Q & A: The Blake Decision

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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 meant there was no state law making simple possession of drugs a crime unless the legislature recriminalized it, which it has now done via passage of ESB 5476. However, the criminal changes, making possession crimes misdemeanors with mandatory diversion to services for at least the first two occasions, are only in effect until July 1, 2023. This means the policy landscape for this issue is unsettled.

The sweeping ruling and legislative changes raise 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 was the statute unconstitutional?

The court ruled that the statute violated the due process clause of the constitution. Without any mental state requirement, the law criminalized “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 previously charged and convicted under the drug possession statute RCW 69.50.4013(1) as it existed before the court ruling.

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

People with pending charges were released from jails and their charges dismissed throughout the state. Others awaiting sentencing hearings should have had their sentencing scores recalculated.

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. How did the legislature respond to Blake? What is ESB 5476?

Several bills were introduced to amend the unconstitutional statute with technical “fixes” that would have recriminalized possession. Others called for decriminalization and investment in public health approaches.  
Ultimately, lawmakers passed  ESB 5476, which is a complex piece of legislation. In brief, it recriminalizes drug possession, although makes it a misdemeanor instead of a felony. Additionally, before someone can be charged with a crime, they must be diverted to services at least twice. These changes to the law will only be in effect until July 1, 2023 unless the legislature or voters change the law again. This is accomplished via a procedure called a sunset clause. If the law is not changed, simple drug possession for controlled substances would become non-criminal again in July 2023 as a result of the Blake decision. Possession of drug paraphernalia is decriminalized with no sunset provision. ESB 5476 also provides new funding for services and diversion. It tasks the Washington State Health Care Authority with convening an advisory committee and creating rules for a “plan” on how to provide services to people with substance use disorders. This page will be updated with information about implementation of ESB 5476.
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 reviewed the motion and denied changing the outcome of the case, which means Blake will not be overturned. However, with the passage of ESB 5476, the legislature has effectively changed the law that was at issue in Blake. Drug possession is once again a crime in Washington.

Q. Does this mean all drugs are legal now?

No. Now that ESB 5476 has passed, drug possession is recriminalized in Washington. Simple possession is a misdemeanor, although a person must be offered diversion to services at least twice before they can be prosecuted.

In addition, federal law criminalizes possession of controlled substances.  

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

Possibly. In the absence of a clear 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?

Now that ESB 5476 has recriminalized possession as a misdemeanor, Washington rejoins the other states in criminalization, which is most of them. However, in 2020, 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 and record expunged?

Under current procedures, a court process is usually required to have a criminal record vacated and record cleared (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. For example, ESB 5476 will permit court commissioners to preside over vacate hearings. Certain counties have also provided information online:  Benton, Franklin, Lewis, Pierce, Whatcom, Whitman. As the process becomes clearer, 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 specific process in place yet, but some money was set aside in in the state’s budget for this purpose.

Additionally, 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.