Months after the Washington Supreme Court deemed the state’s law criminalizing drug possession unconstitutional, thousands of people remain on parole with drug-related charges that are likely invalid.
In some cases, these people have been arrested for parole violations on warrants issued by the Washington State Department of Corrections, despite their almost certain eligibility to have the past charges cleared under the court’s so-called Blake decision.
In the coming days, Gov. Jay Inslee will roll out a new process for people to seek a commutation of past drug-related charges — a simple one-page form that will qualify as a petition to Inslee’s office, according to Tip Wonhoff, deputy counsel for the governor.
In the meantime, the Department of Corrections’ continued pursuit of those on community custody — Washington’s term for parole — has confused and frustrated both prosecutors and defense attorneys.
Carla Lee, deputy chief of staff in the King County Prosecuting Attorney’s Office, said that in recent weeks, four people were booked into jail on Department of Corrections warrants, even though drug possession is the only charge against them. She said that should not be happening.
“This is what our Supreme Court has said, so it’s unconstitutional,” Lee said of the state’s felony drug statute. “So you have to act as if no conviction took place, and if no conviction took place, no warrant took place. You treat it like you don’t see it.”
Lee was so confused, she requested a meeting this Friday with Cheryl Strange, who leads the Department of Corrections.
Beyond the arrests that have occurred post-Blake, for many others, their parole means they must continue to check in with department officers and pay legal financial obligations, burdens on a population that’s often lower-income and disproportionately Black, Indigenous and people of color.
“You would think that once the [Blake] opinion came out that community custody would end” for people with simple drug possession charges, said Larry Jefferson, director of the Washington Office of Public Defense. “That didn’t happen.”
The Corrections Department views the situation differently. Spokesperson Jacque Coe said that, until a person’s sentence has been vacated at the county level, the department is compelled to serve warrants for those who violate the terms of their parole, even if their original charge is now considered unconstitutional.
“The department does not have the authority to disregard a judgment and sentence as ordered by the court,” Coe said in an email.
The Washington Supreme Court’s Blake ruling, made in February, was a meteor strike in the world of criminal justice. In the 5-4 decision, the justices found the statute that criminalized drug possession to be unconstitutional because it did not require prosecutors to prove intent.
Beyond striking down the law for the future, the court’s decision is viewed by a vast majority of those in Washington’s legal system as retroactive — that anyone prosecuted under the statute dating back to the 1970s is eligible to have their charges dismissed. Those held on multiple charges, including drug possession, should have their sentences recalculated, attorneys say.
The Legislature passed a bill during the last session reducing drug possession to a misdemeanor and mandating offers of services, which does not apply retroactively.
The process of clearing past charges is not automatic; each individual must petition a court for resentencing or vacating their past charges. In a legal world that’s already understaffed and facing a daunting backlog from COVID-19, it’s slow work. So far, the priority has been on those in custody — some 50,000 people by some estimates.
“The whole system has just not been set up to respond quickly to what happened with Blake,” said Christie Hedman, executive director of the Washington Defender Association.
Now, as counties continue to work through the cases of those held in detention, attention is turning to those still on parole. Jefferson of the Office of Public Defense said there are roughly 4,300 individuals across the state on parole for only felony drug possession. About a third — 1,300 people — have been actively checking in with parole officers, while the rest have not and could be subject to arrest.
It’s unclear how many arrests since the Blake decision have been made of those on community custody for simple drug possession; Crosscut has filed a records request with Corrections Department and is awaiting response.
But attorneys acknowledge they’ve heard anecdotal reports. Sadé Smith, a defense attorney with her own practice, has one client who was picked up by police recently. It turned out he had a warrant related to a past drug charge. At first, Smith hardly thought twice about it because of Blake. “This shouldn’t be an issue,” she thought to herself, until, “Oh this is still an issue? What?”
Smith had to scramble to be sure his old warrant was quashed so that, when he was released from the King County jail on the new charge he wouldn't be immediately transferred to a different facility.
For Smith, it was baffling. She called it the equivalent of a kidnapping. “You are literally asserting yourself over people when you have no legal right to do that,” she said.
Hedman was slightly more sympathetic. “DOC is not my favorite, but they have some challenges,” she said. “One of the challenges is that they sort of have liability in all directions of this.” They could face legal action for detaining someone and also for refusing.
“I know they’re worried about embroiling people who shouldn’t be in the system, but they also are in a little bit of a sticky wicket here,” she added.
Several weeks ago, the governor’s office began discussions with the Department of Corrections, Office of Public Defense and the Washington Defender Association to figure out a way to clear drug possession cases for those on parole. But while it would have been easier if the governor could have issued mass commutations, Wonhoff of the governor’s office said that isn’t possible. “The governor’s clemency authority is limited to responding to petitions on a case-by-case basis,” he said.
The plan they’ve come up with is to create the barest of forms for people to petition for a commutation. Unlike the normal process, which involves pages of testimony and argument, this petition will only require the person to sign their name and give their date of birth.
“We realized that a lot of individuals weren’t able to get into court right away to get these convictions vacated, and they’re still paying legal financial obligations,” Wonhoff said. “We were hearing more stories of people who were continuing to be in community custody for something that had been invalidated five months ago.”
The timing of the commutation effort is a question mark. While it will roll out in the coming days, it could take some time to reach everyone still on parole. Wonhoff said past efforts to commute marijuana-related sentences saw only tepid response. But, he said, they wanted to be prepared.
“It’s hard to tell who’s going to be interested and how many, but we want to be ready,” he said.