As the Washington State Legislature strategizes a new approach to the criminal drug possession law, lawmakers aren’t applying the same level of scrutiny to a different proposal related to drug addiction that would criminalize people who researchers say are most responsive to treatment.
The proposal, Senate Bill 5010, would make it a Class B felony to expose dependent children and adults to fentanyl. The standard sentence for a Class B felony is three to nine months incarceration for a first offense.
On March 1, the state Senate voted 47-0 to pass the legislation over to the House. Some of those senators voted against the proposed criminal drug possession law because it increased criminal penalties and imposed mandatory minimums, raising questions about when the state should treat people for drug addiction rather than punish them for it.
State Senator Manka Dhingra (D-Redmond) voted against mandatory minimum sentences for drug possession, calling it vindictive, but she said she supported the bill targeting people who can’t keep their drugs away from kids. A person hurting themselves with drugs is different from a person’s drug use endangering the lives of vulnerable children or adults, she said.
Supporters of the bill say the law will allow the state to punish parents when their child overdoses on fentanyl but doesn’t die. Opponents of the bill say this is another way to criminalize substance abuse disorders, which is something the state does well enough already without additional laws.
David Trieweiler testified against the bill on behalf of the Washington Association of Criminal Defense Lawyers and the Washington Defenders Association.
A lot of people might call a parent who exposed their child to drugs “crummy,” Trieweiler said. But children love even their crummy parents, he said. When law enforcement hauls their parents out of their lives, the state traumatizes them and the kids struggle to recover, he said.
What’s Actually in the Bill
The bill would expand the state’s existing drug endangerment law to include fentanyl along with methamphetamine. The Washington State Legislature created the endangerment law in 2002 to address people making meth around children.
A report on the original bill said the law aimed to target “those mothers who subject their children to methamphetamine drugs.” As it stands, prosecutors can charge those who allow dependent children or adults to be “exposed to, ingest, inhale, or have contact with” meth or chemicals used to produce meth.
Opponents of the bill in 2002 recommended lawmakers define the word “exposure,” and they also asked legislators to add the law to a drug bill passing through the session at the time, so that drug offenders would be eligible for drug treatment. Neither change was made.
At a March hearing in the House, State Representative Roger Goodman (D-Kirkland) expressed concern about the new law’s lack of a definition for the word “exposed.”
“I have issues with that. Just because it's around doesn’t mean it's causing harm,” Goodman said.
However, bill sponsor State Senator Lynda Wilson (R-Vancouver) repeated some of the more dubious claims about the dangers of fentanyl, including that in some cases people overdose just from touching the drug.
The scenario is not plausible, said Caleb Banta-Green, a research professor at the University of Washington School of Medicine’s Addictions, Drug and Alcohol Institute. The comment is an example of the harmful vilification of fentanyl, as is the move to carve out a specific law enhancing penalties for “exposing” children to the drug, he said.
A Drug Is A Drug
Banta-Green argues a drug is a drug. When lawmakers enhance penalties for specific drugs, they also penalize the people who use those drugs. Lawmakers make a villain out of the drug and dehumanize the people who use it.
“The more fear and scariness we put around a drug, the more dangerous the people using it are,” Banta-Green said. “The more foolish they must be for using the drug.”
He went on to argue that parents who use drugs around their kids likely have severe substance use disorder and need enhanced services, not for the state to rip their kids away from them.
In fact, Banta-Green conducted interviews in March with providers who treat people with opioid use disorder. Two providers he spoke with said the treatment often worked best for parents, who are among the people most motivated to stop using opioids.
In 2018, the federal government recognized the benefit of family-centered treatment by passing the Family First Prevention Services Act. The act allows states to provide substance use and mental health prevention and treatment services to prevent foster care placements. The act was based on a “growing body of research that demonstrates the effectiveness of family-centered treatment in improving child, parent, and family outcomes.”
“The way the narrative is perpetuated is that somehow they don’t care about their kids, and they don’t care if they hurt them,” Banta-Green said. “That’s just not true.”
While testifying about the importance of the bill, Wilson highlighted a case where a child overdosed on fentanyl. The parents showed care by administering Naloxone to their baby and calling 9-1-1, and the child recovered.
However, Wilson argued that an overdose can cause lasting health effects for a child, including brain damage. Without this law, law enforcement officers could only charge the parents with a small citation, she said.
But her read on the law was mistaken, according to Trieweiler. Prosecutors could have charged the parents under multiple felony assault laws, including assault of a child. On the same day as the House hearing on this bill, Thurston County deputies arrested a woman for third-degree assault after her 18-month-old child overdosed on fentanyl and survived.
In King County, four children under the age of three have died from a fentanyl overdose since 2019, according to data from the King County Medical Examiner’s Office. The medical examiner ruled the 2019 death a homicide and rules the three deaths from 2022 as “undetermined.”
Since 2019, the medical examiner has recorded six deaths for children between the ages of 10 and 16, and the office ruled them all accidents. No one between the ages of four and nine have died of fentanyl since 2019.
“Law enforcement gives the Legislature an egregious case example and portrays it as how the endangerment law will be used, but cops don’t describe the more mundane ways they could use the law,” Trieweiler said.
“Imagine a controlled drug buy with an informant who goes into a person’s home,” he continued. “The informant will go in, buy the drugs, come out and say he saw the seller smoking drugs in front of his kids. Prosecutors will then either threaten to or actually charge the person with felony endangerment.”
Trieweiler questioned the wisdom of giving prosecutors yet another felony to pin on someone with a substance use disorder.
Unlike simple drug possession, the state would not guarantee people charged under this endangerment felony a route to treatment rather than incarceration, despite the fact that a family-centered treatment approach may improve outcomes for both parents and their kids.