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Local prosecutor not a fan of vacating pot convictions

May 25, 2019

YAKIMA, Wash. (AP) — In mid-August, nearly 60,000 people could ask courts to strike low-level marijuana possession convictions from their criminal records under a new law.

But Yakima County Prosecuting Attorney Joe Brusic thinks it’s a bad idea, and his office may oppose any applications to vacate convictions that were handed down in Yakima County.

“Individuals in Yakima County can call an attorney, and we can discuss it,” Brusic said. “But we are not going to agree to it just because it is legal now. When they were convicted, they were breaking the law.”

But a prominent Yakima defense attorney said the new law will allow people to be able to apply for jobs or housing and not worry about a conviction for a law that no longer exists holding them back.

“I hardly drink, and I don’t use drugs, but I don’t believe people should go to jail for possessing marijuana,” said Rick Smith.

Gov. Jay Inslee signed Senate Bill 5605, which would allow people who have been convicted of misdemeanor marijuana possession charges before state law was changed to allow recreational use of the drug to have the conviction vacated from their court records.

None of the senators and representatives who represent the Yakima Valley area voted for the measure.

In 1998, Washington voters approved Initiative 602 to legalize medical marijuana, while recreational marijuana was legalized in 2012 with the passage of Initiative 502. But the 2012 initiative, which failed in Yakima County, did not erase the 68,543 misdemeanor marijuana possession convictions listed by the Washington State Patrol even though the law prohibiting possession of an ounce or less was no longer in effect.

Sen. Joe Nguyen, a Seattle Democrat, and other proponents of the bill said the failure to wipe the convictions from criminal records had the potential to make it harder for people to get jobs if they had to list marijuana convictions.

“What we’re doing today is righting the wrong of injustice in the past ,” Nguyen said during a Feb. 12 public hearing before the Senate Law and Justice Committee. Nguyen said one of his constituents cannot serve as a chaperone for her children’s school field trips because of a marijuana possession conviction years ago.

Smith, the Yakima defense attorney, said he heard of cases where a casino on the Colville Reservation had problems hiring people because many of the job applicants had marijuana possession convictions.

To address the problem, Seattle Mayor Jenny Durkan and City Attorney Pete Holmes announced in 2018 that the city would vacate hundreds of misdemeanor marijuana convictions issued in municipal courts.

Inslee, a Democrat who recently launched a campaign for the presidency, suggested offering pardons to people who were convicted under the old law if the conviction occurred between Jan. 1, 1998, and Dec. 31, 2012, the person was at least 21 years old and it was their only criminal conviction. He also said only convictions in a state court could be considered for a pardon.

However, while a pardon may excuse someone from the penalties of the crime, it does not totally remove the crime from the person’s record.

Under the new law, a person would be able to apply to the court in which they were sentenced to have the sentence vacated, which means that the charge and conviction is removed from the person’s criminal record, and the person can legally say they were never convicted of the crime.

During the hearing, James McMahan, policy director for the Washington Association of Sheriffs and Police Chiefs, said his organization supports the idea of giving people second chances, but within limits.

“How many chances are we going to give them?” McMahan said, noting the law allows for any number of misdemeanor marijuana convictions to be vacated, and waives many of the restrictions on vacations that apply to other offenses.

Under state law, gross misdemeanors and misdemeanors can be vacated only if the applicant has no criminal charges pending at the time, has waited at least three years after completing the terms of their sentence, has not been convicted of a new crime, has not asked for a vacation of a charge in the past and has not been named in a no-contact order within the past five years.

The waiver of those conditions only applies to misdemeanor marijuana convictions under the new law.

McMahan told the committee that not everyone with a marijuana possession conviction was just a low-level user.

“It’s important to us that many simple marijuana possession cases did not start out as misdemeanor cases. A lot of them, but not all of them, started out as possession with intent to deliver,” McMahan said. “The bill does not take (that) into account.”

Brusic said that just because the law the person violated was subsequently repealed does not automatically make them innocent or deserving of a blanket vacation. He said the current rules on vacation addressed the issue.

But Smith said it was a matter of fairness to allow people to have their convictions vacated and allow them to move forward unrestrained. When medical marijuana was first legalized, the state did not establish a registry of legal users right away, which created some problems.

There are also questions about how many people the law would affect, and its cost.

Brusic said allocating funding and staffing in the court is another factor that must be weighed.

The State Patrol lists 58,864 people as having 68,543 marijuana convictions that would be eligible for vacation, while the state Administrative Office of the Courts said 43,506 people convicted between 2005 and 2018 could ask that their convictions be vacated.

Depending on how many of them ask to have their convictions vacated, it could cost the court system as much as $1 million to process them.

The Washington Association of Prosecuting Attorneys warned that vacating the charges may lead some people convicted of subsequent felonies to demand resentencing because their sentencing was based in part of a prior criminal history that has been eliminated or reduced, adding further expense to the courts

The law goes into effect Aug. 13, 90 days after signing.

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