OLYMPIA— On Tuesday, the first day of a special session called by Governor Jay Inslee, the Washington House of Representatives passed a compromise version of Senate Bill 5536 after extensive negotiations between the leadership and negotiating teams of all four caucuses. The bill sets the penalty for possession of controlled substances as a gross misdemeanor with a maximum confinement time of 6 months for the first two convictions and any fine for any conviction is capped at a maximum of $1,000. It also creates a system for pre-trial diversion into treatment. Recognizing the collateral consequences a conviction can have, the bill requires mandatory early conviction vacation if a person can prove that they have completed treatment or have “substantially complied” with the recovery navigator program or similar services for six months. The bill takes strides toward setting up an effective system for outreach, treatment, and recovery while providing avenues for accountability with plenty of offramps into treatment. To address the problem of people using drugs in community spaces, the bill creates the crime of public use. The bill passed with a bipartisan vote of 83-13. The Senate passed the compromise earlier Tuesday with a vote of 43-6.
“We need to address the root causes of the addiction crisis as well as the problems that it creates in our communities,” said Rep. Jamila Taylor (D-Federal Way), a lead House negotiator. “Our communities deserve to feel safe and comfortable in public spaces. This bill recognizes the harm that public use causes our communities by creating the crime of public use. More importantly, it focuses on the most up-to-date science on recovery, working to connect people to treatment, housing, services, and employment opportunities. The bill includes direct investments of $63 million; however, overall, we are investing over $1.1 billion in our behavioral health system in addition to the $1 billion we invested last biennium. The recovery navigator program is up and running in every county in the state and the 988 suicide and crisis line, which can serve as an alternative to law enforcement, is also up and running. We are building a statewide system that creates accountability through community engagement and offers hope and connection to those in our community who are struggling. This is not a problem that will go away easily, but if our local, county, state, and federal governments work in conjunction with the community we can address this crisis.”
The legislation is the Legislature’s response to the 2021 Washington Supreme Court Blake decision, which found Washington’s strict liability law for drug possession unconstitutional. Following that ruling, the Legislature declined to return to a felony for-possession model, instead choosing to build a system focused on access to treatment and recovery. The 2021 bill set the penalty for possession at a simple misdemeanor with two required pre-arrest referrals to services. It also created the recovery navigator program which serves as a case manager for someone in recovery, helping connect them with treatment, housing, services, and employment opportunities. Due to the mid-session timing of the Blake decision, that bill put a sunset clause on the penalty, necessitating this year’s legislation. It also established Substance Use Recovery Services Advisory Committee (SURSAC), to help make recommendations for removing barriers to treatment and recovery.
Many of SURSAC’s recommendations are included in the bill. The bill funds a pilot program for Health Engagement Hubs, which would serve as all-in-one locations where a person who uses drugs can access a range of services including high-quality medical care like wound care, harm reduction supplies, referrals or access to methadone, and linkages to housing treatment, and transportation services. The eventual goal will be to have all Washington communities within two hours of a health engagement hub. By leading with care and support, these hubs can serve as an access point for people to begin their journey to recovery. Drug testing equipment is removed from the list of drug paraphernalia. This is an essential harm reduction measure to prevent fentanyl poisoning. The giving of drug paraphernalia is removed from statute as an infraction and language protecting public health staff from arrest and prosecution is added. Additionally, the bill creates a grant program to fund educational and employment opportunities for people recovering from SUD.
“We know that the criminal justice system is not the right place to treat a chronic health condition, but we also have a duty to address the public disorder that we are seeing in our communities,” said Rep. Roger Goodman (D-Kirkland). “I am encouraged by the comprehensive nature of this response. It ramps up recovery support that is proven to work, builds out low-barrier access to treatment, and takes steps to ensure that the collateral consequences of a conviction don’t prevent people from rebuilding their lives. The heart of this bill recognizes that fundamentally this is a public health problem with a public health response and puts measures in place to help people into recovery.”
Under SB 5536’s pre-trial diversion program, a defendant would be referred to an applicable program (Recovery Navigator Program, Arrest & Jail Alternatives, LEAD) for an assessment. Based on that assessment, the defendant would either be referred to treatment and services or if they were determined not to be in need of any services, be sentenced to up to 120 hours of community service. The defendant would then have their charges dropped if they substantially complied with treatment and services for twelve months, successfully completed a treatment program, or completed their community service. Substance use disorder is a chronic, progressive, relapsing disease that must be treated with a chronic care model. This bill builds on our statewide investments in providing meaningful, evidence-based pathways to recovery for individuals in active addiction. This legislation recognizes that recovery is born of hope and meaningful connection and that keeping people involved with support services is vital.
Recognizing the need for expanded treatment options and programs in every part of the state, the bill takes several steps to ensure that there is an adequate supply of both providers and facilities. It designates opioid treatment programs as essential public facilities, cutting red tape for their construction, and removing the requirement that the Department of Health (DOH) host public hearings prior to licensure and certification of the program. The compromise bill requires DOH to give notice to major media outlets in the community before a program is certified. It also creates a fund to pay for their construction in underserved areas. The Health Care Authority (HCA) is directed to ensure that there are an adequate number of recovery residences across the state and exempts any property being used as a recovery residence from property taxes through 2033.
Governor Inslee called the special session to begin on May 16 specifically to work out a compromise version of SB 5536. Negotiators from all four caucuses have been meeting since the end of the regular legislative session. Once the Governor signs the bill, most provisions of the bill will go into effect on July 1, 2023.