Clark County criminal justice and law enforcement officials are managing the impacts of a recent Washington Supreme Court ruling that found the state’s felony drug possession law to be unconstitutional.
Meanwhile, they’re contemplating what the change means for policing and people suffering from substance addiction.
With the new ruling on drug possession, Vancouver police officers and Clark County sheriff’s deputies are no longer taking enforcement action for simple possession of controlled substances, officials said.
Investigations are continuing into cases of drug possession with the intent to deliver, Vancouver Police Department spokeswoman Kim Kapp said.
Clark County sheriff’s Sgt. Brent Waddell said in an email that the agency is working with the Clark County Prosecuting Attorney’s Office on what, if anything, happens next.
The ruling in State v. Shannon B. Blake was issued Feb. 25. The case involved a Spokane woman who said she had received a pair of jeans from a friend that had a small bag of methamphetamine in a pocket. Blake argued she unwittingly possessed the drugs.
The woman was found guilty of possession after a trial because the law did not require prosecutors to prove that someone knowingly or intentionally possessed drugs. This facet of the law was referred to as strict liability.
“(The law) makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine. … Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the Legislature’s police power? 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,” the opinion reads.
Many cases to be dismissed
Five state justices sided with the majority opinion, which says Washington is the only state with such a law.
Sociologist Clay Mosher, who analyzes crime trends and teaches criminology at Washington State University Vancouver, noted that the justices’ opinion makes explicit reference to social and racial justice issues, and the collateral consequences of drug convictions.
The opinion says the law “has affected thousands upon thousands of lives, and its impact has hit young men of color especially hard.”
“The bottom line for me, if this decision sticks … it is going to have a significant impact. The (American Civil Liberties Union) notes that between 2015 and 2019, there were more than 60,000 arrests for ‘low-level drug possession and drug equipment violations’ in the state. That is obviously a significant number of arrests,” Mosher said.
Clark County Prosecutor Tony Golik said there is a large number of cases that will be dismissed due to the ruling, and other defendants’ “offender scores” — a calculation of their risk to re-offend based on criminal history, which affects sentencing ranges — will need to be adjusted.
Local prosecutors are analyzing cases and working on the issue, Golik said, who is operating under the assumption that the court will not reconsider its ruling.
It’s unclear exactly how many people in jail or prison will be affected. Golik said he suspects many convictions will be vacated. Pending possession cases will be dismissed if the person is charged solely with that alleged crime; sentences for cases involving additional charges will be recalculated, he said.
“Other cases where there were plea bargains are unclear and may require litigation. How this all plays out is squarely before the Legislature. It’s hard to predict what the outcome will be,” Golik said.
State lawmakers can clarify or rewrite the law, but the deadline has passed in the legislative session to introduce new bills. Additionally, local jurisdictions can’t enact their own changes and charging guidelines.
Sen. Jamie Pedersen, D-Seattle, who chairs the Senate Law and Justice Committee, said the ruling came as a surprise to the Legislature. It is unlikely lawmakers will address it this session, he said.
“Some people want to see a fix while others are expressing the belief that this is another sign the war on drugs has been a failure. We’re actively asking questions about how to address it. I believe there is building support for the idea that it’d be helpful to establish clearer laws for what is considered personal use,” Pedersen said.
Oregon voters passed by a wide margin Ballot Measure 110 in November, which decriminalized the possession of small amounts of certain drugs.
Last month, the Washington House Public Safety Committee voted to approve the Pathways to Recovery Act, HB 1499, which would remove penalties for “personal use” amounts of illegal substances and expand outreach and recovery services, Pedersen said. The bill was moved to the House’s Appropriation Committee on Feb. 15.
“Regardless of how the ruling is addressed, we cannot go back to where we were,” the senator said.
‘An opportunity to change’
Moving forward without addressing the ruling is proving to be a big undertaking for not only prosecutors but also for the county’s drug courts and defense attorneys.
Christie Emrich, who leads Vancouver Defenders, the largest criminal defense firm in Southwest Washington, said attorneys there are in the process of reviewing cases for dismissal. It’s no small task, she said, but a move in the right direction.
“I think the trend nationally is to turn away from criminalization. This is an opportunity to change moving forward,” Emrich said.
Shauna McCloskey, the coordinator for Clark County Superior Court Therapeutic Specialty Courts, said she is concerned about the ruling’s effect on people in the midst of substance use disorders. They are already in a vulnerable position to be at risk of overdose, health complications, homelessness and impulsive behaviors leading into the justice system, and more, she said.
“Seeing many participants already struggling due to the ongoing isolation and economic impacts of the COVID-19 pandemic, this ruling will allow many participants to be immediately discharged from the program (current assessment is approximately 20 percent of Drug Court case load),” McCloskey said in an email.
These discharged participants will lose their intensive case management and quick access to an array of recovery support services that are critical for success, the coordinator said. At the same time, the ruling may help people overcome many barriers that stem from a felony conviction, such as troubles with housing, employment and education, McCloskey said.
Drug court officials and community partners are offering to help transition any participants dismissed from the program with resources; they’re also exploring ways to continue to offer the enhanced support, services and structure that treatment courts provide and are so effective, she said.