OLYMPIA, Wash. - The Washington Supreme Court is standing by its decision striking down the state’s drug possession law, as lawmakers race to address it before the Legislature’s regular session ends Sunday.
The court on Tuesday rejected a request from the state to reconsider its February ruling, in which a 5-4 majority said the law was unconstitutional because it did not require prosecutors to prove that a defendant knowingly possessed drugs.
The ruling left Washington without a prohibition on possession of small amounts of controlled substances, including heroin, methamphetamine and cocaine. Possession of larger amounts — with intent to distribute — remains unlawful.
Lawmakers have been struggling with how to respond, with many especially concerned that there is no legal prohibition on drug possession even for teens. Some want to re-criminalize it, while others hope to use to the ruling to adopt a public-health approach to drugs.
"We want to treat rather than incarcerate," Rep. Eileen Cody, D-West Seattle, said during a House Appropriations Committee hearing Wednesday. "I hope we can be a model that will see this happen across the country."
The committee on Wednesday endorsed an approach that would — for now — make knowing possession of drugs a misdemeanor punishable by up to 90 days in jail, rather than the felony that drug possession was under the previous law. Prosecutors would be required to divert a defendant’s first two offenses to treatment and encouraged to divert further violations as well.
In July 2023, the offense would become a civil infraction, punishable by a $125 ticket that could be waived if the offender participates in a behavioral health or substance abuse assessment.
The bill, which already passed the Senate in a different form, would also greatly expand treatment services and outreach, including to homeless people with severe behavioral health issues.
Many Republicans said they did not believe drug possession should be a felony, but they were concerned by how quickly lawmakers were moving to overhaul the decades-long prohibition of drugs, by uncertainty over what the measure would cost, and by what some called the "false promise" of treatment when such services are hard to come by in rural areas.
"This is a major piece of legislation and a major piece of change at Day 101 of a 105-day session," Rep. Joe Schmick, R-Colfax, told the committee.
The Supreme Court’s decision came in the case of Shannon Blake, a Spokane woman who had received a pair of jeans from a friend that had a small bag of methamphetamine in a pocket. The court found that criminalizing unknowing, passive conduct violated due process protections. Among those who could be convicted was a letter carrier who unwittingly delivers a package of drugs or someone who picks up the wrong bag at an airport, the majority noted.
Attorneys said the ruling could result in tens or even hundreds of thousands of convictions dating back decades being vacated. Many prisoners doing time for other crimes will need to be resentenced if prior drug possession convictions boosted their offender scores and thus their sentences.
Dozens of prisoners who were serving time for drug possession have been released from prison, other cases have been dropped, and a lawsuit is already seeking reimbursement for fines that defendants paid for drug possession convictions.
The state’s request for reconsideration, filed a month ago by the Spokane County prosecutor’s office, was always a longshot. Such motions are rarely successful.
In a statement Tuesday, Attorney General Bob Ferguson urged lawmakers not to return to criminalizing drug possession, arguing that it exacerbates racial disparities because people of color are disproportionately arrested.
"This is Washington’s moment to overhaul a broken system and end the failed war on drugs," he said. "The Legislature now has a unique opportunity to reject criminal penalties for non-commercial drug possession. Let’s focus our resources on treatment and protecting the public from serious and violent crime."
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