Peninsula prosecutors weigh impacts of Supreme Court decision

A state Supreme Court decision that invalidates simple drug possession arrests and prosecution has North Olympic Peninsula authorities scrambling to address the potential impacts.

The decision rendered Thursday, Feb. 25, may have unintended consequences, according to Clallam and Jefferson county prosecuting attorneys, who serve as the “top cops” in their counties.

The first action that the offices of Mark Nichols, Clallam County prosecuting attorney, and James Kennedy, Jefferson County prosecuting attorney, are taking is dismissing the cases of those in custody awaiting court hearings on simple drug possession charges. The decision does not affect charges of possessing drugs for sale.

Some with simple possession charges may continued to be held in jail because of other charges, but the court’s decision complicates matters. If evidence of the other charges was found in the process of gathering drug possession evidence — such as a stolen gun found through a search warrant obtained to look for drugs — those charges would be dropped as well since the search warrant would be invalid, Nichols said.

Both offices also are in the process of drafting orders to dismiss the convictions of people who are serving time in jail for drug possession only, Nichols and Kennedy said.

A significant concern of both prosecuting attorneys is the impact the decision will have on drug courts. Some of those now getting professional help in recovering from their addictions through drug court programs may not be able to continue receiving that assistance, they said.

They fear that state laws about the use of public funds and services might prohibit those who no longer have a legal requirement to be in drug court from taking part in the programs.

“There are some legal considerations and principles that may tie our hands,” Nichols said. “There has to be a lawful ability for people to remain in the program.

“Absent of lawful ability, if they remain in the program and continue receiving services, as a result of their participation we may run afoul of the state’s prohibition on the gifts of public funds,” he said.

I’m really profoundly concerned about drug court participant pools across the state being significantly reduced and those folks put out on their own and losing support that is helped them stay in recovery,” Nichols continued.

“It would just be tragic to me if we start to see a parade of truly terrible consequences such as drug overdosing occurring, because people are left without the supports they had as a direct result of this program.”

Said Kennedy, “I don’t think the impact can be adequately understated. I was kind of surprised to see that it hadn’t made national headlines yet, because that’s how momentous I consider this. We don’t even really know how this is going to impact everything. There are a lot of potential consequences here.”

They said that some drug court participants might lose support for recovery.

They also feared a statewide rise in drug overdose deaths.

“My concern is whatever work I end up not having to do as a prosecutor is frankly going to be picked up as a coroner,” Kennedy said.

Many factors were still unknown Friday about the future of the drug court system. If large numbers of participants statewide are cut off from that it, other recovery organizations will be needed, Nichols and Kennedy said.

Both prosecuting attorneys, who also serve as coroners in their respective counties, worry that the decision, by limiting help given to addicts, could lead to a rise in drug overdose deaths.

“The opioid crisis we had didn’t go away,” Kennedy said. “We still have overdose deaths here. The state overdose deaths are still going up.

“Our ability to act as the makeshift safety net as we always have and catch these people and get them to treatment was just taken away,” he said.

“That means they’re going to get much worse before we can do anything about it, or they’re going to perish.”

The court decision means that law enforcement can’t arrest people for simple drug possession, including minors, who can still be charged for under-age use of non-controlled substances, Kennedy pointed out.

“Take for example if you’re a juvenile: Don’t touch the tobacco, don’t touch the marijuana, stay away from the alcohol, but meth and heroin are OK,” Kennedy said facetiously. “These remain controlled substances and remain illegal under federal law. Under state law there is no mechanism for enforcement.

“It’s conceivable that they could be confiscated from you, but at the moment, there is no charge that would support a subsequent prosecution.”

The Supreme Court ruled on a Spokane case in which a woman said that she didn’t know there were drugs in her jeans, which had been recently given to her by a friend.

“This is the defense we get in almost every single possession case,” Kennedy said. “It is the ‘dog ate my homework’ defense of drug possession.

“It is something that is kind of chuckled about in our circles,” he continued. “No one believes it. Juries never believe it. Its ridiculous to think that there’s this community or sub-culture where everyone trades their pants around. It’s utter nonsense and the idea that anyone would be convinced of this has always been sort of laughed at and it turns out our Supreme Court bought it.”

It is possible that the state Legislature might modify a bill this session to address some of the potential consequences of the decision, but that is uncertain, Nichols said.

“There are a lot of unanswered questions,” Kennedy said. “It’s kind of a game of what-ifs?”