Carrying small amounts of drugs is legal in Washington now. The next moves happen under this roof.
Carrying small amounts of drugs is legal in Washington now. The next moves happen under this roof. Lester Black

A major front in Washington's war on drugs suddenly evaporated last week when a majority of the justices on the state Supreme Court declared the state's felony drug possession law unconstitutional. The move essentially decriminalized the act of carrying small amounts of drugs.

The ruling created big waves in the criminal legal system and in the Legislature, predictably prompting conservatives to lose their goddamned minds, moderates to stiffen slightly, and those fighting the racist drug war to cheer.

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We'll discuss all of that in more detail in a bit, but let's go over the decision real quick.

Not my pants

Unlike every other drug possession statute in the country, Washington's law rested on a "strict liability" standard, which meant judges could impose felony penalties on people caught carrying drugs regardless of whether a person knew they had drugs on them or intended to be carrying drugs at the time of arrest.

That lack of knowledge or intent in the statute has always been weird, the majority argued, because proof of some guilty mental state is often "a prerequisite to criminalization" under our state Constitution. (You don't get charged for simple assault, for instance. You get charged for assault with "intent to inflict great bodily harm" or with "reckless intent.")

The majority argued that the whole law was unconstitutional because the consequences of felony convictions in this state suck so much and impact communities in such racially disproportionate ways that they violate due process requirements when judges impose them on people engaging in "innocent and passive conduct with no criminal intent at all," such as accidentally grabbing the exact wrong bag at the airport, or buying a crotchet kit that just so happened to be filled with cocaine, or borrowing a friend's pants and finding meth in the coin pocket.

A count of simple possession could carry up to a five-year prison sentence and a $10,000 fine, plus all the joys that come along with a felony conviction, including the "denial of more than 750 federal benefits," and barriers to housing, jobs, education, and health care, the opinion noted.

To stop judges from throwing people in jail for accidentally carrying drugs, courts created an affirmative defense jokingly referred to as the "not-my-pants defense." The state's lawyers argued this defense saved the statute, but the majority argued that the defense was irrelevant because the underlying law was unconstitutional in the first place.

The informal name of the defense is also kinda fun because the Court's decision emerged from a case out of Spokane County that involved pants. In the case, cops arrested three people, including a woman named Shannon Blake, while executing a warrant for stolen cars. A jailer found meth in one of Blake's pockets, and prosecutors ended up charging her for it. In court Blake said a friend had given her the jeans a couple days before, and that she'd never used meth. Nevertheless, a jury found her guilty, because state law said it didn't matter if she knew whether she had meth on her or not. But because the Court now thinks that law is unconstitutional, they vacated Blake's conviction.

In her partial concurrence, Chief Justice Debra Stephens said she thought the Court should "read into" the law "the presumed element of intent," which would have preserved the law. The majority disagreed, arguing that the Legislature failed to add that "element of intent" in the decades since they created the law despite making changes to it throughout the years. The Legislature has known about this potential mens rea problem for years, and they've done nothing to address it. With this ruling, the Court finally has.

What the decision means for you

Cops cannot use drug possession as a pretext for searches, detentions, or arrests. So, if you wanted, you could walk around downtown right now waving around a small amount of cocaine and a cop could only stop you for looking so good.

That said, cops can still make arrests on suspicion of other drug violations, such as possession with intent to deliver. So if you're waving around an ounce of coke, carrying a bunch of baggies, and using scales for earrings, then you might run into trouble.

Seattle Police Department spokesperson Detective Patrick Michaud said cops rarely arrest people only for simple possession. Most of the time cops arrest people for other crimes first, such as a DUI or criminal trespassing (a misdemeanor), and then during the arrest discover a bag of something on the suspect.

A public defender who requested anonymity to talk loosely said cops will "find another way" to maintain the status quo. "I don’t think policing is going to become progressive and respecting of peoples' rights anytime soon, though this decision does eliminate a major one of those pretexts" for shaking down people in the street, this person said.

What the decision means if you're in the system

To comply with the ruling, prosecutors statewide must now work to drop all pending simple possession cases, stop jacking up sentences with possession points, and begin the work of vacating existing possession convictions for those who only have a simple possession case on their records.

King County Councilmember Reagan Dunn, a former federal prosecutor, probably best summed up the conservative response to this ruling when he expressed his "very serious concerns" in a press release on Friday: “Hundreds and hundreds, if not thousands and thousands, of violent offenders–murderers, rapists, child molesters–will now be released onto our streets earlier," he warned, adding that "every addict who is currently receiving support for their recovery through a Drug Court agreement across the state can now be booted from the program because their Drug Court contract has become null and void."

