IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, 

v.

SHANNON B. BLAKE, 

Petitioner. 

NO. 96873-0 

EN BANC

Filed ________________

GORDON MCCLOUD,J.—Washington’s strict liability drug possession 

statute, RCW 69.50.4013, 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. This case presents an issue of 

first impression for this court: Does this strict liability drug possession statute with 

these substantial penalties for such innocent, passive conduct exceed the 

legislature’s police power? The due process clauses of the state and federal

: February 25, 2021

FILE 

IN CLERK’S OFFICE

SUPREME COURT, STATE OF WASHINGTON 

FEBRUARY 25, 2021

THIS OPINION WAS FILED 

FOR RECORD AT 8 A.M. ON

FEBRUARY 25, 2021

SUSAN L. CARLSON 

SUPREME COURT CLERK 
State v. Blake (Shannon B.), No. 96873-0 

2 

constitutions,1 along with controlling decisions of this court and the United States 

Supreme Court, compel us to conclude that the answer is yes—this exceeds the 

State’s police power. 

INTRODUCTION

We begin with the rule that state legislatures have the police power to 

criminalize and punish much conduct. But the due process clauses of the state and 

federal constitutions limit that power. The key limit at issue here is that those due 

process clause protections generally bar state legislatures from taking innocent and 

passive conduct with no criminal intent at all and punishing it as a serious crime. 

Unfortunately, that is exactly what RCW 69.50.4013, the strict liability 

felony drug possession statute, does. And it is the only statute in the nation to do 

so. We therefore conclude that it violates the state and federal constitutions.

To be sure, at one time, it might have been possible for this court to avoid 

this constitutional issue by interpreting RCW 69.50.4013 as silently including an

intent element and thereby saving it from unconstitutionality. But that time has 

long since passed. First, in 1981, we held that our legislature intended drug 

possession to be a strict liability felony in State v. Cleppe. 96 Wn.2d 373, 635 P.2d 

435 (1981). Then, 16 years ago, and 23 years after Cleppe, we reiterated Cleppe’s 

1

 WASH. CONST. art. I, § 3; U.S. CONST. amend. XIV. 
State v. Blake (Shannon B.), No. 96873-0 

3 

statutory interpretation holding: that our legislature intended drug possession to be 

a strict liability felony. State v. Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004). 

Given the interpretive principles of legislative acquiescence and stare decisis, only 

the legislature, not the court, can now change the statute’s intent. 

This court, however, is the one that must evaluate whether that statute

comports with constitutional due process guaranties. We have been asked to do 

that today, and we hold that the statute violates those guaranties. Attaching the 

harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many

collateral consequences that accompany every felony drug conviction to entirely 

innocent and passive conduct exceeds the legislature’s powers. 

FACTS

In 2016, police executed a search warrant in Spokane, Washington, seeking 

evidence of stolen vehicles. Verbatim Report of Proceedings (VRP) at 19. They 

arrested three people on the property, including Shannon Blake. Clerk’s Papers 

(CP) at 13; VRP at 40. At the jail, a corrections officer discovered a small baggy 

containing methamphetamine in the coin pocket of Blake’s jeans. VRP at 47-48. 

The State charged Blake with possession of a controlled substance in violation of 

RCW 69.50.4013. CP at 18.

At trial, Blake relied on the judicially created affirmative defense of 

“unwitting possession.” She testified that a friend had bought the jeans 
State v. Blake (Shannon B.), No. 96873-0 

4 

secondhand and given them to Blake two days before Blake’s arrest. VRP at 76. 

Blake said she had never used methamphetamine and did not know the jeans had 

drugs in the pocket. Id. She acknowledged that the drugs had been “on [her]” on 

the day of her arrest. Id. at 83. Blake’s boyfriend also testified that Blake did not 

use drugs and that she had received the jeans from a friend. Id. at 89-90.

The trial court served as trier of fact. CP at 20. It found that Blake had

“possess[ed]” methamphetamine on the day in question. CP at 26. Consistent with 

the law as interpreted in Cleppe and Bradshaw, it did not make any findings as to 

whether the State had proved that Blake’s possession was intentional or knowing. 

It did conclude, however, that Blake had not met her burden to prove that her 

possession was unwitting. VRP at 108; CP at 26. Accordingly, the trial court

found Blake guilty. 

On appeal, Blake argued that “requiring her to prove unwitting possession to 

[sic] the charged offense violates due process.” State v. Blake, No. 35601-9-III, 

slip op. at 1 (Wash. Ct. App. Jan. 22, 2019) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/356019_unp.pdf. Relying on Cleppe and 

Bradshaw, the Court of Appeals held that “[t]he crime of possession of a 

controlled substance does not require a mens rea element” and the defense’s 

burden to show unwitting possession does not violate due process. Id. at 6 (citing 
State v. Blake (Shannon B.), No. 96873-0 

5 

Bradshaw, 152 Wn.2d at 532; Cleppe, 96 Wn.2d at 380; State v. Schmeling, 191 

Wn. App. 795, 365 P.3d 202 (2015)).

We granted review. State v. Blake, 194 Wn.2d 1023 (2020).

ANALYSIS

I. THE STRICT LIABILITY DRUG POSSESSION STATUTE EXCEEDS THE STATE’S

POLICE POWER BY IMPOSING HARSH FELONY CONSEQUENCES ON INNOCENT

NONCONDUCT WITH NO MENS REA

The basic drug possession statute at issue in this case states, “It is unlawful

for any person to possess a controlled substance . . . .” RCW 69.50.4013(1). The 

State need not prove any mens rea (mental state) element to secure a conviction for 

this crime. Bradshaw, 152 Wn.2d at 534-35. As we have held for nearly 40 years, 

“if the legislature had intended guilty knowledge or intent to be an element of the 

crime . . . it would have put the requirement in the act.” Cleppe, 96 Wn.2d at 380.

Blake clearly argues that the constitution bars the legislature from penalizing

her conduct without requiring the State to prove she had a guilty mind. Pet’r’s 

Suppl. Br. at 18 (“[T]he legislature exceeds its power by creating a strict liability 

offense that lacks a public welfare rationale, has draconian consequences, and 

criminalizes innocent conduct.”). Amici provide additional support for this 

argument.2 The concurrence dismisses our discussion of this argument by claiming 

2 Br. of WACDL (Wash. Ass’n of Criminal Def. Lawyers) & ACLU-WA (Am. 

Civil Liberties Union of Wash.) as Amici Curiae in Supp. of Pet’r at 4 (“[L]egislatures 
State v. Blake (Shannon B.), No. 96873-0

6

that it was not even briefed. Concurrence at 9-10, 22-24.

3 As the citations above 

and in the footnote below show, the concurrence is incorrect about this and the 

cited portion of Blake’s brief does place a question of first impression4 before us: 

whether the legislature possesses the power to punish Blake for innocent 

conduct—or, more accurately, nonconduct—without proving any mental state at 

all. 

 

generally have flexibility to define crimes, but due process prohibits a State from defining 

criminal offenses in a manner that ‘offends some principle of justice so rooted in the 

traditions and conscience of our people as to be ranked as fundamental.’” (quoting 

Patterson v. New York, 432 U.S. 197, 201-02, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977))), 

5 (“a legislature does not have unfettered discretion to define the elements of criminal 

offenses”), 7 (the legislature “never had the power to eliminate the requirement that the 

government prove the defendant’s mens rea”), 20 (“The statute criminalizes innocent 

conduct and offends fundamental principles of justice.”).

3 The concurrence accuses our decision of raising “concerns” that are 

“substantially similar” to the concerns raised in United States v. Sineneng-Smith, __U.S. 

__, 140 S. Ct. 1575, 1578, 206 L. Ed. 2d 866 (2020). Concurrence at 23. That’s not a 

fair comparison. In that case, the Ninth Circuit Court of Appeals “named three amici and 

invited them to brief and argue issues framed by the panel” but not presented at all by the 

briefing and thereby assigned the parties a “secondary role.” Sineneng-Smith, 140 S. Ct. 

at 1578. In this case, in contrast, we resolve the issue that Blake has presented and that 

amici have more fully briefed. 

4 This is a question of first impression because neither Cleppe nor Bradshaw

addressed this issue. The defendants in Bradshaw argued that Cleppe’s interpretation of 

the statute was unconstitutional “because the statute is vague, criminalizes innocent 

behavior, and adversely affects the right to intrastate and interstate travel.” 152 Wn.2d at 

539. But we did not address those arguments on the merits; we rejected them because the 

briefing provided insufficient analysis. Id. Thus, the constitutionality of this statute’s 

“criminaliz[ation of] innocent behavior” remains an open question after Bradshaw.
State v. Blake (Shannon B.), No. 96873-0 

7 

A. Due Process Clause Protections Limit the Legislature’s Police Power To

Criminalize Wholly Innocent and Passive Nonconduct

“States have a legitimate interest in restraining harmful conduct and are 

empowered to do so under their police powers.” State v. Talley, 122 Wn.2d 192, 

199, 858 P.2d 217 (1993) (citing City of Seattle v. Hill, 72 Wn.2d 786, 797, 435 

P.2d 692 (1967); Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45, 41 S.

Ct. 425, 65 L. Ed. 819 (1921)). In 1936, we said the police power “is an attribute 

of sovereignty, an essential element of the power to govern, and a function that 

cannot be surrendered. It exists without express declaration, and the only 

limitation upon it is that it must reasonably tend to correct some evil or promote 

some interest of the state, and not violate any direct or positive mandate of the 

constitution.” Shea v. Olson, 185 Wash. 143, 153, 53 P.2d 615 (1936) (citing 

Bowes v. Aberdeen, 58 Wash. 535, 542, 109 P. 369 (1910); State ex rel. DavisSmith Co. v. Clausen, 65 Wash. 156, 178, 117 P. 1101 (1911); State ex rel. 

Webster v. Superior Court, 67 Wash. 37, 40, 120 P. 861 (1912); State v. Mountain 

Timber Co., 75 Wash. 581, 584, 135 P. 645 (1913), aff’d, 243 U.S. 219, 37 S. Ct. 

260, 61 L. Ed. 685 (1917)). 

But the police power is not infinite. If it were, “the result would be a police 

state, and the legislative branch of the government would be omnipotent.” 

Peterson v. Hagan, 56 Wn.2d 48, 53, 351 P.2d 127 (1960). Under both the state 
State v. Blake (Shannon B.), No. 96873-0 

8 

and federal constitutions, a statute must have “a reasonable and substantial relation

to the accomplishment of some purpose fairly within the legitimate range or scope 

of the police power and [must] not violate any direct or positive mandate of the 

constitution.” Ragan v. City of Seattle, 58 Wn.2d 779, 783, 364 P.2d 916 (1961)5

(citing Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934); 

State v. Canyon Lumber Corp., 46 Wn.2d 701, 284 P.2d 316 (1955); State v. 

Dexter, 32 Wn.2d 551, 202 P.2d 906 (1949); Campbell v. State, 12 Wn.2d 459, 

122 P.2d 458 (1942); Shea, 185 Wash. 143; City of Seattle v. Proctor, 183 Wash. 

293, 48 P.2d 238 (1935), overruled in part on other grounds by Chong Yim v. City 

of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019)).6

 Though Ragan did not identify

the specific constitutional source of this test, it relied on Nebbia; in Nebbia, the 

Supreme Court explicitly rooted the limits of the police power in “the guaranty of 

due process” that “the law shall not be unreasonable, arbitrary or capricious” and 

5 Ragan and its progeny were overruled by Chong Yim v. City of Seattle, 194 

Wn.2d 682, 451 P.3d 694 (2019), to the extent they “requir[ed] heightened scrutiny in 

article I, section 3 substantive due process challenges to laws regulating the use of 

property.” Ragan’s application outside the property use context remains unaffected by 

Yim. 

