In an unexpected move that took many lawmakers off guard, the Washington Supreme Court recently declared the state’s current drug possession law unconstitutional, effectively striking the law from the books.
The ruling may be welcome news for criminal justice advocates who have argued that the law, as implemented in Washington, has disproportionately impacted minority communities with harsh sentencing. But as there is now no penalty for drug possession in the state, it is creating a challenge for legislators to come up with new laws on drug possession.
The Supreme Court decision
Washington’s drug possession statute was the only drug law in the country that did not require evidence that defendants knowingly were in possession of drugs in order to convict. Lawyers in the case State of Washington v. Blake argued before the Supreme Court that the law effectively criminalized innocent conduct.
Attorney Richard Lechich, of the Washington Appellate Project, said that in arguing the case, he did not expect that the Supreme Court would not only agree that the lack of knowledge requirement was unconstitutional, but that the entire law was invalid.
Law enforcement changes
The decision does not affect the manufacture, sale or possession with intent to sell controlled substances. But simple drug possession is no longer an arrestable offense, and memos have been sent to prosecuting attorneys across the state to seek orders to vacate convictions for past cases, as well as to drop ongoing possession cases.
If the decision is regarded as retroactive, thousands of individuals currently serving sentences for drug possession may become eligible for release or vacating of past charges.
Introduction of new laws
The follow-up to a statement from Governor Jay Inslee that suggested making the law constitutional by requiring that criminal intent include an awareness of drug possession, Senate Bill 5468, introduced last week, proposes exactly this requirement with the insertion of the word “knowingly”.
Another bill, SB 5471, would reinstate the felony law with knowing possession, adding a civil fine of up to $3,000 for unknowing possession. A third bill, HB 1499, would remove all penalties for possession or use of small amounts of drugs for personal use.
For individuals who have been negatively impacted by serious drug charges or who are currently serving long sentences, it is essential to have experienced and aggressive legal representation there to fight for you.