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City of Seattle
Ed Murray, Mayor

SUBJECT: New law equalizing misdemeanor punishment was modeled on CAO policy

7/20/2011  3:00:00 PM
Kimberly Mills  (206) 684-8602

Starting July 22, a simple change in state law – reducing the maximum sentence for a gross misdemeanor by one day – will have a big impact on noncitizens who are in the country legally.

Substitute Senate Bill 5168, which the Legislature passed with large bipartisan support during the 2011 session, reduces misdemeanor sentences from one year to 364 days.

Under federal law, a legal immigrant can be deported for committing an “aggravated felony,” which includes some crimes with a minimum sentence of at least one year imprisonment. Under Washington law, these same crimes are misdemeanors -- and not felonies -- but carry a maximum sentence of 365 days, triggering deportation proceeding for legal immigrants.

The Washington Legislature determined “this is a disproportionate outcome, when compared to a person who has been convicted of certain felonies which, under the state’s determinate sentencing law, must be sentenced to less than one year and, hence, either have no impact on that person’s residency status or will provide that person an opportunity to be heard in immigration proceedings where the court will determine whether deportation is appropriate,” according to SSB 5168.

The legislation was championed by Seattle City Attorney Pete Holmes, OneAmerica, a Seattle-based immigrants advocacy agency, the Washington Defender Association and Sens. Margarita Prentice and Adam Kline.

The idea stemmed from a policy change that Holmes instituted as part of efforts to comply with the Seattle Municipal Code’s “don’t ask, don’t tell” ordinance regarding citizenship status. To treat citizens and noncitizens (including legal immigrants) equally in criminal prosecution, Holmes’ office last summer began asking the Seattle Municipal Court to impose 364-day total sentences, rather than 365-day sentences, in most gross misdemeanor cases.

The change in state law will not eliminate the immigration consequences of criminal convictions for all noncitizen defendants. The cases it 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.

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