The Washington state Supreme Court surprised many — including police officers, lawyers and prisoners — when justices recently ruled the state’s law criminalizing possession of drugs was unconstitutional.
The ruling means officers can now only pull someone over or search them on the street if they’re credibly suspected of more severe drug violations, like intent to distribute. But the high court ruling means those same officers can no longer target someone on mere suspicion of having illicit substances on them.
Local defense attorneys cheered the ruling, at least at the LaCross and Murphy firm. David LaCross is a defense attorney there specializing in criminal cases. The decision created instant, seismic shifts across the legal profession, but, he says, how those changes will play out is “all up in the air.”
“So the Supreme Court says that possession charges are unconstitutional, so now people that are potentially serving sentences in prison based on unconstitutional prior conviction are going to have the ability to come back and be resentenced. I don’t know how that’s going to be played out,” LaCross tells The News Station. “Is everyone going to be brought back into court? Is the court going to develop some system to have it done via zoom? We really don’t know. We’re all waiting to see what’s going to happen.”
The hitch the justices focused on to strike down the law was specific to Washington state’s statute: There was no clause on the books that required knowledge of possession. In layman terms, that meant if someone was caught possessing drugs in Washington, even if they truly didn’t know they had them, they could get arrested on felony charges. No longer.
Every other state requires knowledge of possession in order to bring charges.
While the state’s Supreme Court struck down the law, they don’t have the subsequent powers to fix it. If the state wants to reinstitute criminalization, the legislature will have to address it.
Those discussions are already happening, Washington state Rep. Tarra Simmons (D) tells The News Station. In 2011 she was sentenced to 30 months in prison on criminal charges, including felony drug possession — the very one now stricken from the state’s books.
She says the legislature needs to figure out if they want to somehow fix the law by adding a knowledge of possession clause and then reinstating the statute that’s been tossed out. Or they may decide to keep it squashed.
“That’s the question we are wrestling with right now. I can’t say what we’re going to do,” Simmons says. “It also gives us time to stop and pause and look at what Oregon did last year with the ballot measure, and should we return to business as usual or actually treat a public health issue with public health responses?”
Simmons may be an elected official these days, but, like millions of other Americans, her criminal record follows her around and keeps her from feeling like a full member of society.
“I still cannot to this day go on a field trip with my children because of my criminal record,” Simmons — whose sentence would have been different if the state Supreme Court struck down the law prior to her conviction — says.
“That’s what really hurts, is that I lost time with my child — both my kids were 8 and 18 when I went to prison. My sentencing range would have been 12-20 months, rather than 20-40 months”Rep. Tarra Simmons
Simmons is glad the court’s action is expected to keep thousands of others from suffering the same fate. The Seattle Police Department confirmed, in a brief statement, that its officers would no longer arrest people for mere possession.
King County’s Prosecuting Attorney Dan Satterberg, a Republican, expressed support for the ruling.
“We know that treatment is the answer to substance use disorder and the overdose crisis we face today,” Satterberg released in a statement. “The court system is not set up to help individuals caught with tiny amounts of drugs. It certainly is not a conduit to treatment as we currently structure and fund it.”
His office hasn’t prosecuted anyone in possession of small amounts of drugs since 2018, Satterberg added.
Prior to the ruling, the state had already begun moving toward decriminalizing drugs, with a bill making its way through the legislature that would strip any penalties away from possession.
In mid-February Satterberg took a Splenda packet and held it up in front of lawmakers while testifying in support of that bill — the size of which he said was comparable to the amount of drugs many addicts need to consume to merely survive. That little packet of non-sugar is roughly equivalent to what Oregon voters set as the amount of legal drugs that can be possessed without warranting an arrest in a measure that took effect earlier this year.
“So the important question you should ask your prosecutor is ‘what really happens in our court system when you prosecute someone for a tiny amount of drugs?’ And the answer is, not very much — it is not going to be the answer to substance use disorder or the overdose crisis,” Satterberg testified.
