‘Blake’ fixed — new drug law balances treatment and accountability
A special session of the Washington State Legislature adjourned in a matter of hours Tuesday as Gov. Jay Inslee signed SB 5536 to settle the matter of appropriate sanction for drug possession in the state.
The signing was just in time — a temporary statute was set to expire on July 1, after which possession would be essentially decriminalized in Washington state. Local governments were preparing to enact their own ordinances which would result in a confusing patchwork of laws.
Lawmakers nearly had a deal on a permanent fix during the regular session that ended April 23, but it fell apart just before the final gavel. That urgent but unfinished business prompted the governor to call for a special session.
Washington state’s new drug possession statute prioritizes treatment, establishes a gross misdemeanor penalty for drug possession and public use of drugs, and offers some local control to municipalities.
“This bill is not designed to fill our jails, it’s designed to fill our treatment centers,” said Inslee. “And the investments we’re making will create treatment resources in small townships and big cities. This is a statewide solution to a statewide problem.”
The Blake Decision
In February 2021, the Washington State Supreme Court considered the case of a woman arrested on a felony charge for drug possession. Drugs were discovered in the suspect’s trunk during a traffic stop, but she said the drugs weren’t hers and she did not know they were there. The Supreme Court overturned her conviction on the grounds that strict liability for “innocent, passive conduct” was unconstitutional. Along with the conviction, the State of Washington v. Blake decision invalidated the state’s felony drug possession statute.
For a brief time after, possession was functionally decriminalized until the Legislature produced a bill to install temporary misdemeanor sanctions. On May 16, 2023, the Legislature agreed to permanent legislation to charge drug possession and public use as gross misdemeanors.
“Drugs have stolen free will from some of these individuals,” said Inslee. “But we love them. We care for them. And we want to help.”
While debate over criminal sanction has hogged headlines, the lack of resources to fight substance use disorder has fueled a growing crisis. The charges imposed by SB 5536 are guardrails to ensure accountability down a path to recovery, just as the state has mustered historic investments to expand treatment resources and diversion programs. The bill prioritizes improvement, not imprisonment, for those addicted to drugs.
SB 5536 directs the investment of more than $44 million to support people overcoming addiction. Housing supports, educational services, crisis centers, and family navigator programs are all components of a system intended to help people through the entire process of recovery.
Beyond SB 5536, the state’s final budgets included unprecedented investments in affordable housing, homelessness reduction, and behavioral health facilities. The Housing Trust Fund was allocated $400 million to add more than 13,000 new housing units statewide. Emergency housing and shelter programs got $111 million to serve more than 2,000 people.
Plenty of flexibility
A hallmark of the new bill is the degree of flexibility afforded to courts, prosecutors, municipalities, and community service providers.
The original bill that failed in the final hour of the regular session pre-empted local control. A difference in the latest version, one critical to its bipartisan support, was the continued ability for municipalities to approve or prohibit local “harm reduction” providers. Harm reduction services include needle exchanges, safe injection sites, and other programs designed to prevent disease or overdose. The ultimate bill signed by the governor lets local governments maintain some influence over these activities.
Prosecutors and courts were also granted some discretion in the final bill. Rather than have the Legislature set a rigid course for the new pretrial diversion program, courts and prosecutors may consider other alternatives to traditional prosecution. A defendant with behavioral health issues who is also addicted to drugs may benefit most from inpatient behavioral health treatment. A veteran fighting chemical dependency may be diverted to a veteran’s court program. Conversely, a defendant that has serially rejected treatment may be sent to jail. This flexibility may help courts find the right course for each defendant.
Community service providers also benefit from flexibility within the law. SB 5536 establishes a grant program to support community-based crisis stabilization, addiction counseling, and behavioral health treatment providers. The grant model will help the state invest more broadly across the state. It will also support culturally-sensitive providers helping populations at higher risk of drug addiction.