The Status of Drug Possession in Washington State

On February 25, 2021, the Washington State Supreme Court in State v. Blake declared unconstitutional Washington’s strict liability drug possession statute, which criminalized unintentional, unknowing possession of controlled substances without a prescription. This decision is having a massive impact on counties and cities throughout the state, with the state legislature and some local governments considering next steps.

Overview of the Case

RCW 69.50.4013(1) made it a felony to possess controlled substances, even if the person had no knowledge of the drug possession. The basic problem with the statute was that it found strict liability even if the person was possessing drugs unknowingly. Prior to the State v. Blake decision, Washington courts read a knowledge element into the statute, but the Blake Court stated it could no longer take that approach:

To be sure, at one time, it might have been possible for this court to avoid this constitutional issue by interpreting RCW 69.50.4013 as silently including an intent element and thereby saving it from unconstitutionality. But that time has long since passed…Given the interpretive principles of legislative acquiescence and stare decisis, only the legislature, not the court can now change the statute’s intent.

Holding that the law exceeds the state’s police power and violates the due process clauses of the state and federal constitutions, the Court found that,

[a]ttaching 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 end result is that the state law criminalizing possession of controlled substances has been struck down as unconstitutional; in other words, it is no longer a crime for someone to possess controlled substances, whether knowingly or unknowingly.

Repercussions

As explored in a March 18, 2021, Seattle Times article and a Department of Corrections March 12 press release, the repercussions are significant, and include:

• Invalidation of simple drug possession convictions for nearly 100 individuals incarcerated and nearly 7,000 individuals who have been sentenced to community supervision on a simple possession conviction.
• Potential resentencing for nearly 2,600 individuals incarcerated and nearly 3,900 individuals who are serving community supervision on a simple possession and an additional conviction(s).

Some matters remain unclear including:

• Whether the opinion applies retroactively to old drug possession cases. A motion for reconsideration has been filed, which may give the Court an opportunity to clarify this uncertainty.
• Whether Legal Financial Obligations (LFOs) that were paid by those convicted of simple possession must be reimbursed.

The expected monetary impact of the ruling is significant, with the Washington State Association of Counties calling it a “$100 million issue,” as quoted in this Crosscut article. This is no doubt in large part because of two factors: (1) the potential LFO repayment — which, according to Crosscut, could be as much as $47 million —  and (2) the potential resentencing — which is landing at a time when courts are already backlogged because of the disruption caused by the COVID-19 pandemic.

State Legislative Response

Two bills (Senate Bill 5468 and Senate Bill 5475) were introduced earlier this legislative session, both providing a simple remedy for prospective drug possession matters by reenacting RCW 69.50.4013 and inserting the word “knowingly” prior to the word “possess.” Neither of those bills have progressed at this point. Instead, a third bill (Senate Bill 5476), just introduced on March 24, 2021, significantly departs from previous policy by focusing more on public health rather than criminal justice. The highlights of the bill are:

• For those aged 21 and over, it allows possession of a set “personal use” amount of controlled substances (e.g., 40 grams of oxycodone, 1 gram of heroin). Knowing possession of any amount above the personal use amount is a Class C felony.
• For those under 21, it makes possession of any amount of controlled substance a gross misdemeanor.
• It makes it unlawful to open a package containing a counterfeit or controlled substance or consume those substances in view of the general public or in a public place. This is punishable by a civil infraction with a maximum penalty of $125 and will be deposited in the State v. Blake reimbursement account (described below).
• It decriminalizes the injection, ingestion, inhalation, or introduction of a controlled substance into the body.
• It expands the role of forensic navigator to be used by law enforcement to provide evaluation, treatment, and recovery and support resources for those who possess controlled substances, counterfeit substances, or legend drugs within the personal use amount.
• It creates a State v. Blake reimbursement account in the state treasury, to be used only for state and local government costs resulting from State v. Blake and to reimburse LFOs paid for invalidated simple possession charges.

Local Government Response

Meanwhile, some local governments are taking matters into their own hands by considering local ordinances on drug possession. Both the City of Marysville and Grant County adopted an ordinance making it a gross misdemeanor to “knowingly” possess a controlled substance unless pursuant to a valid prescription, order of a practitioner, or as otherwise authorized by chapter 69.50 RCW. Lewis County’s proposed ordinance criminalizes knowing possession of controlled substances and mirrors the state penalty by making it a felony.

While the state “fully occupies and preempts the entire field of setting penalties for violations of the controlled substances act” pursuant to RCW 69.50.608, the crime of simple possession has been struck down and preemption arguably no longer applies for this type of crime. If the legislature passes a new law addressing the Blake decision, preemption will once again be in effect.