Washington state finds itself in a changed environment regarding its drug laws because our state Supreme Court declared in 2021 the state’s drug law — making possession a crime — to be unconstitutional. We know it as the Blake Decision.
The state Supreme Court in their Blake Decision focused on several elements of state law, RCW 69.50.4013, which did not properly address “mens rea” or element of knowledge, intent, and the possibility of unwitting possession. The court’s decision identified that we were the only state in the nation that did not address these concerns in its law.
Their ruling meant that our state no longer had a law making simple possession of illegal drugs a crime. The state did, to a lesser degree, re-criminalized possession with the passage of ESB 5476.
The Legislature could have added the word “knowing” to the existing law to rectify the court’s concern. Instead the Legislature passed a new law making possession a misdemeanor, encouraging the prosecutor to divert cases for assessment, treatment, or other services, and a person may commit two possession offenses seemingly with no consequence. The law is basically moot because no level of citation and penalty was defined, making tracking and future prosecution of repeat offenses problematic.
This law is only in effect until July 1, 2023. This is creating pressure on our legislators to address the policy and legal landscape regarding issues of drug possession. Unfortunately legislation, legality, intervention, funding and services do not always line up in ways that make sense.
In the Blake case, an arrest for possession was made and prosecuted, which led to a conviction. The arrestee, Blake, claimed that the drugs police found were not hers, that she was not a drug user, and she had no knowledge of the drugs found in the pants she had borrowed. The case eventually came to the state Supreme Court on appeal, with their review leading to overturning the state’s law, and setting aside Blake’s conviction as well as many others in our state convicted of possession.
Our city, other municipalities and law enforcement entities are requesting that new legislation be passed to clarify when possession is a crime, along with amounts, intent, level of criminality — misdemeanor or felony — potential punishment or treatment options and funding for supporting resources, for however the law gets crafted. A lot of considerations to unpack in our relatively drug tolerant self-medicated society.
If the state chooses to not resolve this issue during this legislative term, then possession of small amounts of controlled substances will not be regulated. Doing nothing may not be a wise choice and the law that gets crafted, if any, needs to define possession of controlled substances, intent, knowledge, the mental state of the possessor, level of criminality, consequences, and funding for desired outcomes — treatment, incarceration or both.
Our goal should be to get drugs that are controlled substances off the street. We should also focus on getting drugs out of the hands of addicted users, which is why clarity and legal direction from our Legislature is needed. Our country is awash with drugs and people trying to self-medicate for a multitude of reasons, and sadly — addiction and death are often end results.
Should our Legislature choose the path of being punitive or helping the person by redirecting their behavior through treatment or supervision toward possibly a better outcome? Neither option is easy and both require their own infrastructure. Prisons are in place, treatment centers are full, both are underfunded relative to treatment or supervision, and outcomes are not clearly known.
Our city wants the Legislature to re-criminalize drugs for the public’s protection. Their request is for a lesser-degree of criminalization, preferring possession be addressed as a misdemeanor with treatment or supervision options required.
The Legislature could make the burden of the arrest as well as what follows a local issue managed by our municipal courts. The city’s preference would be for the violation to be managed within the jurisdiction of the state’s county courts for consistency. But whatever gets done and becomes law, it is in the hands of our legislators.
Treating possession as a misdemeanor benefits the individual by allowing them to avoid having a felony record and potential imprisonment as long as they have no prior convictions. The law set aside by the Blake Decision was a felony process with the potential of up to five years in prison and the possibility of hefty fines.
We have a cavalier attitude toward drugs and alcohol in our country. And if any of us are abusing any substance, controlled or not, we do not want it to be known or to be held accountable. Getting caught is an opportunity for personal improvement if supervision, education and treatment options are available, affordable, as well as accessible locally.
Drugs are big business in our society — legal and illegal. We will forever have the challenge of balancing as well as reconciling the choices we make, when our behaviors conflict with society’s desire to serve the needs of human safety and protection for the greater good first and personal attitudes second.
Keith Livingston is a retired municipal management professional, lifelong artist and Federal Way resident. He can be reached at email@example.com.