August 7, 2023 Dena Jensen

Sent: Monday, August 7, 2023, 04:11:24 PM PDT

Subject: Regarding 2E2SSB 5536 and the LEAD program

Dear Incarceration Prevention and Reduction Task Force:

I am writing related to the portion on your July 17, 2023 meeting where there was a brief discussion of the changes in state legislation – specifically 2E2SSB 5536, on controlled substances, possession, and treatment.

It is noteworthy to me that I am hearing a continued focus on the Law Enforcement Assisted Diversion (LEAD) program when some government bodies are speaking of services to address dangers posed by public drug use and possession. This has been the case at Bellingham City Council meetings surrounding both their own legislation outlawing public use of controlled substances in Bellingham that was passed back in April, and their more recent adoption of the state legislation. 

I think it was a critical point made in your meeting when a couple Task Force members noted that with LEAD being a program that refers individuals to treatment, “you can only refer so much, when you don’t have the facilities to refer them off to” and “as to the diversion of the new statute, there is a serious lack of places for folks to be diverted to.”

I understand that according to data which has been gathered, that LEAD has been achieving success related to the goals of the program in meeting some community members’ needs. I understand that in the 5536 legislation, LEAD was referenced dozens of times. And I understand the importance of ensuring that law enforcement agencies and LEAD will be meeting the terms established in 5536 related to diverting people from incarceration and legal penalties.

However, during the Justice Project needs assessment process, and at an April 10, 2023 Bellingham City Council Public Health, Safety, and Justice Committee meeting, Whatcom County Health and Community Services Director Erika Lautenbach made the point that LEAD is a program with a high barrier to entry. 
I will include Director Lautenbach’s full remarks from the April, 10, 2023 meeting below my signature on this post (as well as other relevant meeting information). Here was one portion of those remarks: 

“So LEAD and GRACE have a high barrier to entry. We don’t have a lot of programs in between that. So what would that look like? And we’re building that as we go. But I just want to – I want to caution on the emphasis about LEAD specifically because these are – these do feel like two different conversations. And we can’t easily ramp up – we’ve already doubled the size. But it’s a program that’s only been in existence for – since 2020 and we’re still doing the evidence base.”

Director Lautenbach had also referenced the Justice Project and the exploration of other programs that would be effective in addressing dangers associated with substance use. So these remarks, paired with the ones from your July 17, 2023 meeting related to the fact that their are insufficient services to which people can be referred, seem to indicate that the highest priority be placed on developing those services and developing community involvement and empowerment to a level that will quickly bring forth effective programs and services. 

I believe it is critical to ground our efforts and raise awareness persistently in the recognition of the people who have unnecessarily suffered and perished in the past, as well as all those who are currently being sacrificed everyday because of the priority we have continued to place on punishment instead of prevention and treatment. 

At the same time I feel like the enthusiastic and consistent promotion of a program like LEAD to our elected officials as it relates to the new legislation needs to be addressed. I say this especially because the public is watching these meetings, so not only can that lead to legislators and executive officials getting an inaccurate impression of LEAD’s ability to address dangers faced by people now illegally using and possessing controlled substances, it can lead to members of the public getting this inaccurate impression as well. 

Now that officials are coming into a heightened sense of emergency regarding fentanyl and other emerging lethal substances, it will drive us backwards to fall into the same pattern of allowing the community to think law enforcement and prosecution agencies, no matter how compassionate a picture is painted of them, are going to be the pathway out of trauma and death.

I know it is helpful that the culture of these agencies is slowly improving in a way that is gradually less adversarial with their community due to interactions with them by organized bodies like your task force. But it is vital that their role in seeking to enforce health and well-being be quickly made obsolete for us to see the kind of rapid, meaningful change that will avoid the escalation of trauma and loss to saturate our community to an even more unbearable degree. 

I am glad Whatcom County Health and Community Services is taking an all hands on deck approach to the issue of overdose. But in order to increase and offer more diverse and effective services, it will take remaining constantly proactive to identify the ways we exclude people out of processes initially, and push some of them out if they do manage to land there if we want to help our community rise to the level of service and stability needed.
 
I appreciate your taking some actions to help increase community awareness during the Justice Project. I call on you to prioritize developing an ongoing, inclusive public engagement plan that reaches to all people of all languages and cultures and which helps equip our community, as well as our government officials with an accurate picture of the crisis and trauma that needs to be addressed, along with the loss we incur each day that passes when we do not effectively create services that meet critical needs of our friends, family, and neighbors.

