In the wake of the Washington Supreme Court’s State v. Blake decision, which ruled the state’s simple drug possession law unconstitutional, the state’s many jurisdictions have been trying to figure out whether to fix the old law — or whether it is worth re-criminalizing drugs at all.

The law ruled drug possession unconstitutional on the basis that it did not require intent to be proven to convict someone of drug possession, making drug possession legal by defacto.

In response to the State v. Blake decision, the Legislature passed ESB 5476 in 2022 which in part modified statutes for the possession of controlled substances to prohibit the knowing possession of the prohibited substances. These offenses are classified as misdemeanor crimes, punishable by up to 90 days in jail, a $1,000 fine, or both.

ESB 5476 also includes provisions that encourage prosecutors to divert such cases for assessment, treatment, and other services. However, since the implementation of the law, many leaders have complained about the lack of available treatment resources, the way in which these referrals are tracked and the willingness of individuals to accept the help that is offered.

In a statement regarding ESB 5476, Renton Police Chief Jon Schuldt wrote:

“Under this law, officers are also required to offer a referral to treatment if they come across a person in possession of drugs. The intent here is good – but this is where the enforcement part can get complicated and murky: a person needs to be referred to treatment twice; if they are found to be knowingly in possession a third time, that person can be cited or booked in jail.”

ESB 5476 was implemented as somewhat of a placeholder for the year, with modifications to these possession statutes set to expire on July 1, 2023. And now, legislators are scrambling to implement a long term solution to help address public safety concerns while also trying to mitigate the current drug abuse crisis – and local South King County leaders have been eager to give their opinion.

During a Feb. 6 Senate Law & Justice Committee hearing, Renton Mayor Armondo Pavone testified in support of two bills, each providing a pathway to treatment and diversion from the criminal justice system for individuals caught in possession of controlled substances

“In a recent emphasis patrol and our downtown, Renton police officers made outreach of 350 people experiencing addiction, less than ten were open to treatment referral that’s just 2.8 percent, and we still don’t know if any of those ten met with a provider. There’s just no follow up,” Pavone testified.

“Those suffering from addiction refuse treatment, ultimately, leaving them in the same, often unsafe environment. Our residents and business owners see the cycle repeat. They worry for the safety and health of their community, and they fear it might never be resolved.”

Pavone said these incidents and many others have led to a “significant spike in public calls for police response to open drug use and an overwhelming increasing concern from our community members.”

“We need to support our community and those suffering from these very treatable problems. But let’s be clear, the people using the substances are sick and deserve help and support,” Pavone said. “I and our city council believe that providing sufficient resources to assist individuals in need is critical to the ultimate success for this effort.”

Pavone said city officials also support actions to ensure individuals take advantage of available treatment.

“The key to this working is through accountability of the gross misdemeanor sentence in our court system, we support the default of any sentence for offenders who enter a court-approved treatment program,” he said, noting Renton officials’ support of SB 5536 and 5467. “Those who complete the court requirements including a substance abuse assessment deserve to have any related convictions removed from their record.”

According to summaries in the Senate Bill Reports for each of the proposed bills that Pavone expressed support for, SB 5536 as written requires knowing possession of prohibited substances, creates a pretrial diversion program for individuals charged with possession of prohibited substances, provides for vacating possession convictions contingent on the individual completing substance use disorder treatment and expands access to substance use disorder treatment programs in underserved and rural areas.

While SB 5467 as currently written requires the court to vacate the conviction of individuals convicted of possession of a controlled substance if the individual successfully completes substance use disorder treatment as a condition of probation, requires the court to sentence individuals convicted of possession of a controlled substance who do not agree to comply with substance use disorder treatment as a condition of probation to no less than 45 days in jail and provides for dismissal of a charge of possession of prohibited substance if the individual completes substance use disorder treatment prior to conviction on the charge.