FILE — Washington State Supreme Court

In this Sept. 7, 2016, file photo, Justices on the Washington state Supreme Court listen during a hearing in Olympia, Washington.

(The Center Square) – In a groundbreaking 5-4 decision, the Supreme Court of Washington ruled on Thursday that criminalizing unwitting possession of illicit drugs is unconstitutional.

The decision came as the result of a case involving a Spokane woman arrested on drug possession charges in 2016 after a small amount of methamphetamine was the in a pair of jeans she was wearing that were borrowed from a friend.

For generations, Washington's drug possession laws have been tried according to a strict liability system which treats illicit drug possession as a crime regardless of a suspect's intent.

The majority ruling, written by Justice Sheryl Gordon McCloud, concluded that a valid crime requires one to perform some sort of active and willful misconduct. The court's four concurring justices—Mary Yu, Helen Whitener, Raquel Montoya-Lewis, Debra Stephens, and Chief Justice Steven Gonzalez—agreed the Spokane woman did not.

"Unknowing possession is just as innocent and passive as staying out late with a juvenile or remaining in a city without registering," McCloud wrote. "A person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse. Or a child might carry an adult’s backpack, not knowing that it contains the adult’s illegal drugs."

As in City of Seattle v. Pullman, according to the majority opinion, loitering laws often fail to draw a clear, defensible line between innocent and unlawful behavior. By contrast, the knowing possession of an illicit drug "necessarily involves an active decision to obtain that particular drug."

The majority ruling, however, rejected the Spokane woman's challenge that her right to due process was violated in being handed a greater burden of proof than the state.

McCloud added that decriminalizing unwitting drug possession was essential to mitigating racial profiling and disproportionate incarceration rates for drug possession among people of color.

In 2011, Black individuals were incarcerated at five to seven times the rate of whites individuals and accounted for almost half of prisoners sentenced to more than one year for a drug-related offense.

"We are neither bound by legislative silence nor beholden to the legislature’s inaction in response to our incorrect and harmful decisions," McCloud wrote.

The ruling overturns about 60 years of court precedent which held in Washington that felony drug possession did not require "knowledge or intent."

In a separate concurring opinion, Justice Debra Stephens wrote that while she agreed with overturning the Spokane woman's case, she did not believe it was in the court's interest to preempt the Legislature from addressing felony drug laws.

Associate Chief Justice Charles Johnson echoed similar sentiments in a dissenting opinion with Justices Barbara Madsen and Susan Owens. In it, he contended that the court, through its ruling on Thursday, invoked legislative powers best left to state lawmakers.

Johnson specifically pointed to the 1957 case, State v. Henker, which held, "Whether intent or guilty knowledge is to be made an essential element ... is basically a matter to be determined by the legislature." 

McCloud disagreed with such assertions, adding in the court's majority opinion that the Legislature's powers remain undisturbed.

"We do nothing here today to disturb the legislature’s power to enact strict liability crimes," McCloud wrote. "The only thing we change here today is our view of the validity of the simple possession law as written and interpreted by this court."

Following Thursday's ruling, law enforcement agencies around the state including the Seattle Police Department gave notice they are aligning department policy with the ruling effective immediately.

Staff Reporter

Tim Gruver is a politics and public policy reporter. He is a University of Washington alum and the recipient of the 2017 Pioneer News Award for Reporting. His work has appeared in Politico, the Kitsap Daily News, and the Northwest Asian Weekly.