OLYMPIA — About a month has passed since the Washington state Supreme Court ruled the state’s simple drug possession law unconstitutional in its State v. Blake decision.
Justices found the law was unconstitutional because it didn’t require prosecutors to prove an accused person knowingly or intentionally had drugs.
The ruling’s implications have rippled through the state’s criminal justice system. State Caseload Forecast Council records indicate there have been about 5,000-6,000 convictions for simple possession per year over the last 20 years, according to Russell Brown, executive director of the Washington Association of Prosecuting Attorneys.
The ruling raised layers of questions around possibly vacating previous convictions, potentially refunding fines and fees, releasing and resentencing incarcerated people who were convicted of possession or whose sentences for other crimes were lengthened because of a previous conviction.
Rabbit holes abound: What about the existing backlog of cases that has accumulated during the pandemic already? What about people who were deprived of rights based on an unconstitutional conviction?
Key to the 5-4 ruling is the idea that the state did not address a flaw in the statute — the absence of a knowledge element — for decades, despite previous court rulings.
“But for the state creating this law, but for the state ignoring the fact they probably should’ve addressed this sooner, we wouldn’t have this problem,” said Juliana Roe of the Washington Association of Counties in a phone interview.
Brown said that, to some degree, questions surrounding the decision will be answered by litigation. And counties will experiment in trying to answer them.
Spokane County Prosecutor Lawrence Haskell filed a motion asking the high court to reconsider its decision earlier this month. However, both Brown and Kelly Vomacka, a Tukwila defense attorney on the Washington Defender Association’s legislative committee, said that typically doesn’t result in a change in the court’s opinion.
LAWMAKERS GRAPPLE WITH IMPLICATIONS
The Supreme Court released the ruling amid a 105-day, mostly remote legislative session. Any efforts by state lawmakers to address its impacts are launching amid discussions about allocating an influx of federal funding, writing two-year budgets, curbing climate change, fundamentally changing policing, and more.
“Because that Supreme Court decision came out during session, it’s not something we had a lot of time to prepare for,” Majority Leader Sen. Andy Billig of Spokane said this week. “So, I think, whether it’s on the policy side or on the budget side, I think we’re going to take the full amount of time to dive in, listen, and make sure we get it exactly right.”
Democratic majorities in each chamber are proposing budgets this week that will likely consider requests related to the impacts of the Blake decision.
Rough estimates provided by Brown show a conservative $24 million to $47 million in legal financial obligations to pay back, $40 million to $63 million for resentencings, $4 million to $5 million for vacation of charge hearings, and $23.6 million per year for some costs related to addressing case backlogs.
In one proposal, Republican Rep. Jim Walsh of Aberdeen has suggested using $100 million from the most recent influx of federal funding for grants to local courts to manage fallout.
Legislators also have introduced several bills with Blake in mind. It falls to the Legislature to figure out if the state will continue with what it’s done before or use this as an opportunity to rethink the entire system, said defense attorney Vomacka.
POLICY PROPOSALS, NO CONSENSUS
A group of Democratic lawmakers have met in recent weeks, attempting to understand the decision and strategize next steps. Sen. Manka Dhingra, who works as a Senior Deputy Prosecuting Attorney in King County, has framed the Blake decision as an opportunity to build on the state’s progress toward a public-health approach to substance use disorder.
Solely adding “knowingly” to the drug possession statute to give the legislature time to figure out what to do — as proposed in a bill sponsored by moderate Democratic Sens. Steve Hobbs and Mark Mullet, along with several Republicans — wouldn’t cut it, in her view.
The decision has made it so that, effectively, no one in the state has ever been convicted of drug possession, Dhingra said in a phone interview. To add the knowledge element temporarily would essentially create a felony for two years before potentially going back to a system without it, she said.
This week, Dhingra introduced a bill to address Blake, SB 5476. It would in part ban the public use of controlled substances and possession by minors, according to a press release, and refer people with small amounts of controlled substances to treatment rather than jail.
It borrows from Oregon’s recently passed Measure 110 to set personal amounts, the press release reads. The knowledge element is part of the bill — if someone “knowingly” possesses amounts of drugs over those thresholds, that would be a class C felony.
