FILE - In this Sept. 7, 2016, file photo, Justices on the Washington state Supreme Court listen during a hearing in Olympia, Wash. Political groups are engaging in a high-stakes battle for institutions that were once considered above politics: state supreme courts. Both liberal and conservative groups now view control of the high courts as essential to either defending or thwarting state laws. (AP Photo/Ted S. Warren, File)

Region’s law enforcement agencies stop arresting for drug possession

State Supreme Court rules 5-4 that drug possession arrests are unconstitutional

By Mike De Felice

Special to the Bainbridge Island Review

The Kitsap County Sheriff’s Office and other local police departments have stopped arresting people for possessing narcotics for personal use, regardless of whether the drugs are meth, cocaine or heroin.

The change comes after the state Supreme Court ruled that Washington’s law outlawing the possession of drugs is unconstitutional.

“We have been given instructions from the prosecutor’s office, based on their understanding of this ruling, to stop arrests or issuing citations for simple possession of drugs,” sheriff’s spokesman Sgt. Ken Dickinson said.

On Bainbridge Island, Police Chief Joe Clark said his department only had two such crimes in the past year, but the high court’s decision caught him by surprise.

“I don’t think anybody foresaw this kind of ruling,” he said. “It essentially invalidated the law on possession of controlled substances. From a personal perspective, I don’t know if legalizing, particularly these more serious-controlled substances, … if that’s in the best interest of folks. They’re highly addictive in some cases.”

Clark said he understands the overall attitude on drugs is changing, but is concerned about drug court programs at the county level going away.

“The entry to that treatment program is through a charge of simple possession,” he said. “My concern is that folks who are in that program or ultimately willing to participate in that program for addiction, that program might go away. That would be our biggest concern.”

Going forward, Clark said BIPD won’t be arresting or charging anybody for possessing drugs unless there’s evidence of distribution, stating, “There’s no law that prevents someone from possessing small amounts of narcotics, so we do nothing.”

In terms of seizing potential contraband, Clark said he’s heard different opinions on whether drugs can be seized.

“That’s something we’re working through with the prosecutor’s office and with the city attorney as well to see what the appropriate approach is,” he said.

Last week’s decision also spurred the county prosecutor’s office into action.

“We made it a priority to determine whether there were people in custody or had outstanding bench warrants that could be affected by the decision,” said Ione George, chief of staff for the prosecutor’s office.

On initial review, the ruling impacts approximately 620 counts of drug possession under the prosecutor’s purview, George said.

The change comes after the state Supreme Court ruled last week that Washington’s law outlawing the possession of drugs is unconstitutional.

“We have been given instructions from the prosecutor’s office, based on their understanding of this ruling, to stop arrests or issuing citations for simple possession of drugs,” sheriff’s spokesman Sgt. Ken Dickinson said.

The ruling that has caused an upheaval at law enforcement agencies statewide was made Feb. 25 in a 5-4 ruling.

The case involved a Spokane woman, Shannon Blake, who was arrested on an unrelated charge. At the jail, a corrections officer discovered a small amount of methamphetamine in a pocket of the jeans she was wearing. The state charged her with possession of a controlled substance, classified as simple possession.

Blake fought the charge in court and testified in a judge trial that the jeans were given to her by a friend and that she did not know they had drugs in the pocket. But the judge found her guilty.

The statute stated, “It is unlawful for any person to possess a controlled substance …” The law is considered a “strict liability” crime since the state does need not prove any intent. In this case, it was enough to charge Blake when she simply wore the jeans.

The majority of the court ruled the drug possession law violated due process since it “criminalized wholly innocent and passive nonconduct on a strict liability basis” and added, “… In this case, the State did not prove that Blake did anything except wear the jeans that had pockets.”

Justice Sheryl McCloud wrote in the majority decision: “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 exceed the legislature’s powers.”

The court Blake’s conviction. Washington was the only state in the country that did not require a person to knowingly possess drugs to be found guilty of the offense, the court pointed out.

The county’s chief public defender, Steven Lewis, said his office is also attempting to determine the number of clients impacted by the decision “to get them released by the end of the day.”

“There was a defendant who was scheduled to change his plea to guilty and be sentenced to a drug possession that very morning. We obviously changed direction and he ended up being released,” Lewis said, adding he was shocked by the court’s ruling “in a good way.”

Felony attorneys at the public defenders’ office are facing a backlog of cases due to the pandemic preventing cases from going to trial. “This was an unexpected grant of our wish, with the Supreme Court suddenly getting rid of about a fifth of our caseload,” Lewis said.

The ruling also will have ramifications in drug court. “This will impact those in therapeutic treatment courts because a lot of those people are in those courts for drug possession. Some of those people will have their cases dismissed so they may no longer be in treatment court,” Lewis said. “My understanding is they are being given the option as to whether or not they want to stay in treatment court or not.”

Another consequence of the decision is that felony defendants sentenced for other crimes may have their sentences reduced.

“If someone is charged with stealing a car, and they have six prior drug convictions, those are no longer going to count against them. So, they will be facing a lighter sentence,” he said.

It is possible that state lawmakers may move to rewrite the unconstitutional law, though this legislative session is nearing its close.

Top police officials like Dickinson are hoping the Legislature will move to fix the law.

But Lewis hopes the state will start treating drug issues as a medical problem and not a problem to be incarcerated over.

“Locking them up or fining them, most people would agree, has not worked. We have been fighting the war on drugs since before I was born, and it’s been a failure. Maybe it’s time for another approach.”

Tyler Shuey of the Bainbridge Island Review contributed to this report.

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