With Washington's Drug Possession Law Gone, Lawmakers at Odds Over Next Steps

by Ben Adlin

On Wednesday of last week, it was a felony in Washington to possess illegal drugs — even if you didn't know you had them. A day later, it wasn't. After a sweeping Washington Supreme Court ruling declared the state's felony drug possession law unconstitutional, there's currently no penalty on the books in Washington State for drug possession.

The ruling has brought drug arrests and prosecutions across much of the state, from Seattle to Spokane, to a screeching halt. If the decision is deemed to be retroactive, tens of thousands of people previously convicted under the law could also become eligible for release or vacating of past charges.

The law has been disproportionately enforced against marginalized communities, especially Black, Brown, and low-income people.

"Criminalizing drug use and supply has done enormous harm to generations, particularly to Black and Brown communities," said Lisa Daugaard, director of the Seattle-based Public Defender Association. "Health outcomes, including overdose deaths, have been greatly worsened by the covert nature of drug use and the illicit nature of the supply chain."

Last week's court decision, Daugaard added, "For the first time took away the specter of criminal punishment for drug use in Washington — a watershed moment."

Lawmakers aren't yet sure how long the state's pause on prohibition will last. The ruling caught most in the legislature off-guard, and while many agree on the need to replace the now-defunct law, there's no clear consensus on how to proceed.

"Although we knew it had been winding its way through the courts," Rep. Roger Goodman (D-Kirkland) said of the court challenge, "with everything else, we forgot about it. Then this earth-shaking opinion comes out right in the middle of the legislative session."

Now lawmakers are faced with a choice: simply reinstate felony penalties for drug possession or use the ruling as an opportunity to scale back punishment.

"A significant number of the members of my caucus are questioning whether we should go back to the way it was or try something more effective and innovative," Goodman told the Emerald last week.

The Supreme Court's landmark decision hinged on the fact that Washington's drug law, unlike that of any other state in the country, did not require evidence that defendants knowingly possessed controlled substances. If a person were to pick up the wrong bag at the airport or borrow a friend's jacket, not knowing the item contained drugs, that person would technically be guilty of a felony, justices observed.

Lawyers in the case State of Washington v Blake, argued that the law was unconstitutional because it effectively criminalized innocent conduct.

"My primary argument was that the court should overrule its previous cases and interpret the drug possession law to have a knowing or intentional requirement," said Richard Lechich, an attorney at the nonprofit Washington Appellate Project who argued the case before the Supreme Court. "I thought this argument was more likely to succeed, which I apparently misjudged."

The court agreed with Lechich that the lack of a knowledge requirement was unconstitutional. But in a 5—4 decision, the justices went further than he and most others expected, declaring the state's entire law against simple drug possession to be invalid.

Other drug crimes, such as manufacture, sale, or possession with intent to sell, are unaffected by the Supreme Court decision.

Within hours of last week's ruling, the Seattle Police Department had posted a public statement announcing that simple drug possession was "no longer an arrestable offense," adding that effective immediately, "officers will no longer detain nor arrest individuals" for having drugs.

Law enforcement groups across the state issued similar bulletins. The Washington Association of Prosecuting Attorneys sent a memo directing members to drop ongoing possession cases and seek orders to vacate convictions for past cases.

King County Prosecuting Attorney Dan Satterberg (D) said in a statement after the ruling that lawmakers "should act with a sense of urgency to add the necessary elements to make the statute constitutional this session, and not leave a defective law on the books."

Speaking to reporters last week, Gov. Jay Inslee (D) said that one way to address the court decision would be simply to insert a requirement that a person be aware they had the drugs. Senate Bill 5468, introduced on Monday by Sen. Mark Mullet (D-Issaquah), would do exactly that. The measure would reinstate the felony law possession law struck down by the court but add a single word, "knowingly," to ensure it complies with the court ruling.

Calling the bill "an expedited fix to a very far-reaching judicial ruling," Mullet told the Emerald in an emailed statement that he does "not believe Washington voters want to make all drugs legal in our state."

"While I agree with the court that our state should not have been the outlier when it comes to unknowingly possessing drugs, throwing out our entire drug possession statute invites chaos," he said. "I believe in finding ways to keep people out of jail. But this must be achieved thoughtfully and must be orchestrated with proper support and treatment."

Introduced last Friday, the bill has earned 16 total cosponsors so far.

Another Senate bill, SB 5471, introduced Thursday by Sen. Mike Padden (R-Spokane Valley), would reinstate the felony law around knowing possession and add a civil fine of up to $3,000 for unknowing possession.

Other lawmakers have said they'd prefer to use the opportunity to reform the state's approach to drugs. "I don't think anyone wants to go back to the statute, just add the word 'knowingly,' and then be done," said Deputy Senate Majority Leader Manka Dhingra, The Stranger reported, noting that Dhingra later added that there's "not consensus on a path forward."

A separate bill introduced this session, House Bill 1499, aimed to do what the Supreme Court did and then some. It would have removed all penalties for the possession or use of small, "personal use" amounts of drugs while expanding treatment and recovery services for people with drug use disorders.

"It is imperative that we stop handing down felony possession convictions that compound shame and create barriers to recovery," the bill's primary sponsor, Rep. Lauren Davis (D-Shoreline) said after last week's ruling. "But that alone is insufficient. It is equally important that we build out a response to substance use disorder that truly works — a robust and fully funded continuum of care ranging from outreach to treatment to recovery support services."