6 Ragan announced this test in a challenge to a municipal ordinance. 58 Wn.2d at 

783. We have since applied the same test to decide the scope of the police power of the

state legislature. Markham Advert. Co. v. State, 73 Wn.2d 405, 420-21, 439 P.2d 248

(1968) (quoting Ragan, 58 Wn.2d at 783), overruled in part on other grounds by Yim,

194 Wn.2d 682).
State v. Blake (Shannon B.), No. 96873-0

9

“the means selected shall have a real and substantial relation to the object sought to 

be attained.” 291 U.S. at 525. 

In other words, prior precedent of the United States Supreme Court and of 

this court—including Ragan—holds that the State’s police power is limited by the 

due process clause or “by constitutional protection afforded certain personal 

liberties.” Talley, 122 Wn.2d at 199 (citing Olympic Forest Prods., Inc. v. 

Chaussee Corp., 82 Wn.2d 418, 435, 511 P.2d 1002 (1973)). The “constitutional 

protection[s] afforded certain personal liberties” implicated by RCW 69.50.4013 

are (1) the principle that “‘[t]he existence of a mens rea is the rule of, rather than 

the exception to, the principles of Anglo-American criminal jurisprudence’”7 and 

(2) the rule that the government cannot criminalize “essentially innocent” 

conduct.

8

 

With regard to the first constitutional limit, the principle that mens rea is 

generally a prerequisite to criminalization in “Anglo-American jurisprudence,” it is 

certainly true that this general rule has exceptions. In Washington, for example, 

 7 Staples v. United States, 511 U.S. 600, 605, 114 S. Ct. 1793, 128 L. Ed. 2d 608 

(1994) (alteration in original) (quoting United States v. U.S. Gypsum Co., 438 U.S. 422, 

436, 98 S. Ct. 2864, 57 L. Ed. 2d 854 (1978)).

8 City of Seattle v. Pullman, 82 Wn.2d 794, 800, 514 P.2d 1059 (1973); see also 

Lambert v. California, 355 U.S. 225, 228-29, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957)

(criminalization of “wholly passive” and “entirely innocent” conduct violates due 

process). 
State v. Blake (Shannon B.), No. 96873-0 

10

the legislature can still create strict liability crimes in certain circumstances: “our 

legislature has the plenary power to criminalize conduct regardless of whether the 

actor intended wrongdoing.” State v. Yishmael, 195 Wn.2d 155, 163, 456 P.3d 

1172 (2020) (citing State v. Bash, 130 Wn.2d 594, 604, 925 P.2d 978 (1996)). In 

particular, the legislature may create “strict liability offenses to protect the public 

from the harms that have come with modern life by putting the burden of care on 

those in the best position to avoid those harms.” Id. at 164 (citing Morissette v. 

United States, 342 U.S. 246, 255, 72 S. Ct. 240, 96 L. Ed. 2d 288 (1952)).

But the second constitutional limit, the rule against criminalizing 

“essentially innocent” conduct, does not have such exceptions, and it applies with 

special force to passive conduct—or nonconduct—that is unaccompanied by 

intent, knowledge, or mens rea. 

The United States Supreme Court explained this over 60 years ago in 

Lambert v. California, 355 U.S. 225, 228, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). 

In Lambert, Los Angeles had criminalized “remain[ing] in Los Angeles for a 

period of more than five days without registering” with the city. Id. at 226. A 

defendant charged with violating this ordinance was “given no opportunity to 

comply with the law and avoid its penalty, even though her default [failure to 

register] was entirely innocent.” Id. at 229. The United States Supreme Court held 

that this exercise of the police power to criminalize entirely passive, innocent 
State v. Blake (Shannon B.), No. 96873-0

11

nonconduct deprived defendant Virginia Lambert of her liberty without due 

process of law. Id. at 229. 

The United States Supreme Court applied the same reasoning to a similar 

statute 15 years later. In Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. 

Ct. 839, 31 L. Ed. 2d 110 (1972), that Court considered the constitutionality of a 

Florida ordinance that criminalized, among other things, “nightwalking.” Id. at 

163. The Florida Supreme Court had upheld the ordinance after construing it “not 

to make criminal one night’s wandering, only the ‘habitual’ wanderer or, as the 

ordinance describe[d] it, ‘common night walkers.’” Id. at 163 (citation omitted) 

(quoting and citing Johnson v. State, 202 So. 2d 852, 855 (Fla. 1967), rev’d on 

other grounds, 391 U.S. 596, 88 S. Ct. 1713, 20 L. Ed. 2d 838 (1968) (per 

curiam)). But the United States Supreme Court reversed. It explained that 

walking, strolling, and wandering—even at night—are “historically part of the 

amenities of life as we have known them.” Id. at 164. It continued that 

criminalizing such historically innocent conduct was impermissible for many 

reasons, including the fact that it made “criminal activities which by modern 

standards are normally innocent” and did so without proof of any “intent to commit 

an unlawful act.” Id. at 163. It concluded that criminalizing passive nonconduct

while eliminating the requirement of a guilty mind violated due process clause 

protections, “cannot be squared with our constitutional standards[,] and is plainly 
State v. Blake (Shannon B.), No. 96873-0

12

unconstitutional.” Id. at 171. Lambert’s and Papchristou’s holdings rested on the 

due process clause of the Fourteenth Amendment. 355 U.S. at 229-30; 405 U.S. at 

165; U.S. CONST. amend. XIV.

Our state constitution’s due process clause provides even greater protection 

of individual rights in certain circumstances.9

 Thus, this court’s precedent also 

enforces the constitutional due process limit on the reach of the State’s police 

power (though often without specifying the specific constitutional source of that 

limit). City of Seattle v. Pullman, 82 Wn.2d 794, 802, 514 P.2d 1059 (1973); see 

also City of Seattle v. Drew, 70 Wn.2d 405, 408, 423 P.2d 522 (1967) (“The right 

to be let alone is inviolate; interference with that right is to be tolerated only if it is 

necessary to protect the rights and the welfare of others.”). Restating Ragan’s due 

process test, we have analyzed whether “the area of regulation [was] within the 

government’s scope of authority and [whether] the particular ordinance [was] a 

reasonable regulatory measure in support of the area of concern.” Pullman, 82 

Wn.2d at 799 (citing Markham Advert. Co. v. State, 73 Wn.2d 405, 420-22, 439 

 9 We “have repeatedly noted that the United States Supreme Court’s interpretation 

of the Fourteenth Amendment does not control our interpretation of the state 

constitution’s due process clause.” State v. Bartholomew, 101 Wn.2d 631, 639, 683 P.2d 

1079 (1984) (citing Olympic Forest Prods., Inc., 82 Wn.2d 418; Petstel, Inc. v. County of 

King, 77 Wn.2d 144, 459 P.2d 937 (1969)); see also Yim, 194 Wn.2d at 690 (“[T]his 

court has a duty to recognize heightened constitutional protections as a matter of 

independent state law in appropriate cases.” (citing O’Day v. King County, 109 Wn.2d 

796, 801-02, 749 P.2d 142 (1988))). 
State v. Blake (Shannon B.), No. 96873-0

13

P.2d 248 (1968), overruled in part on other grounds by Yim, 194 Wn.2d 682; 

Ragan, 58 Wn.2d 779). Applying that test, we have held that criminalization of

passive nonconduct without mens rea “makes no distinction between conduct 

calculated to harm and that which is essentially innocent” and therefore exceeds 

the State’s police power. Id. at 795. 

The strict liability drug possession statute challenged in this case is similar 

to the strict liability curfew ordinance challenged in Pullman. In Pullman, the 

defendant challenged a Seattle ordinance that prohibited “accompanying a child 

during curfew hours.” Id. By the language of the ordinance, “any minor under the 

age of 18 could be arrested for standing or playing on the sidewalk in front of his 

home at 10:01 p.m. on a warm summer evening.” Id. Justice Utter, writing for the 

majority, recognized that the government has an “independent interest in the wellbeing of its youth” and hence has authority to “enact laws to assist those whose 

primary responsibility is for the well-being of minors.” Id. at 800 (citing Ginsberg 

v. New York, 390 U.S. 629, 639, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968)). But the 

challenged law made “no distinction between conduct calculated to harm and that 

which is essentially innocent,” and it bore “an insufficient relationship to the 

objective of safeguarding minors.” Id. at 795, 802. We therefore concluded that 

the law was “an unreasonable exercise of the police power.” Id. at 800, 802. We 

explained that the record before the court was “absolutely devoid of any evidence 
State v. Blake (Shannon B.), No. 96873-0

14

showing ‘bad conduct’. . . . [T]he mere fact that the defendant was in the presence 

of two minors during curfew hours resulted in this prosecution.” Id. at 802.10 

Pullman stands for the rule that the state legislature’s exercise of its 

otherwise plenary police power to criminalize entirely passive and innocent 

nonconduct with no mens rea or guilty mind violates the due process clause of the 

state and federal constitutions. But as discussed below, the legislature criminalized 

exactly that sort of passive and innocent nonconduct in this case. 

B. Blake Was Convicted of the Felony of Unknowing Possession of Drugs; 

This Is Wholly Innocent Nonconduct That Falls beyond the Legislature’s 

Power To Criminalize 

The question before us today is whether unintentional, unknowing 

possession of a controlled substance is the sort of innocent, passive nonconduct

that falls beyond the State’s police power to criminalize. Because unknowing 

possession is just as innocent and passive as staying out late with a juvenile or 

 10 Criminalization of innocent nonconduct also tends to place “unfettered 

discretion” in the hands of police, Papachristou, 405 U.S. at 168, and can make people 

“‘who look suspicious to the police’” become future criminals. Pullman, 82 Wn.2d at 

801 (quoting Papachristou, 405 U.S. at 164). This risks violating other constitutional 

and statutory protections. See Research Working Grp. of Task Force on Race & Criminal 

Justice Sys., Preliminary Report on Race and Washington’s Criminal Justice System, 35 

SEATTLE U.L. REV. 623, 627-28, 651-53 (2012) (concluding that disproportionate 

minority representation in Washington’s prisons is largely “explained by facially neutral 

policies that have racially disparate effects”); see Gabriel J. Chin, Race, The War on 

Drugs, and the Collateral Consequences of Criminal Conviction, 6 J. GENDER, RACE &

JUST. 253, 262-70 (2002) (observing racial disparities in drug prosecutions and 

convictions).
State v. Blake (Shannon B.), No. 96873-0

15

remaining in a city without registering, we hold that this felony drug possession 

statute is just as unconstitutional as were the laws in Lambert, Papachristou, and 

Pullman.

To be sure, active trafficking in drugs, unlike standing outside at 10:01 p.m., 

is not innocent conduct. States have criminalized knowing drug possession 

nationwide, and there is plenty of reason to know that illegal drugs are highly 

regulated. The legislature surely has constitutional authority to regulate drugs 

through criminal and civil statutes. 

But the possession statute at issue here does far more than regulate drugs. It 

is unique in the nation in criminalizing entirely innocent, unknowing possession. 

