Washington Supreme Court rules state drug possession law unconstitutional after challenge by Spokane woman

A sharply divided Washington Supreme Court ruled the state’s drug possession law unconstitutional Thursday after a legal challenge by a Spokane woman.

The 5-4 decision is likely to prompt state legislators to rewrite the drug possession law. The majority found that the law improperly allowed a conviction even if the person prosecuted under the statute did not know they possessed drugs.

“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,” Justice Sheryl Gordon McCloud wrote in the majority opinion.

The case was brought on behalf of Shannon Blake, who was arrested at a Spokane home in October 2016 on suspicion of driving with a suspended license. Blake was wearing a pair of jeans lent by a friend, according to court testimony, and when she was booked into jail, staff found a small bag of methamphetamine in a pocket.

Though she argued the drugs were not hers and she had no drug convictions on her record, Blake was found guilty during a bench trial of the state’s felony drug possession law, which can carry a prison sentence of up to five years upon conviction and a $10,000 fine. She was sentenced to three days in jail with credit for time served and a year of probation.

All other state and federal drug possession statutes require that prosecutors show the person “knowingly and intentionally” had the drugs on their person, said Richard Lechich, a staff attorney for the nonprofit Washington Appellate Project that argued the case before the state Supreme Court last June.

The way the law was written “really made it easy for the state to prove, and really placed the burden on defendants to prove their innocence,” Lechich said. The burden of proof should be on the prosecution, and thus the way the law was written violated due process protections for criminal defendants in the state, opponents of the law argued.

The law under which people were prosecuted for felony possession of drugs was first codified as part of the state’s Uniform Controlled Substances Act, enacted in 1971.

Lechich said the ruling was retroactive, and that those convicted under the state’s felony drug possession statute could petition the courts for a restoration of the right to vote, own guns or receive certain government benefits as a result of the Supreme Court’s ruling. It is also likely that cases pending before the court will be thrown out based on the majority’s ruling.

Blake’s case was supported by the American Civil Liberties Union. The Washington Association of Prosecuting Attorneys argued against throwing out the law, saying it would create “substantial and unpredictable consequences.”

Three justices signed a dissent finding the Legislature should have the authority to pass a criminal law that enabled conviction without knowledge or intent of possessing drugs, and upholding Blake’s conviction. Justice Debra Stephens wrote a dissenting opinion finding that Blake’s conviction should be vacated, but saying the Legislature had not overstepped its constitutional authority to pass the law.

State Sen. Mike Padden, R-Spokane Valley, called the ruling “concerning” because of its potential implications on public safety.

“People feed their drug habits by a lot of other criminal activity,” said Padden, the ranking member on the Senate’s Law and Justice Committee.

The Legislature’s deadline for getting new bills out of committee has already passed, Padden said. Any changes to the state’s criminal statute to include language that would comply with the majority opinion would need to be taken up as an amendment to another bill, he said.

Padden said he’d heard concern from county prosecutors about the issue, including Spokane County Prosecuting Attorney Larry Haskell. Haskell could not immediately be reached for comment on the ruling Thursday.

Lechich said the ruling effectively renders any future prosecution in the state under the possession statute illegal until the Legislature can craft a fix.

The Supreme Court’s order vacates Blake’s felony conviction.