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The Impact – Debating the effect of the “Blake Fix” legislation and the direction of drug law in Washington

Mike McClanahan profile by Mike McClanahan

This week on The Impact we heard from a panel of thought leaders on drug policy with different perspectives on the new drug law, SB 5536. ACLU of Washington Political Director Alison Holcomb, who wrote I-502 and spearheaded the campaign which legalized recreational cannabis in Washington in 2012, joined Washington Association of Sheriffs and Police Chiefs Executive Director Steve Strachan, a former police chief, and former Minnesota state representative to debate the issue. 

“The fact that we’re seeing, you know, what I would say is chaos in some of our public spaces. You know, kids unable to go to parks, people feeling like they’ve sort of lost control of their neighborhoods is a big deal,” said Strachan.

“Do we really pragmatically believe that arresting people who are using drugs is the way that we’re going to keep them alive? We’re seeing overdose deaths happen in our jails right now,” said Holcomb.

On May 16, 2023, the Washington State Legislature passed Senate Bill 5536 to replace the temporary drug possession statute expiring on the first of July. Governor Jay Inslee signed the bill into law the same day. The new law establishes gross misdemeanor penalties for people charged with either possession of a controlled substance or public use of a controlled substance, the latter being a new state crime. 

The law it replaces, Senate Bill 5476, was passed in April of 2021 in response to a Washington State Supreme Court ruling known as the Blake decision. That ruling invalidated Washington’s felony drug possession law on February 25, 2021. The state supreme court held the simple possession statute unconstitutional because it did not distinguish between knowing and unknowing possession of drugs. The court noted that under the old law a person could be convicted of unintentional drug possession. 

The majority opinion author in State v. Blake, Justice Gordon McCloud, wrote that Washington’s strict liability felony drug law was unique in the nation in that it ignored the element of intent.

“Imposing such harsh penalties for such innocent passivity violates the federal and state rule that passive and wholly innocent nonconduct falls outside the State’s police power to criminalize.”  

Although selling drugs remained a felony, the ruling effectively decriminalized the possession of drugs like cocaine, meth, or heroin across the state. Various police agencies in Washington announced that they would stop making drug arrests. A number of cities proposed or passed stopgap local bans targeting drug possession, use, or paraphernalia. 

The temporary replacement law passed by the legislature two months later banned intentional drug possession, but downgraded the penalty from a felony to a misdemeanor. SB 5476 also required officers to refer drug possession suspects to treatment instead of arresting them on their first and second offenses. The 2021 law contains a sunset clause and expires on July 1, 2023.

“This wasn’t the Blake decision that put us in this situation.  This is 50 years of abject failure of drug policy,” said Rep. Roger Goodman (D-Kirkland). “Drugs are more plentiful, cheaper. More potent. More overdoses, more deaths, more crime. The most ruthless criminal enterprises in the world are controlling the markets. We have to find a new path.”

“We must stop the epidemic in every way we can, every means possible: law enforcement, using recovery, using medicated treatment, using whatever tool, whatever it takes, and this is a start,” said Rep. Andrew Barkis (R-Olympia).

That was testimony during debate on Senate Bill 5536, the drug possession compromise bill that precipitated the 2023 Special Session of the Washington State Legislature which lasted one day. 

The new law will make knowing possession of a controlled substance or public use of a controlled substance a gross misdemeanor offense carrying six months to a year in jail while also encouraging, but not requiring prosecutors to pursue diversion and refer defendants to drug treatment programs.

The final bill passed both chambers with broad bipartisan margins, but there was intense opposition from some lawmakers on both sides of the aisle. One point of contention was the removal of language that would have preempted local restrictions on siting new harm reduction, needle exchange, or medication assisted treatment facilities.

“In addition to hamstringing our ability to use the only tools we have to combat the fentanyl crisis, this bill upholds the flawed notion that we can punish people into recovery,” said Rep. Lauren Davis (D-Shoreline).

There were also opponents who argued that the gross misdemeanor penalties were either too severe or too weak.  

“The proper response would be to restore our drug laws as they were pre-Blake with the addition of knowingly as appropriate,” said Rep. Jim Walsh (R-Aberdeen).