The statute would criminalize, to list a few examples:

“a letter carrier who delivers a package containing unprescribed 

Adderall; a roommate who is unaware that the person who shares his 

apartment has hidden illegal drugs in the common areas of the home; a 

mother who carries a prescription pill bottle in her purse, unaware that 

the pills have been substituted for illegally obtained drugs by her 

teenage daughter, who placed them in the bottle to avoid detection.” 

State v. A.M., 194 Wn.2d 33, 64 n.13, 448 P.3d 35 (2019) (Gordon McCloud, J., 

concurring) (quoting State v. Adkins, 96 So. 3d 412, 432 (Fla. 2012) (Perry, J., 

dissenting)). “A person might pick up the wrong bag at the airport, the wrong 

jacket at the concert, or even the wrong briefcase at the courthouse. Or a child 

might carry an adult’s backpack, not knowing that it contains the adult’s illegal 
State v. Blake (Shannon B.), No. 96873-0

16

drugs.” Id. at 64. These examples illustrate the unreasonable disconnect between 

the statute’s intended goals and its actual effects.

The possession statute also imposes harsh felony consequences on this

passive nonconduct. Violation of this simple possession statute constitutes a class 

C felony. RCW 69.50.4013(2). It is punishable by a maximum of five years’ 

imprisonment and a $10,000 fine. RCW 9A.20.021(1)(c). 

In addition, all such felony convictions strip defendants of many 

fundamental rights, both during their time of incarceration and long afterward. See

generally Michael Pinard & Anthony C. Thompson, Offender Reentry and the 

Collateral Consequences of Criminal Convictions: An Introduction, 30 N.Y.U. 

REV. L. & SOC. CHANGE 585 (2006); Tarra Simmons, Transcending the Stigma of a 

Criminal Record: A Proposal to Reform State Bar Character and Fitness 

Evaluations, 128 YALE L.J.F. 759 (2019); see also MARGARET COLGATE LOVE,

RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A

STATE-BY-STATE RESOURCE GUIDE 62 (2006) (collecting state laws regulating 

licensure and employment of convicted persons). 

And drug offenders in particular are subject to countless harsh collateral 

consequences affecting all aspects of their lives. Pinard & Thompson, supra, at 

588; Gabriel J. Chin, Race, The War on Drugs, and the Collateral Consequences of 

Criminal Conviction, 6 J. GENDER, RACE & JUST. 253, 259-60 (“Those convicted of 
State v. Blake (Shannon B.), No. 96873-0

17

drug offenses are subject to a number of additional penalties,” including denial of 

more than 750 federal benefits, including consequences for health care, education, 

employment, housing, parenting, professional licenses, and others.).11

Imposing such harsh penalties for such innocent passivity violates the 

federal and state rule that passive and wholly innocent nonconduct falls outside the 

State’s police power to criminalize. This is clear from a decision of the Louisiana 

Supreme Court on the constitutionality of a similar drug possession statue from 

1980: State v. Brown, 389 So. 2d 48 (La. 1980). In that case, decided 40 years 

ago, the Louisiana Supreme Court recognized that a criminal statute penalizing 

 11 E.g., 20 U.S.C. § 1091(r) (temporary ineligibility for student financial benefits); 

21 U.S.C. § 862 (ineligibility for “the issuance of any grant, contract, loan, professional 

license, or commercial license provided by an agency of the United States or by 

appropriated funds of the United States”); 42 U.S.C. § 13661, 24 C.F.R. § 5.855 (denial 

of admission to federally assisted housing for a “reasonable time”); 21 U.S.C. § 862a 

(ineligibility for “assistance under any State program funded under part A of title IV of 

the Social Security Act,” or for “benefits under the supplemental nutrition assistance 

program . . . or any State program carried out under” the Food and Nutrition Act of 

2008); 22 U.S.C. § 2714 (ineligibility for passport during supervised release). Federal 

regulations make prior felony drug convictions a permissible basis for denying 

employment in certain jobs. E.g., 48 C.F.R. § 352.237‐72 (“Any conviction for a . . . 

drug felony[] may be grounds for denying employment or for dismissal of an employee 

providing any” “child care services to children under the age of 18.”); 21 C.F.R. § 

1301.71 (preventing “collector[s]” of controlled substances from employing anyone “who 

has access to or influence over controlled substances acquired by collection . . . who has 

been convicted of any felony offense relating to controlled substances”); 28 C.F.R. § 

97.11 (felony conviction bars employment with private prisoner transportation 

companies); 49 C.F.R. § 1544.229 (felony conviction bars employment as airport security 

screener or baggage handler); 18 U.S.C. § 922 (prohibiting any person convicted of a 

felony from possessing, selling, shipping, transporting, or receiving a firearm in interstate 

commerce); 42 U.S.C. § 671(a)(20)(A)(ii) (preventing persons convicted of “drug-related 

offense[s]” from being approved as foster or adoptive parents for five years). 
State v. Blake (Shannon B.), No. 96873-0

18

unknowing drug possession violated the constitution. Id. at 51. The Louisiana 

statute had made it a crime to “‘unknowingly or intentionally’” possess a 

controlled dangerous substance. Id. at 49 (quoting statute). The defendants 

challenged the criminalization of “unknowing” possession as unconstitutional. Id. 

The Louisiana Supreme Court agreed. It ruled that, because the statute 

criminalized situations where “a third party hands the controlled substance to an 

unknowing individual who can then be charged with and subsequently convicted . . 

. without ever being aware of the nature of the substance he was given,” which 

“offend[ed] the conscious [sic],” the statute was unconstitutional. Id. at 51. 

It is certainly true that Louisiana provides the only example of a state court 

striking down a passive and unknowing possession statute like RCW 69.50.4013 as 

unconstitutional. But that’s probably because Washington is the only state that 

continues to criminalize this innocent nonconduct. See Bradshaw, 152 Wn.2d at 

534 (citing Dawkins v. Maryland, 313 Md. 638, 647 n.7, 547 A.2d 1041 (1988))

(recognizing Washington and North Dakota as the only “exceptions” to the general 

trend of criminalizing only knowing possession). The North Dakota legislature, 

the last other state to criminalize passive unknowing possession, amended its drug 

possession statute by adding a “willfulness” mens rea element in 1989. N.D.

CENT. CODE § 19-03.1-23; 1989 N.D. LAWS 748.
State v. Blake (Shannon B.), No. 96873-0

19

Washington’s strict liability drug possession statute, like Louisiana’s strict 

liability drug possession statute, is therefore unconstitutional. It criminalizes 

unknowing, and hence innocent, passivity and therefore “has an insufficient 

relationship to the objective of” regulating drugs. Pullman, 82 Wn.2d at 802. The 

statute “goes beyond the scope of legitimate police power authority.” Id. (citing 

Lazarus v. Faircloth, 301 F. Supp. 266 (S.D. Fla. 1969), vacated sub nom. Shevin 

v. Lazarus, 401 U.S. 987 (1971); Alves v. Justice Court, 148 Cal. App. 2d 419, 306 

P.2d 601 (1957)).12

C. The Unwitting Possession Defense Cannot Make the Statute Comply with 

Due Process

This court recognized the harshness of its Cleppe holding that RCW 

69.50.4013 permissibly criminalized innocent, passive, unknowing possession. It 

addressed that harsh result with what it admitted was an “anomalous,” Cleppe, 96 

Wn.2d at 380, device: the court created a brand new affirmative defense out of 

whole cloth. Cleppe decided that an “unwitting possession” affirmative defense, 

that the defendant had the burden to prove, would “ameliorate[]” the harshness of

its strict liability decision. Id. at 380-81. 

 12 The concurrence warns that our approach “has the potential to overturn a 

number of criminal statutes to the extent [we] find[] they criminalize innocent or passive 

conduct.” Concurrence at 22. This does not seem to be a valid fear. It’s the rare 

Washington State statute that criminalizes innocent, passive nonconduct; most 

Washington laws target actual conduct and most Washington laws target people who 

know, or should know, that they are engaging in that actual targeted conduct. 
State v. Blake (Shannon B.), No. 96873-0

20

Our addition of this affirmative defense to a statute that eliminated mens rea 

and was completely silent about affirmative defenses was “judicial legislation in its 

most direct form.” City of Kennewick v. Day, 142 Wn.2d 1, 16, 11 P.3d 304 

(2000) (Talmadge, J., concurring). Bradshaw nevertheless reiterated this

affirmative defense and justified doing so because it “ameliorates the harshness of 

a strict liability crime.” 152 Wn.2d at 538 (citing Cleppe, 96 Wn.2d at 380-81).

The State contends that this rewrite saves the statute. Suppl. Br. of Resp’t at 

17. Blake argues that the defense unconstitutionally shifts the burden of proof onto 

her from the State. Pet’r’s Suppl. Br. at 5-7. We disagree with both of them.

The starting point for analyzing these two competing contentions is that 

“[t]he State is foreclosed from shifting the burden of proof to the defendant only 

‘when an affirmative defense . . . negate[s] an element of the crime.’” Smith v. 

United States, 568 U.S. 106, 110, 133 S. Ct. 714, 184 L. Ed. 2d 570 (2013) 

(quoting Martin v. Ohio, 480 U.S. 228, 237, 107 S. Ct. 1098, 94 L. Ed. 2d 267 

(1987) (Powell, J., dissenting)); see State v. W.R., 181 Wn.2d 757, 765, 336 P.3d 

1134 (2014) (“[W]hen a defense necessarily negates an element of the crime, it 

violates due process to place the burden of proof on the defendant.”). As we ruled 

in Cleppe and Bradshaw, the simple possession statute lacks a mens rea element 

entirely. Thus, contrary to the defense’s argument, placing the burden to prove 
State v. Blake (Shannon B.), No. 96873-0

21

unwitting possession on the defendant does not “negate” any existing element of 

the crime. 

Instead, the question is whether the legislature may constitutionally penalize 

passive, unknowing drug possession without a mens rea element at all. Contrary to 

the State’s argument, the affirmative defense does not play into this analysis 

because it does not impact the elements that the State must prove to secure a 

conviction. A judicially created affirmative defense may “ameliorate the 

harshness” of criminalizing innocent nonconduct, but it cannot save an 

unconstitutional statute.

The judicially created affirmative defense therefore has no legitimate place 

in our analysis of whether the statute that the legislature created exceeds its police 

powers. 

II. CONSTITUTIONAL AVOIDANCE IS IMPOSSIBLE BECAUSE THE LEGISLATURE 

CLEARLY INTENDED TO OMIT A MENS REA ELEMENT FROM THIS STATUTE

At one point in time, it might have been possible to avoid this constitutional 

problem by reading a mental element into the statute. But that time has passed. 

Now, in 2021, we have overwhelming evidence that the legislature intends the 

simple possession statute to penalize innocent nonconduct, and we have 

overwhelming legal authority that this violates the due process clauses of the state 

and federal constitutions. 
State v. Blake (Shannon B.), No. 96873-0

22

A. We Usually Interpret Statutes To Avoid Constitutional Problems—

Including Reading in Absent Mens Rea Elements

In general, “[w]e construe statutes to avoid constitutional doubt.” Utter ex 

rel. State v. Bldg. Indus. Ass’n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015) 

(citing State v. Robinson, 153 Wn.2d 689, 693-94, 107 P.3d 90 (2005). But we 

construe statutes only “to avoid constitutional difficulties when such construction 

is consistent with the purposes of the statute.” In re Pers. Restraint of Williams, 

121 Wn.2d 655, 665, 853 P.2d 444 (1993).

In many cases, these statutory interpretation rules have led the United States 

Supreme Court and this court to read mens rea elements into statutes where the 

legislature omitted them. See, e.g., Staples v. United States, 511 U.S. 600, 619, 

114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994) (interpreting a mens rea element into an 

unlawful firearm possession statute); State v. Anderson, 141 Wn.2d 357, 366, 5 

P.3d 1247 (2000) (same); State v. Boyer, 91 Wn.2d 342, 344, 588 P.2d 1151 

(1979) (interpreting a mens rea element into the unlawful delivery of a controlled 

substance statute).

