By throwing out drug law, Washington Supreme Court creates massive fallout

In the wake of the Washington Supreme Court’s ruling in the “Blake” decision on February 25, people can no longer be arrested for simple drug possession in Washington state.

Officials must now chart a new path to address past convictions and current substance use.

Even supporters of drug decriminalization say they were caught by surprise when the court struck down the state’s felony drug possession law last month as unconstitutional. But now they say the state should embrace the opportunity to take a new approach to addiction treatment.

At least one jurisdiction has reinstated a new version of the drug law. And thousands of people convicted under the old law could soon seek resentencing, and to clear their records.

Washington’s law was an outlier among the 50 states. It allowed someone to be arrested for possessing drugs without proving they knew about them or intended to use them. By striking down the law, the Washington Supreme Court has pulled at a thread woven into decades’ worth of verdicts, fines and sentences.

Dan Clark is the chief criminal deputy for the King County prosecuting attorney’s office.

“The ripples of this go very wide,” he said.

Clark said his first priority was to dismiss current cases involving simple drug possession. They released six people from King County Jail.

“Those who were sitting in jail awaiting trial on a possession case, we dismissed those charges because it was pretty clear that the court’s opinion found that the statute was unconstitutional,” he said.

But Clark said he’s hoping the state supreme court will provide some guidance on how to apply its ruling to past cases, where the charge was part of the state's complex sentencing structure.

This month the city of Marysville passed its own law criminalizing intentional drug possession as a gross misdemeanor. Police Chief Erik Scairpon said the old drug possession law was used in a tiny fraction of arrests, but it was an important tool.

“We’re definitely all for trying to come up with a more comprehensive way to treat drug addiction within our communities,” he said. “But we simply can’t lose the ability to have no consequences for people, especially if those folks don’t want help.”

He said the department has had an embedded social worker for three years, who does outreach to people dealing with behavioral health issues. Through that program Scairpon said 72 people have completed drug treatment and 200 people have been placed in housing.

“By having our mental health professional visit people who are in jail solely for some type of a drug violation, we’ve seen success in getting them to want to take advantage of those rehab opportunities,” he said.

But Scairpon said having a patchwork of local drug laws is not ideal.

University of Washington law professor Mary Fan said the “cliffhanger” is what action state legislators will take in the wake of the court ruling.

“Is this going to force a larger debate about whether or not simple possession of a range of drugs – including hard drugs – should be decriminalized?” she said.

Oregon voters approved a measure to do that in the November election, and supporters of decriminalization in Washington had supported HB 1499 during the legislative session.

Malika Lamont is the director for Voices of Community Activists and Leaders, or Vocal-WA. She’s also helping expand Law Enforcement Assisted Diversion in multiple counties in Washington. Her first reaction to the ruling was more tentative than euphoric.

But she said decriminalization had been a sticking point for opponents of their legislation, and now thanks to the court, the ground has shifted.

“That piece is done, the supreme court did that for us,” Lamont said. “Let’s make some meaningful investments in treatment and other services.”

And what about people convicted under the old law? The state has to figure out how to assist people who will seek resentencing, or to have their convictions vacated.

That could include people like Steve Eisler, who told state legislators recently he was convicted of drug possession multiple times before being offered the chance to enter drug treatment. Now he’s in long-term recovery, in school, and has a loving family, but his record continues to haunt them.

“I have to be a silent partner whenever we go and look for a new house because with my felony record I can’t put my name on the lease, and put my family in jeopardy of not being able to get into a house,” Eisler said.

Thousands of people could seek to clear their records of those convictions. Lisa Daugaard heads the Public Defender Association. She said it’s unrealistic for the courts to consider these cases individually, on top of the backlogs created by the pandemic closures.

“We are hoping to see the supreme court lead in establishing a channel for that mass, rapid relief,” she said.

Daugaard said the situation demands a one-time solution. She said, “That means we need a special process that is centralized, mass, efficient and not terribly expensive.”

Another major consequence of the ruling: People who paid criminal fines as part of their drug sentence could now be eligible for a refund. The Public Defender Association along with the group Civil Survival is suing Washington State as well as King and Snohomish Counties to seek the return of those funds. In a statement on the lawsuit, the groups said King and Snohomish Counties are named as defendants because the prosecutors in those counties have been leaders in reducing the harms from drug prosecutions.

The statement said: “These two counties are defendants, not because they are uniquely responsible, but because the entire machinery of the criminal legal system throughout our state has been engaged in imposition of penalties under this invalid law. We now need a process to rapidly undo that harm, even in the jurisdictions that commendably have recently recognized that we have been on the wrong path for decades.”