Washington state justices strike down drug possession law

By GENE JOHNSON (Associated Press)
SEATTLE Feb. 25, 2021 9:38 p.m.

The Washington Supreme Court has struck down the state’s felony drug possession law because it doesn’t require prosecutors to prove that someone knowingly or intentionally possessed drugs

The Washington Supreme Court on Thursday struck down the state’s felony drug possession law because — unlike the laws of every other state — it did not require prosecutors to prove someone knowingly or intentionally possessed drugs.

The 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.


Five justices, led by Justice Sheryl Gordon McCloud, 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.

“Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature’s powers,” Gordon McCloud wrote for the majority.

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 Thursday's 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, Gordon McCloud wrote.

Another justice, Debra Stephens, said it wasn't necessary to find the law unconstitutional. Courts can find that intent to violate the law is an implied element of a crime even if not spelled out in law. She wrote that she would have overturned the earlier decisions that found Washington's law did not require proof of intent.

Three justices signed a dissent by Justice Charles Johnson, who said the Legislature had the authority to criminalize unknowing drug possession.

The defendant in the case, Shannon Blake, was arrested in 2016 as Spokane police searched a property for stolen vehicles. When she got to jail, a guard found the small bag of meth in the watch pocket of her jeans.

She testified that a friend had bought the jeans secondhand and had given them to her two days earlier, a story confirmed by her boyfriend. She didn't know the drugs were in them, she said, and she and her boyfriend both testified that she never used meth.

A trial judge found that she had not met the burden for showing “unwitting possession," and she was convicted.

The court majority stressed that it was not revoking the Legislature's authority to criminalize other acts without proof of intent. The difference, it said, is that lawmakers may not criminalize unknowing, passive conduct — essentially, someone can't commit a crime by doing nothing.

By contrast, it said, the state can continue to criminalize third-degree child rape, which requires prosecutors to show an older defendant had sexual relations with someone who is 14 to 16 years old — even if the defendant didn’t know the victim’s age — because the defendant actually took an action.


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