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City of Seattle
Ed Murray, Mayor

SUBJECT: CAO equalizes treatment of citizens, noncitizens charged with crimes

6/11/2010  11:00:00 AM
Kimberly Mills  (206) 684-8602

As part of efforts to comply with the Seattle Municipal Code’s “don’t ask, don’t tell” ordinance regarding citizenship status – and to treat citizens and noncitizens equally in criminal prosecution – the City Attorney’s Office has begun asking the Seattle Municipal Court to impose 364-day total sentences, rather than 365-days sentences, in most gross misdemeanor cases.

Although the law allows the office to seek sentences of up to one year in jail and/or up to a $5,000 fine for gross misdemeanors, prosecutors have typically sought 365-day sentences, with anywhere between zero and all 365 of those days suspended. In most cases, defendants are sentenced to serve far less than 365 days, with the balance of the 365-day sentence suspended, and the defendant only serves the balance of the suspended days if he or she violates conditions imposed by the court.

Under federal law, state and local criminal convictions and sentences can affect noncitizen defendants’ immigration status in various ways. Federal immigration law counts the total sentence (including both days suspended and days actually served), meaning that a noncitizen defendant who is convicted of certain crimes and, for example, sentenced to serve five days in jail (with another 360 days suspended) would have a one-year sentence in the eyes of immigration law. Some deportation grounds are triggered not just by the type of crime, but also where the sentence imposed for the crime is one year or more (including suspended time). This means that noncitizen defendants, many of whom are refugees and lawful permanent residents (green card holders), can face automatic deportation for gross misdemeanor offenses solely because they received 365-day suspended sentences. This is true despite the fact that they may have served very little or, in some cases, no jail time for their sentence.

A one-day difference in the amount of suspended jail time imposed by the court (364 days instead of 365 days) can avoid this outcome. As such, defense attorneys often ask for a total sentence of 364 days, rather than 365 days, when their clients are noncitizens. Seattle Municipal Code 4.18.015 prohibits city employees from “inquir[ing] into the immigration status of any person, or engag[ing] in activities designed to ascertain the immigration status of any person.” By asking for 364-day total sentences instead of 365-day sentences in most cases, the City Attorney’s Office will no longer put noncitizen defendants in a position of having to identify themselves as noncitizens by requesting 364 day sentences.

This policy will apply equally to citizen and noncitizen defendants. In certain cases, primarily those instances where the offense is serious enough that CAO requests the maximum sentence of a full 365 days served in jail with none suspended, prosecutors will continue to ask for 365-day sentences for both citizen and noncitizen defendants.

The policy change will not eliminate the immigration consequences of criminal convictions for all noncitizen defendants. The cases this new policy is likely to impact are those where (1) the defendant is in the United States legally or has an avenue for obtaining legal status and (2) a 365-day total sentence would be the sole factor triggering the defendant’s loss of legal immigration status or loss of the defendant’s avenue for obtaining legal status. Certain crimes, such as most domestic violence offenses, render a noncitizen defendant deportable regardless of the sentence, and others, including many misdemeanor traffic offenses, do not necessarily render a noncitizen defendant deportable even if the sentence imposed is 365 days or more.

These changes are part of the City Attorney’s Office’s broader ongoing efforts to review and, where appropriate, revise its criminal sentencing recommendation policies to bring greater proportionality and fairness to misdemeanor prosecution in the City of Seattle.

SMC 4.18.015 Inquiries into immigration status.A. Notwithstanding Seattle Municipal Code Section 4.18.010, unless otherwise required by law or by court order, no Seattle City officer or employee shall inquire into the immigration status of any person, or engage in activities designed to ascertain the immigration status of any person.B. Seattle Police officers are exempt from the limitations imposed by subsection A, above, with respect to a person whom the officer has reasonable suspicion to believe: (1) has previously been deported from the United States; (2) is again present in the United States; and (3) is committing or has committed a felony criminal-law violation.

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