A House committee voted to approve HB 1499 last month, but no further action has been taken.

Rep. Goodman, who chairs the committee that held that vote, said last week that HB 1499 "is not a vehicle" to address the Supreme Court decision, although he said he does believe the legislature should take action.

"Whatever we put together, we don't want to repeat the mistakes we've made in the past," he said. "I am driven by key principles, such as the need to protect public safety but also the need to put an intense focus on racial and social equity."

Critics of the drug war have long noted inequities in drug policing, pointing out that Black and Brown people in particular are disproportionately arrested and imprisoned for drug crimes compared to white people. Youth and low-income people are also arrested at disproportionate rates.

"Among people who have been charged with felony drug offenses in Washington, Black defendants are 62% more likely to be sentenced to prison than similarly situated white defendants," said Christina Blocker, communications director for the Treatment First WA campaign, pointing to data from a task force that studied race and criminal justice between 2010 and 2012.

Indigenous people in Washington state, meanwhile, "accounted for 3.4% of drug arrests (where the arrestee's race is known), while making up only 1.9% of the population," she said, pointing to an analysis of data from the Washington Association of Sheriffs and Police Chiefs and the U.S. Census. "For African Americans, it's even worse — 11% of the arrests, while making up only 4.3% of the population."

Making drug possession a crime has also allowed police broad discretion to conduct searches that would otherwise be unconstitutional. Mark Middauh, who represented the Washington Associations of Criminal Defense Lawyers in a friend-of-the court brief on the case, told the Seattle Times that the possession law has also been used "as a fallback charge that has opened the door to other investigations."

Because people in Black, Brown, Indigeneous, and other historically oppressed groups are disproportionately arrested and charged with drug crimes, the erasure — at least for now — of the state's drug possession law is likely to have an outsized impact on those communities.

"The general consensus is that minorities have been impacted more by the war on drugs. Given that disproportionality, it seems likely they should reap the benefit from having the law declared unconstitutional," said Lechich, the attorney who argued the case. "All convictions for simple possession since 1971 should be eligible for being vacated."

Some reform advocates say eliminating criminal penalties likely wouldn't be enough to address the drug war's racial inequities, noting that racial disparities in cannabis charges have persisted in many states that have legalized the drug, even if far fewer people overall are arrested and charged.

"Decriminalization alone does not solve racial disparities in policing," Mark Cooke, a staff attorney for ACLU of Washington and a consultant to Treatment First WA, wrote in a recent blog post. "While marijuana cases have plummeted since I-502's passage, racial disparities persist in the much smaller number that remain."

Supporters of HB 1499 said that's why the bill includes an expansive new system to ensure access to treatment and recovery services. Rather than incarcerate or ignore people with drug use disorders, they say, the state should offer support to people who need it.

"It is not enough to end the era of criminal punishment for drug use," said Daugaard at the Public Defender Association. "We must immediately build up a robust community-based care infrastructure in its place. We must address the toxic drug supply chain. And we must ensure alternative ways for the large number of people who have been consigned to the illicit economy, including drug sales, to support themselves."

"All the money we are spending on police, housing people in jails, courts, and lawyers, could instead be spent on treatment programs, housing people, and counseling," said Tobi Hill-Meyer, co-executive director of the Gender Justice League. "We'd save money and it would actually help people."

Others have warned that the Supreme Court ruling's effect of undoing Washington's drug law will create "unintended consequences."

"Hundreds and hundreds, if not thousands and thousands, of violent offenders — murderers, rapists, child molesters — will now be released onto our streets earlier," King County Councilmember Reagan Dunn (R) said in a press release, explaining that because drug possession charges will no longer be added on top of other sentencing penalties, some people "will very likely receive a lower sentence."

Former Seattle Police Chief Norm Stamper, who retired in 2000 after 34 years as a law enforcement officer, applauded the Supreme Court decision in an interview with the Emerald this week. "I think we need to acknowledge the abysmal failure of the war on drugs," he said. "If we were to replace a criminal justice model with a public health model, we'd be a safer society, a healthier society."

If lawmakers reinstate a more constitutional version of the possession law struck down by the court, Stamper said, they shouldn't expect it to address institutional racism.

"The insertion of that word, the absence of that word, is going to have little to no effect on who police perceive to be lawbreakers, how they approach those lawbreakers, what they find, and how they write about it," he said. "That's going to do nothing to systemic racism, to the cultural, institutional manifestations of racism within policing."

Still, Stamper stressed that even a reinstated law with a "knowingly" requirement would improve policing by requiring police to build stronger cases against defendants.

"Supreme Court decisions invariably get lacerated by cops saying, 'You've made my job so much more difficult or impossible,'" he said, "but in fact, when you think it through and you put together subject matter experts from various disciplines, that policy is likely to be a whole lot better than what's in place.'"

As an example, he pointed to the 1966 U.S. Supreme Court decision Miranda v. Arizona, which established the duty of police to inform arrestees of their right to remain silent. "It served to dramatically improve and professionalize the profession," Stamper said.

Lechich, the lawyer who won the Washington case, said that if lawmakers take up a replacement bill, "I think making possession a misdemeanor or civil infraction rather than a felony offense would be a positive reform."

Stamper agreed that might be a workable approach.

"I'm not an incrementalist when it comes to the drug war," he said. "That doesn't mean that I can't support incremental steps in the direction of true reform.

📸 Featured Image: Washington State Temple of Justice by Cacophony via Wikimedia Commons using a Creative Commons license CC BY-SA 3.0.