Washington’s Supreme Court Decriminalizes Drug Possession

March 3, 2021 Updated: March 3, 2021

Washington’s Supreme Court struck down a strict liability drug law in the state that had made possession of a controlled substance a felony even if the person didn’t know they had the drug in their possession.

This unexpected judicially ordered decriminalization of drugs in Washington has state lawmakers in Olympia scrambling to put together some kind of legislative fix, which could take the form of a recriminalization or a legislatively ordered formal decriminalization of drug possession. Those accused of drug possession under the state law are being released from jails across the state and arrest warrants are being rescinded.

The Feb. 25 decision in State of Washington v. Blake by the Supreme Court of the State of Washington is also forcing local authorities to drop charges pending against drug defendants across the state.

The 5–4 ruling stems from charges against Shannon Blake of Spokane, who challenged the law after being convicted in 2016 of possession of a controlled substance, a felony that could lead to a sentence of prison time and a $10,000 fine.

A small bag of methamphetamine was reportedly found in the coin pocket of Blake’s jeans. She claimed a friend had bought the jeans secondhand and that she was unaware of the presence of the drugs. A trial court determined Blake “had not met her burden to prove that her possession was unwitting,” and convicted her.

Blake filed an appeal, but the Court of Appeals held that the law didn’t require the state to prove intent on the part of the defendant.

“Washington’s strict liability drug possession statute … makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance,” Justice Sheryl Gordon McCloud wrote for the majority.

“This case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power?” McCloud wrote.

Washington was the only U.S. state that didn’t require prosecutors to prove intent under its felony drug possession law, which runs afoul of both the state and federal constitutions, she wrote.

“The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State’s police power.”

The absence of mens rea, or criminal intent, in the statute isn’t necessarily a problem, the justice wrote, because “the legislature can still create strict liability crimes in certain circumstances … to protect the public from the harms that have come with modern life by putting the burden of care on those in the best position to avoid those harms,” but the “government cannot criminalize essentially innocent conduct.”

This rule “against criminalizing essentially innocent conduct, does not have such exceptions, and it applies with special force to passive conduct—or nonconduct—that is unaccompanied by intent, knowledge, or mens rea.”

Not convinced by the majority’s reasoning, Justice Charles Johnson wrote a dissenting opinion that three other members of the court joined.

“The legislative power to enact strict liability crimes remains consistent and undiminished,” he wrote.

“Our continued recognition of this legislative power applies with special force in this case given the length of time that the crime of possession of a controlled substance has been upheld as a strict liability crime. The constitutional analysis in the majority’s decision is not convincing enough to outweigh those considerations.”

King County Prosecuting Attorney Dan Satterberg told local media that he’s looking into whether the decision could be retroactively applied, and called upon the state legislature to fix the statute.

Conservative officeholders in the state expressed alarm at the court ruling.

“Hundreds and hundreds, if not thousands and thousands, of violent offenders–murderers, rapists, child molesters–will now be released onto our streets earlier,” King County Councilmember Reagan Dunn, formerly a federal prosecutor, said in a statement.

“In my review of the case as a former prosecutor, this ruling is retroactive because the law is described by the Supreme Court as unconstitutional,” Dunn said.

“This ruling will impact cases involving violent offenders, who will need to be re-sentenced because felony drug convictions now cannot count toward their offender score. Therefore, they will very likely receive a lower sentence.”