THE BLAKE DECISION

Thurston County justice system starts to erase thousands of drug possession convictions

Following the Blake Decision, local law enforcement agencies are no longer making arrests for possession

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Following a recent decision from the Washington Supreme Court, Thurston County’s justice system officials are grappling with an intense new workload — one that will take a long time to complete.

The Blake Decision, announced Feb. 25, makes void drug possession charges, meaning local law enforcement agencies are no longer making arrests for possession and prosecutors are dismissing existing charges. But the work won’t stop there.

The Blake Decision, a result of the State of Washington v. Shannon Blake case, changes language that has existed in the state’s code since 1971. The decision stemmed from a woman named Shannon Blake being arrested in Spokane with a small amount of meth in her pocket. Blake maintained throughout that the pants she was wearing were a gift, and she wasn’t aware there were drugs in her pocket. State law put the burden of proof on the defendant to prove they didn’t knowingly possess drugs.

The Washington Supreme Court decided in a 5-4 vote that prosecutors should be tasked with proving the defendant guilty, rather than the defendant tasked with proving their innocence. Washington was the only state that put the burden of proof on the defendant in drug possession cases, a glaring contradiction to the phrase “innocent until proven guilty.”

By reversing that code, all people on the hook for simple possession charges are finding their cases dropped, and anyone who’s been convicted of such a crime in the last five decades are eligible to have that part of their record expunged — not to mention compensation for any fees and fines they had to pay. The decision does not expunge cases involving manufacturing or dealing drugs.

A piece of legislation introduced in February, House Bill 1499, would have introduced a phased approach to essentially decriminalizing drug possession, opting instead for offering treatment and rehabilitative services to people suffering from addiction. As of Feb. 15, HB 1499 was sent to the House Appropriations Committee.

 When contacted by The JOLT Thursday afternoon, Patrick O’Connor, director of the Thurston County Office of Public Defense, was filing motions to vacate drug possession convictions, something there’s sure to be a lot of in the months to come.

“As a lifelong practicing public defender, [the Washington Supreme Court’s] legal analysis as to why they found the law unconstitutional makes a lot of sense. Just from a legal perspective. We didn’t have a mental element to our possession of a controlled substance. So you could have innocent behavior that resulted in a conviction. … In practice, that was very challenging for a defense council,” O’Connor said.

When asked for his opinion on the decision, O’Connor quoted a specific passage from the court’s decision. It reads: “This court, however, is the one that must evaluate whether that statute comports with constitutional due process guaranties. We have been asked to do that today, and we hold that the statute violates those guaranties. 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.”

In Washington, possession of a controlled substance is a felony. O’Connor said there are harsh legal consequences to having a felony conviction on your record, including difficulty landing a job or obtaining certain licenses.

“I can say that my defenders and this office are hopeful that we don’t … criminalize possession of a controlled substance going forward. And it’s not because we want people to actively use controlled substances. Substance use disorder is a life-threatening disease and harms families and communities. There’s no doubt about it. I think we feel that there are other ways, community-based alternative approaches with a variety of different programs and partnerships,” O’Connor said.

Law Enforcement Assisted Diversion

One such program was in development before Blake. Recently, with a push from the Thurston County Prosecutor’s Office, the county was named a site of a state-funded Law Enforcement Assisted Diversion (LEAD) pilot program. (See related story.) That program gives law enforcement officers the ability to send nonviolent offenders to a social worker rather than jail. This program, said Thurston County Prosecutor Jon Tunheim, represents one of the ways the county has worked on rehabilitative responses to drug use.

“Thurston County, I can say, we were already headed in the direction of trying to minimize criminal justice use for drug possession. And LEAD was one of our strategies to do that. So, what the Supreme Court did here was just really accelerate things considerably for us in that regard,” said Tunheim.

He said the decision doesn’t have a dramatic effect on the new LEAD program, because officers will still be able to refer people to social workers, as long as the person consents.

For officers at local law enforcement agencies, the decision doesn’t dramatically alter their day-to-day job, said Thurston County Sheriff’s Office Lt. Cameron Simper. Mainly because they haven’t been booking people for non-violent offenses for the past year, due to the COVID-19 pandemic. As The JOLT previously reported in September, since the onset of the pandemic, the Thurston County Jail has seen a notable decrease in jail population. At the time, the average population decreased by over 100 inmates.

The decrease is attributed to officers only booking people for major and violent offenses, to reduce the risk of COVID infections within the jail.

Simper said because of these policies, deputies won’t have to alter their daily activities too much. Simper said the day after the Blake decision was announced, the sheriff sent out an internal announcement “clarifying our position and clarifying where we go from here.”

