Whatcom grapples with the impact of ruling on those with past drug possession convictions
A month after the Washington State Supreme Court struck down the state’s simple drug possession law as unconstitutional, Whatcom County officials are grappling with the ripple effects of the decision.
The state’s high court ruled 5-4 in State v. Blake in late February that Washington’s felony drug possession law was unconstitutional because — unlike the laws of almost every other state — it did not require prosecutors to prove someone knowingly or intentionally possessed drugs.
As of Friday, roughly 200 Whatcom County Superior Court cases have been dismissed, according to Whatcom County Prosecuting Attorney Eric Richey. This is up from about 150 earlier in the month.
Approximately six people have been released from the Whatcom County Jail who were being held on pending drug charges, Richey said.
More cases are expected to be dismissed in the coming months as part of the ongoing process of addressing the Blake decision, he said.
About four people whose convictions originated from Whatcom County are scheduled to be released from prison, according to Starck Follis, director of the Whatcom County Public Defender’s Office.
Follis’ office has also identified at least 112 people who are currently serving probation and are being monitored by the state Department of Corrections due to drug possession convictions. Follis’ office is asking that those people have their cases dismissed and they be discharged from probation. Follis said he sent the list of cases to the prosecutor’s office.
Richey said his office has yet to dismiss the cases because they are waiting on a state Supreme Court decision on a motion to reconsider. A Spokane County prosecutor filed a motion earlier in March asking the court to reconsider its decision, according to a previous McClatchy story.
“The individuals on supervision are currently receiving treatment,” Richey said. “We’d like to make sure they continue to do so until we have final word from the Supreme Court.”
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, Richey said.
Past drug convictions
Follis said the more than 100 people currently on probation is just the tip of the iceberg in regards to effects from the Blake decision.
He said the bigger issue is people who are currently in prison serving sentences for crimes other than drug possession, but have drug possession charges included as part of their case. Those people will likely have to be resentenced or withdraw their guilty pleas and go back to the beginning of their court cases, Follis said.
Nearly 350 possession charges were filed in Whatcom County in 2020, Follis said during the March 15 Whatcom County Incarceration Prevention and Reduction Task Force meeting.
But the largest number of people impacted will be the people who have had drug possession convictions in their criminal history and those past convictions have been used to enhance the person’s offender score, which provides a range for how long a person’s prison sentence may be, he said.
Roughly 16,000 people are incarcerated in Washington state and Follis said, in his experience, a large percentage of those people will have possession convictions somewhere in their history, either as current or earlier offenses.
“So you can see the enormity of this issue,” he said. “We are in the process right now of collecting data on who those people are and what counties they come from.”
Follis said a few people are filing their own motions from prison or family or friends have contacted lawyers’ offices looking to get convictions vacated or to see how the Blake ruling affects their case.
“It’s a giant problem in terms of what we’re going to do with those cases when we’ve already got overworked lawyers,” Follis said. “I do not know moving forward what the solution may be in terms of representation of these people.”
He said if people aren’t facing any current or potential incarceration, it might not be appropriate for a public defender to be appointed.
Impact on lower courts
The Blake decision hasn’t impacted Bellingham Municipal Court, according to court administrator Darlene Peterson. She said it was still unclear whether the ruling would trickle down to any previous misdemeanor cases from the past that involved possession of marijuana.
Blaine has had a local city ordinance since 2012 making possession of a controlled substance a gross misdemeanor, Raylene King, Blaine Municipal Court administrator, said at the mid-March incarceration task force meeting.
They have since dismissed roughly eight active warrants for possession cases from Blaine Municipal Court and are working on determining which cases going back to 2012 will be affected by the high court’s decision, King said.
Bellingham City Council member Dan Hammill said during the task force meeting while the ruling moves the state further toward treating addiction as a public health issue, rather than a criminal justice issue, it was frustrating it was done through the judicial system rather than the state Legislature.
Because it went through the court system, he said, there is not a treatment component attached to the removal of the state’s felony drug possession law. Without treatment options in place, people could fall through the cracks, Hammill said. It also means it’s up to individual counties to attempt to handle the impacts from the decision, he said.
“I have strong opinions on decriminalizing drugs, but without a treatment component it doesn’t seem very effective,” Hammill said. “We’ve got to continue our work on treatment options in light of this decision.”
Officials are estimating the state Supreme Court’s decision could cost the state, conservatively, $100 million, according to Richey and Russell Brown, the executive director of the Washington Association of Prosecuting Attorneys.
Several bills have been proposed to the state Legislature to address the impacts from the Blake ruling.
