The Washington Supreme Court's 2021 ruling in Washington v. Blake continues to reverberate. In Blake, the court threw out the state's drug possession law as unconstitutional because it did not require that defendants knew they were in possession of a controlled substance, overturning hundreds of thousands of drug convictions going back to the 1970s.
That left the state without a felony drug possession law until the legislature acted to replace it, which it did temporarily in 2021 and permanently this year, although it required a special session of the legislature to get it done. Lawmakers could have done nothing, effectively decriminalizing drug possession, or they could have fixed the flaws in the original statute and reinstated the felony drug possession charge. Instead, they found middle ground, making drug possession a gross misdemeanor and creating a new offense of public drug use. Both offenses carry maximum jail time of 180 days and a maximum fine of $1,000.
But while the politicians and the press were embroiled in the drug possession law dilemma, another aspect of the Blake decision is just beginning to be felt, and it's going to cost state taxpayers just about $100 million. All those people convicted under the drug possession law are eligible to have their sentences vacated -- tens of thousands have already done so -- and once those convictions are vacated, so are the fines and fees associated with them, meaning the state is going to owe those people money.
To reimburse convicted drug possession offenders of the Legal Financial Obligations (LFOs) they paid, the Administrative Office of the Courts is launching what will be known as the Blake Refund Bureau. The legislature has allocated $50 million to make the refunds and another $47 million to administer the program.
"This is setting a precedent," said Robin Zimmermann, the Administrative Office of the Courts' Senior Communications Officer. "There aren't any other related cases of a state issuing hundreds, or thousands, of vacations [of convictions] and refunds at one time."
Roughly 200,000 felony drug possession convictions and tens of thousands of marijuana possession convictions could be eligible for compensation, although exact numbers are hard to come by because some people may have had more than one conviction and others may have died in the interim.
Municipal, district, and superior courts have already ordered the payment of roughly $8 million, and the Administrative Office of the Courts believes that millions more will be paid out in coming years, necessitating the creation of a specialized bureau to administer the payouts.
"The intent is to have a process that is easy to navigate and will provide for a timely response for individuals to receive their refunds," said Sharon Swanson, the Blake Implementation Manager for the Administrative Office of the Courts.
The Blake Refund Bureau, which is set to be up and running by next month, will create an online portal accessible to the public via a link on www.courts.wa.gov. The refund bureau will provide individuals who have had their Blake convictions vacated a self-navigable database to determine if they have refunds related to their convictions. Refund requests will be submitted through an online application. Once the application has been received and an amount of refund is confirmed by the court, a refund will be issued.
"The Administrative Office of the Courts is dedicated to working with our justice partners to help inform the vast and diverse Blake-impact population across Washington State about the potentially life-changing relief opportunities now available to them -- collectively working to foster fresh starts and make people whole again," said Dawn Marie Rubio, Washington State Court Administrator.
The Office of Public Defense is doing its part with a web site, State v. Blake (wa.gov), with resources and information about how to get drug possession convictions off your record, the first step in the process of getting compensation for LFOs you paid.
The state of Washington is breaking new ground in righting old wrongs. If that means taxpayers have to pay for the sins of their fathers, so be it.