The Unsettled Policy Landscape of Drug Possession Laws in Washington

BY MARK COOKE

On Feb. 25, 2021, the Washington Supreme Court struck down RCW 69.50.4013, the strict liability statute that made possession of a controlled substance a felony punishable by up to five years in prison. State v. Blake.¹ The ruling in State v. Blake meant there was no state law making simple possession of drugs a crime unless the Legislature recriminalized it, which it subsequently did, in the 2021 legislative session, via passage of Engrossed Senate Bill (ESB) 5476.²

In the debate over ESB 5476, some stakeholders argued that the Blake decision was an opportunity for Washington to adopt a new approach to substance use disorders, based on public health solutions. Others advocated for recriminalization. ESB 5476 ended up taking elements of both approaches. It mandates planning for statewide services for people with substance use disorders and provides new resources for services in the meantime, but also recriminalizes knowing possession of counterfeit substances, controlled substances, and legend drugs.

The new legislation makes drug possession crimes misdemeanors with mandatory diversion to services for at least the first two occasions, but these changes are only in effect until July 1, 2023. This means the policy landscape for this issue is unsettled and questions like those that follow remain unanswered regarding the impact of the Blake decision and the effect of ESB 5476.

Q. What are the impacts to people who had been charged with simple possession but not convicted prior to the Blake decision or the passage of ESB 5476?

A. People with pending drug possession charges at the time of the Blake decision were released from jails and their charges dismissed throughout the state. Others awaiting sentencing hearings arguably should have had their sentencing scores recalculated. Hundreds of thousands of people are likely impacted by the Blake decision, and stakeholders are now working to address issues like resentencing, record vacating, and reimbursement for legal financial obligations. ESB 5476 and the state budget provided some funding and policy changes in hopes of expediting resolutions for some of these issues. There is also litigation underway that seeks to have past legal financial obligations reimbursed.³

Q. Does the change in the law provide new arguments for lawyers defending clients who have been charged with possession?

A. The Blake court ruled that the statute violated the due process clause of the state and federal constitutions because it contained no mental state requirement and thus criminalized “unknowing” drug possession—so that people could be arrested and convicted even if they did not realize they had drugs in their possession. The majority concluded: “The [L]egislature’s police power goes far, but not that far.” Other drug crimes that do not include an intent element could be ripe for a legal challenge, although ESB 5476 amended additional drug crimes beyond simple drug possession to address this issue.

Q. What concerns does the 2023 sunset date in ESB 5476 raise?

A. ESB 5476 contains a sunset clause for the portions of the bill that amend drug possession crimes, other than for possession of paraphernalia, which means that in July 2023 the state laws will revert to the post-Blake, pre-ESB 5476 landscape. Without further changes to the law by the Legislature or voters before July 2023, simple drug possession would become non-criminal again. Because of this uncertainty, local jurisdictions could try to pass their own drug possession statutes to fill the gap, although those laws could be challenged as being preempted by state law depending on how they are structured.

Q. Are there long-term consequences to the Legislature’s arguably rushed effort to modify Washington’s drug possession law?

A. Dozens of community stakeholders and advocacy organizations provided comments to the Legislature encouraging them to pass legislation that would put Washington on a new and better path, with elimination of criminal penalties for drug use and substance use disorders. Kicking the can down the road on important questions about whether drug possession should be a crime just leads to confusion for everyone. It also comes on the heels of changes already underway as a result of the pandemic. According to the Washington State Institute for Public Policy,⁴ between March and December 2020, superior court “filings for drug crimes were down 53 percent.” There is some evidence that enforcement for drug offenses has further plummeted since Blake.

Given the uncertainty around the current state of the law, implementation of ESB 5476 from both the social services and the law enforcement perspectives will be watched closely. The legislation directs the state Health Care Authority to implement a variety of programs and to convene an advisory group to look at issues such as the services that should be made available to people with substance use disorders.⁵

It is also possible that enforcement will ramp back up, albeit via misdemeanor charges instead of felonies.

Another part of the landscape is the overdose crisis in Washington, which has worsened since 2020 as a consequence of the pandemic as well as the emergence of highly dangerous fentanyl as the primary type of illicit opioid available in Washington.⁶. If you or someone you know is looking for help please visit http://www.learn abouttreatment.org/.

Q. With states like Oregon decriminalizing drugs and the increasing number of states legalizing recreational marijuana, is there a trend toward drugs being more broadly decriminalized?

A. As the Washington Supreme Court noted in Blake, Washington’s previous simple possession law “has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard.”⁷ Many stakeholders argued that the Legislature should not have recriminalized drug possession, which can create barriers to people trying to access services, and instead should focus on public health responses. While many believe that substance use disorders are a medical condition that should be treated as such, others believe that drug possession related to substance use disorders should be dealt with by the criminal justice system.

In November 2020, Oregon voters overwhelmingly passed Measure 110, which decriminalized possession of controlled substances and established an alternative public health response, partly funded by the state’s marijuana excise tax. This measure was soon followed by passage of legislation, SB 755 (2021), which provided funding for behavioral health services and ensured that these services would be provided statewide.⁸ Given that ESB 5476 establishes an advisory committee to determine which services are needed for people with substance use disorders in Washington, the implementation of the public health features of Oregon’s Measure 110 and SB 755 should be closely studied.

Q. If Washington does decriminalize drug possession, does it matter that state and federal drug laws aren’t identical?

A. The federal government can enforce federal laws, but the 10th Amendment to the U.S. Constitution prevents it from compelling states to enact or enforce the same laws. There are many concrete examples of this, including state marijuana laws, state death with dignity laws, and syringe service programs, all of which have taken a different approach than federal law at times. More than 140 million people currently live in states with legalized marijuana, despite the fact that it’s illegal under federal law. Under these precedents, the federal government cannot compel Washington state to criminalize drug possession.

Q. Are there case law developments on this issue people should pay attention to?

A. Some of the collateral issues resulting from Blake—such as how resentencing should play out—could end up in the courts. Litigation is also underway regarding legal financial obligations. For example, a class action lawsuit, Civil Survival et al. v. State of Washington et al., has been filed in King County Superior Court seeking to restore to people legal financial obligations collected or still being claimed by the state of Washington.⁹ Similar issues may result in additional litigation.

Q. Have any people with old drug possession convictions had their sentences vacated after Blake and does ESB 5476 have any impact on such requests?

A. The long-term implications for older convictions remain somewhat unclear, but the argument for some type of systematic invalidation could be made under Blake because the court held that the statute was unconstitutional. Other possibilities include individuals seeking to vacate their conviction along with refunds for any fines and fees paid in association with their convictions. Gov. Jay Inslee has also commuted¹⁰ a handful of sentences as a result of Blake, including for people on community supervision by the Department of Corrections. ESB 5476 and the state budget also included some provisions designed to help provide more capacity for hearings for resentencing and vacating criminal records.

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SIDEBAR

Among the many ramifications of the Blake decision is a tremendous caseload increase for public defenders and prosecutors across the state and the need to increase staffing to meet it. To help meet this need, the WSBA is offering free job-postings on our WSBA Career Center site, https://jobs.wsba.org/, through Dec. 31, 2021, to public defender organizations and prosecutors’ offices. Contact Mike Credit at 727-494-6565 Ext 3332 or michael.credit@communitybrands.com for assistance in using the “Blake coupon” to place a free job-posting.

About the Author

Mark Cooke is the policy director of the ACLU of Washington’s Campaign for Smart Justice. He works on criminal legal system, drug, and mental health policy reform. He can be reached at:

mcooke@aclu-wa.org