Everybody Talks About Expunging Drug Convictions. Here’s How Seattle Did It

Seattle City Attorney Pete Holmes, left, looks on as Mayor Jenny Durkan speaks at a February news conference announcing plans for the city to move to vacate misdemeanor marijuana possession convictions. City Council member Bruce Harrell looks on at right. (Elaine Thompson/AP)

In an effort that could clear cannabis convictions for an estimated 542 people, Seattle City Attorney Pete Holmes filed a legal motion last week asking the Seattle Municipal Court to dismiss all misdemeanor cannabis possession convictions stretching back to the late 1990s.

The motion, which has the support of the King County Department of Public Defense, now awaits a decision from Presiding Judge Ed McKenna.

“It’s long past time we remedy the drug policies of yesteryear,” Holmes said in a statement, “and this is one small step to right the injustices of a drug war that has primarily targeted people of color. I’m hopeful the court will choose to clear these charges.”

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Seattle’s move comes as cities in other legal cannabis states consider similar moves to undo the wrongs of America’s war on drugs. In California, district attorneys in San Francisco and San Diego announced earlier this year that they would unilaterally review more than 12,000 cases involving cannabis, and revise or expunge the convictions.

But many jurisdictions claim the logistics of widespread expungement are simply too onerous to carry out. In February, Leafly’s Peter Hecht wrote:

The majority of California’s 58 district attorneys, including in Los Angeles—with more than 40,000 cannabis felony cases alone since 1993—say it is simply too burdensome to revisit marijuana charges en masse. They say it is up to people with convictions to petition the courts on their own and for district attorneys to respond on a case by case basis. That has resulted in protests from cannabis reform advocates. It has spurred still-vague state legislation seeking to expedite justice for former cannabis defendants in California’s 58 counties.

In a response to legislation that would force courts across California to review old cases themselves, some court administrators have expressed concerns about taking on the additional burden of sifting through what are, in some counties, still thousands of paper files.

As a result, only a tiny fraction of those eligible to have their convictions removed have actually seen relief. The convictions can make it difficult for those affected to find housing and employment, access public services, or maintain immigration status.

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Seattle’s move raises the question: If it’s so burdensome, how is the largest US city north of San Francisco getting it done?

The answer seems to be simple: Seattle City Attorney Pete Holmes assigned staff members to dig in and compile a list of expungement candidates, case by case. It’s part of the reason why the expungement effort, originally announced February, wasn’t introduced in court until last week.

No action is required from the hundreds who stand to see their records expunged.

Seattle does have a limited window of convictions under its control, which may have helped define the project.

Prior to 1997, misdemeanors in the city were prosecuted by King County. The Seattle City Attorney’s Office took over that task in ’97. That gave today’s city officials a simple point of definition: They could only expunge the records they controlled, which were misdemeanors in the city going back to 1997. Anything older than that—as well as all felony cases—fell under the jurisdiction of King County.

There were further helpful limitations. Pete Holmes, who was elected city attorney in 2009, stopped prosecuting misdemeanor cannabis possession cases as a matter of policy in 2010, two years before Washington voters legalized the drug for adult use. All told, what his staff faced was a project that considered misdemeanor cannabis convictions over a span of roughly 13 years

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Months to Prepare

Holmes and Seattle Mayor Jenny Durkan first announced the intention to file the expungement motion in February, but the city delayed the action due to the sweeping scope of the case.

City officials also wanted to make sure the dimissals would count under federal immigration law, the Seattle Times reports:

To render marijuana convictions moot under immigration law, a court must determine they had no valid basis from the start, Matt Adams, Northwest Immigrant Rights Project legal director, told The Seattle Times last month.

In the motion filed Friday, Holmes stipulates that noncitizens convicted between 1996 and 2010 in Seattle were not adequately advised about immigration consequences, such as the deportation risks of a guilty plea.

Joining Holmes in announcing the motion, Mayor Durkan said the step was a necessary one to correct “what was a failed war on drugs, which disproportionately affected communities of color in Seattle.”

“The war on drugs in large part became a war on people who needed opportunity and treatment,” she said. “While we cannot reverse all the harm that was done, we must do our part to give Seattle residents—including immigrants and refugees—a clean slate. Noncitizens have also been unduly burdened by these convictions, which can provide a roadblock to gaining citizenship, or in the worst case, can initiate deportation proceedings.”

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Next Steps

The city’s expungement motion still must be approved by Ed McKenna, presiding judge for the Seattle Municipal Court. According to Gary Ireland, the court’s public information officer, there’s no formal deadline for McKenna to rule on the motion.

Dan Nolte, the communications director for City Attorney Holmes, said his office is hoping to hear more from the court as soon as this week. McKenna could ask for further arguments on the motion, issue a ruling, or request other types of information, Nolte said. With both prosecutors and defense attorneys on board with the plan, “it makes us hopeful the court will approve the motion,” he added.

Other than wait, no action is required from the hundreds who stand to see their records expunged. If the motion is approved, Nolte said, the charges would be vacated automatically.

“Regardless of the direction this goes in, the 542 people whose records are being considered, they don’t have to do a thing,” Nolte said, adding that people can monitor the status of their convictions on the court’s online portal.

Under the state’s adult-use cannabis law, adults 21 and over may possess up to an ounce of cannabis flower. Possession of more than 40 grams (1.41 ounces) of cannabis remains a felony.