Q & A: The Blake Decision

On February 25, 2021, the Washington Supreme Court struck down the state’s main drug possession crime in a case called State v. Blake. The ruling means there is currently no state law making simple possession of drugs a crime. It provides an opportunity for Washington to adopt a new approach to substance use disorder based on solutions that heal rather than continuing to inflict harm on people and communities.

The sweeping ruling raises many questions, not all of which can be immediately answered. This page will be updated regularly to reflect new developments related to the Blake decision.

Q. What is the Blake decision?

On Feb. 25, 2021, the Washington Supreme Court issued a decision declaring the state’s main drug possession statute RCW 69.50.4013(1) unconstitutional and “void.” The ruling occurred in a case known as State v. Blake. In 2016, Shannon Blake was arrested in Spokane and convicted of simple drug possession. Blake argued that she did not know there was a baggie of methamphetamine in the jeans she had received from a friend.

Q. Why is the statute unconstitutional?

The court ruled that the statute violates the due process clause of the constitution. Without any mental state requirement, the law criminalizes “unknowing” drug possession and people could be arrested and convicted even if they did not realize they had drugs in their possession. The majority concluded, “The legislature’s police power goes far, but not that far.”

Q. Who does it impact?

The decision directly impacts anyone charged and convicted under the drug possession statute RCW 69.50.4013(1), including some 9,000 people who are arrested for drug possession in Washington every year and possibly the many who have been convicted of simple possession previously.

More broadly, the ruling presents an opportunity for the entire state. With this landmark decision, Washington can adopt a new approach to substance use disorder that prioritizes health and support services over arrest and incarceration. Blake could mark the beginning of the end of the racist and devastating war on drugs, which is really a war on people.  

Q. What will happen right away as a result of the Blake decision?

People with pending charges have already been released from jails and their charges dismissed throughout the state. Others awaiting sentencing hearings have had their sentencing scores recalculated. Law enforcement officers can no longer arrest people based on a simple drug possession charge alone.

Q. What about in the long term? Will the decision be retroactively applied?

The long-term implications remain somewhat unclear, but the decision could — we hope — invalidate past convictions for this offense because the court said the statute was unconstitutional. Other possibilities include vacating convictions for people with previous convictions, and refunds for any fines and fees paid in association with their convictions. As more information becomes available, we will update this page.

Q. What won’t change?

Simple drug possession is no longer illegal under state law, but other statutes that criminalize substance use disorders are still on the books in Washington, including possession of drug paraphernalia – RCW 69.50.412.

Q. What is HB 1499?

The Pathways to Recovery Act (HB 1499) would replace arrest and incarceration for personal use drug possession with a public health solution to a public health crisis by expanding treatment and support services for substance use disorder.

HB 1499 died in committee and is no longer viable for the current legislative session, but lawmakers could reintroduce the bill in some form in 2022.

Q. How does Blake impact HB 1499?

There is no direct impact, but lawmakers could adopt elements of HB 1499, especially the bill’s focus on providing recovery services and treatment for people with substance use disorder.

Q. How are legislators responding to Blake?

Many legislators are paying close attention to the implications of the decision. Two bills have already been introduced to amend the unconstitutional statute with technical “fixes” that would recriminalize possession — SB 5468 and SB 5471. A rush to reverse Blake and reestablish felony drug possession disregards the failures of a decades-long war on drugs that disproportionately harms communities of color.

Other lawmakers are considering alternative responses, including new investments in providing public health services to people with substance use disorder.

Q. Could the Blake decision be overturned?
On March 17, 2021 a motion for reconsideration was filed by the Spokane County Prosecutor, asking the court to change its decision. The court will review the motion and decide whether to change its ruling or not. This page will be updated with that decision.

Q. The Blake decision applies to unwitting possession, so will someone who knows they possessed drugs still be prosecuted?

No. The Blake ruling found 69.50.4013(1) unconstitutional in its entirety. There is currently no state law that prohibits simple possession of a controlled substance — knowingly or unknowingly.

Q. Does this mean all drugs are legal now?

No. Federal law criminalizes possession of controlled substances. In addition, although Washington’s main possession crime is now invalid, it is still a crime to possess drug paraphernalia and to possess controlled substances with the intent to distribute.

Q. Can a local government pass its own criminal drug possession laws?

Possibly. In the absence of a state drug possession statute, cities and counties could attempt to adopt their own laws that criminalize possession. But the Legislature also has clear authority to pass legislation that clarifies state laws related to substance use disorders, which local governments would have to follow.

Q. How does Washington’s law compare to other states’ laws?

In most states, drug possession remains a crime, although not always a felony. Last year, Oregon votes approved Measure 110, which decriminalizes personal drug use and emphasizes treatment for substance use disorder over arrest and incarceration.

Q. Will people currently receiving treatment or due to receive treatment through the criminal legal system lose access to these services?

This is unclear at the moment, but some drug court participants are no longer subject to court supervision and therefore could lose access to those services, since the underlying charges will be dismissed. However, efforts are being made to ensure that individuals who want services can access them through other non-criminal channels. Individuals impacted by this situation should reach out to the service providers they have been working with or contact the Washington Recovery Help Line.

Q. How can I get my sentence vacated?

Under current procedures, a court process is usually required to have a criminal record vacated (See here for more information). However, due to the number of people impacted by the Blake decision, it is possible that alternative procedures could be made available. If that happens, this page will be updated with that information. 

Q. Will a past possession charge be expunged automatically from my record?

Under current law, a court process will likely be required to vacate convictions and clear criminal records. If alternative procedures are made available, this page will be updated with that information.

Q. Will my court-ordered fines be reimbursed? What about any other related legal fees?

There is no process in place yet, but this is one of the many issues legislators and state officials are considering in the wake of the Blake decision.

Advocates are starting to file legal actions to help people with past legal financial obligations. For example, a recent lawsuit was filed for people with past convictions in King and Snohomish counties. Learn more about the case here.