Washington state’s simple drug possession statute was found unconstitutional in 2021, prompting King County to allocate resources to help people vacate those charges for free — though some officials warn that the funds will run out soon, and people might have to hire their own help.

Scott Ketterling, special counsel for expert services and legal contracting at the King County Department of Public Defense, said he urges people with simple drug possession charges before Feb. 25, 2021, in the King County Superior Court or the King County District Court to contact the department to vacate charges.

Ketterling said the simple drug possession law was found unconstitutional when a Washington Supreme Court ruling in the State v. Blake case found that to be guilty of simple drug possession, a person had to have knowingly possessed the drugs. Ketterling said before Feb. 25, 2021, the statute did not require that the state prove the defendant knew they had the drugs in their possession to be found guilty.

Ketterling said the prior statute did not have a “mens rea,” which makes knowingly committing the crime a requirement to be found guilty, which most statutes have. He added that the prior simple drug possession statute was a felony, but the new one is a misdemeanor, which at most can land someone in jail for a year, but not prison.

The State v. Blake case transpired when a woman named Shannon Blake in Spokane was found to have drugs in her pocket, but said she did not know there were drugs in the pocket because they were pants her roommate had gifted her from a second-hand store, according to court documents.

Ketterling said Blake’s defense then raised unwitting possession during trial, but she still lost, and after appealing, the case made its way to the Supreme Court of Washington, which found Washington’s simple drug possession law had been unconstitutional since its inception.

“This is work that we didn’t have before the Blake decision, and so there was some funding for the various public defense offices to try and respond to this,” Ketterling said. “But, as with everything, it’s going to run out.”

Ketterling said many criminal defense lawyers have a dim view of the system they work in and find it’s an oppressive system that often creates more harm than good. Ketterling said alternatives to deal with whatever problem that landed someone in jail would be less harmful than a sentence.

“Certainly criminalizing substance abuse does not comport with any kind of evidence-based understanding of what substance abuse is and that it is a disease, it’s not a moral flaw,” Ketterling said. “I think the drug war of the ‘90s and the 2000s was horribly, horribly racist and disproportionately impacted minority communities and communities of poverty.”

Ketterling said some people who had simple drug possession charges vacated were fundamentally impacted, such as people trying to get nursing certificates, teaching certificates or trying to get into housing. He said there were many people whose only conviction was a simple drug possession from decades ago, but it still prevented them from taking on professions such as nurses and teachers.

“There was people who were in tears because once this is vacated from their record, it opened up opportunities that they didn’t have before,” Ketterling said. “There were some amazing stories of people that we assisted in turning them into nonfelons and to have zero criminal history on their record.”

Ketterling said when State v. Blake case-related funds run out, people will most likely need to pay an attorney to assist them. But as of now, the King County Department of Public Defense still has a full-time paralegal who specifically assists vacating State v. Blake-related charges. He added that other charges, such as those with intent to distribute, cannot be vacated.

In addition to getting charges vacated, Ketterling said fines and fees people had to pay associated with simple drug possession charges could also be refunded. Ketterling said these fines and fees usually amount to a few hundred dollars or so, but others have had thousands of dollars refunded. He added that attorney’s fees cannot be refunded.

Case with a 22-year sentence reduction

According to court documents, Yobachi Frazier was originally sentenced to 50.6 years in prison for a July 4, 2007, second-degree murder at the now-closed Ezell’s Chicken in Skyway. In that incident, Frazier got into an argument with a man who kicked over his fireworks. Frazier then shot the man, causing his death.

At the time, Frazier had four convictions for possession of cocaine, which, alongside a few other crimes, set his offender score at 9. But, after the charges were dropped, Frazier’s offender score dropped to a four, and his sentence was reduced to 28.4 years, shaving off 22 years.

Ketterling said most people who are still in prison with simple drug possession charges have reduced their sentences, but to date, there are still about 20 people in King County who have not reduced their sentences.

People can ask for assistance with a State v. Blake case on the KCDPD webpage.