Derailing the Drug War Train in Washington State: The Case that Took Down a Flawed Simple Possession Statute

By Grey Gardner, Senior Staff Attorney for the Drug Policy Alliance

Last week, the Washington State Supreme Court threw out the state’s simple drug possession statute, finding that it violated the state and federal constitutions. Emboldened perhaps by the voter approved decriminalization measure in Oregon and progress of similar legislation in Washington’s legislature, the Court took a fresh look at the state’s possession statute, which made it a felony to unlawfully possess any amount of controlled substances other than marijuana.

Washington’s law did not require proof of “knowledge and intent” to be criminally liable for possession. Simply being found to possess illegal drugs could be enough for a conviction, even without proof that the person knew about the presence of the substance.

For Shannon Blake, that law caused at least five years of stigma and hardship. In 2016, Spokane Police Department officers executed a search warrant for an investigation unrelated to drugs and arrested three people at the location, including Blake. When searched at the jail, a small bag containing methamphetamine was reportedly found in the coin pocket of Blake’s jeans.

After a trial before a judge, she was found guilty. The judge did not believe testimony by Blake or her boyfriend that the jeans had been given to her days before the arrest and that she did not use drugs. She was sentenced to the three days she had already spent in jail and 12 months of “community custody for treatment,” during which she had to follow probation conditions and travel restrictions, and pay a $200 criminal filing fee.

On appeal, Blake argued that Washington’s possession statute was flawed because it criminalized the absence of any purposeful action taken by a person, essentially creating a strict liability offense. Strict criminal liability generally does not require the defendant to possess a “culpable” or blameworthy state of mind.

Such laws without specific “mens rea” (guilty mental state) requirements exist in a number of other contexts. An example is the prohibition on driving a car above the speed limit, which can be understood as imposing strict liability. It does not matter if you intended to break the law or whether you knew what speed you were driving — only that your vehicle was found moving faster than the permitted speed. Certain environmental crimes may also carry strict liability. It does not matter that the person pouring a hazardous chemical into a stream did not mean to destroy the ecosystem or poison the water supply — the act itself is criminalized.

In those examples, what the individual intended to happen does not matter — but in each they acted by pressing the gas pedal or discarding the chemicals. In the case of Shannon Blake and others similarly prosecuted under Washington’s drug possession statute, no action at all was required. The law simply said that if you were found to be in possession of the drug, you’re responsible for it.

Washington’s law had been challenged before, but the courts had simply accepted that the legislature intended exactly what it wrote. In other states with similarly worded laws, courts had determined that even though knowledge and intent requirements were not explicitly written into the law, they still had to be proved to get a conviction. Washington’s Court refused to impose any such requirement.

Instead, earlier courts shifted the burden to defendants, who could try to prove “unwitting possession” — that they didn’t know about the drugs — even though that concept was also not explicitly in the statute. As recently as 2015, the Court had reaffirmed this fictitious interpretation.

Blake argued that the legislature exceeded its power, creating an “offense that lacks a public welfare rationale, has draconian consequences, and criminalizes innocent conduct.” This time, a five to four majority of the Supreme Court effectively agreed and found no acceptable solution at this point except striking down the statute.

Washington’s harsh approach reflects the flawed assumption built into so many drug war laws: that the “all costs” crusade to suppress drug use somehow justifies infringements on personal liberty, sidestepping of the constitution, and destruction of individual lives.

The misguided logic — drug war logic — of Washington’s law is reflected in a range of policies throughout the country: “drug-induced homicide” statutes that put criminal responsibility for overdoses on people who shared drugs with a decedent, and so-called “crack house” laws that criminalize everyone found in a house, vehicle, or event where drugs are found, whether they knew about the presence of the drugs or not. Laws such as these proliferated as a result of the drug war, based on the wrongheaded idea that sweeping more people up into the criminal justice system somehow serves public safety.

For decades, legislatures tried to deter the use of certain substances through the threat of fierce policing, quick and easy prosecution, and harsh sentences. The approach, of course, managed only to shatter lives, divide communities, and waste taxpayer dollars.

But more and more people around the country have realized that the drug war went way too far and was ill-conceived from the start.

The turnabout by the Washington Court comes at a time when legislators in states nationwide are openly discussing scaling back drug laws. Personal use decriminalization bills that treat drug use as a health issue rather than a criminal problem have emerged not only in Washington, but in Massachusetts, Vermont, and even Middle America states such as Kansas.

As a result of the Washington Supreme Court’s decision, police currently have no basis for detaining an individual or initiating an investigation based solely on drug possession. Prosecutors have already announced plans to dismiss pending cases. And the ruling is also likely to result in procedures to throw out prior convictions under the flawed statute.

However, what the state’s response to this decision will be remains to be seen. The legislature could amend the old drug possession statute to explicitly require intent, returning the state to drug war “business as usual.”

A smarter approach would be to proactively codify decriminalization and health-based alternatives in state law. Washington has the opportunity to build alternatives that promote health and wellbeing, including harm reduction, evidence-based drug treatment, mental health care, and housing. DPA urges Washington to follow Oregon’s lead and stop treating drug use as a criminal problem, and instead shift to a health approach.

Washington citizens and their legislators would be wise to seize this opportunity to dramatically reimagine that state’s approach to drug policy.

The case is State of Washington v. Shannon B. Blake, Case №96873–0, Decided February 25, 2021: https://www.courts.wa.gov/opinions/pdf/968730.pdf

DPA is the nation’s leading organization promoting drug policies that are grounded in science, compassion, health & human rights.

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