The Unsettled Policy Landscape of Drug Possession Laws in Washington

Temple of Justice

On Feb. 25, the Washington Supreme Court struck down the state’s main drug possession crime in a case called State v. Blake. The ruling meant there was no state law making simple possession of drugs a crime unless the Legislature recriminalized it, which it has now done via passage of Engrossed Senate Bill (ESB) 5476.

In the debate over ESB 5476, some stakeholders argued that the Blake decision was an opportunity for Washington to adopt a new approach to substance use disorders based on solutions that heal rather than continue to inflict harm on people and communities. Others advocated for recriminalization. ESB 5476 ended up taking elements of both of these approaches. It provides new statewide planning and resources for substance use services, but also recriminalizes possession.

The new law makes drug possession crimes misdemeanors with mandatory diversion to services for at least the first two occasions, but these changes are only in effect until July 1, 2023. This means the policy landscape for this issue is unsettled.

Many questions remain regarding the impact of the Blake decision itself and for what comes next in light of ESB 5476. The following will shed light on these issues and answer some of the lingering questions.  

What are the impacts to people who had been charged with simple possession but not convicted prior to the Blake decision or the passage of SB 5476?

People with pending drug possession charges at the time of the Blake decision were released from jails and their charges dismissed throughout the state. Others awaiting sentencing hearings arguably should have had their sentencing scores recalculated. Hundreds of thousands of people are likely impacted by the Blake decision, and stakeholders are now working to address issues like resentencing, record vacating, and reimbursement for legal financial obligations. ESB 5476 and the state budget provided some funding and policy changes in hopes of expediting resolutions for these issues.

Does the change in law and court precedent offer any new arguments for lawyers defending clients who have been charged with possession?

The court ruled that the statute violated the due process clause of the Constitution because without any mental state requirement, the law criminalized “unknowing” drug possession and people could be arrested and convicted even if they did not realize they had drugs in their possession. The majority concluded, “The [L]egislature’s police power goes far, but not that far.” Other drug crimes that did not include an intent element could also be ripe for a legal challenge, although ESB 5476 amended additional drug crimes beyond simple drug possession to address this issue.

What concerns does the 2023 sunset date in SB 5476 raise?

ESB 5476 contains a sunset clause for the portions of the bill that amend drug possession crimes, which means in July 2023 the state laws will revert to the current post-Blake, pre-ESB 5476 landscape. This means that without further changes to the law by the Legislature or voters before July 2023, simple drug possession would become non-criminal again. Because of this uncertainty, local jurisdictions could try to pass their own drug possession crimes without a time limit, although those laws could be challenged in court as being preempted by state law.

Are there any long-term consequences the ACLU believes could result from the Legislature’s arguably rushed effort to modify Washington’s drug possession law?

The ACLU of Washington provided comments to the Legislature encouraging them to pass legislation that would put Washington on a new and better path, with elimination of criminal penalties for drug use and substance use disorder. Kicking the can down the road on important questions on whether drug possession should be a crime also just leads to confusion for everyone.

With states like Oregon decriminalizing drugs and the increasing number of states legalizing recreational marijuana, is there a trend that drugs might be more broadly decriminalized? If so, how might that play out, if there are disparities between state and federal drug laws?

There is an overwhelming consensus that the War on Drugs has been a failure. As noted in the Blake decision, Washington’s previous simple possession law “has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard.” Many stakeholders argued that the Legislature should not have recriminalized drug possession and focused on public health responses instead. Although substance use disorders are now almost universally believed to be a medical condition, some people still believe in treating the person as a criminal instead of addressing the medical issue.

In terms of the federal vs. state issue, the federal government cannot compel Washington state to criminalize drug possession. The federal government can enforce its own laws if it so chooses, but the 10th Amendment to the U.S. Constitution prevents them from forcing states to have the same laws. There are many concrete examples of this, including state marijuana laws, state death with dignity laws, and syringe service programs, all of which have taken a different approach than federal law at times.

Are there case law developments on this issue people should pay attention to?

It is possible that some of the collateral issues that result from Blake could end up in the courts, such as how resentencing should play out.

Have any people with old drug possession convictions had their sentences vacated after Blake and does SB 5476 have any impact on such requests?

The long-term implications for older convictions remain somewhat unclear, but the Blake decision could (we hope) invalidate past convictions for this offense because the court said the statute was unconstitutional. Other possibilities include vacating convictions for people with previous convictions, and refunds for any fines and fees paid in association with their convictions. Gov. Jay Inslee has commuted a handful of sentences as a result of Blake.

Ultimately, as the ACLU of Washington and many other stakeholders argued during the debate over ESB 5476, the most effective approach to dealing with substance use disorders is to eliminate criminal penalties and invest in public health approaches instead.