Concerns about crimes related to drug use

“The sheriff’s office stance is that obviously we are concerned with the decision because of the potential ramifications. Obviously there are several crimes that just relate back to drug use and drug abuse,” said Simper, who added later: “By making those arrests, you were able to curtail other crimes that resulted from it.”

Simper said deputies will still make arrests for charges of dealing or manufacturing narcotics. Those accusations are enough to be booked in the jail, even with the safety measures in place.

Lt. Paul Lower with the Olympia Police Department said it’s nothing new for police to quickly change policy because of changing laws.

“These case law decisions happen rather frequently,” he said, saying the department’s officers have to stay “nimble” to work within existing law.

In statements sent to The JOLT, leadership at the Lacey and Tumwater police departments have similar stances: No one gets booked for possession alone until they’re told otherwise.

The quandary of illegal possession

“The Blake decision is clear there can be no arrest for unlawful possession of a controlled substance.  With that being said, what the decision did not do was legalize the possession.  So the decision has left law enforcement in this quandary where possession is still illegal, but it is not arrestable.  What the impact of this decision has in terms of public safety and/or public health is still evolving.  The Tumwater Police Department is monitoring the changing landscape and will, for now, continue to confiscate controlled substances for destruction,” wrote Jon Weiks, Tumwater’s police chief.

“The Lacey Police Department is following the guidance of Washington Association of Sheriffs & Police Chiefs (WASPC) and Washington Association of Prosecuting Attorneys (WAPA). We have immediately stopped enforcement of RCW 69.50.4013, possession of a controlled substance. This includes suspension of any investigations, detentions, arrests, search warrant applications or booking of warrants for this specific RCW. 

“In accordance with legal guidance, we are still seizing illegal contraband controlled substances when they are encountered.

“The Lacey Police Department will continue to monitor this rapidly developing issue and will make adjustments to policy and procedure as necessary.

“The Lacey Police Department is committed to constitutional policing and upholding the rule of law,” wrote Robert Almada, Lacey’s interim police chief.

Thousands of affected cases go back to 1971

Attorneys tasked with prosecuting and defending possession cases now find themselves in the unique position of reevaluating cases stretching as far back as 1971. O’Connor released a statement shortly after the Blake decision was announced, encouraging anyone with a possession conviction on their record to reach out to his office. They’re eligible to have the conviction erased from their record.

The response to that statement has been big, as the number of people the Blake decision affects — even just in Thurston County — hasn’t been quantified. O’Connor summarized it as “thousands and thousands and thousands.”

And as staff attorneys in his office have found themselves with a mounting caseload because of the pandemic, they’re now finding themselves laden with another monstrous task — revisiting five decades of drug possession convictions.

“It’s an overwhelming workload that’s upon us. … All my trial attorneys are overwhelmed and overburdened right now just with the backlog of pending criminal matters. You know, with trials being suspended and practicing in a COVID environment for all these months, their caseloads are bursting at the seams as is, so I can’t really overburden them any more than they already are. So we’re trying to be creative as we take these next steps to implement the Blake decision,” O’Connor said.

How the workload is being handled

Both O’Connor and Tunheim described a process of attacking the new workload in phases. The two offices have been working closely together thus far. The first phase is to identify people who are the most immediately impacted by the Blake decision, like people currently serving time for possession offenses. There is a “considerable” number of warrants written for people wanted on possession charges, some of which have been active for several years, said Tunheim. They all need to be waived. He likened the process to peeling back the layers of an onion — only the layers keep getting bigger and bigger. Identifying people with years-old convictions will be the final — and largest — task.  Some cases will have to be resentenced. Neither attorney had a concrete idea of how long that process will take.

“It seems like it just took the whole system by surprise. I never heard anybody talking about this possibility until that morning,” said Tunheim, referring to the morning the Blake decision was announced. His office immediately went to work dismissing charges and getting people released from incarceration, he said.

“I think at the end of the day, it’s positive in terms of forcing us to move forward towards the place where we’re not going to rely on criminal response anymore for possession. But the downside is we now have this huge, huge, huge body of work to try to process.”

He said he hopes to have a streamlined process to work through these cases in the near future.

O’Connor said that despite the challenges, the Blake decision presents a clear step toward a better justice system. While some clients his office served were able to receive help for their addiction, many more only found additional hardship from jail time, addiction, stigma and financial burden.

“It’s a real opportunity here in Thurston County,” O’Connor said. “We have been making a lot of effort and strides towards being more innovative in our justice system. And so I really think we’re in a really good position as a community and as a law and justice system to be able to pivot from a decision like this and continue to move forward.”

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