OLYMPIA, WA- In yet another case of a court legislating from the bench, the Washington State Supreme Court this past week ruled the state’s drug possession law unconstitutional in a sharply divided decision.
In this case, the majority found that the current statute allowed a conviction even if the person arrested didn’t know they possessed drugs.
In other words, they’re pretty much buying “the dog ate my homework” as an excuse.
Writing in the majority opinion, Justice Sheryl Gordon said:
“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.”
The ruling, in the case of State v. Blake, involved a suspect named Shannon Blake, arrested at a Spokane home in October 2016 on suspicion of driving with a suspended license.
Blake was wearing a pair of jeans lent to her by a friend, court testimony said and when she was booked into jail, staff found a small bag of methamphetamine in a pocket.
She argued the drugs were not hers, and she had no prior drug convictions on her record.
Blake was found guilty of the state’s felony drug possession law during a bench trial, a conviction that carried a prison sentence of up to five years upon conviction and a $10,000 fine.
Blake was sentence to three days in jail with credit for time served and a year of probation. Hardly a stiff sentence.
Nonetheless, most other states, as well as the federal government requires that prosecutors show the person “knowingly and intentionally” had the drugs on their person, according to Richard Lechich, a staff attorney for the nonprofit Washington Appellate Project, who argued the case before the State Supreme Court last June.
Lechich claimed that the way the law was written, the burden of proof was put on the arrestee rather than on the state and claimed the law violated due process protections for criminal defendants in the state.
The law in question was first codified in 1971. Lechich said the ruling was retroactive, which means that anyone convicted under the state’s felony drug possession statute would be able to petition the courts for restoration of the right to vote, own guns or certain other government benefits as a result of the ruling.
Lechich also indicated that any cases pending before the court will be thrown out based on the Supreme Court’s ruling.
State Sen. Mike Padden, a Spokane Valley Republican called the ruling “concerning,” noting it could have significant implications on public safety.
“People feed their drug habits by a lot of other criminal activity,” said Padden, who is the ranking member on the Senate’s Law and Justice Committee.
The ruling sent shockwaves throughout the state, both inside and outside the law enforcement community.
One state resident, Rebecca Popesu, a Seattle resident said:
“We are going to have a huge problem. It’s going to be out of control, I think,” according to a report on KIRO-7.
In essence, Washington State no longer has a way to handle felony drug possession.
What the ruling does is force police departments to immediately change what is considered to be a drug crime, with police agencies across the state letting residents know that their responses will be different.
In Bellevue, Major Andrew Popochock of the Bellevue Police Department said:
“At this point and time, we are not going to make any custody arrests or arrests of an individual for having that controlled substance. Yesterday it would’ve been you could be arrested for that possession. Today, we’re not going to make an arrest,” he said.
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In Seattle meanwhile, the Seattle PD announced a similar procedural change, saying, “RCW 69.50.4013, also known as simple drug possession, is no longer an arrestable offense. It also cannot be used as a legal basis to seize an individual.”
The Seattle PD said effective immediately, their officers will no longer detain nor arrest individuals under RCW 69.50.4013 alone, nor will they confiscate drugs from an individual based on a violation of that statute.
The ruling has state residents concerned that an already serious drug problem in the western part of the state will only get worse.
“So I can just pop out a baggie of cocaine and do it right here right now and everything would be OK? I’m not OK with that, said Adrian Popesu.
Yet another state resident, Dedee Sun of Bellevue asked that department if there is a certain amount of possession which would still be considered a crime.
“What about if someone has a kilo of cocaine?” Sun asked. “How does that work?”
To that question, Popochock said they needed more of a legal interpretation before they could answer the question.
“We don’t usually run across that person with a large amount without some reason. For example, if you have text messages, distribution material, something else that goes along with it—that would give us the nexus to say you’re distributing drugs,” he said.
Popochock did remind residents, however that the change doesn’t impact any other laws other than that one in particular.
“I know this affects that fear of crime. There’s a fear that something is going to happen. I want to assure them officers are out there every day, making those arrests, being visible in the community and we’re there to support you,” Popochock continued.
Some residents remained hopeful that despite the ruling, the state will find new ways to combat the issue of substance abuse.
Sophia Schuessler of Seattle said, “I definitely think there are different ways to handle it, while admitting it’s a big change.
“It’s kind of scary,” she said.
The effects of the ruling however will go far beyond Shannon Blake and anyone else who might be arrested going forward. It will also likely affect people already being held in jail.
For example, Rick Felici, Sheriff of Island County said in an emailed statement:
“There is currently only one inmate in the Island County Jail who was being held solely on a charge of possession of a controlled substance. That inmate is in the process of being released as a result of this court decision.”
Leftists of course embraced the decision. State Sen. Manka Dhingra from Redmond said that the legislature will be looking at legislation to address the court’s opinion.
She said in an email:
“The war on drugs had devastated communities of color and this is an opportunity for us to take a public health approach to substance use disorder. The balance of our system has been tilted too far away from rehabilitation and toward punishment. It’s time to restore the balance that our system has lost. I look forward to working with my colleagues on legislation that strikes the right balance.”
In response to the decision, the Washington Association of Sheriffs and Police Chiefs issued a release to its members in which they warned members of the decision and advised them of actions they believed prosecutors would soon take.
These actions included releasing all pre-trial detainees only charged with simple possession, vacating judgments of all persons currently in jail serving time for only simple possession, and recalling arrest warrants issued in cases in which the only charge is simple possession.
They also outlined a series of other actions they believe will be imminent due to this decision and suggested is members consult with legal advisors in order to determine how to comply with the ruling.
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