Police wouldn’t detain people with amounts of drugs under those thresholds, instead directing them to a state-paid “forensic navigator” for referral to services and support.
The navigators are part of an existing rollout responding to the state’s Trueblood settlement, Dhingra said. The program is run by the state Department of Social and Health Services.
It also would create an account for costs related to Blake — that makes the bill “necessary to implement the budget,” Dhingra confirmed, meaning it would be exempt from lawmaking deadlines that have already passed this session.
This is Dhingra’s vision for moving forward, she said, but she wouldn’t call it a “consensus approach.”
House Speaker Laurie Jinkins of Tacoma told reporters she thinks it’s likely that Dhingra’s bill could be “the vehicle” or baseline for an approach, but it’s not the only bill out there, conversations are ongoing, and she’s open to looking at Republicans’ ideas.
Republicans have introduced several bills in reaction to the decision, emphasizing a need for action on what they see as a public safety issue.
“People who leave their doors unlocked shouldn’t anymore, because we have released people with significant habits who will stop at nothing,” Sen. Ann Rivers of La Center told reporters in mid-March.
Among the list of bills announced this week is another bill to put “knowingly” into the statute, and one that takes pieces of a bill introduced by Democrat Rep. Lauren Davis of Shoreline, according to Rep. Gina Mosbrucker of Goldendale.
“It looks at ways to promote recovery,” said Mosbrucker, ranking Republican on the House Public Safety committee. “I think there’s not one person in the Legislature who doesn’t want to get help for those who are addicted to substance abuse.”
Another would provide police a behavioral health response to juveniles caught consuming controlled substances, and yet another would let local governments enact their own laws and ordinances related to drug possession.
Critics say that last bill could create a chaotic patchwork of laws. At least a few jurisdictions — Lewis County, Marysville, and Grant County — already have taken action or explored taking action to recriminalize drug possession locally since the February decision.
House Minority Leader J.T. Wilcox voiced resistance to the idea that there may not be criminal charges for adults who knowingly possess substances such as heroin. But he and others have said there are opportunities for lawmakers to collaborate across party lines.
“This issue is not Democrat or Republican or Independent, this is an issue that faces all of our families. ... It’s not specific to income, it can harm any family in the state of Washington,” Mosbrucker said this week. “So I hope that we collaborate and we work together to find answers and solutions.”
PROSECUTORS’ AND A DEFENSE ATTORNEY’S TAKES ON PROPOSALS
Defense attorney Vomacka called the package of House Republicans’ proposals “short-sighted.” In an email, she shared specific critiques and wrote they “risk doing more harm than good — to curb drug addiction, racial inequity, and mass incarceration.”
She doesn’t support Dhingra’s proposal, either, because it oversimplifies the distinction between personal use and non-personal use, she said. A person can have large amounts of a substance for personal use or a small amount to sell. The bright line can leave the law open for manipulation, she said.
Prosecutor Russell Brown called both parties’ efforts to add “knowingly” to the statute and address juvenile possession “good,” and wrote that the account to cover refunds and resentencing costs in Dhingra’s bill is “huge” and “would make a tremendous difference to provide resources to get individuals relief sooner.”
The “navigators” that are key to that bill would need to be expanded to every county, he wrote. Those services are currently offered in 10 counties and are expected to expand to King County this year, according to DSHS.
“There is benefit for each county to have a forensic navigator for both substance abuse and mental health support,” Brown wrote. “I don’t know what else is being discussed to fund substance abuse treatment, and so we would want to see what else could be paired with a forensic navigator.”
He’s not sure where prosecutors will land on the idea of creating a personal use amount that’s legal so long as it’s not being used in public.
“I think the ultimate question is whether people can agree on Dhingra’s proposal for personal use or something like that, or whether a work group needs to be convened to work out a process moving forward,” he said.
Vomacka advocated for legislators to spend time in thoughtful discussions with all stakeholders involved. She understands the urge to enact something, she said, because the state is used to having drug laws. But they’re not pre-ordained.
“Any sort of quick knee-jerk reaction is going to complicate a situation that is already very complicated,” she said.