On February 25, a Washington Supreme Court ruling—commonly known as the Blake decision—effectively decriminalized drug possession in the state. Lawmakers quickly worked to recriminalize it, via legislation that took effect on July 25. But it reinstated possession as only a misdemeanor, rather than a felony as it had been previously. Governor Jay Inslee has said that around 1,200 people could get commuted sentences. Eight months after the court ruling, some have been released. But many are still waiting for their cases to be heard at all.
Here in the Minimum Security Unit of the Monroe Correctional Complex, where I’m housed, one of our commutation-eligible neighbors finally returned to his loved ones in early September. Others—many of them waiting for their own sentences to be reviewed—watched him go, trying to reconcile their happiness for him with their envy.
Paul Fuentes, 46, has been incarcerated since 2005. In 2016, he was caught with a small amount of methamphetamine, and thrown into segregation.
“Usually, when you get caught with drugs in prison, you just go to the hole for a long period of time,” Fuentes said. “But they made an example of me because I did a long period of time in the hole, then, a year and a half later, I was charged with possession of a controlled substance.” He was sentenced to an additional one year on top of the 19 he was already serving.
When the Blake decision was handed down, people in county jails on possession charges were immediately released, their charges dismissed. Gov. Inslee announced he was working on a plan to provide relief to those currently in prison on possession charges.
Fuentes soon learned about a form he would need to complete in order to have his case reviewed. “I filled it out and sent it in right away, but I never had a response, so I had somebody check online,” he said. “She found out that the judge had signed off on my case months ago. She had to pay for copies, to send me, and I showed them to my caseworker, and then they finally changed my release date.”
The Blake decision stemmed from a 2016 case in Spokane, Washington. Shannon Blake was arrested for simple drug possession—a baggie of methamphetamine found in the jeans she was wearing. After arguing that she had received the pants from a friend and had no knowledge of the pockets’ contents, she was found guilty. Later, the statute under which she was convicted was found to have violated due process, and therefore to be unconstitutional.
Fuentes is not the only eligible person to have difficulty getting the Blake decision applied to their sentence.
“I had to go through the Court of Appeals to have mine overturned.”
When a person is convicted of a felony in Washington state, the amount of time they’re sentenced to falls within a standard range based on their offender score. For instance, someone who is convicted of robbery and has nine previous felony convictions would have a sentencing range of 120 to 160 months, while someone convicted on the same charge who has no priors would qualify for a much lower range.
Now that possession is no longer a felony, people with prior convictions who are currently incarcerated on charges ranging from larceny to murder have lower offender scores, and qualify for resentencing within a lower range. Fines related to past possession convictions are sometimes wiped or refunded, too.
Eric Thibert, 51, has been incarcerated since 2019 for delivery of a controlled substance. Though his previous possession convictions were finally wiped from his record in late summer, he wasn’t resentenced because his non-drug charges were so numerous it wouldn’t have made a difference.
“I got the felony points taken off, and I got refunded for the fines I’d paid,” Thibert said. “My wife was in jail, doing a 90-day commit for drugs, though, and they had to release her after only two weeks.”
Ron Markovich, 61, has been incarcerated 51 months on charges of possession with intent to distribute. With an offender score of “8” at the time of his conviction, his standard range was 60 to 120 months. Since he had six prior felonies for simple possession, the Blake decision reduced his criminal record significantly—yet he still faced barriers to getting the decision applied to his case.
“I had to go through the Court of Appeals to have [my convictions] overturned,” Markovich said, “because they were from another state.”
On September 3, he received a manila envelope containing legal paperwork informing him he now has an offender score of 2. His new standard range is 12 to 20 months. He smiled as he showed me the three words he’s waited eight months to read:
“Remanded for resentencing.”
Markovich will be released as soon as this order is put into motion. But there’s no way of knowing when that will be. He probably won’t be given any information about when he can expect it. Like so many people here, he’ll simply be left to wait.
Some prisoners consider the Blake decision a distraction from real reform.
Many of us incarcerated are skeptical about this prolonged process. After a recent decision that decriminalized possession of marijuana, we witnessed some of our neighbors being released within weeks. Why is the Blake decision taking so long?
Even setting aside the issue of delays, some prisoners consider the Blake decision a distraction from real reform. People who serve long stretches for more serious crimes are less likely to recidivate.
As commutations are handed down haphazardly, it also feels like people incarcerated on “violent” charges in addition to simple possession, who should now be eligible for lower sentencing, are the ones whose cases are being delayed—while people incarcerated on “non-violent” charges are the ones whose cases are being moved forward.
Issac Sweet, 44, has been incarcerated 26 years for a robbery he was charged with at 18.
“The courts and legislators need to start looking more closely at people with the term ‘violent’ attached to their name or crime,” Sweet said.
“The only thing that should matter is that we do what’s in the interest of the safety of our communities. That means looking to provide relief to the people in our prisons who are mentally and physically prepared for release—whether the stigma of violence is attached to them or not.”
Photograph of methamphetamine via Federal Bureau of Investigations