State Court Docket Watch: State of Washington v. Blake

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

Shannon Blake was arrested in Spokane, Washington in 2016. The police executed a search warrant that authorized the agents to look for evidence of stolen vehicles. Blake was one of three persons arrested at the scene. Later on, at the jail, a corrections officer discovered a small baggy in one of the pockets of Blake’s jeans. That baggy contained a small amount of methamphetamine. The state charged Blake with possession of a controlled substance under Washington state law.[1]

Blake’s case was tried before a judge. Following the state’s case-in-chief, Blake advanced an affirmative defense that the drugs did not belong to her and that she was unaware of the fact that the baggy had been tucked into the coin pocket of the jeans. Blake testified that she had received the jeans secondhand just two days before her arrest. She further testified that she had never used meth and was not a drug user.[2]

The trial court found that Blake had not made a sufficient showing to sustain the affirmative defense that her possession had been “unwitting.” Finding that Blake had possessed a controlled substance on the day of her arrest, the trial judge found her guilty of the offense.[3]

On appeal, Blake advanced a constitutional challenge to her conviction. Blake claimed the state had denied her due process because it had placed the legal burden upon her to prove that her drug possession had been unwitting. The court of appeals found no merit in Blake’s legal claim and affirmed her conviction.[4] The Supreme Court of Washington granted review and, by a majority vote, agreed with Blake that the constitutional guarantee of due process was violated.[5]

This case is important because it sets a rare and noteworthy precedent in constitutional law: A legislative enactment is invalid because it exceeds the police power of a state legislature. While constitutional textbooks and scholars discuss the abstract boundaries of the police power, there are very few holdings in American jurisprudence that actually identify specific limits.[6]

The court’s opinion explained that there were several reasons for this extraordinary precedent. First, the court noted that the Washington legislature enacted the only statute in the nation to combine strict liability with felony consequences.[7] Constitutional challenges in other jurisdictions had been rejected in the context of misdemeanor penalties and the question of whether felony consequences would pass constitutional muster was invariably left an open question. The court explained that because of the felony aspect of this case, “it is impossible to avoid the constitutional problem now.”[8]

Second, courts have also commonly side-stepped constitutional controversy involving strict liability statutes by finding implied mens rea elements in statutes where they were otherwise absent.[9] Of course, when a mens rea element is deemed to be implied, the statute can no longer be considered a strict liability law. The court declined to imply a mens rea element in this case because it said there was “overwhelming evidence”[10] that the legislative intent was to implement a policy of strict liability. For that reason, the court set aside prior case law that had allowed an implied “unwitting defense” to the possession charge.[11]

After its discussion of proper statutory interpretation and its legal conclusion that the drug possession statute had to be treated as a strict liability law, the court turned to its constitutional analysis.

Notably, the Blake holding is grounded in both state and federal law. With respect to federal law, the court relied primarily upon a 60 year old case, Lambert v. California.[12] In Lambert, the Supreme Court invalidated an ordinance that made it a crime for a convicted person to remain in Los Angeles for more than five days without registering with local officials. The Supreme Court ruled that without any mens rea showing, a person could be convicted without having been aware of his duty to register. Such a law violated the federal constitutional guarantee of due process. Since the Washington drug possession statute criminalizes passive “nonconduct” without requiring the state to prove any mental state at all, the Blake majority opined that it also violates the due process clause of the Fourteenth Amendment.[13]

With respect to state constitutional law, the Blake majority relied upon City of Seattle v. Pullman.[14] In Pullman, the defendant challenged a Seattle ordinance that prohibited “accompanying a child during curfew hours.”[15] The court invalidated that ordinance because it made “no distinction between conduct calculated to harm and that which is essentially innocent.”[16] Like the curfew law, the Blake majority reasoned that the drug possession statute also violates the due process guarantee of the state constitution because it criminalizes “passive and innocent nonconduct with no mens rea or guilty mind.”[17]

It is important to note that the Blake ruling does not eliminate the doctrine of strict criminal liability in Washington. According to the court, its ruling does not even invalidate the state drug possession statute—just a “portion”[18] of it. The Blake majority was alarmed by the fact that, under strict liability, mail carriers, roommates, and others, could be found guilty of felony drug possession without any awareness of wrongdoing on their part.[19] From now on, the government must prove that defendants know, or at least have good reason to know, of drugs in their possession.[20]

Justice Charles Johnson dissented, joined by Justices Barbara Madsen and Susan Owens. In their view, the case was simple and straightforward. The legislature “’has plenary power to criminalize conduct regardless of whether the actor intended wrongdoing.’”[21] There is no due process limitation upon the scope of the police power. Whether mens rea is an element of an offense is a matter to be determined by the legislature. Blake’s constitutional objections were without merit and her conviction should have been affirmed.

Justice Debra Stephens filed an opinion concurring in part and dissenting in part. She thought the constitutional question could have been, and should have been, avoided. She would have revisited prior state court precedents and reinterpreted the drug possession statute as having an implied mens rea element. And on that basis, she would have vacated Blake’s conviction. Stephens disagreed with the majority’s constitutional analysis, which, she argued, “conflates the distinct elements of mens rea and actus reus and will undoubtedly lead to confusion and divergent application among the courts.”[22]