decriminalized, but not legalized, individuals’ possession of drugs intended for their own use. (Illicit drugs are contraband and subject to seizure under RCW 69.50.505. Ending arrests and prosecutions of people who have managed to get their hands on illicit drugs for their personal use does not create a legal right for them to acquire, possess, and/or use them. Manufacture, delivery, and possession with intent to manufacture or deliver remain felonies under Washington state law. RCW 69.50.401.)
HB 1499 also would have created a recovery services advisory committee tasked with making recommendations for a statewide substance use recovery services plan, with the committee members selected and staffed by the Washington State Health Care Authority (HCA).
In the past decade, Washington communities, like all communities nationwide, have been reeling from the devastating impacts of fentanyl, COVID-19, and dramatically escalating “deaths of despair” attributable to alcohol, drugs, and suicide. The health impacts of disparate rates of police violence against Black and brown people have also received heightened attention, and the racially suspect origins and impacts of the “War on Drugs” are receiving greater attention as well.
In Blake, the Court noted that criminalization of drug possession and use “has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard,” but the Legislature’s immediate response to the decision was to pivot from continuing to advance and debate HB 1499 to quickly introducing and passing a new bill, SB 5476, that included a version of the HCA Substance Use Recovery Services Advisory Committee (SURSAC) proposed in HB 1499, but also temporarily resurrected criminal penalties as a tool for addressing personal possession and drug use. RCW 69.50.4013(1), (2); RCW 10.31.115. The floor debate on final passage of ESB 5476 highlighted the emotionally challenging questions surrounding how we can best protect family and community members from the ravages of high-risk drug use and substance use disorder, but comparatively little attention was paid to the questions of whether and how to protect family and community members from the long-term impacts of the stigma and trauma that accompany arrest, public accusation, and incarceration.
The criminal penalties created by ESB 5476 carried a July 1, 2023, expiration date, with the expectation that legislators would have adequate time to consider the SURSAC analysis and recommendations that were due Dec. 1, 2022 (RCW 71.24.546(6)), a month before the Jan. 9 commencement of the 2023 legislative session. However, the Health Care Authority did not publish the SURSAC’s Substance Use and Recovery Services Plan until Jan. 11. Moreover, the “[r]ecommendations regarding the appropriate criminal legal response, if any, to possession of controlled substances” (RCW 71.24.546(l)), are missing from the “SURSAC approved recommendations” featured on the HCA’s SURSAC web pages and can only be discovered if one locates and reviews the entire plan, scrolls to page 11, and reads closely enough to discern that the bright graphic consuming more than half of page 13 represents only an initial “straw poll.” The final, more considered SURSAC recommendation is delivered in a single line on page 14: “Decriminalize possession of controlled substances and paraphernalia with no civil penalty or fine.”
SURSAC’s final vote on recommendations for the legal response to drug possession was taken on Sept. 12, 2022, with the following results:
- Decriminalization with no penalties: 17 votes
- Legalization: 12 votes
- Misdemeanor: 6 votes
- Decriminalized, punishable with fine or other civil penalty: 0 votes
Three weeks have passed since the highly charged failure of the Blake Bill on the House floor. Hopefully, this has provided adequate time for deeper research and reflection before the legislature takes up this important question again.