Apr. 18—OLYMPIA — The state Supreme Court's decision in February declaring Washington's felony drug possession statute unconstitutional left the legal system and lawmakers scrambling to deal with its implications.
The court found Washington's law unconstitutional because it made possession a felony, even for people who did not know they had drugs on them.
Shannon Blake, the woman who brought the case, claimed at trial in Spokane County that a pair of pants she was wearing upon her arrest had been given to her, without her knowing a baggy of methamphetamine was in the coin pocket.
The decision effectively decriminalized possession of a small amount of drugs in Washington. While lawmakers have been working on a way to address that decision, Spokane County and other jurisdictions have been left to navigate uncertainty shaped by decades of conversations around imprisonment and treatment.
In Spokane County, police and deputies have stopped arresting people on drug possession charges while they await the Legislature's decision. Whatever lawmakers decide this session likely will have lasting effects on the drug policy and criminal justice system throughout Washington.
The Supreme Court's decision has led to confusion across the criminal justice system, with some jurisdictions pausing all hearings regarding simple possession and others creating their own rules for how to prosecute these cases. That's led to a patchwork of regulations that could be confusing without guidance from the Legislature or courts. Thousands of people with previous or pending drug charges could have their sentences revised, but it's uncertain who would be entitled to such a review.
Many people are anxiously awaiting a "fix" from the Legislature, but with less than one week left in an already busy legislative session, lawmakers are scrambling.
The state Senate passed a bill Thursday that would reinstate criminal penalties for knowingly possessing controlled substances, only this time making it a gross misdemeanor instead of a felony.
If passed, the bill would require those arrested for possession to be diverted to a treatment program for their first two offenses. After that, treatment would be encouraged but not required, allowing prosecutors to pursue penalties up to one year in jail and a fine of up to $5,000, under state law. Prior to the Supreme Court's ruling, a person found guilty of simple possession could be sentenced up to five years in prison and a fine of up to $10,000 under state law.
The bill still has a long way to go in the House, which has its own proposal that focuses more on expanding treatment.
The debate on the Senate floor highlighted the deep divides within the Legislature on drug policy. It passed 28-20. Fourteen Democrats voted in favor, and 14 voted against.
While there is agreement that treatment should be at the forefront of the discussion, lawmakers can't seem to agree on how to get there. Many Republicans and some moderate Democrats voted in favor of the change to a gross misdemeanor, with the thought that using the criminal justice system is the best way to get users the treatment they need.
Those who voted in favor argued that a gross misdemeanor with treatment is the best compromise .
Senate Minority Leader John Braun, R-Centralia, said the bill is the right approach because there needs to be a way for people to get treatment.
"The war on drugs has not served us well," he said. "We aren't getting it right, and people are suffering."
Some, however, don't want to see the state move toward any version of decriminalization.
"I don't think we want to go down this route, which is toward legalization," said Sen. Mike Padden, R-Spokane Valley, voting no on the bill.
On the other hand, many progressive Democrats believe the Supreme Court decision opened the door to the possibility of completely decriminalizing drug possession, moving the state away from the war on drugs and toward an approach that focuses on public health.
Sen. Manka Dhingra, D-Redmond, fought for the public health approach. Her bill was the one that passed the Senate, but it looked so different from her original proposal that she opposed the final version.
Dhingra's plan would have made it legal for anyone 21 years and older to possess certain amounts of different types of drugs, such as one gram of heroin or two grams of cocaine. Anyone found to have the legal amount would be put in contact with someone to provide treatment options. Anyone possessing the amount over the personal use would've been charged with a felony. Those under 21 would have been charged with a gross misdemeanor.
The bill that passed Thursday did not have a public health approach, she said.
On a speech on the floor, Dhingra criticized the Legislature for not using the Supreme Court's decision to think critically about the effects their drug laws have had on people of color.
The racial impact of Washington's drug laws cannot be understated, she said.
"I have higher expectations for my family, for my children and for this state," she said.
The Senate's bill heads to the House, where its future is unclear. House Democrats have their own plan that focuses more on funding treatment options instead of criminalizing possession. It sets personal use amounts, and anyone 21 and older possessing less than that would receive a civil infraction. Those with more than the allowed amount would face a gross misdemeanor.
Some Republicans and moderate Democrats feel the Legislature needs to act now to avoid local jurisdictions creating their own laws. Other lawmakers think the state should take the time to perfect a policy instead of rushing it through in the last week.
The legislative session is scheduled to end April 25.
Sen. David Frockt, D-Seattle, said Thursday the state was moving too quickly to pass something that could have "ramifications that we don't even understand at this point."
Disagreement over where to go in Spokane, too
In Spokane County, the Supreme Court's decision prompted quick changes by law enforcement and attorneys prosecuting and defending cases.
Spokane County Prosecutor Larry Haskell said his office immediately dismissed all simple possession cases and declined to prosecute any new ones. Meanwhile, the county's public defender office began fielding calls from people it had represented in the past asking whether the decision changed the status of their past convictions, said Matthew Harget, deputy director of the Spokane County Public Defender's Office.
"From our point of view, the people currently in custody are the highest priority, so that's where my office is focusing its efforts," Harget wrote in an email.
The Washington Department of Corrections conducted an analysis in the immediate aftermath of the Supreme Court ruling, trying to determine how many people imprisoned under the now-unconstitutional statute may be eligible for sentencing changes as a result of the decision.