This line of cases does not explicitly discuss the constitutional limits of the 

police power—it emphasizes interpreting each statute in light of “the background 

rules of the common law, in which the requirement of some mens rea for a crime is 

firmly embedded.” Staples, 511 U.S. at 605 (citation omitted) (citing United States 
State v. Blake (Shannon B.), No. 96873-0

23

v. U.S. Gypsum Co., 438 U.S. 422, 436-37, 98 S. Ct. 2864, 57 L. Ed. 2d 854 

(1978)). But they reflect a consistent concern about criminalizing fundamentally 

innocent conduct. Staples, 511 U.S. at 610 (“[T]he Government ignores the 

particular care we have taken to avoid construing a statute to dispense with mens 

rea where doing so would ‘criminalize a broad range of apparently innocent 

conduct.’” (quoting Liparota v. United States, 471 U.S. 419, 426, 105 S. Ct. 2084, 

85 L. Ed. 2d 434 (1985))); Anderson, 141 Wn.2d at 366 (concluding that the 

“[m]ost compelling” reason to interpret mens rea into the statute was “the fact that 

entirely innocent conduct may fall within the net cast by the statute in question”); 

Boyer, 91 Wn.2d at 344 (“[W]ithout the mental element of knowledge, even a 

postal carrier would be guilty of the crime were he innocently to deliver a package 

which in fact contained a forbidden narcotic.”); see also Rehaif v. United States, __ 

U.S. __, 139 S. Ct. 2191, 2196, 204 L. Ed. 2d 594 (2019) (“The cases in which we 

have emphasized scienter’s importance in separating wrongful from innocent acts 

are legion.”). 

In part to address this concern, we have adopted a series of factors to 

consider in deciding whether to interpret a mens rea element into an otherwise 

strict liability statute. Yishmael, 195 Wn.2d at 166 (quoting Bash, 130 Wn.2d at 

605-06). But the case before us today does not lend itself to this approach. Unlike

the statutes in Staples, Anderson, and Boyer, we are not interpreting RCW 
State v. Blake (Shannon B.), No. 96873-0

24

69.50.4013 for the first time.

13 Instead, we face 40 years of precedent and 

legislative acquiescence.

B. The Legislature Has Embraced Our Early Cleppe and Bradshaw

Decisions Holding that RCW 69.50.4013 Imposed Strict Felony Liability

The legislature “‘is presumed to be aware of judicial interpretation of its 

enactments,’ and where statutory language remains unchanged after a court 

decision the court will not overrule clear precedent interpreting the same statutory 

language.” Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004) 

(quoting Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 

Wn.2d 488, 496-97, 825 P.2d 300 (1992)). This is why “[c]onsiderations of stare 

decisis have special force in the area of statutory interpretation, for here, unlike in 

the context of constitutional interpretation, the legislative power is implicated, and 

Congress remains free to alter what we have done.” Patterson v. McLean Credit 

Union, 491 U.S. 164, 172-73, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989).

 13 If we were interpreting RCW 69.50.4013 for the first time, we would interpret 

the statute to include a mens rea element for the reasons outlined by the concurrence. See

concurrence at 13-19 (explaining the errors of statutory interpretation in Cleppe and 

Bradshaw and highlighting the harm they have caused, particularly to minority 

communities). But the interpretive rule of legislative acquiescence bars us from

disregarding that body’s failure to amend the drug possession statute for the last 40 years. 

The concurrence seems to disagree with our use of legislative acquiescence as an 

interpretive tool; it makes plausible arguments about its origin and weaknesses, 

particularly when interpreting criminal statutes. The parties, however, have not made 

those arguments or asked us to overturn our precedent on that point. 
State v. Blake (Shannon B.), No. 96873-0 

25

In Buchanan v. International Brotherhood of Teamsters, for example, we 

were concerned that we had misinterpreted a statute in a prior case. 94 Wn.2d 508, 

511, 617 P.2d 1004 (1980). But 22 legislative sessions had passed over 17 years 

and left our interpretation intact. Id. We therefore held that this showed that “it 

was and is the policy of the legislature to concur in” our prior ruling. Id. Despite a 

contrary United States Supreme Court holding interpreting identical language in a 

federal statute, we held that given that history of legislative acquiescence, the 

power to change our decision rested solely with the legislature. Id.

Coming back to the drug possession statute, 40 years ago, we held that “if 

the legislature had intended guilty knowledge or intent to be an element of the 

crime of simple possession of a controlled substance it would have put the 

requirement in the act.” Cleppe, 96 Wn.2d at 380. Sixteen years ago, we doubled 

down on Cleppe’s interpretation, holding that “[t]he legislature ha[d] amended 

RCW 69.50.401 seven times since Cleppe” without adding a mens rea element. 

Bradshaw, 152 Wn.2d at 537. This acquiescence in our decisions made the 

legislative intent “so clear” that we again declined to “read a mens rea element into 

the mere possession statute.” Id. at 540.

Since Bradshaw, the legislature and the people have amended the simple 

possession statute an additional four times. See LAWS OF 2017, ch. 317, § 15; 
State v. Blake (Shannon B.), No. 96873-0 

26

LAWS OF 2015, 2d Spec. Sess., ch. 4, § 503; LAWS OF 2015, ch. 70, § 14; LAWS OF

2013, ch. 3, § 20 (Initiative 502). Neither has ever added a mens rea element. 

We are confident that the legislature has not remained silent out of ignorance 

of our decisions. Cleppe and Bradshaw are far from obscure—these decisions 

have been frequently cited and have impacted the lives of countless criminal 

defendants as drug possession cases churn through the Washington courts. See, 

e.g., Day, 142 Wn.2d at 10-11; State v. Staley, 123 Wn.2d 794, 799, 872 P.2d 502

(1994); A.M., 194 Wn.2d at 44 (Gordon McCloud, J., concurring). The drug 

statute that they interpreted has affected thousands upon thousands of lives, and its

impact has hit young men of color especially hard. See Research Working Grp. of 

Task Force on Race & Criminal Justice Sys., Preliminary Report on Race and 

Washington’s Criminal Justice System, 35 SEATTLE U.L. REV. 623, 651-56 (2012) 

(attributing Washington’s racially disproportionate criminal justice system to 

disparity in drug law enforcement and drug-related asset forfeiture, among many 

other causes). Cleppe and Bradshaw “struck at the heart of our criminal law and 

social policies. The legislative silence is thus all the more deafening.” A.M., 194 

Wn.2d at 56 (Gordon McCloud, J., concurring).

Thus, it remains true that “[w]here an issue may be resolved on statutory 

grounds, the court will avoid deciding the issue on constitutional grounds,” 

Tunstall v. Bergeson, 141 Wn.2d 201, 210, 5 P.3d 691 (2000) (citing Senear v. 
State v. Blake (Shannon B.), No. 96873-0

27

Daily Journal-Am., 97 Wn.2d 148, 152, 641 P.2d 1180 (1982)). But the history 

summarized above shows that the “issue” of interpreting RCW 69.50.4013’s as a 

strict liability statute can no longer be “resolved” by this court “on statutory 

grounds.” Because of the clarity of our prior decisions about this statute and the 

legislature’s lengthy acquiescence, it is impossible to avoid the constitutional 

problem now (unless we overturn our own legislative acquiescence precedent as 

the concurrence, but not the parties, want us to do).

14 

III. THE STATE RETAINS THE POWER TO ENACT STRICT LIABILITY CRIMES, BUT 

THE SIMPLE POSSESSION STATUTE IS UNIQUE IN OUR STATE IN PUNISHING 

WHOLLY INNOCENT NONCONDUCT

The State compares the drug possession statute to other crimes and claims 

that declaring it unconstitutional will undermine the legitimacy of those crimes, 

also. For example, the State is concerned about the continuing validity of strict 

liability crimes such as child rape. Suppl. Br. of Resp’t at 9 (citing RCW 

9A.44.030; State v. Chhom, 128 Wn.2d 739, 743, 911 P.2d 1014 (1996); State v. 

Joseph, 3 Wn. App. 2d 365, 374, 416 P.3d 738 (2018)). 

But the simple possession statute does not violate the due process clause 

solely because it is a strict liability crime. Instead, the simple possession statute 

 14 The concurrence contends that its approach “resolves this case on narrow 

grounds.” Id. at 22. But the concurrence’s approach disregards the court’s “fundamental 

objective” when interpreting statutes: “to ascertain and carry out the Legislature’s 

intent.” Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002). 

That is the proper role for this court. 
State v. Blake (Shannon B.), No. 96873-0 

28

violates the due process clause because it criminalizes wholly innocent and passive 

nonconduct on a strict liability basis. 

We do nothing here today to disturb the legislature’s power to enact strict 

liability crimes. See Yishmael, 195 Wn.2d at 163-72 (holding unlawful practice of 

law to be a strict liability crime); see also State v. Deer, 175 Wn.2d 725, 731, 287 

P.3d 539 (2012) (“As a strict liability crime, child rape in the third degree requires

no proof of mens rea.” (citing Chhom, 128 Wn.2d at 741-43)). Even after today, 

when the legislature enacts a statute without explicit mens rea language, we will 

still look to the statutory language, the legislative history, and a series of 

nonexclusive factors to determine “whether the legislature intended to create a 

strict liability offense.” Yishmael, 195 Wn.2d at 164-66. Our ruling today does 

not change this statutory interpretation analysis; the only reason that we have not 

applied that analysis here is because the proper interpretation of RCW 69.50.4013 

is already settled law. 

The only thing we change here today is our view of the validity of the simple 

possession law as written and interpreted by this court. The key distinction 

between this simple possession statute and other, valid, strict liability crimes is that 

the former statute penalizes passive and innocent nonconduct (without mens rea) 

while the latter statutes do not. For example, to prove that a defendant practiced 

law unlawfully, the State must show that the defendant actually “practice[d] law, 
State v. Blake (Shannon B.), No. 96873-0 

29

or [held] himself or herself out as entitled to practice law.” RCW 2.48.180(2)(a). 

That conduct is, well, conduct. To be sure, Yishmael held that the defendant need 

not know that his or her conduct constituted the “practice of law.” 195 Wn.2d at 

172. But we continued that the State must still prove the activity of practicing law,

and that, of course, requires the State to show intentional activity (not passivity). 

Id. at 177. As we explained, “Yishmael did not dispute that he gave his clients 

advice about homesteading, adverse possession, and talking with the police, and 

that he offered assistance in completing documents to be filed with the county 

recorder’s office.” Id. Not surprisingly, Yishmael did not claim that he had not 

intended any of those actions. Id.

Similarly, to convict a defendant of rape of a child, the State must prove that 

the defendant “ha[d] sexual intercourse with another” who is under a particular 

age, depending on the degree of the crime. RCW 9A.44.073, .076, .079. Sexual 

intercourse is conduct, not passivity. The crime is “strict liability” in the sense that 

the State need prove only “‘the doing of the acts constituting the offense,’” State v. 

