By Gabriel Neuman, GSBA Policy Counsel and Government Relations Manager
Governor Jay Inslee signed into law SB5536, a new law that would make possessing or publicly using drugs a gross misdemeanor offense—a higher penalty than what exists under the current state law, which is set to expire July 1. The law overhauls our state’s drug possession charges and provides important funding to recovery and deterrence programs.
What’s in the law?
- The penalty for a person’s first two drug offenses will be lower than for most gross misdemeanors – up to 180 days in jail, as opposed to the standard 364 day maximum.
- The maximum fine will be lowered from $5000 to $1000
- Options for treatment are available prior to arrest, after arrest, and before trial. People can also access treatment services provided through this bill regardless of where their case is in the process.
- Adds $20 million to fund recovery housing, youth services, public defense, and Law Enforcement Assisted Diversion
Compromises on both sides
- Progressives are credited with the idea to limit the maximum sentence for a gross misdemeanor. They also successfully added more money for social services and legalizing drug paraphernalia such as fentanyl test strips.
- Republicans got some leeway too—the revised bill will allow cities and counties to enact some local rules governing overdose-prevention programs and needle exchanges in their jurisdictions. They also successfully pushed for a provision requiring the Washington State Department of Health to tell the media when considering licensing an opioid treatment provider in a community.
- Some Democrats believe the bill places too much emphasis on criminal penalties and provides prosecutors too much power to block someone facing charges from accessing recovery services.
- A few Republicans said the compromise does not contain stiff enough consequences to push people toward treatment.1
“I’ll just say this is not a bill where anybody got everything they wanted. It is a bill that is implementable. We can start taking action to help people,” said State Senator Manka Dhingra (D-Redmond)2
What’s the history?
On February 25, 2021, the Washington Supreme Court struck down the state’s main drug possession crime in a case called State v. Blake. Since the crime law was struck down, immediately following the ruling there was no state law making simple possession of drugs a crime unless the Washington state Legislature recriminalized it.
The ruling came in the middle of a short legislative session, so the Legislature had to act quickly. They passed a bill that made possession crimes misdemeanors with mandatory diversion to services for at least the first two occasions. This 2021 bill had a sunset: it is set to expire July 1, 2023. This means that, if the Legislature took no action before then, the law would revert to its status after the Blake decision, with no criminal penalty for simple drug possession. With no state law in place, local municipalities would create their own penalties, creating a patchwork of drug laws throughout the state.
With the deadline of July imminent, this year’s Legislature got to work drafting the future of our state’s drug possession law. Legislators relied on a final plan released by their Substance Use Recovery Services Advisory Committee (SURSAC) which included recommendations to decriminalize possession, create a safe supply working group, and expand access to recovery services. Unfortunately, the Legislature could not come to a consensus and did not pass a law addressing drug possession before the end of session. 3
In response, Governor Inslee called the Legislator back to Olympia for a special session set to address this issue. After lengthy discussions, both chambers voted in favor of the above compromise bill. This new state law supersedes any local ordinances passed regarding drug sentencing.