By Paul Kiefer
When the Washington State Supreme Court ruled in February that the state’s harsh drug possession laws were unconstitutional, most lawmakers, prosecutors and defense attorneys hurried to prepare for the ruling’s vast consequences for the state’s court system and the tens of thousands of people whose convictions for drug possession are now baseless.
Among those impacted by the ruling, State of Washington v. Blake, are immigrants convicted for simple drug possession under Washington’s pre-Blake drug laws. Some are currently facing deportation because of a drug possession conviction; others have already been deported.
Ann Benson, the Directing Attorney of the Washington Defender Association’s Immigration Project, says immigrant rights groups around the state are still trying to tally the number of immigrants who could be impacted by the Blake decision; her office estimates that at least 75 people in Washington Department of Corrections custody fall into that category, in addition to the hundreds of other immigrants with drug possession convictions who aren’t currently incarcerated and those who have already been deported for drug possession.
The Blake decision is most consequential for green card holders, for whom a criminal conviction can either create an obstacle to government services—federal student loans, for example—or trigger deportation,
For those immigrants, the Blake decision has eliminated the federal government’s justification for their deportations, providing a source of hope for those who have been separated from their families during deportation proceedings—and potentially for those who have already been deported.
But a newly passed law that partially re-criminalizes drug possession dampens the implications of Blake for the future of immigration enforcement in Washington.
The Blake decision is most consequential for green card holders, for whom a criminal conviction can either create an obstacle to government services—federal student loans, for example—or trigger deportation, depending on the charge. Because the state supreme court’s ruling nullifies past drug possession convictions, some green card holders with criminal records now have a chance to avoid some of those consequences. Those facing deportation for a drug possession conviction can now file a motion in a county criminal court to vacate their conviction; without a conviction, ICE can’t move forward with their deportation.
Tim Warden-Hertz, the managing attorney with Northwest Immigrant Rights Project, said the pace at which immigration courts respond to Blake will depend on ICE, whose attorneys serve as prosecutors in deportation cases. “ICE has the discretion to be proactive,” he said. “They can move on their own to reopen cases—and, for that matter, to terminate cases.” An ICE spokesperson did not answer PubliCola’s questions, including about whether their attorneys plan to end deportation proceedings unilaterally.
Warden-Hertz added that, thanks to Blake, former green card holders deported for drug possession convictions might be able to return to Washington once a court vacates their conviction. “If we can reopen their cases,” he said, “then the client regains their green card, which means they regain their lawful permanent resident status and should be able to travel back to the United States.” Thus far, he said, his legal team have only identified one client who may be able to reclaim their green card.
While an end to deportation proceedings—or a chance to return to the US and reunite with friends and family—could be a relief for his clients, Warden-Hertz said the experience of detention or deportation will likely leave a mark. “While vacating a conviction tends to give people a chance to keep moving on with their lives,” he said, “people who have had contact with immigration enforcement often become hyper-aware of just how insecure their situation is.”
That sense of insecurity may be exacerbated by Washington’s new drug possession law, which classifies intentional low-level drug possession as a misdemeanor; under previous state law, drug possession—intentional or not—was a felony offense. The new law, the product of a last-minute bipartisan compromise, will reduce penalties for citizens who commit low-level drug offenses, but it doesn’t reduce the risks faced by immigrants arrested for drug possession, according to Benson.
“For non-citizens, and the impact on their immigration circumstances, the classification of the offense is irrelevant,” she said. “Under federal law, a simple misdemeanor drug possession conviction will be just as deportable as a felony drug possession conviction.”
Another variable beyond the control of county courts and prosecutors will play a vital role in determining how many immigrants face deportation for drug possession: ICE’s enforcement priorities.
However, a number of variables could help reduce the number of immigrants who face deportation for drug possession in the future, Benson said. “First, the backlog of cases due to COVID is making it difficult for courts to hear cases,” she said. “Second, prosecutors are going to be focusing their resources on much more serious offenses.”
And third, a provision of the new law requiring police to offer a diversion to community-based care programs at least twice before referring them to a prosecutor could help stem the number of people who ultimately face charges for possession. “The confluence of these things,” she said, “will help limit the number of people who face the disproportionate consequence of deportation for simply possessing a small amount of drugs until the legislature can decriminalize drug possession altogether.”
Another variable beyond the control of county courts and prosecutors will play a vital role in determining how many immigrants face deportation for drug possession: ICE’s enforcement priorities. ICE spokesman David Yost told PubliCola that, at least for the foreseeable future, his agency plans to “focus its limited resources on threats to national security, border security and public safety.”
Those priorities, introduced by the Biden administration in January, don’t include low-level drug enforcement; under new federal policy, “threats to public safety” only include people convicted of aggravated felonies. However, the policy will still allow ICE agents to detain people who don’t fall within their list of enforcement priorities so long as the agents secure permission.
From Benson’s perspective, the Biden administration’s new immigration enforcement policies offer some relief to immigrants charged with misdemeanor drug possession in Washington, but are not a panacea. “Compared to the prior enforcement dragnet that was unleashed under the Trump administration,” she predicted that the new enforcement priorities will slow the pace of deportations for low-level offenses. “Does it go as far as it could or should to rein in ICE and Border Patrol? No. But it’s a significant step in the right direction.”