Their analysis included not only the rare cases in which people were only charged with simple possession, but other crimes as well. A judge may impose a sentence based on multiple factors, and when simple possession is paired with other charged offenses, a person's sentence can be made longer.
According to that data, 341 people whose cases were heard in Spokane County on multiple charges, including possession, were being held in the department's custody on March 31. The department believes 26 of those people may be eligible for early release. Statewide, as many as 3,500 people may be subject to revisions of sentences.
Gov. Jay Inslee last week commuted the sentences of 15 people being held in state custody on the now-unconstitutional possession charge. Kurtis Robinson, past president of the Spokane NAACP whose work has included efforts in criminal justice reform, said he'd spoken with a few defendants whose cases were being re-evaluated in light of the Blake decision.
"What we need to do with this, is treat this as a public health issue, instead of a criminal issue," Robinson said.
Layne Pavey, founder of the group "I Did the Time" that advocates for previously incarcerated people and families, and Revive Reentry Services, a housing assistance firm for those released from custody, said she was working with the Corrections Department to identify released individuals who need help in Spokane.
The courts may also have to deal with the potential of past fines, known as legal financial obligations, that were levied against the defendants, Harget said.
"But obviously, there are many more people out there who have finished their sentences and may be entitled to reimbursement of fines they paid," he said.
Effort to reverse ruling also creates uncertainty
Haskell's office, concerned about what it called the "devastating" consequences of the ruling affecting thousands of criminal cases tried since the law was enacted in the 1970s, has taken the rare step of asking the Supreme Court to reconsider its opinion. In the motion, prosecutors argue the court should adopt the concurring opinion written in the case by Justice Debra Stephens, which they argue would make it much less likely that the decision would affect cases already tried.
"Interested parties have relied on this Court's prior decisions in this area for 40 years, and the majority opinion has far-reaching consequences," Brett Pearce, deputy prosecuting attorney in Haskell's office, wrote in his request for reconsideration.
The Supreme Court hadn't ruled on the motion as of Friday, and there is no time requirement on which it has to rule.
While the motion to reconsider is pending, the Spokane County Superior Courts have decided not to hold any hearings to determine what, if any, consideration should be given for time served or fines paid, said Ashley Callan, administrator of Spokane County's Superior Courts. Judges are waiting for a mandate from the high court about how to handle such requests, she said.
If there is a mandate indicating the ruling has an effect on past cases, Spokane County judges are likely to hear a significant portion of any appeals. The county filed more drug possession felony charges than any of the other five most-populous counties in the state — Clark, Snohomish, Pierce and King — over an 18-year period ending in 2018, according to an analysis of records by The Spokesman-Review in 2019.
That trend accelerated in 2019, according to statistics available from the state's Office of Financial Management.
Spokane County prosecutors filed 1,664 felony drug charges in Superior Courts in 2019, a category that includes, but isn't limited to, simple possession. The next closest county was Pierce, which filed 1,075 cases. No other Washington county filed more than 1,000.
Pushing to re-establish a simple possession charge, whether through the courts overturning their decision or a legislative change, defies a national push to decriminalize simple drug possession, said Mason Marks, an assistant professor at Gonzaga Law School serving a fellowship at Harvard Law.
"We've had this punitive approach to drug policy for half a century," Marks said, noting that the Centers for Disease Control and Prevention reported a record for overdose deaths during a 12-month period through May .
An amendment to the law in the Legislature or revision of the ruling in the courts would represent "a step backward," Marks said, when the rest of the country — including Oregon — has instead pushed for decriminalization while providing the types of voluntary treatment services that have proven more effective than mandatory programs, he said.
Voters in Oregon approved a ballot measure that prohibited arrest if police found a person carrying small amounts of heroin, methamphetamine, LSD, oxycodone and other drugs. Instead, the person faces a $100 civil fine or a health assessment under the new law, which took effect in February.
"High-level trafficking, manufacturing, that's a different category," Marks said. "People can debate what should be done there."
Spokane County Sheriff Ozzie Knezovich said last week that his deputies had ceased arresting suspects on simple possession charges, but they were seizing drugs as contraband. His office won't destroy the drugs, though, over concern about future liability, he said.
"People are doing hard drugs, and it's killing them, and killing other people," Knezovich said, pointing to the rise in gang-related violence that Spokane has been seeing. "It just puts the citizens at risk."
The court's decision didn't surprise Linda Thompson, executive director of the Greater Spokane Substance Abuse Council, which seeks to reduce the community's risk of people becoming addicted to illicit substances. The trend has been toward decriminalization nationwide and locally, Thompson said, but without the necessary investments in schools and other treatment programs that are needed to handle an influx of people needing help.
"We're going to have to have a ruling that is clear for what law enforcement can do, and more importantly, how we can treat this is a public health issue, to get people into treatment, and recovery programs," Thompson said.
Marks said efforts to re-establish criminal liability for drug possession would be better spent bolstering support systems for those most at risk for substance abuse, including mental health treatment.
"That's where people should be devoting their efforts," Marks said. "How can we improve the mental health care system in Washington state?"
Thompson said she's concerned about the effect the ruling will have on the attitudes of young people toward hard drugs.
But the decision may also have the effect of forcing discussions about how to improve drug treatment and recovery options, a conversation that is long overdue.
"It's going to be painful, she said, "but I think this could be a catalyst for good change."
Laurel Demkovich's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper's managing editor.