Reverberations are spreading from a state Supreme Court opinion that last month struck down Washington’s decades-old drug possession statute as unconstitutional, sending ripple effects through a legal system that’s grappling with how to remedy past harm while facing an unprecedented backlog of criminal cases created by the coronavirus pandemic.
There’s general but not unanimous consensus the Supreme Court’s 5-4 opinion in the case known as State v. Blake doesn’t just affect cases in which someone accidentally or unknowingly possessed illegal drugs, but instead requires that all past possession convictions be vacated; that new sentences be imposed for possibly thousands of people in prison; and that potentially millions of dollars in legal fees and fines be reimbursed.
There’s also uncertainty over how the state Legislature will respond: Will lawmakers double down on what many see as a failed war on drugs that has disproportionately harmed people of color? Or will they seek to chart a new path, focusing on addiction as a public health crisis necessitating huge investments in community treatment facilities and programs?
“The Supreme Court took a dramatic step towards having a more just and humane criminal justice system. It’s a big step, it’s a big deal,” attorney Mark Middaugh, who represented the Washington Association of Criminal Defense Lawyers in a friend of the court brief, said in a recent interview. “The Legislature should not rush to resume hostilities in the war on drugs. The Legislature has a tremendous opportunity to take a pause and instead focus on public health and racial equity.”
Court’s perspective shifts
Shannon Blake was staying at a friend’s house in Spokane when police served a search warrant in 2016 seeking evidence of stolen vehicles. She and two other people were arrested, according to the court’s opinion and her attorney, Richard Lechich.
When she was searched at the jail, a corrections officer found a small baggie of meth in the coin pocket of her second-hand jeans. The pants had been purchased by a friend and given to Blake two days earlier.
Though other charges against Blake were dismissed, Lechich said she was found guilty of drug possession despite arguing that she had never used meth and didn’t know there were drugs in her pocket. Blake didn’t serve prison time but she lost her rights to vote, possess firearms and receive public benefits as a result of her felony conviction, Lechich said.
On appeal, Blake argued that requiring her to prove she unwittingly possessed meth violated due process. After the Court of Appeals upheld her conviction, Blake sought review by the Supreme Court, which used the case to revisit the state’s drug possession statute – a strict liability statute which the court had upheld at least twice since it was enacted in 1953 and had gone unchanged by the Legislature.
Under the strict liability statute, the state wasn’t required to prove someone knowingly or intentionally possessed drugs to convict. Previous Supreme Court panels had determined intent was implied in the statute.
“But that interpretation makes that statute criminalize innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess,” reads the court’s majority opinion, authored by Justice Sheryl Gordon McCloud.
Though a number of attorneys interviewed by The Seattle Times expressed surprise at the Supreme Court’s Feb. 25 opinion that ruled the statute unconstitutional, it was actually foreshadowed in an earlier drug possession case, State v. A.M.
In that case, a woman and two juvenile girls were arrested for stealing Halloween costumes from a Goodwill store and one of the girls – A.M. – stuffed the merchandise into a backpack, which she carried out of the store.
Later, several baggies of meth were found in one of the backpack’s side pockets and A.M. was ultimately convicted of felony drug possession. She argued she didn’t know drugs were in the backpack, which she had taken from her adult co-defendant’s house, according to the Supreme Court’s September 2019 opinion.
Seven of the justices sent the case back to the lower court, after finding the court made an unconstitutional error in admitting a piece of evidence that violated A.M.’s right against self-incrimination. But at the time, the justices did not consider A.M.’s due process argument about her unwitting drug possession.
Nearly 18 months before the Blake opinion, Gordon McCloud agreed with the majority in State v. A.M. but wrote a separate opinion, urging the Supreme Court to address the issue of due process and “the ongoing criminalization of innocent conduct in Washington’s war on drugs.”
The Supreme Court, Gordon McCloud wrote at the time, “must grapple with its own errors” in its past interpretations of the statute.
Reevaluating sentences
Violation of the Uniform Controlled Substances Act – known as VUCSA – makes it a crime to illegally possess narcotics, depressants, stimulants, hallucinogenics or anabolic steroids.
Under the act, possession is considered a less serious crime than possession with intent to manufacture or deliver a controlled substance.
“The Blake decision invalidates every single VUCSA possession case – that’s the common understanding in our court,” said King County Superior Court Presiding Judge Jim Rogers. As a result, he said, “the statute is straight-up unconstitutional and invalidated for all purposes.”
The upshot is that even a drug dealer who was initially charged with VUCSA possession with intent to deliver but later pleaded guilty to the lesser charge of VUCSA possession will have his or her conviction thrown out.
Though Rogers and others believe the Blake opinion applies retroactively, Dan Clark, King County’s chief criminal deputy prosecutor, isn’t so sure – and would like to see the Supreme Court provide additional guidance. Clark said Spokane County prosecutors on Wednesday filed a motion seeking reconsideration in the Blake decision, though he acknowledged such motions are frequently denied.
If the Blake opinion does indeed invalidate past cases, it’s going to require “a Herculean effort” by the legal system to vacate old convictions and re-sentence people with drug-possession histories who are now serving time on a variety of crimes, Clark said.
