In a surprising decision handed down on Thursday, Feb. 25, the Washington state Supreme Court struck down the state’s fundamental criminal drug possession law.
Police are no longer arresting people for simple drug possession in Washington state. Will that last? Hard to say.
The law in question, RCW 69.50.4013, made mere possession of a controlled substance a felony punishable by up to five years in prison—even without proof the person knowingly possessed the drug.
In yesterday’s ruling, a majority of justices concluded that the law “exceeds the state’s police power” and is unconstitutional.
Reaction to the ruling was swift. Within hours, the Seattle Police Department announced that its officers would no longer arrest people solely under the simple possession law. The Washington Association of Sheriffs & Police Chiefs sent out an advisory stating that “effective immediately, Washington law enforcement officers are no longer authorized to conduct a criminal investigation, effect an arrest, seek a search warrant, or take any other law enforcement action for simple possession of controlled substances.”
Are all drugs now legal in Washington state? The answer appears to be yes, at least right now.
You have questions. We have answers. Here are the most pressing mysteries that have come out of yesterday’s ruling, answered. Note: This should not be considered professional legal advice.
Can I buy the RV and go full-on ‘Breaking Bad’?
Slow your roll there, Walter. The court’s ruling applies only to simple possession, not sales, distribution, criminal conspiracy, or any of the myriad activities that can get a person into trouble with the law when it comes to non-legal drugs. If a cop finds you cooking meth in a beater Winnebago in the desert, you will be arrested and prosecuted.
So, seriously: I can’t be arrested for drug possession?
Cops can arrest you for just about anything, as anybody who participated in a protest this past year can tell you. But in Washington state, law enforcement officials have largely suspended all simple drug possession arrests as a result of the state Supreme Court ruling.
Is this like Oregon’s all-drug decriminalization law?
Not exactly. But it does offer the state Legislature a unique opportunity to enact Oregon-style drug decriminalization before citizens do it themselves via a statewide voter initiative. The ACLU of Washington advocated for a proposed drug decrim citizen initiative last year, but the effort fell short due to pandemic restrictions on signature collections.
Theshia Naidoo, head of legal affairs for the Drug Policy Alliance, noted that there’s already a statewide all-drug decrim bill under serious consideration by legislators in Olympia:
This decision is a perfect dovetail to the drug decriminalization bill moving through the legislature, which has already passed out of committee. We urge legislators to immediately consider this bill and the benefits it would bring, including expanded health, harm reduction and recovery services, rather than re-enacting the harmful criminal penalties of the past that have resulted in extreme racial disparities, record drug overdoses, and countless lives ruined.
Will people incarcerated for simple drug possession be set free?
In theory everyone who’s incarcerated for an activity that is no longer a crime should be immediately set free. As we’ve seen with cannabis legalization, does that happen? Hell no. That said, everyone currently incarcerated for simple drug possession in Washington state should immediately contact a lawyer and get themselves sprung. I realize many incarcerated persons may not have the means to hire a lawyer; keep your eyes and ears open to see which local legal aid groups get up and running on this issue.
How are cops responding to this?
The best information we have so far comes from Seattle Times reporter David Kroman, who tweeted this screenshot of the guidance Washington Association of Sheriffs & Police Chiefs sent their members:
How are cops elsewhere responding?
By mocking the ruling. Here’s a reaction from the National Fraternal Order of Police:
Is this a permanent change in the law?
Nothing in life is permanent. The court’s ruling has sent paper flying in Olympia, where state legislators are scrambling to figure out how to respond. It’s unclear whether legislators can or will create a legal patch over the part of the original law the justices found unconstitutional, or whether they’ll rewrite the law entirely, let the ruling stand and allow the law to dissolve, or take this as an opportunity to rethink criminal drug possession laws altogether.
Would a legislative patch put people back in jail?
Only those who break the law after the new legal language is adopted by the Legislature can be arrested and prosecuted. Those who are freed or have their cases dropped because of yesterday’s state Supreme Court ruling can’t be re-arrested and re-incarcerated for their past offense if a new law is adopted.
How did this ruling come about?
The ruling came out of a 2016 case in Spokane. That year, police executed a search warrant seeking evidence of stolen vehicles. While executing that warrant, they arrested three people including a woman named Shannon Blake. While being processed at the local jail, officials claim to have discovered a small baggie of meth in Blake’s jeans pocket. She was charged with felony drug possession.
During her trial, Blake claimed she did not know the meth was in her possession. She said a friend bought the jeans secondhand and gave them to her two days before Blake’s arrest. She said she had never used meth and didn’t know the drugs were in her pocket. (As it happens, earlier this week the Seattle Times broke a story about a woman who bought a crochet kit at a local Goodwill store and discovered a package of cocaine inside. So this defense is not as far-fetched as it might seem.)
As the Washington state law was written, Blake’s conscious intent to possess the meth didn’t matter. She had it in her possession, was prosecuted, and went to jail.
Fast-forward through five years of legal appeals. “The key limit at issue here,” a majority of justices ruled on Thursday, is that due process protections “generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.”
Conclusion: The court ruled that “Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers.” That particular drug possession law is now void.
