Washington State Supreme Court
A divided Washington Supreme Court has struck down as unconstitutional a longstanding law that made it a felony to possess illegal drugs even if you didn’t know you had them.
The court used the 2016 arrest of a Spokane woman, Shannon Blake, to revisit Washington’s “strict-liability” drug possession law, which the Legislature adopted in the 1950s. The court has reviewed and upheld that law, often referred to as “simple possession,” at least twice since then. It concluded both times that the Legislature intended to make any illegal drug possession a felony, regardless of the suspect’s knowledge or intent.
On Thursday, a majority of the justices decided that the “strict-liability” standard is unconstitutional. They said the harsh penalties and stigma that come with a felony conviction violate due-process guarantees in instances where the individual’s possession of the drugs sprang from unintentional or “innocent, passive conduct.”
The court has never addressed the underlying constitutionality of the law, under which individuals who unwittingly found themselves in possession of illegal drugs could be convicted of a felony and sent to prison for up to five years.
The Legislature has also allowed the law to go unchanged, embracing prior Supreme Court decisions that the current court believes were wrong.
“Legislative acquiescence has locked our old interpretation [of the law] into that drug possession statute,” the majority wrote. “But that interpretation makes that statute criminalize innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess.”
“State legislatures have the police power to criminalize and punish much conduct,” but that power is limited by the due-process clauses of the state and federal constitutions, noted Justice Sheryl Gordon McCloud, writing for a five-member majority.
“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,” McCloud wrote.
McCloud was joined by Justices Mary Yu, Raquel Montoya-Lewis, G. Helen Whitener and Chief Justice Stephen Gonzalez.
In a dissent, Associate Chief Justice Charles Johnson argued that the state’s justices have long recognized that mere possession of illegal drugs is a crime, and that the issue of whether intent should be an element of the crime was a decision to be left to the Legislature. Johnson was joined by justices Susan Owens and Barbara Madsen.
Justice Debra Stephens concurred with the majority in throwing out the conviction of Blake and agreed that previous court decisions upholding strict-liability possession were off base. She argued, however, that the statute has an “implied” intent element that the majority has chosen to ignore. She declined to join the majority in finding the law unconstitutional.
The case involved the arrest of Blake on an unrelated theft charge in Spokane in 2016. After being taken into custody, police searched her and found a small bindle of methamphetamine in the coin pocket of her jeans, and charged her with felony drug possession under a law that was enacted in 1953.
Blake argued that the jeans had been bought secondhand by a friend who had given them to her just two days earlier. She offered a defense of “unwitting possession” during a bench trial, but it was rejected. The Court of Appeals upheld her conviction.
The majority joined McCloud in noting that Washington is the last state in the nation to enforce a statute “that continues to criminalize this innocent nonconduct.”
