By Mike Carter
The Seattle Times
OLYMPIA, Wash. — A divided Washington Supreme Court has struck down as unconstitutional a longstanding law that made it a felony to possess illegal drugs even if you didn’t know you had them.
The court used the 2016 arrest of a Spokane woman, Shannon Blake, to revisit Washington’s “strict-liability” drug possession law, which the Legislature adopted in the 1950s. The court has reviewed and upheld that law, often referred to as “simple possession,” at least twice since then. It concluded both times that the Legislature intended to make any illegal drug possession a felony, regardless of the suspect’s knowledge or intent.
On Thursday, a majority of the justices decided that the “strict-liability” standard is unconstitutional. They said the harsh penalties and stigma that come with a felony conviction violate due-process guarantees in instances where the individual’s possession of the drugs sprang from unintentional or “innocent, passive conduct.”
“This is a huge ruling that is going to involve thousands and thousands of cases,” said Mark Middaugh, who represented the Washington Association of Criminal Defense Lawyers in a friend-of-the-court brief.
Middaugh believes the ruling can be applied retroactively, and that anyone convicted of simple possession of drugs will have a chance at having their conviction thrown out.
“This law has been applied in a racially discriminatory manner for years, and used as a fallback charge that has opened the door to other investigations,” he said.
The court’s decision had immediate effect: The Seattle Police Department announced Thursday that its officers would no longer detain or arrest people, or confiscate drugs, solely under the simple possession law.
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The state’s prosecutors also see a significant impact but say the legalization of marijuana in Washington sharply cut the number of simple possession arrests and charges that are filed, either felonies or misdemeanors.
“The court correctly recognized the injustice of convicting people for innocent conduct,” said Richard Lechich, a staff attorney at the Washington Appellate Project who argued the case before the court. “While the decision cannot rectify the harm this law caused to so many communities, particularly communities of color, it at least puts an end to it.”
As a result of the court’s decision, Washington joins 49 other states and the federal government in recognizing that the unknowing possession of drugs is not a crime.
Philip James Buri, a Bellingham attorney who filed a brief on behalf of the Washington Association of Prosecuting Attorneys, said anyone who has been charged and is awaiting trial or convicted in the past year of simple possession could see their charges dropped or convictions reversed.
Whether the ruling will invalidate convictions going back even further remains to be seen, he said.
In past reviews, the state Supreme Court has never addressed the underlying constitutionality of the law, under which individuals who unwittingly found themselves in possession of illegal drugs could be convicted of a felony and sent to prison for up to five years.
The Legislature has also allowed the law to go unchanged, embracing prior Supreme Court decisions that the current court believes were wrong.
“Legislative acquiescence has locked our old interpretation [of the law] into that drug possession statute,” the majority wrote. “But that interpretation makes that statute criminalize innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess.”
“State legislatures have the police power to criminalize and punish much conduct,” but that power is limited by the due-process clauses of the state and federal constitutions, noted Justice Sheryl Gordon McCloud, writing for a five-member majority.
“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,” McCloud wrote.
McCloud was joined by Justices Mary Yu, Raquel Montoya-Lewis, G. Helen Whitener and Chief Justice Steven Gonzalez.
In a dissent, Associate Chief Justice Charles Johnson argued that the state’s justices have long recognized that mere possession of illegal drugs is a crime, and that the issue of whether intent should be an element of the crime was a decision to be left to the Legislature. Johnson was joined by justices Susan Owens and Barbara Madsen.
Justice Debra Stephens concurred with the majority in throwing out the conviction of Blake and agreed that previous court decisions upholding strict-liability possession were off base. She argued, however, that the statute has an “implied” intent element that the majority has chosen to ignore. She declined to join the majority in finding the law unconstitutional.
The case involved the arrest of Blake on an unrelated theft charge in Spokane in 2016. After being taken into custody, police searched her and found a small bindle of methamphetamine in the coin pocket of her jeans, and charged her with felony drug possession under a law that was enacted in 1953.
Blake argued that the jeans had been bought secondhand by a friend who had given them to her just two days earlier. She offered a defense of “unwitting possession” during a bench trial, but it was rejected. The Court of Appeals upheld her conviction.
The majority joined McCloud in noting that Washington is the last state in the nation to enforce a statute “that continues to criminalize this innocent nonconduct.”
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