High court ruling in drug possession case has multitude of implications

Sheriff Rick Felici said an inmate at the jail on a felony drug possession case would be released.

A decision by the state Supreme Court that finds the state’s felony drug possession law to be unconstitutional and void will have ripple effects across the law and justice system in the state and in Island County.

As State v. Blake has been interpreted, jail and prison inmates convicted of felony drug possession will be freed and convictions vacated. Sheriff Rick Felici reported right after the decision that an inmate who was in jail on a felony drug possession case would be released.

Chief Criminal Deputy Prosecutor Eric Ohme confirmed Tuesday that many cases have already been dismissed.

In addition, others serving time will need to be re-sentenced. More serious cases may be dismissed under the “fruit of the poisonous tree” doctrine. Some drug court participants will be released.

Police will no longer be able to arrest or even investigate suspects in drug possession cases.

“While it could be argued that this change will reduce the number of people incarcerated in the state,” Sheriff Rick Felici wrote in a statement, “and that drug abuse is better treated as a public health issue, this change will also have an impact on the number of people who were motivated to get into treatment as a result of their arrest and it will impact law enforcement’s ability to ‘work their way up the chain’ to get to drug dealers.”

Lawmakers in Olympia have already proposed a bill that would fix the law going forward by adding a single word — “knowingly” — but felony drug possession is currently not a crime in the state as a consequence of the ruling, although drug dealing, delivery and manufacturing remains as illegal as ever, according to Island County Prosecutor Greg Banks.

In a weird wrinkle, Banks pointed out, misdemeanor marijuana possession remains a crime, although it’s unlikely to be enforced.

Banks said prosecutors are still analyzing and debating the impact of the decision, which was published Friday.

In the 5-4 decision, the justices noted that a conviction for felony drug possession has momentous consequences for a defendant, from possible prison time to the deprivation of numerous rights and opportunities. Yet under the state statute, the police and prosecution seeking a conviction don’t have to prove that a defendant knew he or she possessed an illegal drug.

The justices found this to be contrary to both the state and federal constitutions. This conforms to the requirements of felony drug possession laws in every other state, Banks said, but the unusual aspect of the decision is that instead of simply interpreting the law to require proof of intent, the justices completely voided it — which applies retroactively.

The Spokane County’s Prosecutor’s Office has the option of asking the Supreme Court to reconsider the decision.

Banks pointed out that convictions for felony drug possession increases defendants’ offender scores, which impact the standard sentencing range for crimes. It’s likely, therefore, that many people serving time will have to be re-sentenced without consideration for “points” based on drug possession convictions.

Others may appeal their convictions altogether. If police conducted a search based on probable cause of drug possession and discovered other crimes — which isn’t uncommon — then the entire case may be dismissed since it was the “fruit of the poisonous tree.” Banks said an example might be evidence of identity theft uncovered when police search a car based on evidence of drug possession.

In his statement, Felici wrote that officers will no longer be able to conduct criminal investigations, arrest someone or get a search warrant based on simple possession of a controlled substance, which is a fairly dramatic change for law enforcement.

If lawmakers pass the revised bill, Banks opined, then law enforcement will largely return to the way it was. Police will have the burden of proving that a suspect “knowingly” possessed a drug, as opposed to the defendant being burdened with proving the possession was unwitting. Banks said experienced officers were already gathering such evidence.

Beyond cops and prosecutors, advocates and others in the state have cheered the high court’s decision, arguing that it means more individuals suffering from addiction will be able to get help since money can be diverted from the law-and-justice system to treatment programs.

Officials in social services, law and justice and beyond have long argued that jails are not the right place to deal with people who suffer from addiction, which is considered as much of a medical problem as diabetes or COVID-19.

Yet the impact of the high court’s decision might have the opposite effect on Whidbey in the short term.

Island County’s much-touted drug court programs for adults and youth will likely lose participants who were facing felony drug possession charges.

Under the law, people who are charged with non-violent crimes related to — or motivated by — drug or alcohol addiction and are accepted into a drug court program can have the charges dropped upon graduation.

The intensive program employs a “tough love” strategy that has helped many people — including those with lifelong, seemingly intractable problems — break the bonds of drug addiction and move forward with their lives.

Carolyn Pence, the county’s drug court coordinator, said eight people graduated from adult drug court last year. Upon graduation, they were all employed, in stable housing and contributing members of the community.

“A lot of the people who have graduated said they wouldn’t be where they are without drug court,” she said.

Pence said she hopes that the people who are released from drug court because of the ruling will continue the work of adopting a life of sobriety. She said those people — and also those who’ve graduated — can still reach out to drug court for referrals, recommendations and other assistance.

“We want people to continue on their road to recovery and reach out for help when they need it,” she said.

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