'Blake fix' flops

OLYMPIA – On Sunday, the final day of Washington’s 2023 legislative session, lawmakers failed to pass Senate Bill 5536. The bill was intended to create a solution to a Washington Supreme Court decision decriminalizing controlled substances in Washington.

“The failure of the legislature to vote on a fix to the Blake decision is a huge shock being as it was supposed to be one of the priorities of this legislative session,” said Moses Lake Police Chief Kevin Fuhr.

Background

In February 2021, the Washington Supreme Court decided in State v. Blake, commonly referred to as the Blake decision, that the state’s drug possession law was unconstitutional because it did not require the state to prove a defendant knew they possessed the illegal substance.

In the 2021 legislative session, lawmakers passed Engrossed Senate Bill 5476 which re-criminalized drug possession as a misdemeanor rather than as a felony. It also encouraged prosecutors to divert cases for assessment, treatment, or other services. The criminalization of possession of drugs by this bill was set to expire on July 1, 2023, if no solution was reached by the legislature by that expiration date.

Legislative process

“We had sent a fairly well worked bill out from the Senate, because 5536 is a Senate bill, and it was a 28-21 vote,” Sen. Judy Warnick, R-Moses Lake, said. “Some of us voted no as it moved out but knowing it was going to be worked better.”

The bill then passed the House 54-41 with amendments. Due to the amendments by the House, the Senate had to concur with the amendments before the bill could move forward to be signed into law. The Senate, however, refused to concur with the House amendments and requested a conference.

“Unfortunately there were things in there that were no longer supported,” Warnick said.

According to Rep. Alex Ybarra, R-Quincy, in the conference, Senate Democrats, Senate Republicans and House Republicans agreed on a compromise. The House Democrats did not agree to this compromise and decided to put to a vote a version without some of the points in the compromise citing a belief that their majority in the House would guarantee passage of their version.

The House went to a vote on the House Democrat’s version and with a final vote of 43-55, failed to pass the bill.

“We had an agreement with reasonable amendments from three of the four caucuses for a stronger bill that would have had enough votes to pass both chambers. However, the majority party decided on the last day on a conference bill that they couldn't even get enough of their own votes to pass,” said Rep. Gina Mosbrucker, R-Goldendale, ranking Republican on the House Community Safety, Justice and Reentry Committee in a release by her office. “We've had all session to come up with a workable plan that gets addicted people off the streets and into treatment. I think many lawmakers on both sides of the aisle felt this eleventh-hour conference bill was wholly inadequate, and we could have done much better than this.”

Mosbrucker said the compromise the three caucuses agreed on had some negotiation points relating to deferral to treatment, local government control and not putting minors in the same room with adults in active addiction.

The 2023 legislative session adjourned at 10:03 p.m. that night, just after the vote.

Different members of each party have issued statements blaming the other for the bill’s failure to pass. House Democrats place the blame on the House Republicans because all 40 House Republicans voted no on the measure. House Republicans blame the House Democrats for the failure because 15 House Democrats also voted no, meaning, despite the House Democrats having a majority of 58 members, they could not get enough of their own members to pass the bill.

Both Ybarra and Warnick said the failure to pass SB 5536 was the biggest surprise to them during this session. Warnick said the failure of the bill to pass was because the changes to the bill made it so that the bill would not do what it was intended to do.

“Legislation is the art of coming to the middle,” She said. “You know, finding where you can get a win for both sides. Good legislation does that. This bill did not do that so there was no coming to the middle. There was no compromise.”

Mosbrucker also said the compromised bill fell short, leading to its failure to pass.

“This final bill still would not have held people accountable, wouldn't help them recover, and would have given them broader access to drug paraphernalia and devices to perpetuate their addiction,” Mosbrucker said in the release just after the adjournment of session. “If the state of Washington cannot agree on a meaningful change, it should step aside and let local government lead.”

Next?

“Without a legislative fix to Blake, on July 1, 2023, the State of Washington will have no drug possession or drug use laws on the books. What that means is that we will see a definite spike in drug usage and deaths,” Fuhr said.

Grant County Sheriff Joe Kriete called having no drug use or drug possession law in place a nightmare for law enforcement and worries that thefts will continue to climb in the area.

Due to the state’s failure to pass legislation to create a state standard on drug possession, the door is open for local governments to come up with their own solutions when the current law expires in July.

“On a positive note, without any State drug laws, cities and counties across the state can now enact ordinances to tackle the problem locally,” said Fuhr.

Fuhr said the City of Moses Lake is working with Grant County to develop and enact a drug use and drug possession ordinance, which would include criminal penalties for people that refuse to seek treatment options.

Any ordinances would have to be approved by the appropriate government body before they can be enacted, Fuhr said. For a county-wide ordinance, the ordinance would have to be passed by Grant County Commissioners. For a city ordinance, each city’s council would have to pass the ordinance; meaning each city in Grant County could have different standards on drug use and drug possession.

While this is an avenue for law enforcement, there is still a chance a special session may be called for legislators to come up with a solution. Gov. Jay Inslee expressed confidence that a state-level solution will be reached by legislators soon.

“I had four productive meetings with the leaders of the House and Senate in an effort to fashion an agreement regarding the Blake decision,” Inslee said in a post on his official Twitter account Tuesday. “There’s increasing cause to be hopeful that we can achieve a solution shortly. We’ll continue further discussion in the next few days.”

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