HomeMy WebLinkAboutReg 2023-05-15 Item 8 - Discussion - Special Legislative Session on Drug Possession ("Blake Fix")ITEM INFORMATION
STAFF SPONSOR: LAUREL HUMPHREY ORIGINAL AGENDA DATE: 5/15/23
AGENDA ITEM TITLE Special Legislative Session on Drug Possession ("Blake fix").
CATEGORY Discussion Motion Resolution Ordinance Bid Award Public Hearing Other
Mtg Date 5/15/23 Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date Mtg Date
SPONSOR Council Mayor Admin Svcs DCD Finance Fire P&R Police PW
SPONSOR’S
SUMMARY The Legislature is convening a special session on May 16 to focus on a new drug possession
law. Staff is seeking Council discussion and direction on next steps.
REVIEWED BY Trans&Infrastructure Svcs Community Svcs/Safety Finance & Governance Planning & Community Dev.
LTAC Arts Comm. Parks Comm. Planning Comm.
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MTG. DATE RECORD OF COUNCIL ACTION
5/15/23
MTG. DATE ATTACHMENTS
5/15/23 Information Memo dated 5/9/23
COUNCIL AGENDA SYNOPSIS
----------------------------------Initials --------------------------------- ITEM NO.
Meeting Date Prepared by Mayor’s review Council review
5/15/23 LH 8
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City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: City Council
FROM: Laurel Humphrey, Legislative Analyst
DATE: May 9, 2023
SUBJECT: Special Legislative Session on Drug Possession (“Blake Fix”)
ISSUE
Governor Inslee called for a special legislative session to begin May 16 to focus on passing a new drug
possession law.
DISCUSSION
In 2021, the state Supreme Court struck down the law that made drug possession a felony punishable by
up to five years in prison. In a case called State v. Blake, the court decided the law was unconstitutional
because it included people who didn’t realize they were carrying drugs. A stopgap bill that makes
unlawful possession a misdemeanor on the third violation sunsets on July 1, so the legislature will focus
on addressing this in the special session.
The City Council’s 2023 Legislative Agenda included: “Respond to the Blake decision by revising the
current system so that it can be more effectively administered within and across jurisdictions, including
funding for cities affected by changes resulting from the Blake decision.”
Below is the complete text of a letter sent by the Association of Washington Cities to legislators and
Blake negotiators.
“Legislative leaders,
The Association of Washington Cities urges you to pass a clear and functional Blake fix. Washington
cities appreciate the thoughtful work that has occurred on this topic and continue to believe that the
best solution is a workable, consistent statewide approach that provides the flexibility that each
individual, each case, and each community need.
As you prepare for special session and work to develop legislation, we would like to share with you
additional information about our preferences and concerns:
Gross misdemeanor charge and clear accountability
AWC supports a gross misdemeanor charge for possession of controlled and counterfeit substances with
a focus on encouraging individuals to enter treatment in lieu of criminal penalties. For those that refuse
or fail to comply with treatment, there must be accountability within the criminal justice system. We
agree with all prior versions of the bill that possession of cannabis up to 40 grams, as well as possession
of a legend drug, should remain a simple misdemeanor as they are under current law. For those that
refuse or fail to comply with treatment, there must be accountability within the criminal justice system
and judicial discretion to impose a jail sentence if appropriate.
A gross misdemeanor will also appropriately prioritize the case for law enforcement, for the prosecutor,
and for the state toxicology lab. AWC is concerned that the requirement that the Washington State
Patrol to “aim to complete the necessary” drug analysis in a timely manner is insufficient to guarantee
timeliness. Additionally, the court needs adequate time to engage in a case. A gross misdemeanor 45
INFORMATIONAL MEMO
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charge allows the court to have two years of full jurisdiction over the case, allowing sufficient time for
the toxicology lab results to arrive, for an individual to seek an evaluation, and for the individual to
complete 12-months of treatment.
Clarify definition of public “use”:
We are comfortable with including the additional charge of public use in addition to knowing
possession, but request that it not be combined with possession so that they are truly separate crimes.
Additionally, the term public “use” must be clearly defined to include “actual use or actions that
evidence an intent to use a controlled substance in a public place”. This will allow law enforcement and
the prosecutor to effectively take action in cases involving public use. Without this clarification, the
language as drafted is not workable and will likely result in cases not being brought forward.
Clear diversion options that reflect what is currently available in our communities:
Cities support pre-trial diversion to encourage individuals to obtain treatment in lieu of criminal
penalties. However, it must be workable within what is currently available in each jurisdiction. AWC
supported the Senate-passed version of SB 5536 that provides leeway for different types of diversion
options that may exist and have capacity in the community and what may be the best fit for the
individual.
When crafting a pre-trial diversion program, cities request:
• Prosecutorial and court discretion as to whether to approve a defendant for diversion.
• Flexibility to utilize therapeutic courts and other existing diversion options.
• Judicial discretion when an individual is evaluated and found to not have a substance use disorder,
rather than a prescriptive requirement to order community service.
• A standard of 12-months of substantial compliance with all recommended treatment.
• Flexibility to order a defendant obtain treatment as is available and appropriate within the
community, without the requirement to only use a recovery navigator program, law enforcement
assisted diversion, or arrest and jail alternative program. The recovery navigator program is not yet at a
stage statewide to respond to a significant increase in caseload, and requiring its use may be a bridge to
nowhere.
Clear role for the court and a reasonable administrative burden for prosecutors:
AWC supports the clarifying language made by the House to protect the neutral role of the court.
However, we are concerned about the requirement for the prosecutor to make the motion to vacate a
conviction. This adds a substantial administrative burden for prosecutors. We support a vacation process
similar to others in current law that are initiated by the defendant.
Further, the most recent version of the bill includes a requirement for prosecutors to enter data into the
statewide database, including information which will not be readily available to the prosecutor. For
example, it would not be appropriate for a prosecutor to ask a defendant their race and ethnicity,
gender expression, and disability, as it is not relevant to the adjudication of their case.
Law enforcement assisted diversion:
AWC fully supports the change in RCW 71.24.589 to make the law enforcement assisted diversion pilot
program an ongoing grant program.
Maintain public engagement for siting of treatment facilities:
We ask that any legislation maintains the current requirement for the Department of Health to hold a
public hearing prior to the siting of an opioid use disorder treatment facility. Transparency and open
communication are important, particularly to educate the public about the nature of these facilities,
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INFORMATIONAL MEMO
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safety measures that will be in place, and other critical pieces of information for neighboring business
owners and residents.
We appreciate your consideration of cities’ positions on this critical issue, and we look forward to
working with you in crafting legislation that addresses our shared concerns about the negative impacts
of drug use in our communities.”
RECOMMENDATION
Staff is seeking Council direction on this issue.
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