More than 150 Whatcom cases dismissed due to state Supreme Court drug possession ruling
More than 150 court cases have been dismissed in Whatcom County due to the Washington State Supreme Court striking down the state’s felony drug possession law in late February.
The state’s high court ruled Feb. 25 that the state’s felony drug possession law was unconstitutional because — unlike the laws of every other state — it did not require prosecutors to prove someone knowingly or intentionally possessed drugs.
Under the ruling, law enforcement agencies won’t be able to take enforcement action for people engaged in narcotics use or simple possession, according to Whatcom County Sheriff Bill Elfo. The ruling also limits investigative and diversion and treatment strategies, Elfo said in an earlier story in The Bellingham Herald.
As of Friday, March 5, 160 cases have been dismissed in Whatcom County Superior Court, Whatcom County Prosecuting Attorney Eric Richey said in an interview with The Herald.
Because the decision from the state Supreme Court makes the law unconstitutional, Richey said his office was required to dismiss the cases and to take action quickly.
Richey said he’s not sure how many cases in total will end up being impacted across the county due to the high court’s decision.
Six people have also been dismissed from Whatcom County’s drug court program due to the ruling, Richey said. While the program and participants have struggled due to the coronavirus pandemic, Richey said some of the people who have been dismissed from the program were making “great advancements toward treatment.”
These six people can no longer continue treatment because their court cases have been dismissed, he said. Before the six were removed from the program, there were roughly 28 participants, he said.
“I am interested in treatment over incarceration for people who are possessing small amounts of controlled substances, and this prevents us from getting people treatment in the way that they need,” Richey said.
The county, as well as the state, are still working on understanding the financial implications associated with the state Supreme Court’s ruling, Richey said.
Because the law was declared unconstitutional, it’s possible that counties would have to return the legal financial obligations paid by people convicted of simple possession crimes, Richey said. Officials are also working on assessing how far back in time the ruling goes and whether it would require counties to look at cases going back to the origination of the statute, which was in 1971, Richey said.
Conservatively, officials are estimating it could cost the state $100 million, according to Richey and Russell Brown, the executive director of the Washington Association of Prosecuting Attorneys.
Richey said he’s concerned about the effect the ruling will have when it comes to juveniles.
“It’s illegal for juveniles to have marijuana, tobacco and alcohol, but it’s legal for them to have heroin, meth and fentanyl and that’s what the real scary thing is to me,” Richey said.
Richey said his office is working to go through all the cases impacted by the state Supreme Court decision.
The Blake decision
The Feb. 25 ruling came in the case of a Spokane woman who had received a pair of jeans from a friend that had a small bag of methamphetamine in a pocket, according to an earlier story in The Herald.
Five justices said the state law was unconstitutional because it criminalized her passive, unknowing conduct, in violation of her due process protections. A letter carrier who unwittingly delivers a package of drugs, someone whose roommate hides drugs in a common living area, and someone who picks up the wrong bag at an airport could all be convicted under the law, she noted.
For more than six decades, the court had affirmed the Legislature’s power to criminalize drug possession without proof of a defendant’s intent to possess them. In a crucial decision from 1981, the court expressly noted that if lawmakers had wanted to require proof of intent, they would have made that an element of the crime.
Since then, the court had sought to ease the harshness of its earlier ruling by creating a defense of “unwitting possession”: A defendant would be acquitted if they could prove they had the drugs unwittingly.
But in the late February decision, the majority found that approach inappropriate. Affirmative defenses can only be used to negate an element of a crime, and intent is not an element of Washington’s law, Justice Sheryl Gordon McCloud wrote.