Smith, 3 Wn.2d 543, 553, 101 P.2d 298 (1940); the State need not prove that the 

defendant knew the victim’s age, which is what makes the acts constituting the 

offense criminal. State v. Johnson, 173 Wn.2d 895, 902, 270 P.3d 591 (2012) 
State v. Blake (Shannon B.), No. 96873-0 

30

(citing Chhom, 128 Wn.2d at 741, 743). But the State must certainly show the 

activity of sexual intercourse, not just innocent passivity.15 

The drug possession statute is different. It does not require the State to 

prove any intent or even any action. And in this case, the State did not prove that 

Blake did anything except wear jeans that had pockets. Valid strict liability crimes 

require that the defendant actually perform some conduct. Blake did not. Under 

the due process clauses of the state and federal constitutions, the legislature may 

not criminalize such nonconduct. 

CONCLUSION

Legislative acquiescence has locked our old interpretation of RCW 

69.50.4013 into that drug possession statute. But that interpretation makes that 

statute criminalize innocent and passive possession, even by a defendant who does 

not know, and has no reason to know, that drugs lay hidden within something that 

they possess. The legislature’s police power goes far, but not that far. 

15 We did hold in one case that the State may place the burden on the defendant to 

prove that her acts were involuntary. Deer, 175 Wn.2d at 731-38. That decision, 

however, dealt with “actus reus” of the rape charge only—specifically, it addressed 

whether the defendant’s actions were or were not “voluntary.” Id. at 740-41. It did not 

explicitly address mens rea. In this case, we deal with an issue not addressed in Deer: 

whether strict liability felony punishment for nonconduct that is both innocent and

passive, without proof of mens rea is, constitutionally permissible at all. To the extent 

Deer relied on Bradshaw’s “unwitting possession” defense, all justices in the majority 

and concurrence now disavow Bradshaw’s interpretation—either because it does not save 

the unconstitutional criminalization of innocent nonconduct or because it was simply 

wrongly decided. 
State v. Blake (Shannon B.), No. 96873-0 

31

Accordingly, RCW 69.50.4013(1)—the portion of the simple drug possession 

statute creating this crime—violates the due process clauses of the state and federal

constitutions and is void. We vacate Blake’s conviction.

WE CONCUR: 
State v. Blake (Shannon)

(Stephens, J., concurring in part, dissenting in part) 

No. 96873-0 

STEPHENS, J. (concurring in part, dissenting in part)—The novel question 

the majority presumes to answer today about the extent of the legislature’s police 

power is a question that appears almost nowhere in the briefing of either party. The 

parties recognize, as do I, that the main question before the court is whether RCW 

69.50.4013, our state’s model drug possession statute, should be read as having an 

implied mens rea element. Nearly every state to have interpreted the model statute 

holds that it does, and Blake urges us to embrace this interpretation. I would do so, 

concluding that our precedent in State v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d 435 

(1981), and State v. Bradshaw, 152 Wn.2d 528, 539-40, 98 P.3d 1190 (2004), is both 

incorrect and harmful. On this basis, I concur in the majority’s decision to vacate 

Blake’s conviction. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-2-

Where I part company with the majority is its decision to declare this court 

powerless to reconsider our prior statutory interpretation and to instead announce a 

broad constitutional holding, based on its own new test of passive nonconduct versus 

active criminal conduct. While we do not lightly overrule precedent, we should do 

so in rare cases such as this, and thereby avoid an unnecessary—and here essentially

unbriefed—declaration that the legislature exceeded its constitutional authority. 

Because I would resolve this case based on statutory interpretation of RCW 

69.50.4013, I respectfully dissent from the majority’s analysis, though I concur in 

the result. 

ANALYSIS

Shannon Blake was convicted of felony possession of a controlled substance 

under RCW 69.50.4013 following a bench trial; the court rejected her affirmative 

defense of “unwitting possession.” See State v. Blake, No. 35601-9-III, slip op. at 2

(Wash. Ct. App. Jan. 22, 2019) (unpublished), 

http://www.courts.wa.gov/opinions/pdf/ 356019_unp.pdf. The Court of Appeals 

affirmed Blake’s conviction based on precedent from two decisions interpreting and 

upholding prior versions of Washington’s model drug possession statute. Id. at 6 

(citing Cleppe, 96 Wn.2d at 380 (holding legislature’s omission of “knowingly” or 

“intentionally” from drug possession statute resulted in strict liability); Bradshaw, 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-3-

152 Wn.2d at 532); see also Bradshaw, 152 Wn.2d at 539 (rejecting due process 

challenge to statute as inadequately briefed).

1

 

While the Court of Appeals necessarily followed this precedent, we are 

offered compelling reasons to reconsider it. I do not share the majority’s view that 

the legislature’s failure to correct our mistakes in Cleppe and Bradshaw renders us 

powerless to do so, especially in light of a plainly incorrect statutory interpretation 

and the harmful effects it continues to produce. I would overrule our erroneous 

precedent and, considering the main arguments actually briefed in this case, read an 

implied intent element into the drug possession statute. 

I. The Drug Possession Statute Does Not Impose Strict Liability but

Necessarily Presumes Knowledge and Intent

The presumption of mens rea is a common law principle foundational to our

system of criminal justice. The Latin axiom actus reus non facit reum nisi mens sit 

rea has long controlled our conception of criminal law. See generally Francis Bowes 

Sayre, Mens Rea, 45 HARV. L. REV. 974 (1932). It stands for the basic proposition 

1 Relying on State v. Schmeling, 191 Wn. App. 795, 801-02, 365 P.3d 202 (2015), 

the Court of Appeals determined Blake failed to articulate specific reasons why Schmeling

was wrongly decided and found the two out of state cases Blake cited unpersuasive. Blake, 

slip op. at 6. Schmeling held that “RCW 69.50.4013 does not violate due process even 

though it does not require the State to prove intent or knowledge to convict an offender of 

possession of a small amount of a controlled substance.” 191 Wn. App. at 802. Schmeling, 

in turn, relies on Cleppe and Bradshaw in reaching its holding that the drug possession 

statute does not violate due process. See id. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-4-

that a criminal act does not make a person guilty unless their mind is also guilty. See 

id. at 974. Strict liability crimes—those crimes that relieve the State from proving 

intent or mental state—are therefore disfavored. State v. Anderson, 141 Wn.2d 357, 

361, 363, 5 P.3d 1247 (2000); accord Staples v. United States, 511 U.S. 600, 606, 

114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994) (recognizing Congress may enact strict 

liability crimes, but “offenses that require no mens rea generally are disfavored”). 

When a criminal statute does not include some form of intent or mental state, courts 

will apply a presumption of “‘scienter.’”2

 Staples, 511 U.S. at 605 (quoting United

States v. Balint, 258 U.S. 250, 251, 42 S. Ct. 301, 66 L. Ed. 604 (1922)); State v. 

A.M., 194 Wn.2d 33, 47, 448 P.3d 35 (2019) (Gordon McCloud, J., concurring)

(collecting cases). 

It is not uncommon for criminal statutes to omit reference to an express mental 

state, and courts regularly read a mens rea element into such statutes. In Elonis v. 

United States, 575 U.S. 723, 135 S. Ct. 2001, 2009, 192 L. Ed. 2d 1 (2015), the 

United States Supreme Court emphasized that the “‘mere omission from a criminal 

enactment of any mention of criminal intent’ should not be read ‘as dispensing with 

2 Scienter is another term denoting intent or mental state but is generally broader 

than mens rea because it also describes the culpable mental state required in civil cases. 

One definition of “scienter” is “[a] degree of knowledge that makes a person legally 

responsible for the consequences of his or her act or omission; the fact of an act’s having 

been done knowingly, esp. as a ground for civil damages or criminal punishment.” 

BLACK’S LAW DICTIONARY 1613 (11th ed. 2019). 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-5-

it.’” (quoting Morissette v. United States, 342 U.S. 246, 250, 72 S. Ct. 240, 96 L. Ed. 

288 (1952)). “This rule of construction reflects the basic principle that ‘wrongdoing 

must be conscious to be criminal.’” Id. (quoting Morissette, 342 U.S. at 252). 

Though our current drug possession statute has been recodified several times, 

both the former and current versions of the statute omit any reference to mental state: 

(1) It is unlawful for any person to possess a controlled substance unless the

substance was obtained directly from, or pursuant to, a valid prescription or

order of a practitioner while acting in the course of his or her professional

practice, or except as otherwise authorized by this chapter.

(2) Except as provided in RCW 69.50.4014, any person who violates

this section is guilty of a class C felony punishable under chapter 9A.20 

RCW.

RCW 69.50.4013. In the former version of the statute, our legislature deleted the 

words “knowingly or intentionally” from the uniform act. Compare former RCW 

69.50.401(c) (1973), with UNIF. CONTROLLED SUBSTANCES ACT § 401(c) (1970), 9 

pt. 5 U.L.A. 887 (2007). However, the legislature never stated that this omission

rendered the drug possession statute devoid of any element of intent. Rather, “[t]he 

provisions of the common law relating to the commission of crime . . . shall 

supplement all penal statutes of this state.” RCW 9A.04.060. Consistent with the 

common law’s general presumption of mens rea, we should read an intent element 

into the drug possession statute. Doing so upholds our requirement to interpret 

uniform statutes in a uniform manner with other states and provides the narrowest 

ground on which Blake is entitled to the relief she seeks. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-6-

A. The Drug Possession Statute Is Required To Be Read in a Uniform 

Manner with Other States 

The Uniform Controlled Substances Act (UCSA) requires a defendant 

“knowingly or intentionally” possess a controlled substance. UNIF. CONTROLLED 

SUBSTANCES ACT § 401(c). After the North Dakota legislature amended its own

possession statute to add a “willfulness” mens rea element, Washington became the 

only state that interpreted its drug possession statute to not require proof of intent.

See Dawkins v. State, 313 Md. 638, 647 n.7, 547 A.2d 1041 (1988) (recognizing 

Washington and North Dakota as the only states to determine “knowledge is not an 

element of the offense of possession of controlled substances”); N.D. CENT. CODE

§19-03.1-23; 1989 N.D. LAWS 748. 

To be sure, Washington is not the only state whose model drug possession 

statute is ambiguous in regard to an intent element. See, e.g., ALASKA STAT. 

§ 11.71.040(a)(3) (making it a class C felony to “possess[] any amount of a schedule 

IA controlled substance” without indicating whether “knowing” possession is 

required). But, at least 15 state courts have interpreted their own versions of the 

uniform drug possession statute to require proof of knowledge or intent. See Walker 

v. State, 356 So. 2d 672, 674 (Ala. 1977); Bell v. State, 519 P.2d 804, 809 n.17

(Alaska 1974); Loy v. State, 88 Ark. App. 91, 101, 195 S.W. 3d 370 (2004); People 

v. Rubacalba, 6 Cal. 4th 62, 67, 859 P.2d 708, 23 Cal. Rptr. 2d 628 (1993); State v. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-7-

Carbone, 116 Conn. App. 801, 816, 977 A.2d 694 (2009); Ayers v. State, 97 A.3d 

1037, 1041 (Del. 2014); Duvall v. State, 289 Ga. 540, 542, 712 S.E.2d 850 (2011); 

State v. Armstrong, 142 Idaho 62, 64, 122 P.3d 321 (2005); State v. Faulkner, 220 

Kan. 153, 156, 551 P.2d 1247 (1976); Neal v. State, 191 Md. App. 297, 316, 991 

A.2d 159 (2010); State v. Ali, 775 N.W.2d 914, 918 (Minn. Ct. App. 2009); State v.

