Photo by Scott Graham on Unsplash
By William Korrell
Gov. Jay Inslee signed 13 commutations this April, releasing individuals who had been convicted of drug possession under a law recently struck down by the Washington State Supreme Court.
In February, the State Supreme Court ruled the state’s law regarding drug possession, RCW 69.50.4013, unconstitutional in that it did not require proof that an individual charged with drug possession intended to possess or had knowledge of the contraband in question.
Shannon Blake was arrested in 2016 when Spokane police executed an unrelated search warrant. After being taken into custody, jail staff discovered a small pouch of methamphetamine in the coin pocket of her jeans. Blake admitted to having the drugs at the time of her arrest but claimed, with corroborative testimony from her boyfriend, that the jeans had been gifted to her only two days prior and she had been unaware of the contents of the coin pocket. After being convicted, Blake appealed, arguing that requiring her to prove “unwitting possession” violated her right to due process. After a denial from the Court of Appeals, the state Supreme Court granted review.
The Court ruled in favor of Blake, with Justice Sheryl McCloud stating that “attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers”. This is not unusual, as every other state and the federal government recognizes that the unknowing possession of drugs is not a crime. It does, however, mean that state law no longer makes the simple possession of controlled substances a crime. This has put the Department of Corrections, the State Legislature, and many local governments in a precarious position.
Following the ruling the DOC estimated fewer than 100 individuals were incarcerated on charges of drug possession alone. County prosecutors began the process of vacating those sentences, and Gov. Inslee’s pen hit paper to expedite the process when that number had shrunk to fewer than 40. The DOC also faces the significant challenge presented by the almost 7,000 people sentenced to community supervision on a simple possession conviction. They may also need to resentence all those who are incarcerated or serving community supervision for a combination of simple possession and additional convictions. Financially, this decision has been called a “$100 million issue” by Juliana Roe, policy director of the Washington State Association of Counties. Those convicted may want reimbursement for related Legal Financial Obligations (LFOs), and the process of resentencing comes as courts are already backlogged because of COVID-19. For the state legislature the ruling left an obvious gap in state law. Two bills were introduced (Senate Bill 5468 and Senate Bill 5475) that would essentially reinstate the previous statue with the addition of the word “knowingly”. As of now, neither of those bills have progressed, with a third bill (Senate Bill 5467) having been introduced which could represent a coming departure from previous state policy. The bill’s focus is more towards public health than criminal justice. Notable elements follow. First, the bill would set a maximum amount of each controlled substance that a person over 21 may knowingly possess (exceeding that maximum being a felony). It would also decriminalize the introduction of a controlled substance into the body, expand the role of law enforcement in providing evaluation, treatment, and support resources to those in possession of controlled substances, and establish a “State v. Blake” reimbursement account to be used for costs resulting from the Blake decision. The bill has passed the senate and entered the House Committee on Appropriations on April 19.
Some local governments, such as the city of Marysville, have adopted ordinances making it a misdemeanor to knowingly possess a controlled substance without a prescription. Others, like Lewis County, have proposed similar wording but continue to classify possession as a felony. These efforts aim to fill the void left by the Blake decision, but state law will preempt such ordinances if the legislature passes a new law addressing the Blake decision. Skagit county began the dismissal of more than 1,000 drug possession charges. Skagit County’s drug court, which allowed those eligible a chance at having their charges dropped after treatment and monitoring, was forced to drop one participant due to the ruling. Mt. Vernon Police-Chief Chris Cammock also expressed his dismay saying, “There’s going to be great opportunities to have contraband back in the community”. Cammock noted that officers regularly take “knowingly” into account when enforcing and investigating, regardless of the statute’s wording.
Despite shocking the system, the Blake decision addresses an issue exclusive to Washington. All other states include wording related to knowledge and intent in their drug possession laws. Beyond that, this could be a path to more significant changes in the State’s treatment of drugs. The full legislative consequences have yet to be decided, but Washington could join Oregon in taking the decriminalization approach, and the Blake decision will no doubt be seen as a pivotal moment in the history of the State.
