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“The Impact”- Public Defender and Former Prosecutor Debate Drug Law Ruling

Mike McClanahan profile by Mike McClanahan

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In a late February ruling with major implications for the criminal justice system, the Washington Supreme Court struck down the state’s strict liability simple possession drug law as unconstitutional. The majority opinion author argued that under the current interpretation of the statute  someone could be convicted of drug possession for unknowingly possessing drugs, and that to criminalize “innocent and passive possession ” “even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess” is to exceed the police power of the state legislature.

The decision potentially opens the door for thousands of people with simple possession convictions to have their convictions vacated and thousands more with simple possession as well as other convictions to be resentenced. County officials are bracing for the possibility of paying back decades in fines collected from drug possession cases and several law enforcement agencies have instructed officers not to make drug possession arrests.

The ruling came during the middle of the legislative session and lawmakers have proposed different bills in response. One bill would simply add the word knowingly

to the old statute and reinstate it. Other legislators see the moment as an opportunity to go a different direction with the statute or to move broadly  towards decriminalization.

We spoke with a public defender and a former prosecutor for their input about the current legal framework and the potential for a legislative response.

 “These drug laws were used to hurt people and to imprison people,” said Larry Jefferson, felony supervisor for Thurston County Public Defense and President of the Washington Association of Criminal Defense Lawyers.

“Let’s take a year off from what we’ve done for the past 50, 80 years,” said Jefferson. “…create a system that’s built on treatment first and that nobody has to go to jail or prison for a substance abuse problem. We can do that together.”

“I think we need to be careful that we don’t create an either/or dichotomy, but it can be a tool to help individuals actually get the treatment,” said Russell Brown, former senior deputy prosecuting attorney for Skagit County and Executive Director of the Washington Association of Prosecuting Attorneys.  “Currently, if you are someone who is a juvenile or even young adult, we can restrict your access to alcohol, we can restrict your access to tobacco or other things like that, but we cannot restrict your access to controlled substances. We think that’s a significant issue. And we think that the legislature definitely needs to respond to that.”

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