Anderson, 159 Mont. 344, 351, 489 P.2d 295 (1972); State v. Sinclair, 191 N.C. 

App. 485, 492, 663 S.E.2d 866 (2008); Commonwealth v. Fortune, 456 Pa. 365, 368-

69, 318 A.2d 327 (1974); Kabat v. State, 76 Wis. 2d 224, 227, 251 N.W.2d 38 

(1977). Some state courts have gone so far as to interpret the possession of a 

controlled substance to require knowledge of both the presence of the substance and 

the general character of the substance. See, e.g., State v. Barber, 635 S.W.2d 342, 

343 (Mo. 1982); State v. Alexander, 471 A.2d 216, 218 (R.I. 1984); Clodfelter v. 

Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820 (1977); Wise v. State, 654 P.2d 

116, 119 (Wyo. 1982). 

Washington’s Uniform Controlled Substances Act “shall be so applied and 

construed as to effectuate its general purpose to make uniform the law with respect 

to the subject of this chapter among those states which enact it.” RCW 69.50.603. 

“At least 48 states have adopted the Uniform Controlled Substances Act, and all but 

two (Washington and [at the time] North Dakota) expressly require knowledge to be 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-8-

proved as an element of unlawful possession.” Bradshaw, 152 Wn.2d at 541 

(Sanders, J., dissenting) (citing Dawkins, 313 Md. at 646-49). This is true regardless 

of whether the intent element is expressly set out in the operative language. See,

e.g., Walker, 356 So. 2d at 675 (holding “knowledge is an essential element of the 

offense of illegal possession of a controlled substance under the Alabama Controlled 

Substance Act” despite statute’s omission of whether “knowing” possession is 

required). Reading Washington’s possession statute to require proof of knowledge 

or intent upholds RCW 69.50.603’s requirement for uniformity of interpretation and 

corrects an error that has made Washington an outlier among our sister states.3

 3 The majority relies on a Louisiana case that held its drug possession statute 

unconstitutionally imposed strict liability. State v. Brown, 389 So. 2d 48, 49 (La. 1980). 

But the majority concedes “Louisiana provides the only example of a state court striking 

down a . . . statute like RCW 69.50.4013 as unconstitutional.” Majority at 14-15. 

Louisiana serves as the sole parallel because, as noted, at least 15 other state courts read a 

mens rea element into their respective possession statutes, thereby avoiding a constitutional 

conflict. Moreover, unlike our drug possession statute, the Louisiana statute explicitly 

made it “unlawful for any person ‘unknowingly or intentionally’ to possess a controlled

dangerous substance.” Brown, 389 So. 2d at 49 (emphasis added). It was therefore 

impossible for the court in Brown to avoid the statute’s constitutional implications because 

the statute unambiguously stated unknowing possession was unlawful. Even so, Brown

ultimately held only “the portion of the statute making it illegal ‘unknowingly’ to possess 

[certain controlled] substance[s] is unconstitutional” and found the remainder of the statute 

valid. Id. at 51. In contrast, the majority’s approach fails to save any portion of our 

possession statute, despite the fact that our state’s more ambiguous statute contains no 

explicit indication that unknowing possession is unlawful.
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-9-

B. Requiring Proof of Intent Addresses Blake’s Primary Request for Relief

without Reaching an Unnecessary Constitutional Holding

Blake’s primary request, both in her briefing and at oral argument, is for this 

court to read a mens rea element into the possession statute. See Pet’r’s Suppl. Br. 

at 1 (asking this court to “hold the drug possession statute requires the prosecution 

to prove knowledge”); see also Wash. Supreme Court oral argument, State v. Blake, 

No. 96873-0 (June 11, 2020), at 5 min., 45 sec. through 5 min., 58 sec., video

recording by TVW, Washington State’s Public Affairs Network, 

https://www.tvw.org/watch/?eventID=2020061060 (in which Blake’s counsel notes, 

“I would submit the language [in the drug possession statute] does reasonably permit 

[reading a mens rea into the statute]. . . . Just because the legislature does not 

explicitly put a mens rea element in the criminal statute does not mean they intend 

to eliminate it”). Blake correctly observes that such a reading is supported, in part,

on “the maxim that all criminal statutes are [generally] read to have a mental 

element.” Pet’r’s Suppl. Br. at 1.

Properly interpreting the drug possession statute to presume a knowledge 

element is consistent with the doctrine of constitutional avoidance. At oral 

argument, Blake’s counsel recognized that “this court can avoid declaring the statute 

unconstitutional by using the canon of constitutional avoidance or the canon of 

constitutional doubt and read in a knowledge element and avoid the constitutional 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-10-

question.” Wash. Supreme Court oral argument, supra, at 1 min., 56 sec. through 2 

min., 13 sec., audio recording by TVW, Washington State’s Public Affairs Network, 

https://www.tvw.org/watch/?eventID= 2020061060. Absent such an element, Blake 

submits the statute “should be declared unconstitutional,” but not for the reasons the 

majority offers. Pet’r’s Suppl. Br. at 17. In contrast to the majority’s declaration 

that RCW 69.50.4013 exceeds the legislature’s police power, Blake’s constitutional 

challenge is premised on the more modest notion that “due process does not permit 

shifting the burden to the defendant to disprove knowledge.” Id. at 17-18 (citing 

Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977); 

Schad v. Arizona, 501 U.S. 624, 640, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991) 

(plurality portion)). Either of these constitutional concerns can be avoided by our 

willingness to revisit our past mistake in misinterpreting the drug possession statute 

and to properly read into it the presumed element of intent. While this requires us 

to revisit Cleppe and Bradshaw, as will be explained, these cases are both incorrect 

and harmful and should be overturned. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-11-

II. Cleppe and Bradshaw Were Wrongly Decided and We Are Not Required

To Uphold Their Erroneous Interpretations Today

The majority rightly observes that stare decisis applies to our decisions in

Cleppe and Bradshaw.

4

 “But stare decisis does not compel us to follow a past 

decision when its rationale no longer withstands careful analysis. When the 

generalization underpinning a decision is unfounded, we should not continue in blind 

adherence to its faulty assumption.” Rose v. Anderson Hay & Grain Co., 184 Wn.2d 

268, 282, 358 P.3d 1139 (2015). When a rule announced by past cases is clearly 

incorrect and harmful, we will overturn those erroneous decisions. State v. 

Schierman, 192 Wn.2d 577, 764, 438 P.3d 1063 (2018). (Yu, J., concurring in part 

and dissenting in part)

This court does not limit the meaning of “incorrect” to any specific kind of 

error. State v. Barber, 170 Wn.2d 854, 864, 248 P.3d 494 (2011). “An opinion can 

4 Blake argues we are not bound by stare decisis because Cleppe and Bradshaw

“overlooked [the constitutional-doubt canon of statutory interpretation] and did not 

consider the due process argument presented here.” Pet’r’s Suppl. Br. at 14. Supporting 

amicus also notes the creation of the unwitting possession defense is a “judge-made rule” 

and “‘[r]evisiting precedent is particularly appropriate where, as here, a departure would 

not upset expectations, the precedent consists of a judge-made rule . . . , and experience 

has pointed up the precedent’s shortcomings.”’ Br. of Amicus Curiae Inst. for Justice at 

13 n.10 (alterations in original) (quoting Pearson v. Callahan, 555 U.S. 223, 233, 129 S. 

Ct. 808, 172 L. Ed. 2d 565 (2009)). While it is true that Cleppe never directly addressed 

the issues presented in this case, I find Bradshaw’s rejection of the petitioner’s due process 

argument (albeit on grounds of inadequate briefing) suggests we should analyze whether 

both of those decisions were incorrect and harmful for purposes of overcoming the doctrine 

of stare decisis. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-12-

be incorrect when it was announced, or it can become incorrect because the passage 

of time and the development of legal doctrines undermine its bases.” State v. 

Abdulle, 174 Wn.2d 411, 415-16, 275 P.3d 1113 (2012). “A decision may be 

‘harmful’ for a variety of reasons as well.” Barber, 170 Wn.2d at 865. In State v. 

W.R., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014), we held a rule from two prior 

cases, which impermissibly shifted the burden of proof to the defendant, was harmful 

because it violated the defendant’s constitutional due process right to have the State 

prove every element of the crime beyond a reasonable doubt and could lead to 

wrongful convictions.

The interpretation of our possession statute announced by Cleppe and 

extended by Bradshaw was incorrect from the start because those decisions ignored 

the legislature’s clear direction to “supplement all penal statutes” with “provisions 

of the common law relating to the commission of crime and the punishment thereof,” 

which includes the common law presumption of mens rea. RCW 9A.04.060. 

Instead, recognizing the inherent injustice of convicting a person of criminal 

possession for something they carried unknowingly, the court adopted the 

affirmative defense of unwitting possession. Cleppe, 96 Wn.2d at 380-81. But this 

work-around created the very constitutional harm Blake identifies: by requiring the 

defendant to prove a lack of mens rea—which, properly interpreted, is an essential 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-13-

element of criminal drug possession—the unwitting possession defense arguably

violates due process. See, e.g., W.R., 181 Wn.2d at 769. We should avoid this harm 

by overturning the clearly incorrect interpretation adopted by Cleppe and Bradshaw

and instead supplement our possession statute with the common law presumption of 

mens rea. As noted, this is the approach taken by other states with similar statutes, 

and it properly reads the drug possession statute in context as a model criminal law. 

A. Cleppe Was Incorrect and Bradshaw Extended That Error 

As a matter of statutory interpretation, Cleppe—and, by extension, 

Bradshaw—is clearly incorrect. “The purpose of statutory interpretation is ‘to 

determine and give effect to the intent of the legislature.’” State v. Evans, 177 Wn.2d 

186, 192, 298 P.3d 724 (2013) (quoting State v. Sweany, 174 Wn.2d 909, 914, 281 

P.3d 305 (2012)). We determine legislative intent “from the plain language enacted 

by the legislature, [including] the text of the provision in question, the context of the 

statute in which the provision is found, related provisions, and the statutory scheme 

as a whole.” Id. Only if the statute is ambiguous do we turn to legislative history 

and other tools of statutory construction to derive legislative intent. Id. at 192-93. 

Cleppe erred by turning directly to legislative history rather than examining the 

context of the possession statute, its related provisions, and the statutory scheme as 

a whole to determine legislative intent. As indicated above, both the former and 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-14-

present version of the drug possession statute are silent as to whether proof of the 

defendant’s mental state is required. But the possession statute’s silence on mens 

rea does not automatically make possession a strict liability crime or render the 

statute unconstitutional. 

Years before Cleppe, the legislature enacted RCW 9A.04.060, which remains 

unchanged today: “The provisions of the common law relating to the commission of 

crime . . . shall supplement all penal statutes of this state.” LAWS OF 1975, 1st Ex. 

Sess., ch. 260, § 9A.04.060 (emphasis added). The legislature thus directed the court 

in Cleppe and Bradshaw (and the court here today) to supplement the drug 

possession statute with common law principles—including the presumption of mens 

rea. See id.; A.M., 194 Wn.2d at 47 (Gordon McCloud, J., concurring). By failing 

to apply RCW 9A.04.060, the court rendered that related statute meaningless. See

State v. Berlin, 133 Wn.2d 541, 547-48, 947 P.2d 700 (1997) (holding a past decision 

was incorrect and harmful because it disregarded our basic rule of statutory 

construction to avoid rendering any relevant statutory provision meaningless).5 

5 By not reading mens rea into the possession statute, Cleppe and Bradshaw also 

incorrectly rendered meaningless RCW 69.50.603, which requires the UCSA “shall be so 

applied and construed as to effectuate its general purpose to make uniform the law with 

respect to the subject of this chapter among those states which enact it.” As noted above, 

Washington appears to be the only state in the United States that does not require the State 

to prove intent or mental state. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-15-

Rather than properly supplement the statute with the relevant common law as 

directed by RCW 9A.04.060 and the United States Supreme Court, the Cleppe court 

immediately resorted to legislative history to try to resolve the statute’s ambiguity. 