Sincerely, Dena Jensen
Birch Bay, WA

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At the April 10, 2023 Bellingham City Council Public Health, Safety, and Justice Committee, Whatcom County Health and Community Services Director Erika Lautenbach addressed questions related to any support she would need for the Law Enforcement Assisted Diversion (LEAD) program in order to address increased needs for substance use services due to potential enforcement of a new Bellingham law outlawing public use of controlled substances: 

Erika Lautenbach: “The City does not contribute to LEAD. They contribute to the GRACE program and the ART program. LEAD is solely funded by a Department of Justice grant and State funds. So we cannot make determinations about prioritization from city to city or within the county because those are for the entire – those funds are for the entire county. So I wanna make sure it’s clear that we can’t prioritize City of Bellingham residents over residents in other cities or within the county because these are funds that are from the state and feds.

“That said, and I think most of you know this, this LEAD – there’s a lot of emphasis on LEAD in this conversation and I kind of wanna – I wanna take a little bit of a step back and think about, sort of, the systems – we are building the evidence base as we go in Whatcom County. 

‘Many of these programs are a first in our state. And so there is a lot of work to do. Whether there is 10 slots available or 50 slots available [in the LEAD program], I feel like that conversation is a different conversation than how you want to make a policy around police engaging with individuals using drugs.

“That said, you know, there’s a lot of energy and effort with the Justice Project, with the Stakeholder Advisory group, thinking about what programs do we want to expand – is LEAD, is GRACE – are those the right, most appropriate programs to expand? Maybe? Maybe to what extent? What are some of the other programs that may not be quite as intensive that we would want to grow and create a new evidence-base for?

“So LEAD and GRACE have a high barrier to entry. We don’t have a lot of programs in between that. So what would that look like and we’re building that as we go. But I just want to – I want to caution on the emphasis about LEAD specifically because these are – these do feel like two different conversations and we can’t easily ramp up – we’ve already doubled the size. But it’s a program that’s only been in existence for – since 2020 and we’re still doing the evidence base. 

“So we will grow as we can, but recognizing that this is still – these programs are still new and we’re still building them out to something that replicatable and expandable. So just, I wanna put that out there too.” 
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Notes from Bellingham City Prosecutor Ryan Anderson’s “Presentation on Washington State’s new drug laws” at Bellingham City Council Committee of the Whole June 26, 2023. The legislation in question was Washington 2E2SSB 5536 that was passed in mid-May of this year.

Below are the notes on Assistant City Attorney Sr. Ryan Anderson’s presentation (link to a recording of the presentation and Council Member discussion afterward: https://youtu.be/jhiMrKObIwE?t=1494). These notes use similar language to that used by Anderson: The Blake Decision occurred in February of 2021. Washington Supreme Court said controlled substance laws in WA, under strict liability (meaning no “mens rea” which in this case means no knowing possession,) were no longer constitutional. 

Olympia scrambled to find a resolution to this ruling.  In July 2021, they tried to create a temporary kind of fix that they realized wouldn’t be perfect and that reduced everything from a felony down from a felony to a misdemeanor and lowered the penalty for violations – that was the big change. 

The 2021 law add the condition of “knowing” possession, which was acknowledged to not be a permanent fix. The legislature needed time to figure something out for the long term. This law sunsets, or ends, on July 1, 2023. 

The reason the 2021 law didn’t go anywhere as far as parts of state implementing it, was the part of the law that required two prior documented contacts and referrals by police to treatment before a citation could be issued. 

Knowing that the law was temporary and was going to sunset in two years, there was a discussion statewide between law enforcement agencies on how they would be able to track those referrals, especially if they occurred in a variety of counties or cities throughout the state. They considered whether it would be effective to invest in a statewide database to track the referrals. It was informally decided it wasn’t worth it since the legislature was planning on putting together something different. They decided to lobby for something “better.”

Bellingham did not adopt the law, and Whatcom County didn’t seem to do anything with it either. The status quo was maintained around the state. [not sure what that was, since the old law had been ruled illegal.] It was a burdensome requirement – not bad – but hard to figure out how to implement it.

On May 16, 2023 2E2SSB 5536 (https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Senate%20Passed%20Legislature/5536-S2.PL.pdf?q=20230731175104) was adopted, creating a permanent solution, and there may or may not be tweaks to it. Knowing possession and knowing use in a public place are gross misdemeanors, including all controlled substances as well as counterfeit substances, as defined. 

There is a graduated penalty that was adopted. It’s a gross misdemeanor in name, because a gross misdemeanor is up to 364 days in jail and $5000.00 fine. Anderson said he couldn’t recall the last time cases resulted in anywhere close to those kinds of penalties. Those are what you are potentially subject to. 

The first two offenses are up to 180 days and $1000.00 fine. The third offense would then be up to 364 days and $1000.00 fine. These don’t really match up with gross misdemeanor penalties at all, but because it’s not a simple misdemeanor for which penalties are up to 90 days and $1000 fine, they chose the category of gross misdemeanor. 

