State House passes amended bill to make possession a misdemeanor

The Washington State House of Representatives has passed an amended version of Senate Bill 5536 that would classify possession of controlled substances as a misdemeanor, rather than a gross misdemeanor.

Engrossed Second Substitute Senate Bill 5536 is in response to a February 2021 ruling by the state Supreme Court in State v. Blake that resulted in there being no state law making simple possession of drugs a crime unless the Legislature re-criminalized it. The Legislature did just that later in the year with Senate Bill 5476, but the provisions of that legislation expire on July 1.

ESSSB 5536 passed on a 54-41 bipartisan vote April 11.

Rep. Gina Mosbrucker, R-Goldendale, put forward an amendment that would restore the gross misdemeanor provision of the bill, but that amendment failed.

A misdemeanor is punishable by up to 90 days in jail and a fine of up to $1,000, while the maximum punishment for a gross misdemeanor is 364 days in jail and a fine of up to $5,000.

“We know through data and studies that it takes a long time to detox, to go through a program,” explained Mosbrucker, who voted against the bill. “Often, we see that the gross misdemeanor is going to give us 364 days, whereas a simple misdemeanor is going to give us 90 days. It also gives us the ability to plea bargain and to give and cater to the needs of the person who is potentially incarcerated or potentially going to take the diversion to move forward.”

Rep. Tarra Simmons, D-Bremerton, explained her opposition to Mosbrucker’s amendment.

“People do not get better in jail,” she said.

Simmons, who voted to pass the bill, added, “We don’t have treatment there. It is not trauma informed. It is not a therapeutic environment.”

Rep. Roger Goodman, D-Kirkland, voted for the bill, but exemplified the mixed feelings many people have on the issue.

“On the one hand, I’m encouraged to see the investments and the building out of the structures and systems for evidence-based interventions to help people suffering from substance abuse disorder,” he said. “On the other hand, I’m quite apprehensive at the prospect of criminalizing those very same people — the most marginalized people in our society — traumatizing them and driving them further into social dislocation and dysfunction.”

Under ESSSB 5536, those charged with possession can have access to a pretrial diversion program if they are arrested only for possession. An assessment would be provided and if a person is found to have a substance abuse disorder, that person would be referred to treatment.

A person found not to be in need of substance abuse treatment would be required to perform community service.

Per the bill, if an individual is able to go two years without any charges, possession convictions can be automatically vacated.

The legislation also ensures that service providers and facilities are fully funded and available to those who need them.

Because House members amended the bill, it now goes back to the Senate for further consideration.

The Republican leader in the Senate was critical of the amended version of the bill coming out of the House.

“We saw this same thing two years ago — a bipartisan majority in the Senate votes to make possession of fentanyl and other hard drugs a gross misdemeanor, and the House Democrats say no, it should only be a misdemeanor,” Sen. John Braun, R-Centralia, said in a Wednesday news release. “In 2021, the Senate Democrats made a huge mistake by going along with the House. It would be an even bigger mistake if that happens again. The Senate needs to stand its ground.”