State v. Blake: Its Significance, Its Impact, and County Resources for Those Convicted of Unlawful Possession
**Updates:
Several provisions in the 2021 legislation, referred to below, expired on July 1, 2023. New Blake “fix” legislation was signed into law on May 16, 2023, with different parts of the law going into effect on various dates.
New Blake self-help guides and videos include Washington LawHelp‘s How to clear (vacate) your drug possession conviction after State v. Blake, the Washington Defender Association’s State v. Blake Resource Page, and the Washington Courts Blake Refund Bureau How to Apply video.
People with Blake-related convictions can now apply for a refund of their legal financial obligations. Convictions must be vacated before applying for a refund. Get help with the vacating process by calling the Blake hotline at 360.586.3164 Ext. 218. Once your conviction has been vacated you can apply for a refund online here.**
On February 25, 2021, the Washington Supreme Court in State v. Blake, 197 Wn.2d 170 (2021), found the possession of a controlled substance statute to be unconstitutional. The Court faulted the statute’s lack of a mental state element requiring the prosecution to show that the defendant had knowledge that they possessed the substance. The Court held that Washington’s strict liability drug possession statute, RCW 69.50.4013, violates the due process clauses of the state and federal constitutions as it exceeds the State’s police power.
Justice Gordon McCloud, writing for a five justice majority, held that the statute “makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance.” Justice Gordon McCloud noted that Washington was the only state in the nation to not have a mental state element in its drug possession statute and that this violates the due process clauses by “taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.”
The defendant, Shannon Blake, was arrested with three others during a search for stolen vehicles. At the jail, officers found a small baggy of methamphetamine in the coin pocket of her jeans. At trial, she testified that “a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest” and that “she had never used methamphetamine and did not know the jeans had drugs in the pocket.” Her boyfriend also testified that “Blake did not use drugs and that she had received the jeans from a friend.” Both the trial and appellate courts rejected her defense of “unwitting possession.”
The National Association of Counties notes that the Blake decision is retroactive to 1971, consequently there are 50 years’ worth of simple possession convictions that are subject to being vacated. The prosecutors, public defenders, and courts are focused on those currently serving sentences. Eric Johnson, executive director of the Washington State Association of Counties, notes the daunting financial costs:
The potential is for hundreds of millions of dollars in legal financial obligations that have been paid over the last 50 years to the court system, much of which went to restitution, treatment services or to the state, and a portion went to county general funds. . . . We received $86 million from the Legislature, which is a good starting point for the next year or two, but there’s a lot that remains to be seen on how much this will cost in total.
Of course, legal financial obligations themselves have received ample recent criticism with advocates contending that they constitute an unfair and biased funding source for the criminal justice system.
In addition to providing a substantial increase in funding for courts, prosecutors, and public defenders in Washington’s counties, the state legislature recently corrected the simple possession statute to require proof of mental state. SB 5476, entitled in the engrossed version as “Responding to the State v. Blake decision by addressing justice system responses and behavioral health prevention, treatment, and related services,” became Ch. 311 of the Laws of 2021. The law adds the word “knowingly” before “possess” throughout the relevant sections in RCW 69.50. The bulk of Ch. 311 is focused on improving drug treatment in Washington and allocating funding to help process the huge number of cases affected by Blake.
Commutations, Vacating Convictions, and Return of Legal Financial Obligations
On August 16, 2021, Governor Inslee announced a new process for requesting a commutation of sentence for those currently incarcerated or in community custody for simple possession. The Washington State Office of Public Defense has provided further guidance for seeking a commutation from the Governor.
Because Washington does not have a unified court system, where the state Supreme Court supervises all lower courts, each county is responsible for implementing Blake pursuant to its own processes. Consequently, it is critical to learn and follow the process in the county of conviction to seek to vacate a Possession of Controlled Substance conviction. Information for all Washington counties can be found here. All counties are starting with people in custody, either currently in jail or prison or in community custody. Eventually, they will get to those who want to clear their record for a past conviction.
A class action lawsuit “seek[ing] to provide refunds and cancel debt for Legal Financial Obligations (‘LFOs’) imposed for convictions under Washington’s former drug possession statute” was dismissed by King County Superior Court in September of 2021. Direct review of the decision is currently being sought at the State Supreme Court. More information can be found at the Washington Legal Financial Obligations Lawsuit website.
Find Blake Information for Your County
King County: The King County Prosecuting Attorney’s Office is currently “giving priority to those requests from individuals currently in custody who are likely to be released within the next 0–180 days based upon a change to their offender score and sentencing range” and is not responding to pro-se requests for resentencing but only to requests made by attorneys “due to the complex nature of the re-sentencing requests.” Forms and more information for King County can be found here. The King County Department of Public Defense is also providing legal help to persons convicted of Unlawful Possession. Information can be found here.
As of November 10, 2021, the King County Department of Public Defense had already filed 585 motions to vacate sentences based on the Blake decision. There may be as many as 40,000 in King County affected by the Blake decision.
Pierce County: The Department of Assigned Counsel has Blake information and an application form here. A Prosecuting Attorney’s Office review form is available here.
Snohomish County: The Snohomish County Public Defender Association states that they are focused on those currently in custody but “hope to develop a procedure and plans…soon” for those seeking to vacate past convictions. They have posted a forms page for those who want to file their own motions to vacate rather than waiting for representation.
Spokane County: The Public Defender Office has an information page about Blake cases and the Spokane County Superior Court has released a State v. Blake Motion to Vacate Conviction form.
Clark County: Clark County Superior Court has released some procedural directions regarding State v. Blake cases. The Clark County Office of Indigent Defense has also posted some limited information.
Thurston County: Information about the Blake process in Thurston County can be found here.
Kitsap County: The Kitsap County Office of Public Defense page with Blake decision information is available here.
Yakima County: In Yakima County, the prosecutor’s form for Blake relief is explicitly for people without attorneys.
The ACLU Washington has a Q & A: The Blake Decision page and Civil Survival provides a Guide to Determining Blake Eligibility and information about Blake refunds and social security benefits. (RM)