The key there is, first offense DUI is one day or two days, second offense DUI is 30 or 45. We consider that a far more serious crime that this. He knows they talk about maximum penalties, but it’s just important to remember those are well beyond what anybody, and particularly in our court, would ever expect as a penalty for a first or frankly, 10th offense of this nature.

The new law also removes the two referral requirement before a citation – weird anomaly that occurred here is that they passed certain sections of this bill with the emergency provisions, so it takes effect on a quicker timeline, but they didn’t repeal all of the prior law on that same timeline. So the two referral requirement is under a different section that they did not repeal so that doesn’t go away until after adjournment because it was not – that section was not repealed per the emergency powers. The law goes into effect July 1st, but the two referral requirement won’t go away until mid to late August when we’ll have the law as intended. 

Finally, the state preempts all Drug Paraphernalia violations, including needle exchange facilities. The legislature doesn’t want municipalities interfering in the laws that established those facilities. 

He feels the awesome part of this law is there is the encouragement prefiling, to encourage law enforcement and prosecutors to refer or divert cases for treatment or diversion plans. This one does that as well just like the City of Bellingham’s law does related to public drug use that was adopted a couple months ago. 

The addition here is that now, even post-filing, it’s not only something that’s encouraged, it is actually mandated that the judge – he assumes this would occur in an arraignment, but they would have to work through the particulars of it – to inform the defendant that if they participate in pre-trial diversion, or meaningful engagement in treatment that their case will then be dismissed after that period of time. Defendants have to be told that at a court hearing, he assumes would be at a first appearance or arraignment. 

In the law they really focus on LEAD (Law Enforcement Assisted Diversion). They have a whole section on LEAD and a whole section on Recovery Navigator programs and how we should be pushing – the focus of our diversion should be in those directions. It has some additional sections about that and what those programs look like and how they should be utilized. 

The other great thing in his opinion, is that the bill adds a section allowing defendants to vacate all drug convictions under this law if someone is convicted, be engaging in treatment at any point. So for times when people aren’t ready to engage in treatment, or to stop using substances or seek help – if they say no at profiling to treatment, or say no at post-filing to treatment and they want to plead guilty and move on – if at any point in their life they engage in a treatment plan and come back to court and say they don’t want their conviction following them around making it hard for them to get work, housing, etc. and they want their charge vacated, the law says the judge has to vacate the charge.The law allows pathways, to keep a charge from being filed, to keep a charge from being on their record, or have a charge vacated should they have taken a guilty plea as long as they have engaged in treatment at some point. This is mandated. 
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July 17, 2023 Incarceration Prevention and Reduction Task Force meeting 01:00:03

Mike Parker: “Jack, this is about the second part of that joint meeting that we had [Behavioral Health & Legal and Justice Systems Committees Meeting for June 13, 2023], where it talked about the changes from the legislature [Special Legislative Session on 2E2SSB 5536 on Controlled Substances, Possession, Treatment].

“You know, when we discussed it at that meeting, it was so fresh. I think they had come back to session – remember they didn’t pass it, and so they came back in May. And I’m just wondering, and I don’t know if any of our members of law enforcement would care to speak to any observations that they’ve had since that has come to effect. But there were a couple of things that, we were just – were very unclear at the time that we had that discussion – what impacts would it actually have. 

“You can see in the comments, Undersheriff Doug Chadwick was like, some of this is pretty early but we’re probably gonna need more capacity in diversion.* So I don’t know if it’s within the scope of any of our members of law enforcement to discuss any changes or any observations they’ve had since that law has been passed, but I remember that feeling very lacking at that meeting because we were just covering it so soon.”

Raylene King: “It’s going to take a little bit of time to see the responses on that – how it’s going to impact the small courts, as well as Bellingham. Jail restrictions, referrals – you can only refer so much, when you don’t have the facilities to refer them off to, how that’s going to be tracked.”

Maia Vanyo “As to the diversion of the new statute, there is a serious lack of places for folks to be diverted to. And Eric Richey and I have been meeting to kind of talk about that and are meeting again later this morning and tomorrow with some law enforcement and others to kind of check and envision how this is going to unfold.” 

*From the meeting summary of the Incarceration Prevention and Reduction Task Force: Joint Behavioral Health & Legal and Justice Systems Committees for June 13, 2023 that Mike Parker referenced:

“Doug Chadwick said the legislation encourages treatment and diversion, which is something that will need to be emphasized going forward. He mentioned the LEAD program will need to be highlighted because of this, as well as the crisis stabilization center. Capacity will need to be increased in these areas, he said.”