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Washington Supreme Court Announces State’s Strict-Liability Drug Possession Law Is Unconstitutional

Shannon Blake was arrested in connection with an investigation into stolen vehicles. A jail employee discovered a small baggy containing methamphetamine in the coin pocket of Blake’s jeans. She was charged with possession of a controlled substance in violation of RCW 69.50.4013. At Blake’s bench trial, she relied on the defense of “unwitting possession” and testified that a friend had purchased the jeans secondhand and given them to Blake two days before her arrest. Blake acknowledged that the drugs had been “on [her]” on the day of her arrest but that she was unaware of it.

The trial judge found that Blake had possessed the drugs on the day in question and further concluded that Blake failed to prove her possession was unwitting. The judge found Blake guilty, and she appealed. She argued before the Court of Appeals (“COA”) that requiring her to prove unwitting possession to the charged offense violates due process. The COA rejected her argument and affirmed, relying on controlling case law that the statute in question does not require a mens rea element thus making the offense a strict liability crime. The Washington Supreme Court granted further review.

The Court observed “[t]he basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance....’ RCW 69.50.4013(1).” The State did not need to prove any mens rea (guilty mind) element to obtain a conviction under the statute. State v. Bradshaw, 98 P.3d 1190 (Wash. 2004). “[I]f the legislature had intended guilty knowledge or intent to be an element of the crime ... it would have put the requirement in the act.” State v. Cleppe, 635 P.2d 435 (Wash. 1981). But Blake was arguing that the constitution barred the legislature from criminalizing her conduct without requiring the State to prove she had a guilty mind.

The Court observed that “[s]tates have a legitimate interest in restraining harmful conduct and are empowered to do so under their police powers.” State v. Talley, 858 P.2d 217 (Wash. 1993). A state’s police power is not infinite: it must reasonably tend to correct some evil or promote some interest of the state and not violate any direct or positive mandate of the constitution. Peterson v. Hagan, 351 P.2d 127 (Wash. 1960); Ragan v. City of Seattle, 364 P.2d 916 (Wash. 1961). Limits on police power are rooted in the “guaranty of due process” that “the law shall not be unreasonable, arbitrary or capricious” and “the means selected shall have a real and substantial relation to the object sought to be attained.” Nebbia v. New York, 291 U.S. 502 (1934). The Court explained that, taken together, Ragan and Nebbia hold that Washington’s police power is limited by the Due Process Clause or “by constitutional protection afforded certain personal liberties.” State v. Talley, 858 P.2d 217 (Wash. 1993).

The constitutional protections afforded personal liberties that are implicated by RCW 69.50.4013 include: (1) the principle that mens rea is the rule of, not the exception to, Anglo-American criminal jurisprudence, Staples v. United States, 511 U.S. 600 (1994); and (2) the principle that the government cannot criminalize “wholly passive” or “essentially innocent” conduct. Lambert v. California, 355 U.S. 225 (1957). While exceptions do exist that permit legislatures to create strict liability crimes (i.e., offenses that don’t require the accused to have a guilty mind or “intend” wrongdoing), the rule against criminalizing “wholly passive” or “essentially innocent” conduct has no exceptions. Lambert.

In Lambert, the U.S. Supreme Court struck down an ordinance criminalizing the conduct (or more accurately, nonconduct) of “remaining in Los Angeles for a period of five days without registering.” The U.S. Supreme Court reasoned that criminalizing entirely passive, innocent nonconduct deprived defendants of liberty without due process of law. The reasoning of Lambert was followed in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). In that case, the city of Jacksonville criminalized “nightwalking,” defined has “habitually” wandering or walking at night. The Supreme Court explained that criminalizing such historically innocent conduct is impermissible for many reasons, including the fact that it made “criminal” the “activities which by modern standards are normally innocent” and did so without requiring any proof of “intent to commit an unlawful act.”

Applying that rationale to RCW 69.50.4013, the statute would criminalize “a letter carrier who delivers a package containing unprescribed Adderall; a roommate who is unaware that the person who shares his apartment has hidden drugs in common areas of the home; a mother who carries a prescription pill bottle in her purse, unaware that the pills have been substituted for illegally obtained drugs by her teenage daughter, who placed them in the bottle to avoid detection.” State v. A.M., 448 P.3d (Wash. 2019). It could also penalize a person who picked up the wrong bag at the airport; the wrong jacket at a concert; or even the wrong briefcase at the courthouse. Id. Without requiring a guilty mind, the statute plainly criminalizes “wholly passive” and “essentially innocent” conduct, the Court explained. Thus, the Court held that the statute “violates the due process clauses of the state and federal constitutions….”

Having determined that RCW 69.50.4013(1) is unconstitutional, the Court next determined an appropriate remedy. Generally, the Court interprets statutes to avoid constitutional doubts. Utter ex rel. State v. Bldg. Indus. Ass’n of Wash., 341 P.3d 953 (Wash. 2015). And if the instant case were the Court’s first opportunity to interpret RCW 69.50.4013(1), the Court could have read a “mens rea element” into the statute. Staples. However, 40 years ago, the Court held that RCW 69.50.4013 does not have a mens rea element. Cleppe. And it has consistently reaffirmed that holding. Bradshaw. Over the years, the legislature had oft amended the statute but had not added a mens rea element. Where statutory language remains unchanged after a court decision, the Washington Supreme Court will not overrule clear precedent interpreting the same statutory language. Riehl v. Foodmaker, Inc., 94 P.3d 930 (Wash. 2004).

Thus, the Court held that RCW 69.50.4013(1) violates the Due Process Clause of the state and federal constitutions and is therefore void.

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