State Supreme Court strikes down criminalization of simple drug possession

In a landmark ruling on February 25, the Washington Supreme Court declared RCW 69.50.4013 to be unconstitutional. The decision will impact how cities approach policing and prosecuting drug-related crimes in their communities.

As currently written, RCW 69.50.4013 makes possession, including unwitting possession, of a controlled substance a felony. This changed with last week’s ruling in State v. Blake. The state’s Supreme Court found the current law unconstitutional because it does not require intent and it criminalizes a person’s passive, unknowing conduct in violation of their due process protections.

AWC urges cities to review the decision carefully and make changes to current city ordinances that apply to the simple possession of drugs in compliance with this ruling. Several law enforcement agencies throughout the state have already halted the practice of making arrests for suspected simple drug possession offenses.

The Washington Association of Prosecuting Attorneys provided a non-exhaustive list of actions cities should take in light of this decision:

1. Arrange for the immediate release of all pre-trial detainees whose only charged offenses are simple possession.
2. Obtain orders vacating the judgments of all persons in your jails who are currently only serving time on simple possession.
3. Recall all arrest warrants issued in cases in which the only charge is simple possession of drugs.
4. Either dismiss with prejudice all cases in which the only charge is simple possession of drugs or note a motion to file amended information that charges another crime.
5. Figure out what to do with drug court participants whose only underlying charge is simple possession of drugs.
6. Stop including simple possession convictions in offender scores.
7. Stop collecting any legal financial obligations in cases in which the only crimes of conviction were simple possession of drugs.
8. Prepare to deal with motions to vacate judgments by people in prison either on simple drug possession charges or who had simple possession convictions included in the calculation of their offender score.
9. Prepare to manage motions to vacate judgments by people who are out of prison and who have prior convictions for simple drug possession.

AWC expects more information on the impacts of this ruling will become available over the coming weeks. Please work with your city attorneys, law enforcement, and courts to determine how best to proceed.

SB 5468, sponsored by Sen. Mark Mullet, (D–Issaquah) and Sen. Steve Hobbs (D–Lake Stevens), amends the underlying statute impacted by the ruling. The bill adds the requirement that a person "knowingly” possess a controlled substance. Additionally, SB 5468 contains an emergency clause and would take effect immediately upon passage.