As of March 5, the state Department of Corrections estimated that statewide, fewer than 100 people were incarcerated and fewer than 7,000 people were on community supervision for simple possession convictions alone, according to a news release issued in the wake of the Blake decision.
But Clark said the math gets a whole lot more complicated when prior VUCSA possession convictions get factored into prison sentences for subsequent felony criminal convictions.
That’s because under Washington’s standard sentencing guidelines, each prior non-violent felony conviction counts as one point toward someone’s “offender score.” Scores start at zero and, for the purposes of sentencing, max out at nine, even though an individual’s score can be much higher. Generally, prior violent felonies count as two points each, and each serious violent felony counts as three points, though there are some variations.
Someone with nonviolent prior felonies who is then convicted of first-degree robbery will have an offender score of five and faces a standard sentence of roughly 5 1/2 to a little over six years in prison. But say that person’s offender score includes two points for prior VUCSA possession convictions: As a result of the Blake opinion, his or her offender score drops to three and that person is then entitled to be re-sentenced to a standard range of around four to five years.
“It’s not going to be some formulaic, paper-shuffle solution,” Clark said of those entitled to new sentences, and will instead require a nuanced, individualized analysis of potentially thousands of felony cases.
The resentencing workload will be piled on top of the already crushing backlog of criminal cases that have accumulated as a result of the pandemic, which led to the suspension of jury trials for much of 2020. In King County alone, 175 murder cases are waiting to be tried, Clark said.
“We have over 6,500 pending felonies,” double the number typically in the system in a given year, and 2,800 of them are for more serious offenses like murder, rape, robbery, assault and domestic-violence crimes, Clark said.
Meanwhile, cases resolved through plea negotiations have plummeted from an average 350 per month to 200, according to Clark.
Though criminal jury trials resumed in mid-February, superior courts in Seattle and Kent are running at 50% capacity due to social-distancing requirements, said Rogers, the presiding judge.
The court will need to give priority to incarcerated people whose resentencings under Blake would make an immediate difference in their release dates from prison, he said.
“The net result is people will wait,” said Rogers. “Everyone will act in good faith to get things done but the reality is, it’s going to take years.”
Addressing disparities
The Seattle Police Department gets complaints daily about people using drugs in public, said Assistant Chief Deanna Nollette. But in keeping with King County Prosecutor Dan Satterberg’s decision around 2008 not to file felony drug possession cases against anyone found with less than 3 grams, police have long focused enforcement efforts on organized criminal enterprises and large-scale narcotics dealing, she said.
When police conduct street-level, buy-bust operations, they’re “driven by public complaints when people are fed up with the disorder and lawlessness,” Nollette said, adding the department is still studying the implications of the Blake decision.
“One of my concerns is when we don’t have the legal authority to contact people [for possession], we lose the ability to assist them in getting help,” she said, referencing the Law Enforcement Assisted Diversion (LEAD) program that diverts people into treatment and has been shown to reduce recidivism.
Still, many advocates see the court’s decision as an opportunity to begin righting wrongs in a war on drugs that has disproportionately harmed communities of color. In Washington, 40% of people convicted of VUCSA possession have been identified as Black by the state Department of Corrections – and there’s ample research that’s shown Black defendants are 62% more likely than white defendants to be sentenced to prison on felony drug charges, said King County Public Defender Anita Khandelwal.
As of July 2019, Black people accounted for 4.4% of the state population compared to white people, who made up 78.5% of the population, according to the U.S. Census Bureau.
“This opinion is incredibly important for our clients and it’s something that defense attorneys have long fought for,” Khandelwal said of the Blake decision.
She thinks many old VUCSA possession convictions involving people who are no longer in custody can be efficiently vacated en masse through motions jointly filed with prosecutors, in much the same way defense attorneys worked with the Seattle City Attorney’s Office to vacate and dismiss hundreds of misdemeanor marijuana possession cases in 2018.
That, at least, would stop drug possession felonies from popping up during background checks for job or housing applications, Khandelwal said.
The Civil Survival Project, an advocacy group for formerly incarcerated people, recently filed a civil lawsuit against the state and King and Snohomish counties seeking reimbursement of fines, fees, costs and accrued interest – collectively known as Legal Financial Obligations, or LFOs – paid by people convicted of VUCSA possession.
“Given the Washington Supreme Court’s decision in Blake, the obligation to pay (financial obligations) was unlawfully imposed because the predicate convictions were unconstitutional, and these funds must be restored – in equity, good conscience, and justice,” says the suit filed March 11 in King County Superior Court.
Though there is currently a proposed Senate bill that seeks to insert the word “knowingly” into the now invalidated drug possession statute, Khandelwal thinks that kind of legislative fix will only perpetuate the harm caused by drug prosecutions.
“This is our opportunity, our moment to take a different path, to stop re-enacting … ineffective laws and policies that are so racially disproportionate to find a different way of dealing with issues of addiction,” she said. “This is our time to think about investing heavily in treatment-on-demand and in housing and in building supports in the community for individuals experiencing addiction.”
