Thurston County officials are working to dismiss hundreds of drug possession charges following a Feb. 25 landmark ruling by the Washington state Supreme Court.
Five out of nine state justices found the state's felony drug possession law unconstitutional because it criminalized passive, unknowing conduct. The ruling effectively requires prosecutors to drop pending cases and vacate sentences for simple drug possession — a colossal task that affects decades of cases.
Given the number of cases, Prosecuting Attorney John Tunheim said it will likely take a considerable amount of time to address them all. Tunheim said his office is approaching the task in phases and in collaboration with the county's office of Public Defense.
"We may not get every case dealt with or identified for quite some time and that's why we're doing this in a priority way, trying to make sure that anybody who needs to get out of jail gets out of jail and then kind of work our way from there," Tunheim told The Olympian. "I want people to understand that this doesn't happen overnight. It's going to be months of work ahead of us."
Director of Public Defense Patrick O'Connor said the impact of the ruling is far reaching and changes the landscape of criminal justice in the state of Washington. He said his office is actively identifying affected cases and aiming to help people remove these convictions from their records.
"We're very excited about this ruling," he said. "It has such a large impact on current and former clients that we're taking a phased approach to unpacking the impact of this decision."
Following the ruling, Tunheim said his office immediately dismissed two pending cases that just included charges for unlawful possession of a controlled substance (UPCS).
"We immediately wanted to make sure people weren't sitting in jail on that charge, so we dismissed those two cases and got those people out of custody," Tunheim said. "We've started to now try to identify the next stages."
In a different time, this decision may have led to more people being released from custody, but the COVID-19 pandemic has limited what cases lead to charges. Tunheim said low-priority cases involving simple drug possession have not been processed by the courts to the same extent as before.
"I do have a lot of referrals from law enforcement that we hadn't yet made a charging decision on because we couldn't charge it during the COVID-19 time," Tunheim said. "Those will now just go back to law enforcement with no charges filed."
Likewise, the county jail has limited who can be booked and held over the past year due to the pandemic, said Christy Peters, chief of staff at the prosecuting attorney's office.
While dismissing referrals and pending cases may be simple, addressing outstanding warrants is proving a more difficult task. Peters said they are working to address nearly 500 warrants that include the simple possession charge.
"Unfortunately, our system is such that we have to go into each case individually because all that we can pull up is a chart that says one of the charges on this warrant is UPCS (unlawful possession of a controlled substance)."
If UPCS is the most serious charge on a warrant, then such a warrant would be quashed outright, she said. However, if there are other serious charges on the warrant, such as first-degree robbery, for example, then it would still be outstanding.
People who have been sentenced
Tunheim said the next step is to address cases where people have been sentenced on a UPCS charge. If a person was just convicted on a simple possession charge, then that sentence can be vacated, but things get more complicated for people with multiple charges.
He said they will have to identify cases where somebody is incarcerated on a different charge but any of their charges was simple drug possession or they had a prior possession conviction.
Such people will need to be resentenced because eliminating the simple possession charge would change their offender score, a tool used in Washington state to determine the sentencing range for people who have been convicted of a crime.
"If that score was inflated by the fact that there was a possession conviction or convictions, that means their range actually changes," Tunheim said. "Now, we'll have to go back and resentence them in the adjusted range."
O'Connor said he has asked the Department of Corrections to produce a list of everyone who's currently under sentence for a Thurston County case. He has an internal task force that will review each of those cases.
"I don't have the numbers yet but that's going to affect a lot of individuals that are currently under sentence," O'Connor said.
People with prior convictions
Lastly, Tunheim said they will have to help people with prior convictions for drug possession who have already served their sentence. He said his office is hoping to create an administrative process where they can remove those convictions from people's record on their behalf.
"If we get the information and there's no argument about it, it's got to be vacated," Tunheim said. "We want to try to be able to do that without having to bring the person back to court. We can just enter an order on their behalf ... and then it goes off their record."
O'Connor said his office aims to help anybody who's ever been convicted of UPCS in Thurston County. To that end, the public defender's office is working with the Superior Court clerk's office to gather data on everyone who's ever been convicted.
O'Connor said his office already has been contacted by a lot of people seeking help.
"I've already taken, personally, a handful of phone calls from former clients that are in tears and are really excited that they can have this opportunity to have that conviction off their record so they can move on with their lives," he said.
Anyone who has a prior conviction for unlawful possession of a controlled substance in Thurston County is encouraged to contact the office of public defense at 360-754-4897 or email firstname.lastname@example.org with the subject line "VACATE MY CONVICTION."
Impact on Superior Court
Thurston County Superior Court will have to manage a significant caseload as a consequence of this ruling, said Judge Erik Price during a Thursday meeting with the board of county commissioners.
"We are going to have to, at some point, address how to deal with the volume of the resentencing and potential other issues that will come up," Price said.
Price said many criminal justice organizations across the state are working to find ways to systematically address the problem, but it's still too early to tell how it will work out. The influx of cases will come as the court is already dealing with an unprecedented backlog of jury trials that has grown over the past year due to the pandemic.
Price said he thinks the decision will lead to thousands of resentencing hearings, which typically occur in person. One option would be to organize remote hearings that allow incarcerated persons to remain where they are, he said.
"The last thing you want to do, especially in a pandemic, is to have the Department of Corrections launching thousands of inmates from their correctional facilities back to superior courts and the 39 different counties for a contested resentencing within a different range," he said.
There is also concern this ruling may impact people taking part in the Thurston County Drug Court program, a court-supervised alternative to jail.
O'Conner said anyone in drug court due to a simple drug possession charge could now walk away from the program before completing it.
Right now, there are about 11 people in drug court with a simple drug possession charge, Tunheim said. However, most people in drug court are there on more than just that charge, Price said Thursday.
"If they actually want to stay in drug court and finish their treatment, we're going to try to find a way to make that happen because it doesn't make sense for us to, you know, boot people out of drug court when they're halfway or better in their treatment," Tunheim said.
It's still a crime to use drug paraphernalia, Tunheim said, so that may be a way someone could remain in the program. He added it's really up to the creativity of the lawyers to come to an agreement.
"For us, it's not really about what they get convicted of," Tunheim said. "It's about trying to keep them in the program and get them through graduation."