With a bipartisan vote of 28-20, SB 5476, the bill to decriminalize hard drugs, passed the Washington state Senate last Thursday, April 15, and will now head to the House. A public hearing is scheduled in the House Committee on Appropriations at 9:00 a.m. Monday morning.

SB 5476 would make Washington state the second state in the United States to decriminalize hard drugs. Last year, Oregon became to the first state to do so with the passing of statewide Measure 110. Unlike Oregon, the Washington state bill does not legalize personal amounts of hard drugs, it only lessens the criminal penalties for simple possession.

In a shocking twist of events, the bill’s original sponsor, Senator Manka Dhingra (D-Redmond), voted against the amended engrossed bill that removed personal use amounts for hard drugs such as heroin, methamphetamine, and cocaine within the state of Washington.

Senators voting in favor the amended bill were: Billig, Braun, Brown, Carlyle, Cleveland, Conway, Das, Dozier, Gildon, Hawkins, Hobbs, Honeyford, Keiser, King, Mullet, Muzzall, Nobles, Randall, Rivers, Rolfes, Sheldon, Short, Van De Wege, Wagoner, Warnick, Wellman, Wilson, C., Wilson, L.

To view the amended engrossed SB 5476, in its entirety click here.

Dhingra’s Original Bill

The bill is intended to address the State vs. Blake decision on February 25 which ruled that the statute governing simple possession of control substances as unconstitutional.

However, the bill included language that would establish personal use amounts within the state of Washington for the following hard drugs:

• Forty user units of a mixture or substance containing a detectable amount of methadone
• Forty pills, tablets, or capsules of a mixture or substance containing a detectable amount of oxycodone
• One gram of a mixture or substance containing a detectable amount of heroin
• One gram or five pills, tablets, or capsules of a mixture or substance containing a detectable amount of 3,4- 5 methylenedioxyamphetamine or 3,4-methylenedioxymethamphetamin
• Two grams of a mixture or substance containing a detectable amount of cocaine
• Two grams of a mixture or substance containing a detectable amount of methamphetamine
• Forty user units of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD)
• Twelve grams of a mixture or substance containing a detectable amount of psilocybin or psilocin

The original bill also gives the Director of the Washington state Health Care Authority, who is currently Sue Birch, the authority to establish personal use amounts for hard drugs by rule for recreational or nonmedical use.

After 45 amendments, the aforementioned and the provision to allow a “forensic navigator” to serve as a care coordinator for persons alleged to be in possession of drugs within personal use amount limitations were pretty much gutted.

The Amended Bill to Decriminalize Hard Drugs

The 5-4 decision by the Washington State Supreme Court stated that  RCW 69.50.4013(1) – the statute that criminalized the possession of a controlled substance without a prescription – did not include “an intent requirement” and hence also violated the requirement for uniform interpretation of the Uniform Controlled Substances Act among the states, ruling the entire statute unconstitutional

Therefore, to correct this, a mens rea element, “knowingly” was added to the statutes pertaining to possession of a controlled substance, possession of a counterfeit substance, and possession of a legend drug.

Penalties for possession will be reduced from felonies to a gross misdemeanor and where a case is legally sufficient, the prosecutor must divert a case for treatment if the alleged violation is the person’s first or second violation for possession. This would decriminalize all hard drugs within the state of Washington, lessening criminal penalties for offenders.

However, for a person’s third and subsequent violations, the prosecutor is not required to divert the case for treatment; hence, the accused may be subject to class B or C felonies.

Use or delivery of drug paraphernalia is no longer a criminal offense if the use or delivery is for the purpose of testing, analyzing, packing, repacking, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing a controlled substance into the human body.

Substance Use Recovery Services Advisory Committee

The Health Care Authority (HCA) is to establish an advisory committee to make recommendations for implementation of a substance use recovery services plan. The Substance Use Recovery Services Advisory Committee will consist of individuals from the medical, legal, law enforcement, and recovery support service profession.

Included within the advisory committee are adults and youths in recovery from substance use disorder, and family members of persons with substance use disorders. Oddly, persons currently illegally using control substances can also be a member of the committee.

The HCA must submit an interim report on the progress of the advisory committee to the appropriate committees of the Legislature by December 1, 2021. The summary report of the substance use recovery services plan and recommend changes to the law to are due to the appropriate committees of the Legislature by October 1, 2022.

The overall goals of the report are to provide reforms to transition from criminalizing substance use disorder to treating it as a disease.  It is to address accessibility of a person to behavioral health services, retaining behavioral health employees, establish effective evidence-based treatment, and propose a funding framework.

Criminal Court Commissioners

The presiding judge of the superior court of any county, regardless of its population size, will appoint criminal court commissioners to conduct resentencing hearings and to vacate convictions of offenders impacted by the State v. Blake, No. 96873-0 decision. Approval authority for the commission positions rests with the county legislature.

Release from Confinement

An offender may be released from confinement if he or she is entitled to vacation of a conviction or the recalculation of his or her offender score pursuant to State v. Blake if the offender has already served a period of confinement that exceeds his or her new standard range. Persons currently serving a sentence are not to be released from confinement prior to resentencing.

Establishment of a State v. Blake Reimbursement Account

A State v. Blake account is created in the state treasury to reimburse state and local municipal costs resulting in the supreme court’s decision in the State v. Blake decision. Offenders of the statute eligible for financial compensation will also be paid from this account.

Emergency Clause

Because SB 5476 includes a declaration of emergency, if passed, voters will not be able to use the referendum process to repeal it. The bill to decriminalize or lessen hard drugs would require a simple majority in both chambers and be signed by the governor within five days of its passing to become law and take effect immediately.

Section 6 of this bill relating to legend drugs, takes effect July 1, 2022.