New drug-possession law is better but still does not go far enough to address state’s drug crisis

Note: The following e-newsletter was sent to Sen. Padden’s subscribers May 17, 2023. To subscribe to Sen. Padden’s newsletter, click here.

Dear friends and neighbors,

Although the Legislature concluded its 2023 session on April 23, its work was not finished. An important issue – passing a new law about possessing hard drugs – was unresolved when the final gavels fell in the House and Senate chambers.

Since our regular session ended more than three weeks ago, negotiators from both chambers and both parties met many times to work on a compromise measure.

During a one-day special session yesterday in Olympia, the Legislature finally approved a drug-possession bill to replace the current law. However, I was among the “no” votes in the Senate.

Although the new law created by Senate Bill 5536 is an improvement over the terrible law passed in 2021 after the state Supreme Court’s Blake ruling, I don’t think this ‘Blake fix’ will solve our state’s growing problem with hard drugs.

Washington ranks very high nationally in fentanyl-overdose deaths per capita, and King County so far this year already has more drug-overdose deaths (524 as of May 15) than it did in all of 2020 (508). Faced with such sobering statistics on drug overdoses in our state, the Legislature needed to pass a stronger proposal to effectively tackle this crisis.

For drug offenders to really feel compelled to seek treatment and stay with it, we need to make it a felony again to possess the most dangerous drugs like fentanyl, meth and heroin. The threat of a felony conviction is more likely to persuade a drug offender to undergo treatment than the hybrid crime allowed in the new law.

Under the proposal approved by the Legislature, which takes effect July 1, people convicted for the first or second time for drug possession or public use would face a penalty of up to 180 days in jail and a fine up to $1,000. For a third or subsequent conviction, they would face up to 364 days in jail. The punishment under this bill is basically a hybrid between a gross misdemeanor and a misdemeanor. I don’t think that will be an effective deterrent for drug offenders. Under the new law, possession convictions before July 2023 are not taken into account, so the new law ignores an offender’s criminal history when it comes to sentencing. The offender’s full criminal history should be taken into account. 

The compromise version of SB 5536 passed by the Legislature can be viewed here. The measure was quickly signed yesterday by Governor Inslee.

Sen. Padden speaking against SB 5536 during Senate floor debate on the bill.

During the Senate’s floor debate on the drug-possession bill, I spoke against it. You can view my speech here.

After the Senate passed the bill yesterday, I watched the House floor debate. Rep. Jim Walsh, a Republican from Aberdeen who serves the 19th Legislative District, gave a powerful and reasoned floor speech on why the compromise should not be passed by the Legislature. You can watch Rep. Walsh’s floor speech here.

The 2021 Blake ruling declared Washington’s felony drug-possession statute was unconstitutional because it criminalized possession even when a person did not knowingly have drugs. However, the ruling did not lower the criminal penalty for illegally possessing hard drugs from a felony to a misdemeanor.

After the Blake decision, the Democrat-led Legislature in 2021 responded with a law that did reduce the criminal penalty for illegally possessing hard drugs from a felony to a misdemeanor. This law expires on July 1.

As a result of the expiring law, the Legislature this year needed to pass a new drug-possession law (known by some as the “Blake fix”) or else hard drugs literally would be legal in Washington. Without a new state law clarifying the penalties for possessing certain drugs, it is possible that cities and counties would have enacted their own drug-possession laws, creating inconsistent drug laws in which one city could have tough penalties on possession while a nearby city might not have any penalty at all. Some cities, like Everett, already have passed drug-possession ordinances in recent weeks.

Under SB 5536 as passed by the Legislature yesterday, cities and counties may make their own laws and ordinances to regulate harm-reduction services related to drug paraphernalia.

During this year’s regular session, the Senate passed its version of Senate Bill 5536 in March. (I voted against that version for the same reasons why I voted “no” this week.) In April, the House approved a different version of the bill, one that the Senate refused to accept. I was part of a six-member conference committee (four Democrats, two Republicans) that met in the final week of the regular session to work on a compromise version of the bill. However, when that proposal reached the House floor on the final night of the regular session, it failed 55-43, as several Democrats and all of the Republicans voted against it.

If you have questions about how to participate in state government this year or thoughts to share on anything in this e-newsletter, please give me a call or send me an email.

Thank you, as always, for the honor of serving as your state senator!

Best Regards,

Senator Mike Padden

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