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The Impact: Drug law voided – what to expect; UW expert on vaccines vs. variants

Mike McClanahan profile by Mike McClanahan

Watch “The Impact”: March 3, 2021

Guests: Former Washington Attorney General Rob McKenna and Dr. Keith Jerome, M.D., Ph.D., Head , Virology Division, UW Department of Laboratory Medicine

In a momentous decision, the Washington State Supreme Court struck down the state law against drug possession last week.

The majority ruled that the statute is unconstitutional because it does not require prosecutors to prove a defendant had the intent to possess drugs or the knowledge that drugs were in their possession.

In the majority opinion Justice Sheryl Gordon McCloud wrote “in this case the state did not prove that Blake did anything except wear jeans that had pockets.”

The majority opinion author argued that the previous interpretation of the statute criminalizes passive possession, by a defendant who does not know that drugs lay hidden within something they possess adding, “the legislature’s police power goes far, but not that far.”

In a dissenting opinion, Associate Chief Justice Charles W.  Johnson wrote, “Over 60 years ago, this court decided that the crime of possession of a controlled substance does not require knowledge or intent.”  Johnson cited previous rulings that held the legislature “has the plenary power to criminalize conduct regardless of whether the actor intended wrongdoing” and “Whether intent or guilty knowledge is to be made an essential element… is basically a matter to be determined by the legislature.”

The Seattle Police Department has since announced it will no longer detain, arrest, or confiscate drugs from people solely on the statute in question RCW 69.50.4013.

In response to the ruling, some state lawmakers have introduced a bill to reinstate the statute, with additional language regarding the element of intent.

Former state attorney general Rob McKenna says the ruling will bring drug possession prosecutions to an immediate halt across the state and could impact untold numbers of people who were prosecuted under the now void statute.

 “There’s a real possibility that this ruling will be applied retroactively so that past convictions can be challenged,” said McKenna. “That’s a thorny question because it goes to the issue of whether or not the Supreme Court’s ruling can be applied retroactively, you know regardless of a legislative fix. If it is applied retroactively, does a legislative fix now bar that retroactive application to bar prior convictions? It’s going to be a real thicket of issues and the courts are going to have to work through them.“

“I think a lot of people who were convicted in the past will ask for their convictions to be vacated. If they are incarcerated now I think they will ask to be let out… A narrower approach would be that if they had pled innocent in possession, if they had argued when they were on trial being charged that they did not knowingly possess the drugs, then they should be let out of jail or have their convictions vacated,” said McKenna.  “The third approach the courts could take is not to apply the Supreme Court’s ruling retroactively. The challenge with that is that the Supreme Court struck down the simple possession statute on grounds of constitutional violation and that makes for a fairly strong argument that the ruling should be applied retroactively.”

With multiple COVID-19 variants circulating in the state and a new single-dose vaccine approved by the FDA we reached out to the head of UW Virology for his predictions about the pandemic and our current vaccine strategy.

With the FDA approval of Johnson and Johnson’s single dose vaccine there are now three options for confronting the coronavirus. As we enter year two of the pandemic, the Washington State Department of Health has confirmed that two concerning strains of the virus, the UK and South Africa variants, are already circulating in the state.

Dr. Keith Jerome, Head of the Virology Division at the UW Department of Laboratory Medicine shares his predictions on COVID variants, vaccine availability and what the pandemic will look like later this year.

“Some of these variants seem to be more transmissible. That’s why they’re spreading so well. And then of course some of them appear to potentially cause more severe disease and others partially escape the vaccine, not completely, but the vaccine’s maybe not quite as effective against them. So what we’d really like to do is get this virus under control, get the vaccine into as many people as possible so that we’ve essentially limit the spread of these new variants as much as we possibly can,” said Jerome.

Washington is sticking with a two dose regimen for the first two vaccines approved, from Pfizer and Moderna. The clinical trials that led to the approval of both drugs focused on the effectiveness of two doses in conferring immunity, but demand for the vaccine continues to outpace supply. In late December, amid a surge of new infections and deaths linked to the emergence of a more contagious COVID-19 variant, the United Kingdom adopted a different strategy. The country gave one dose to twice as many vulnerable people based on the premise that one dose may offer substantial protection. The longer the virus circulates freely, the greater the risk of a more dangerous variant emerging.

What does Dr. Jerome think about that strategy?

“It’s a tough question. I think the reason you see people sort of disagree with scientists who really study this is, we don’t have the full data to make a completely informed decision. The data suggests that a single dose of the Moderna or Pfizer vaccine does provide protection. It’s not clear exactly how much. It’s not as good as getting two. So the trouble is, how much of a tradeoff are you making there in trying to get more people protected versus having those people not be as well protected and then potentially at risk for example of their immunity going away quickly and that’s a truly an unknown. I think that the time to really have made this decision has probably passed. You can see the countries who did this sort of went into their vaccine campaigns with this being their strategy to get as many people done as possible. We’re seeing the vaccine rollout accelerate every week,” said Jerome. “I think probably  to change the course now wouldn’t actually gain us much if anything at this point  while still having all those risks.”

“It’s great news about the new vaccine from Johnson and Johnson and you may have seen there’s an agreement now that another company Merck, whose vaccine didn’t actually succeed, is going to use their factories to make more of the Johnson and Johnson vaccine. So that will increase production even more over the next couple of months. So I think we’re looking really good for getting essentially everybody who wants the vaccine vaccinated by the summer,” said Jerome.

“I’m actually pretty optimistic that we’re going to be able to keep up with this virus, stay ahead of it, with these vaccines rolling out, more getting approved all the time, more supply. I actually think we’re going to stay ahead of this and I’m optimistic that by summer and fall we’re going to be getting back to the lives much more like what we want to live.”

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