Tag: Washington v. Blake

New State Drug Laws May End Some Deportation Proceedings, But Risks Remain

King County Detention Center, Seattle (Photo: PubliCola)

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. Continue reading “New State Drug Laws May End Some Deportation Proceedings, But Risks Remain”

Lawsuit Challenges State and Counties to Refund Financial Penalties for Drug Charges

Pierce County residents attend a 2019 event to receive legal assistance in reducing their LFO debts (Civil Survival Project)

By Paul Kiefer

A nonprofit representing formerly incarcerated Washington residents is suing the state and its 39 counties in an attempt to address one of the loose ends left by the state supreme court’s landmark opinion in February ruling all simple drug possession charges unconstitutional.

The Seattle-based Civil Survival Project filed the class action lawsuit on Thursday in an effort to stop the state, county superior courts and private contractors from collecting Legal Financial Obligations (LFOs) tied to simple drug possession convictions. An LFO is a financial penalty that a court imposes when convicting a person of a crime; the penalty is broken into components, including a fee to cover the costs of filing the criminal case and a fee to cover the collection of a DNA sample.

The lawsuit also asks the state and its counties to provide refunds to those who have already paid court-mandated LFOs at any time since 1971, when the state’s strict liability drug possession law—now unconstitutional—went into effect.

“There may be at least hundreds, and possibly thousands, of people who still owe [legal financial obligations] towards convictions that are no longer constitutional.”— Prachi Dave, Public Defender Association

Courts and prosecutors statewide are still scrambling to respond to the state supreme court’s decision, known as State of Washington v. Blake, leaving the Civil Survival Project without a clear picture of how many people owe LFOs for simple drug possession convictions.

“We’re estimating there may be at least hundreds, and possibly thousands, of people who still owe LFOs towards convictions that are no longer constitutional,” said Prachi Dave, one of the attorneys bringing the lawsuit and the policy and advocacy director of the Public Defender Association. “The lawsuit is a first step towards learning more about exactly how many people are impacted, and exactly how many people are owed refunds.”

LFO debt can vary greatly. Before a 2018 change in state law in 2018, every LFO—which can range from hundreds to thousands of dollars—carried a 12 percent annual interest rate. Christina Zawadieh, a peer counselor at a social service agency in Everett who joined the lawsuit as a plaintiff to represent those with LFO debts, told PubliCola that she owes more than $3,000 for possession charges in Snohomish County. Even as the interest fees outgrew her original debts, she has continued to send money to the county’s superior court. “I have to do it to avoid having a warrant issued for failure to pay,” she said.

Dave added that there is currently no clear way to determine whether any counties in Washington have continued to collect LFOs after the state supreme court’s decision in February. The King County Superior Sourt has already stopped collecting LFO payments; according to the court’s clerk, the county now returns LFO payments it receives.

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An additional complexity, Dave said, is the checkerboard of regulations governing the private collections agencies that often contract with county courts to collect unpaid LFOs. Unlike the courts themselves,  the collections agencies can garnish the wages of people with unpaid LFOs. Additionally, depending on the county, collections agencies charge between 18 and 100 percent of their original LFO as a “collection fee”—in addition to the interest payments expected by the court. Once the state can ascertain how much money private collections agencies have extracted in the form of collection fees from people with simple drug possession convictions, Dave said that the plaintiffs hope “to ensure that the collections agencies return that money in addition to the LFOs themselves.”

At the moment, the Washington Association of Counties roughly estimates that the Blake decision will require more than $80 million in refunds to people cleared of their drug possession convictions. Counties will also have to carry the estimated costs of re-sentencing current inmates to reflect the state’s updated drug possession laws—roughly $65 million.