See Cleppe, 96 Wn.2d at 377-79. Bradshaw repeated Cleppe’s flawed statutory 

interpretation and reliance on legislative history and likewise rendered meaningless 

RCW 9A.04.060 and RCW 69.50.603. Neither Cleppe nor Bradshaw considered 

and rejected arguments based on the failure to apply RCW 9A.04.060 as directed. 

Cf. Barber, 170 Wn.2d at 864 (noting we have been reluctant to overrule past 

decisions based on arguments that were adequately considered and rejected in the 

original decisions themselves, but not so when the past decision conflicts with

controlling rules of law that the court failed to previously consider and apply). I 

would hold these cases were incorrectly decided.

B. Cleppe and Bradshaw Are Also Harmful 

“It is not enough that a decision is incorrect for us to overrule it; we must also 

find that it is harmful.” Id. at 871. Cleppe and Bradshaw are clearly harmful. The 

Fourteenth Amendment’s due process clause guarantees, “No state shall . . . deprive 

any person of life, liberty, or property, without due process of law.” U.S. CONST.

amend. XIV, § 1. When the government seeks to convict someone, it must prove 

“beyond a reasonable doubt . . . every fact necessary to constitute the crime with 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-16-

which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 

2d 368 (1970); Patterson, 432 U.S. at 210 (“[T]he Due Process Clause requires the 

prosecution to prove beyond a reasonable doubt all of the elements included in the 

definition of the offense of which the defendant is charged.”). This foundational 

principle stems from one of the hallmarks of our criminal justice system: “[T]hat 

every person accused of a crime is constitutionally endowed with an overriding 

presumption of innocence, a presumption that extends to every element of the 

charged offense.” State v. Crediford, 130 Wn.2d 747, 759, 927 P.2d 1129 (1996). 

“A corollary rule is that the State cannot require the defendant to disprove any fact 

that constitutes the crime charged.” W.R., 181 Wn.2d at 762. “[W]hen a defense 

necessarily negates an element of the crime, it violates due process to place the 

burden of proof on the defendant.” Id. at 765. 

The court in Cleppe recognized the inherent “harshness” of a law strictly 

criminalizing all drug possession and sought to mitigate the unjust consequences of 

such a law by adopting the affirmative defense of unwitting possession. 96 Wn.2d 

at 381. The affirmative defense currently provides, “A person is not guilty of 

possession of a controlled substance if the possession is unwitting. Possession of a 

controlled substance is unwitting if a person [did not know that the substance was in 

[their] possession] [or] [did not know the nature of the substance].” 11 WASHINGTON 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-17-

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 52.01, at 1196

(4th ed. 2016) (most alterations in original). “The burden is on the defendant to 

prove by a preponderance of the evidence that the substance was possessed 

unwittingly. Preponderance of the evidence means that you must be persuaded, 

considering all of the evidence in the case, that it is more probably true than not 

true.” Id.; State v. Deer, 175 Wn.2d 725, 735, 287 P.3d 539 (2012).

The unwitting possession defense recognizes that a person cannot be 

convicted under the possession statute if possession is unknowing or unintentional. 

Blake makes a compelling argument that burdening a defendant with proving 

unwitting possession violates due process because it negates the implied mens rea 

element we must read into the statute. See W.R., 181 Wn.2d at 765. “This 

impermissible shift in burden is not merely academic but . . . rais[es] a very real 

possibility of wrongful convictions.” Id. at 769. For these reasons, Cleppe and 

Bradshaw are harmful.

Those decisions are also harmful because they deviate from proper methods 

of statutory interpretation, render two statutes meaningless, and fail to adhere to long

established common law principles. Affirming Cleppe’s and Bradshaw’s incorrect

interpretations would harm the integrity of this court by approving of interpretative 

methods that are otherwise impermissible. While adhering to stare decisis is 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-18-

generally desirable, we should not do so when it forces us to discard well-established 

rules of statutory interpretation and common law principles that safeguard the rights 

of the accused.

Finally, and perhaps most importantly, “[t]he fact of racial and ethnic 

disproportionality in our criminal justice system is indisputable.” Research Working

Grp. of Task Force on Race and the Criminal Justice Sys. Preliminary Report on 

Race and Washington’s Criminal Justice System, 35 SEATTLE U.L. REV. 623, 627 

(2012). “[S]cholars have shown that the poor, people of color, sexual minorities, 

and other marginalized populations have borne the brunt of criminal punishment and 

police intervention.” Benjamin Levin, Mens Rea Reform and Its Discontents, 109 

J. CRIM. L. & CRIMINOLOGY 491, 530 (2019). Given that criminal laws are enforced

against marginalized communities at disproportionate rates, this court’s past 

decisions divesting the possession statute of mens rea created a constitutional harm 

that has hit these vulnerable communities hardest. The majority similarly recognizes 

the harm of reading the drug possession statute to criminalize unknowing possession 

given the racial disparities in drug prosecutions and convictions. Majority at 13 n.10

(citing Gabriel J. Chin, Race, the War on Drugs, and the Collateral Consequences 

of Criminal Conviction, 6 J. GENDER, RACE & JUST. 253, 262-70 (2002)). These 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-19-

harsh realities give us all the more reason to overrule Cleppe and Bradshaw based 

on the harmful effects the holdings in those cases created. 

We recently acknowledged this court’s culpability in perpetuating the racial 

injustices in our legal system and pledged to recognize and correct such injustices. 

See Letter from Wash. State Supreme Court to Members of Judiciary & Legal Cmty. 

1 (June 4, 2020) (“Too often in the legal profession, we feel bound by tradition and 

the way things have ‘always’ been. We must remember that even the most venerable 

precedent must be struck down when it is incorrect and harmful.”), 

https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Ju

diciary%20Legal%20Community%20SIGNED%20060420.pdf

[https://perma.cc/QNT4-H5P7]. We should take ownership of and responsibility for 

our mistakes in Cleppe and Bradshaw, and overrule those decisions as incorrect and 

harmful.

C. The Majority’s Reliance on Legislative Acquiescence Sidesteps this 

Court’s Commitment To Overturn Incorrect and Harmful Decisions

As the final authority on Washington law, we undisputedly have the ability to 

correct our own erroneous statutory interpretation in a previous case. See, e.g.,

Keene v. Edie, 131 Wn.2d 822, 834, 935 P.2d 588 (1997) (overruling Brotton v. 

Langert, 1 Wash. 73, 23 P. 688 (1890) (interpreting a statute to preclude community 

real estate from the execution of a judgment against a tortfeasor)). Yet, the majority 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0

-20-

argues, “Given the interpretive principles of legislative acquiescence and stare 

decisis, only the legislature, not the court, can now change the statute’s intent.” 

Majority at 3. More specifically, the majority notes, whatever the current validity 

of Cleppe and Bradshaw, the legislature has acquiesced in their statutory 

interpretation by failing to add a mens rea element to the possession statute in the 

intervening years, thereby preventing us from revisiting those cases. Majority at 2.6 

We should not lean so heavily on the rule of legislative acquiescence because 

“‘[legislative] inaction lacks persuasive significance’ in most circumstances.” Star 

Athletica, LLC v. Varsity Brands, Inc., ___ U.S. ___, 137 S. Ct. 1002, 1015, 197 

L. Ed. 2d 354 (2017) (quoting Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 

633, 650, 110 S. Ct. 2668, 110 L. Ed. 2d 579 (1990)). Importantly, “‘evidence of 

legislative acquiescence is not conclusive, but is merely one factor to consider.’” 

Fast v. Kennewick Pub. Hosp. Dist., 187 Wn.2d 27, 39, 384 P.3d 232 (2016) 

(emphasis added) (quoting Safeco Ins. Cos. v. Meyering, 102 Wn.2d 385, 392, 687 

P.2d 195 (1984)). In the context of criminal statutes, it is unclear whether the rule 

of legislative acquiescence should even apply to our statutory interpretation. The 

rule originated in the context of administrative constructions of ambiguous statutes, 

 6 In contrast to today’s majority, the concurrence in A.M. stated, “[I]t is debatable 

whether a finding of legislative acquiescence is constitutionally permissible when the text 

of a criminal statute cannot support the court’s long-standing interpretation using ordinary 

principles of statutory interpretation.” 194 Wn.2d at 56 (Gordon McCloud J., concurring). 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-21-

where deference to the executive often pertains. See, e.g., Pringle v. State, 77 Wn.2d 

569, 573, 464 P.2d 425 (1970) (citing State ex rel. Pirak v. Schoettler, 45 Wn.2d 

367, 371-72, 274 P.2d 852 (1954)); see also State ex rel. Ball v. Rathbun, 144 Wash. 

56, 59, 256 P. 330 (1927) (“An executive construction is accepted generally by the 

courts as persuasive where the legislature has silently acquiesced in such 

construction by failing to amend the particular act.”); Smith v. N. Pac. Ry. Co., 7

Wn.2d 652, 665, 110 P.2d 851 (1941). 

We are neither bound by legislative silence nor beholden to the legislature’s 

inaction in response to our incorrect and harmful decisions. The scant support 

legislative silence or inaction may lend a prior interpretation cannot overcome the 

need to correct a long-standing injustice of our own making. We should not hold 

ourselves powerless to correct prior decisions reflecting an erroneous statutory 

interpretation, even when the legislature has not responded to those decisions. To 

adhere to the majority’s view of legislative acquiescence would be to abdicate our 

judicial responsibility to correct course when precedent perpetuates harmful effects. 

Unlike the majority, I would hold that Cleppe’s and Bradshaw’s statutory 

interpretations are both incorrect and harmful, and should be overturned. We should 

reject these decisions in favor of a proper interpretation that recognizes the implied 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-22-

mens rea element, requiring the State to prove the absence of unwitting possession 

defense beyond a reasonable doubt. 

III. Reading an Intent Element into the Drug Possession Statute Provides a Better

Resolution Than Declaring the Statute Unconstitutional

Recognizing that our drug possession statute includes an intent element

corrects our past mistakes and resolves this case on narrow grounds. This approach

avoids the majority’s sweeping holding to declare the statute unconstitutional in its 

entirety as beyond the legislature’s police powers. It is particularly noteworthy that 

the majority reaches its holding based on a test that was never addressed in the 

briefing of either party. While Blake raised a constitutional due process challenge 

as an alternative to her statutory interpretation argument, her arguments do not align 

with the majority’s position. The majority’s novel analysis of substantive due 

process has the potential to overturn a number of criminal statutes to the extent this 

court finds they criminalize innocent or passive nonconduct. I would reject this 

analysis because it reaches far beyond the issues and arguments before us, and it

misinterprets the precedent the majority relies on.

A. The Majority Oversteps by Creating a Test That No One Asked for and Is

Not Sufficiently Grounded in Our Case Law

Under the principle of “party presentation” the United States Supreme Court 

has noted, “‘[Courts] do not, or should not, sally forth each day looking for wrongs 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-23-

to right. We wait for cases to come to us, and when they do we normally decide only 

questions presented by the parties.’” Greenlaw v. United States, 554 U.S. 237, 244, 

128 S. Ct. 2559, 171 L. Ed. 2d 399 (2008) (alteration in original) (quoting United 

States v. Samuels, 808 F.2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in 

denial of reh’g en banc)). The Court reaffirmed this point in United States v. 