But the Washington state Supreme Court’s ruling bypassed those slower-moving strides, which to many came out of the blue. Though it doesn’t address addiction, which proponents of the drug decriminalization proposal winding through the legislature hope to address this year.
“We must stop criminalizing symptoms of a treatable brain disease,” Washington state Democratic Rep. Lauren Davis, who introduced the decriminalization bill, emailed The News Station. “Today’s decision does that. But that alone is insufficient. It is equally important that we build out a response to substance use disorder that truly works—a robust and fully funded continuum of care ranging from outreach to treatment to recovery support services.”
The state Supreme Court’s ruling follows closely on the heels of Oregon’s ballot measure decriminalizing possession of small amounts of hard drugs, which took effect just last month. In lieu of arrest, Oregonians who are found in possession of illicit drugs now get slapped with a $100 fee. They can waive that fee by taking an addiction assessment at a health center.
Over the past several years a cascade of measures pushed by lawmakers and citizens — and not just on the more liberal and relaxed West Coast — reveal a sea change in how the country is dealing with addiction: A shift towards treatment, rather than punishment.
That these legislative shifts are happening, Matt Sutton of the Drug Policy Alliance told The News Station last month, represents a “wider change in public perception, that everywhere were there were drug policies on the ballot, they won, and most of them overwhelmingly,” adding that decriminalization is now “politically viable.”
As courts, lawyers and members of the state legislature scramble to figure out how to proceed after the abrupt ruling, one of the biggest lingering questions is how this ruling will affect people in jail on multiple felony charges based on a simple drug possession charge.
There will be thousands of cases that must be retroactively looked at where possession charges were involved, according to Patrick O’Connor, Director of the Thurston County Public Defense in Olympia, Washington.
“The significance is quite overwhelming and really fundamentally changes the landscape of criminal justice in Washington,” O’Connor tells The News Station. “We’re in the process of reviewing any and all cases of former clients or current clients”.
The first priority will be reviewing cases that are currently pending, O’Connor says. Second, they’ll look at those currently serving time for possession charges — both individuals where possession is the sole charge, along with those where possession led to other charges. From there the state will examine the records of former inmates who could potentially get possession charges wiped clean from their records.
It’s not as easy as it sounds to us non-lawyers.
“We haven’t unpacked that quite yet. It’s very specific on each case whether or not there could be arguments or motions filed on behalf of the client if another criminal charge was a result of an arrest or search or seizure whatever led to some additional charges,” O’Connor says, “But if the original base was possession there could be potential arguments, depending on the case, that may affect other charges that a client was charged with.”
Rep. Simmons, the one who was sentenced on possession charges, says individual counties across the state will have to determine how to prioritize their own cases.
“It’s the counties that have to respond to that,” Simmons says. “I’ve heard from different prosecutors who are saying they’re trying to analyze the data still, but want to resentence people first who, if resentenced, could mean freedom.”
In recent years naysayers of similar rulings across a smattering of cities and, most recently in Oregon, argued the court system is a valuable way to connect those suffering from addiction to treatment and recovery resources.
For some, drug courts offer the needed resources to help them get clean and assist in their battle to avoid relapsing — vital services they wouldn’t otherwise receive. But even if those people want to stay in drug court, O’Connor says, they won’t be able to. While it’s a valid concern that it may take away a route to treatment for some, he says extricating the court system from the issue of addiction is the goal.
“I think the war on drugs has been an unbelievable waste of resources from the very beginning,” O’Connor says.
As the local justice system scrambles to figure out all the paperwork coming down the pike on both current and former individuals already trapped in the web of the courts, thousands of Americans — wives, husbands, brothers, daughters, moms, dads, grandparents and friends — await to see how the ruling affects their current or prior convictions, along with those of loved ones.
“If it was an arrest that led to something else based on finding drugs originally, does that knock out all the other possible charges? If someone is stopped for drugs, they search the car and find guns, then they plead, does that mean that none of the evidence can come in?” LaCross — of the LaCross and Murphy firm — asks. “Root of the poisonous tree, right?”