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State lawmakers scramble to close drug possession loophole created by court ruling

Drugs seized during a 2017 police raid. (KIRO 7)

After a ruling from the Supreme Court of Washington threw the state’s drug laws into flux last week, lawmakers are scrambling to update the state’s statutes and close a concerning loophole the decision created.

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The court’s ruling sought to end the arrest of people who unknowingly possess illicit drugs, and fix the fact that the state’s statute does not distinguish between knowing and unknowing possession. Prior that ruling, Washington was the only state that did not make that distinction.

The downstream effect, though, was that Washington’s existing statute that made simple drug possession of any kind a felony was essentially made null and void. Without an updated replacement in place, law enforcement agencies across the state announced last week that they would be ceasing any arrests for simple possession.

That saw King County Prosecutor Dan Satterberg imploring state lawmakers to take action.

“While there will be a significant amount of work necessary to comply with this ruling in the courthouses throughout the state, it is equally important that the Legislature take steps now to amend this statute to correct the defect found by the Supreme Court,” he said in a written release. “The Legislature should act with a sense of urgency to add the necessary elements to make this statute constitutional this session, and not leave a defective statute on the books.”

Satterberg went on to point out that while King County stopped prosecuting drug possession in 2018 for quantities under a gram of any drug, his office still frequently files charges in drug cases “against people with repeat criminal behavior or a history of violence.”

State Sen. Manka Dhingra (D-Redmond) also voiced concerns over the effect the court’s ruling could have on those arrested for simple possession who have been receiving court-ordered substance-use treatment.

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“Those who were charged only with simple possession are now no longer required to go to treatment,” Sen. Dhingra said. “Even for those who want to keep receiving treatment, it’s not clear who is going to pay for that treatment.”

To help mitigate against the effects of the state Supreme Court’s ruling, Democratic state Senators Mark Mullet and Steve Hobbs have introduced legislation to update Washington’s drug possession statutes. The text of the bill exactly mirrors the previous statute the court struck down, with the exception of updated language specifying that it would be a felony to knowingly possess small quantities of illicit drugs in Washington state.

The bill will be introduced in the state Senate’s Law & Justice Committee on Monday.

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