By: Mackenzie Selleg[*]
Published: April 18, 2021
When Shannon Blake was arrested and booked into jail, correctional officers found a small bag of methamphetamine in the pocket of her jeans.[1] She was charged with possession of a controlled substance, but at trial submitted the “affirmative defense of ‘unwitting possession.’”[2] She testified that the jeans had been given to her by a friend and she had no idea the drugs had been placed in the pocket of the jeans.[3] However, under existing Washington state law, drug possession was a strict liability crime and the burden was on Blake to prove the drugs were not hers.[4] But on February 25, 2021, the Washington Supreme Court sent shockwaves across the state by holding the state’s drug possession law unconstitutional.[5] In a 5-4 opinion, the Washington Supreme Court held that because the drug possession statutes did not include an element of intent that required the state to prove knowledge, it violated the due process clause by “criminaliz[ing] wholly innocent and passive nonconduct on a strict liability basis.”[6]
Overnight, Washington went from being the only state to consider drug possession a strict liability crime, to being one of two states[7] where simple drug possession is not criminal.[8] The decision’s impact was immediate, with the Washington Association of Sheriffs & Police Chiefs telling “its members that ‘law enforcement officers are no longer authorized to conduct a criminal investigation, effect an arrest, seek a search warrant or take any other law enforcement action for simple possession of controlled substances.’”[9] Additionally, the Washington Association of Prosecuting Attorneys “instructed its members to immediately drop any pending cases for simple drug possession, to obtain orders vacating the convictions of anyone doing time for simple drug possession, and to recall any arrest warrants issued in such cases.”[10]
Some see the Washington Supreme Court’s total invalidation of the state’s possession statute as too harsh, and believe the court should have read an element of intent into the statute,[11] but the court was quick to point out that it was the legislature’s failure to act that led to this severe result.[12] The court recounted multiple cases over the last forty years where the statute was interpreted as a strict liability crime, and where the statute was clearly interpreted to not require intent as a necessary element for simple drug possession crimes.[13] Additionally, the court referenced the four times the state legislature had amended the statute’s enactment, and failed to add an element of intent.[14] In doing this, the court placed the blame directly at the feet of the legislature, leaving the legislature to clean up the mess it created.
Looking toward the future, the long-term impacts of Blake remain to be seen. People who were subject to forfeiture under drug possession laws could seek compensation for the loss of their property, courts will have to vacate convictions and recalculate sentences for offenders serving time for other crimes, inmates arrested for parole violations may need resentencing, fines and fees may need refunding, and immigrants facing deportation based on drug possession may be allowed to stay.[15] Several bills have been submitted to the state’s legislature to address the sudden absence of drug possession statutes under Washington law, but even if one of these bills makes it through the state legislature and becomes law, new laws cannot criminalize past behavior[16]—meaning Blake’s impact on past crimes is absolute.
Moving forward, state lawmakers could simply reinstate the old statute and insert the term “knowingly” to add the element of intent.[17] Alternatively, lawmakers could seek to amend the state’s drug possession statutes to reflect more treatment options and a greater focus on rehabilitation.[18] Even further, some lawmakers support following Oregon’s lead and eliminating criminal penalties for the possession of “personal use” amounts of drugs.[19] But until an agreement can be reached and a new statute enacted into law, in Washington, simple drug possession is no longer so simple.
Footnotes
[1] See State v. Blake, 197 Wn.2d 170, 174 (2021) (en banc) (citation omitted).
[2] Id. at 175.
[3] See id. (citation omitted).
[4] See id. (citations omitted).
[5] See id. at 195.
[6] Id. at 193.
[7] Oregon became the first state to decriminalize drugs in February of 2021 as a result of a successful ballot initiative. See Andrew Selsky, Oregon 1st State to Decriminalize Possession of Drugs, AP News (Feb. 1, 2021), https://bit.ly/3sx1TW6.
[8] This case only impacts simple possession. The cultivation, sale, and distribution of drugs still remains illegal, and driving under the influence still remains illegal. See Blake, 197 Wn.2d at 195.
[9] Jacob Sullum, The Washington Supreme Court Just Decriminalized Simple Drug Possession. Legislators Shouldn’t ‘Fix’ the Overturned Law., Reason (Mar. 1, 2021, 1:30 PM), https://bit.ly/3drn9Iv.
[10] Gene Johnson, Washington State Justices Strike Down Drug Possession Law, AP News (Feb. 25, 2021), https://bit.ly/2Q4NLXd.
[11] See Blake, 197 Wn.2d at 216 (Stephens, J., concurring in part and dissenting in part).
[12] See Blake, 197 Wn.2d at 190–92.
[13] See id. at 190–91 (citations omitted).
[14] See id. at 191 (citations omitted).
[15] See David Kroman, Court’s Drug Possession Ruling Upends WA’s Criminal Justice System, Crosscut (Mar. 12, 2021), https://bit.ly/3alJ4Pk; Kate Riley et al., Overturned Drug Law Is in Legislature’s Court, Seattle Times (Mar. 23, 2021, 2:04 PM), https://bit.ly/32r85V2.
[16] See U.S. Const. art. I, § 10, cl. 1.
[17] Press Release, Steven D. Strachan, Exec. Dir., Wash. Ass’n of Sheriffs & Police Chiefs, Washington Association of Sheriffs and Police Chiefs Statement on Legislation to Address the Blake Decision (Mar. 24, 2021), https://bit.ly/3mZyrHh; S. 5468, 67th Leg., 2021 Sess. (Wash. 2021).
[18] See H.R. 1558, 67th Leg., 2021 Sess. (Wash. 2021).
[19] S. 5476, 67th Leg., 2021 Sess. (Wash. 2021).
About the Author
Mackenzie Selleg is a third-year student at Penn State Law. Originally from Shelton, Washington, Mackenzie received her bachelor’s degree from Washington State University where she double majored in Human Development and Criminal Justice. Although her work for the Penn State Law Review has mainly focused in Indian Law, Mackenzie has also spent time working for the Penn State Veterans and Servicemembers Legal Clinic representing veterans and current servicemembers. Additionally, Mackenzie has taken courses studying international law at East China University of Political Science and Law in Shanghai, China, and at the University of Bergen in Bergen, Norway.
Suggested Citation: Mackenzie Selleg, In Washington, Simple Possession Is No Longer So Simple, Penn St. L. Rev.: F. Blog (Apr. 18, 2021), http://www.pennstatelawreview.org/the-forum/in-washington-simple-possession-is-no-longer-so-simple/.