Sineneng-Smith, ___ U.S. ___, 140 S. Ct. 1575, 1578, 206 L. Ed. 2d 866 (2020), 

holding the Ninth Circuit Court of Appeals overstepped its bounds by inviting amici 

to brief a First Amendment overbreadth issue and subsequently accepting amici’s 

arguments to declare a particular immigration provision facially unconstitutional—

rather than confronting the petitioner’s request to find the provisions at issue did not 

cover her conduct or, if they did, “they violated the Petition and Free Speech Clauses 

of the First Amendment as applied.” The Court noted that while there are 

circumstances where “a modest initiating role for a court is appropriate,” “[n]o 

extraordinary circumstances justified the panel’s takeover of the appeal.” Id. at 

1579, 1581.

The majority’s approach in the current case presents substantially similar 

concerns as in Sineneng-Smith. Rather than meaningfully engage with the 

arguments Blake raises, the majority summarily concludes the “time has long since 

passed [to interpret RCW 69.50.4013 as including an intent element]” and rejects 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-24-

Blake’s alternative due process challenge that the affirmative defense of unwitting 

possession “unconstitutionally shifts the burden of proof onto her from the State.” 

Majority at 2, 20. The majority then steers this case into deep, uncharted waters to 

decide “whether unintentional, unknowing possession of a controlled substance is 

the sort of innocent, passive nonconduct that falls beyond the State’s police power 

to criminalize.” Id. at 14. I do not believe that question is actually before us. 

Moreover, the substantive due process test announced by the majority is 

constructed from a collection of passing phrases from three separate cases. 

Specifically, the majority strings together a series of citations to announce a new rule 

that the “legislature’s exercise of its otherwise plenary police power to criminalize 

entirely passive and innocent nonconduct with no mens rea . . . violates . . . due 

process.” Id. at 10-14 (citing Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 

2 L. Ed. 2d 228 (1957); Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 

839, 31 L. Ed. 2d 110 (1972); City of Seattle v. Pullman, 82 Wn.2d 794, 514 P.2d 

1059 (1973)). I cannot speak to what the parties may have to say about this rule, but 

I believe this passive nonconduct versus active criminal conduct test is not supported 

by the cited precedent and is ill suited to the present case.

In Lambert, the United States Supreme Court held a felon registration 

ordinance unconstitutional where it was “unaccompanied by any activity” other than 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-25-

“mere presence in the city.” 355 U.S. at 229. And in Papachristou, the Court 

determined a vagrancy ordinance was void for vagueness given that it “‘fails to give 

a person of ordinary intelligence fair notice’” and “makes criminal activities which 

by modern standards are normally innocent.” 405 U.S. at 162-63 (quoting United 

States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed 989 (1954)). In 

Pullman, we held a Seattle ordinance prohibiting individuals from accompanying a 

child during curfew hours was unconstitutionally vague and violated due process. 

82 Wn.2d at 795. In reaching this holding, we noted that the certain words in the 

ordinance, including “‘to loiter, idle, wander or play”’ failed to “provide 

ascertainable standards for locating the line between innocent and unlawful 

behavior.” Id. at 799. One major distinction between these cases and the present 

case is that criminalizing the possession of controlled substances differs greatly from 

the criminalization of night walking or failure to register. 

To be sure, knowing possession of a controlled substance necessarily involves 

an active decision to obtain that particular drug. And the majority concedes that the 

active trafficking of drugs “is not innocent conduct.” Majority at 14. Instead, the 

majority appears to argue that “unknowing possession is just as innocent and passive 

as staying out late with a juvenile or remaining in a city without registering.” Id. 

(emphasis added). But if that is true, then the proper solution is to remedy the 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-26-

statute’s unconstitutional implications by reading in an intent requirement, as courts 

regularly do. Adopting the majority’s approach means striking the possession statute 

in its entirety, and it opens the door to a slew of due process challenges asserting 

passive versus active conduct in criminal statutes. 

In addition to the future challenges the majority’s novel test will undoubtedly 

invite, the test also has the potential to undermine our existing constitutional 

analysis. The majority insists its “active” versus “passive” test leaves undisturbed

other constitutionally permissible strict liability crimes such as the rape of a child 

because, there, “the State must certainly show the activity of sexual intercourse, not 

just innocent passivity.” Id. at 29 (emphasis added). But the majority acknowledges 

one case where we held a defendant had the burden of proving her acts were 

involuntary in a child rape case. Id. at 29 n.15 (citing Deer, 175 Wn.2d at 731-38). 

The majority attempts to distinguish Deer because that case concerned the “actus 

reus” element of the rape charge, whereas the present case concerns “strict liability 

felony punishment for nonconduct that is both innocent and passive.” Id. But the 

majority fails to explain how its test would account for our holding in Deer. 

Under the test the majority proposes, the defendant in Deer would be able to 

argue that criminalization of child rape without a mens rea element 

unconstitutionally punishes innocent and passive behavior where a defendant was 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-27-

asleep and, therefore, failed to partake in the activity of the alleged rape. In Deer, 

we noted that just because a defendant was asleep during sexual intercourse with a 

child “does not negate the fact that sexual intercourse occurred.” 175 Wn.2d at 734.

Similarly, if drug possession is regarded as a strict liability crime, just because an 

individual is unaware they possess an uncontrolled substance does not change the 

fact that possession of that uncontrolled substance occurred. The consequence of 

the majority’s test is that statutes that lack a mens rea element now have the potential 

to be overturned not because a mens rea element is required but as a result of a test 

that hinges on whether the act or conduct at issue is deemed passive or innocent. 

Such a test conflates the distinct elements of mens rea and actus reus and will 

undoubtedly lead to confusion and divergent application among the courts.

B. The Better Course Is To Properly Construe the Drug Possession Statute

and Follow the Doctrine of Constitutional Avoidance

The majority recognizes that “‘[w]e construe statutes to avoid constitutional 

doubt.’” Majority at 21 (alteration in original) (quoting Utter ex rel. State v. Bldg. 

Indus. Ass’n of Wash., 182 Wn.2d 398, 434, 341 P.3d 953 (2015)). Interpreting the 

possession statute to require a mens rea element “avoids a confrontation with the 

constitution.” A.M., 194 Wn.2d at 49 (Gordon McCloud, J., concurring). Yet the

majority argues constitutional avoidance is impossible based on the “overwhelming 

evidence that the legislature intends the simple possession statute to penalize 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-28-

innocent nonconduct.” Majority at 21. As explained, such “overwhelming 

evidence” does not exist, and legislative inaction following Cleppe and Bradshaw 

“‘is merely one factor to consider.’” Fast, 187 Wn.2d at 39. (quoting Safeco Ins. 

Cos., 102 Wn.2d at 392)

When the drug possession statute is considered in context—including the 

context of RCW 9A.04.060, which favors presuming a general mens rea requirement 

in criminal statutes—there is little to suggest the legislature intended to impose strict 

liability. Admittedly, the legislative intent is not clear, but I would adhere to the 

constitutional-doubt canon, which instructs that ambiguous statutes are interpreted 

to avoid constitutional doubts when statutory language reasonably permits. Gomez 

v. United States, 490 U.S. 858, 864, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989);

Utter, 182 Wn.2d at 434. The majority’s only reason for avoiding this outcome is 

unwarranted deference to prior case law that erroneously interpreted the statute as a 

strict liability crime. But as explained, this case law is incorrect and harmful, and 

should not be further extended given the constitutional implications at stake. In 

adherence to the doctrine of constitutional avoidance, we should overturn Cleppe 

and Bradshaw and properly construe our model drug possession statute as containing 

an implied mens rea element, consistent with similar statutes in other states. 
State v. Blake (Shannon) (Stephens, J., concurring in part, dissenting in part), 96873-0 

-29-

CONCLUSION

Cleppe and Bradshaw are incorrect and harmful decisions that this court—not 

the legislature—should remedy by reading an intent requirement into the possession 

statute. Such an outcome is supported by the presumption of mens rea in criminal 

statutes and the requirement for uniform interpretation of the Uniform Controlled 

Substances Act among the states. Because I read the drug possession statute to 

require proof of intent, I concur in result with the majority’s decision to overturn 

Blake’s conviction. I respectfully dissent from the majority’s unnecessary decision 

to declare the statute unconstitutional as exceeding the legislature’s police power. 
State v. Blake

No. 96873-0

JOHNSON, J. (dissenting)—Over 60 years ago, this court decided that the 

crime of possession of a controlled substance does not require knowledge or intent. 

“Whether intent or guilty knowledge is to be made an essential element . . . is 

basically a matter to be determined by the legislature.” State v. Henker, 50 Wn.2d 

809, 812, 314 P.2d 645 (1957).

We reiterated this principle in State v. Cleppe, 96 Wn.2d 373, 378, 635 P.2d 

435 (1981), unanimously rejecting a challenge to the validity of the legislature’s 

power to enact RCW 69.50.401(c), which continued to make possession of a 

controlled substance a crime without a mens rea requirement. In the course of our 

decision, we reversed holdings from Court of Appeals cases to the contrary. See 

Cleppe, 96 Wn.2d at 377 (citing State v. Weaver, 24 Wn. App. 83, 600 P.2d 598 

(1979); State v. Smith, 17 Wn. App. 231, 562 P.2d 659 (1977); State v. Hennings, 3 

Wn. App. 483, 475 P.2d 926 (1970)). And, again, more recently in State v. 

Bradshaw, 152 Wn.2d 528, 98 P.3d 1190 (2004), we rejected an argument to 
State v. Blake

(Johnson, J., dissenting)

2 

overrule Cleppe (and implicitly those many cases consistent with Cleppe’s

holding). 

Finally, removing any doubt in this long-standing principle, in State v. 

Yishmael, 195 Wn.2d 155, 456 P.3d 1172 (2020), we held that the crime of the 

unauthorized practice of law, RCW 2.48.180(3), does not require proof of 

knowledge or intent. We stated, “[U]nder our constitutional system, our legislature 

has the plenary power to criminalize conduct regardless of whether the actor 

intended wrongdoing.” Yishmael, 195 Wn.2d at 163 (citing State v. Bash, 130 

Wn.2d 594, 604, 925 P.2d 978 (1996)). We call these crimes strict liability crimes. 

See, e.g., Yishmael, 195 Wn.2d at 163-64; Bradshaw, 152 Wn.2d at 536-37. 

The legislative power to enact strict liability crimes remains consistent and 

undiminished, and the Court of Appeals decision upholding RCW 69.50.4013(c) 

should therefore be affirmed.1 Our continued recognition of this legislative power

applies with special force in this case given the length of time that the crime of 

possession of a controlled substance has been upheld as a strict liability crime. The

1 This legislative power repeatedly affirmed by our cases is consistent with United States

Supreme Court cases, which have recognized the ability of the legislature to enact strict liability 

crimes for over a century. See Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68-70, 30 S. Ct. 

663, 54 L. Ed. 930 (1910); see also United States v. Balint, 258 U.S. 250, 254, 42 S. Ct. 301, 66 

L. Ed. 604 (1922) (upholding strict liability for selling a controlled substance).
State v. Blake

(Johnson, J., dissenting) 

3

constitutional analysis in the majority’s decision is not convincing enough to 

outweigh those considerations.