That's one opinion.

Anita Khandelwal, King County's Director of Public Defense, said people convicted of rape or child molestation or the scariest crime Dunn can imagine will "still serve all the time the law requires for those offenses."

Since judges use simple drug possession charges to jack up sentences, "those who for years have been saddled with unconstitutional felony convictions will simply be able to seek a recalculated sentence which reflects a lawful and constitutional accounting of their criminal history," Khandelwal said.

"These types of charges," she added, "have long been a tool of the war on drugs, driving the disproportionate incarceration of BIPOC. These charges have been weaponized against Black and Brown people for years – here in King County and across the state – and, as the Court recognized [Thursday], this law hit young men of color especially hard."

Khandelwal disagreed with Dunn's argument about people losing access to diversion programs through Drug Court, arguing that only those with a pending simple possession charge would lose that access.

In a blog post, a spokesperson for the King County Prosecuting Attorney’s Office (KCPAO) said they "started charging simple drug possession as a misdemeanor rather than a felony" in 2008, and then in 2018 only rarely prosecuted anyone for carrying small amounts of drugs. Prosecuting Attorney Dan Satterberg's office found only six people in jail on felony drug charges as of last week, though in each case the suspects had a lot of other stuff going on. In 2020, the KCPAO filed 580 drugs cases countywide, with 174 filed to Drug Court, and they've averaged about one a day this year, though, again, it's hard to say how many of those involve simple possession cases.

These numbers might be comparatively higher in other counties that haven't been slowly calling off their drug warriors. As I reported earlier this month, data the ACLU of Washington scored from the Washington Administrative Office of the Courts showed that "more than 9,000 people were arrested for possessing controlled substances in Washington" in 2018. That number includes filings for dealing and for simple possession, though, and it's unclear what that breakdown is.

What's next?

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In the next few days some prosecutor could file a motion for reconsideration, which, if successful, could undo the ruling. A cursory search suggests these sorts of quick reconsiderations don't appear to overturn rulings too often. In 2015, Attorney General Bob Ferguson asked the Washington State Supreme Court to reconsider its decision striking down a charter-school law. The Court stuck with its decision, though the Court did remove a footnote Ferguson requested be removed. The same year, Alaska Airlines asked the Court to reconsider a ruling that SeaTac's $15 minimum wage should apply to Seattle-Tacoma International Airport. The Court denied the request.

At a press conference on Thursday, Gov. Jay Inslee mentioned the possibility of the Legislature adding a mens rea (that "intent" language Justice Stephens was talking about) into a new version of the original statute.

But Deputy Majority Leader State Sen. Manka Dhingra, who is also a senior deputy prosecuting attorney, said she and other members of leadership aren't interested in that sort of move. "I don't think anyone wants to go back to the statute, just add the word "knowingly," and then be done," she said. Update, 3/2: That said, at a press conference Sen. Dhingra said there's "not consensus on a path forward."

The Supreme Court's ruling was "consistent" with the public health approach Democrats have taken with regard to drug use over the last five years, Dhingra added. Rather than re-criminalize simple possession, they're inclined to "accelerate" treatment and recovery proposals coming down the pike, such as Rep. Lauren Davis's Pathways to Recovery Act. That bill is currently still sitting in the House Appropriations committee, awaiting a little push.

In a statement, Rep. Davis said the Court's decision "gives renewed urgency to the conversation about our state’s response to untreated substance use disorder," and added that it's "important that we build out a response to substance use disorder that truly works—a robust and fully funded continuum of care ranging from outreach to treatment to recovery support services." You can read all about her plan to do that here.

Dhingra also mentioned Rep. Tina Orwall's bill to establish Washington's 988 system, an emergency hotline people can call to "deploy community crisis resources for persons experiencing a behavioral health crisis." She said she expects a floor vote in the House on that bill soon. If the bill passes, the hotline would become operational in the summer of 2022.

She also plugged her own bill, Senate Bill 5035. That legislation would "exclude some past drug crimes from contributing to the criminal history score that helps determine an offender’s sentence, if it has been more than five years since the date of the past conviction." Excluded crimes would include "solicitation, conspiracy, or attempt to possess [drugs]; and solicitation, conspiracy, or attempt to deliver." The proposal passed off the Senate floor 27-19 and is hanging out in the House.

However, Dhingra did flag that "many times" attorneys negotiate higher-level drug crimes down to simple possession charges, so lawmakers are still "taking a close look" at statutes to make sure they have a strategy for dealing with "people in the business of selling drugs versus those who only use."

But at the end of the day, she said, "There's no way to go back and change anything. It's a matter of what we can do moving forward."

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