Action taken to close loophole created by State Supreme Court decision
After a Washington State Supreme Court decision invalidated the state’s illegal drug possession laws, the city of Marysville enacted their own misdemeanor law for possession when the Marysville City Council on March 8 adopted a new ordinance that makes it a gross misdemeanor to possess controlled substances without a prescription.
On Feb. 24 the State Supreme Court ruled that the state’s current drug possession laws were unconstitutional.
The crux of the case was that the old laws were “strict liability” laws.
That means a person could be guilty of drug possession even if they did not know about the drugs in their possession or intend to have them.
“The problem was the concern of prosecuting someone who didn’t know they had drugs on them,” said Marysville Mayor Jon Nehring.
Under the old laws, even if the drug possession was accidental and that was proved in court, a person could still be found guilty of drug possession.
“That’s probably rare in practice,” said Nehring. “If you read the case in question that the State Supreme Court was deciding, it did look like it happened there though.”
Because of the court’s ruling, the state’s drug possession laws were considered unconstitutional and voided.
“When the State Supreme Court struck down the law it left a vacuum because there wasn’t a law available to prosecute drug possession,” said Nehring.
“During that time frame we could no longer arrest for mere possession,” said Marysville Police Chief Erik Scairpon.
The police department could still make arrests for selling or buying illegal drugs and for possessing drug paraphernalia though, he said.
Scairpon criticized the sudden impact of the decision.
“It was really frustrating to see a Supreme Court decision come down without a plan on how the state was going to deal with that massive of a change,” he said.
In response to the decision Marysville officials began to inquire if they could craft their own law.
Marysville’s new law was passed on March 8 and allows a gross misdemeanor charge for those who knowingly possess controlled substances without a prescription.
“I was really pleased at the speed of our elected officials,” said Scairpon. “They were very responsive in putting out an ordinance that was sensible.”
The city’s new law differs from the state’s old law by requiring knowledge and intent, something that prosecutors did not have to prove before.
“We wrote it in such a way that it is in compliance with the State Supreme Court decision,” said Nehring.
“The law should be constitutional now,” said Scairpon.
Police officers often have to work toward proving knowledge and intent for other types of crimes already, said Scairpon, so he said they should be able to make that adjustment for the new law.
“Our officers are used to building cases this way already. For example, in auto theft that is a law where we already have to prove that they knew they were stealing a car,” he said.
Marysville’s drug possession law is also a gross misdemeanor and not a felony like the old state law. The reason for that is because city ordinances cannot make new felony laws, said Nehring.
Marysville officials said they work to provide options to those with drug addiction problems in the community.
“We’ve been very proactive with our embedded social worker program,” said Nehring. “If you don’t what to accept the offer for help though, we want there to be accountability.”
Scairpon said that drug treatment is the department’s preferred first option.
“We offer rehabilitation, even to those that have refused it before,” he said. “We have a lot of success with our visiting mental health professional as well.”
Both the state and other jurisdictions are looking to pass similar drug possession laws.
“I know I personally have received inquiries from multiple cities around the state about what we’re doing here that want to mirror us,” said Scairpon.
The state has multiple bills being decided on that would recriminalize possession, however there is debate between legislators about exactly how much the punishment should be for drug possession.
Some proposals, such as SB 5471, would recriminalize knowing drug possession, and also add a civil fine for unknowing possession of drugs.
Other suggested replacements, like HB 1499, go the opposite direction and attempt to remove all penalties for possession of small amounts of illegal drugs.
Still other options, like SB 5468, would restore the old law almost exactly, except with the requirement that a person knowingly possesses the illegal drugs.