In theory, a person is innocent until proven guilty — a notion that provides a bedrock for our justice system. In practice, that's not always the case. Especially for immigrants, that foundation begins to erode as a matter of simple semantics.
Where Washington state law defines "conviction" under one set of rules, federal immigration law defines the word another way, says Vanessa Nelsen, an immigration attorney with World Relief Spokane. The difference could mean that some people are inadvertently punished based on their citizenship status.
In particular, Nelsen and other defense attorneys point to what are known as "Stipulated Orders of Continuance," an agreement that gives criminal defendants a chance to keep their records clean. As far as Washington state is concerned, the agreement is not considered a conviction. In fact, if people reach such agreements with prosecutors and stay out of trouble for a certain amount of time, the charge is dismissed.
But federal immigration law isn't so friendly.
In response to a letter from the Spokane County Human Rights Task Force, Spokane County Prosecutor Larry Haskell has refused to change the language in the agreements offered by his office. Without tweaking the language, the agreement can count as a conviction under the federal Immigration and Naturalization Act, and be used as evidence in deportation proceedings.
Haskell's stance is out of step with prosecutors in other jurisdictions, according to the Washington Defender Association.
In his written response, Haskell argues in part that the suggested changes would weaken the deal for his office while strengthening it for defendants. Plus, he says, changing the agreement for noncitizens could give them an unfair advantage over U.S. citizens.
"If a criminal defendant is concerned that a [Stipulated Order of Continuance] may jeopardize his or her status in this country or are concerned that they may not be able to comply with the conditions of that SOC, they are not required to enter into it," Haskell writes.
For immigrants, that means potentially giving up an option to resolve their case, without building a criminal record, that's otherwise available to U.S. citizens.
"It's equal treatment with disparate impact, so it's not treating everyone the same," Nelsen says. "People should not be breaking the law, but our system is innocent until proven guilty. It just feels a little short-sighted from where I'm sitting."
The terms of these agreements, or SOCs, can vary depending on the alleged crime. Generally, defendants are required to stay out of trouble for up to two years. The deal could also include requirements for drug or alcohol treatment, or community service. If the person complies, prosecutors agree to dismiss the case.
If the defendant violates the terms of the deal, prosecutors are almost guaranteed a conviction. Defendants agree to let a judge determine their guilt based on the police report. Under the agreement, defendants give up any right to challenge the cops' version of the incident.
However, immigration law experts say that agreeing to facts as they're laid out in the police report could count as a conviction under federal law.
Jonathan Moore, a legal analyst for the Washington Defender Association, points to a case out of Texas where the Board of Immigration Appeals — the body within the U.S. Department of Justice that interprets immigration law — recently affirmed that thinking.
The board decided in September that even though a man wasn't convicted in the Texas criminal court system, the terms of his diversionary agreement "qualifies as a conviction for immigration purposes."
The Washington Criminal Court and Immigration Manual also aligns with the Texas decision: "Stipulated orders of continuance ... agreements will all be deemed permanent convictions for immigration purposes" unless the language is changed, the manual states.
Without changing the language, "the benefit of these ... opportunities are often rendered moot for noncitizen defendants since they will end up with removable convictions, even if they comply with the conditions imposed and the charges are subsequently dismissed," according to the Washington manual.
Moore also points to other Washington cities, and counties such as Benton, Walla Walla and King, that have in the past used what he would consider "immigrant-safe" language.
Spokane City Prosecutor Justin Bingham says he has allowed "immigrant friendly" changes to language in these agreements used in city cases on "rare" occasions. However, Bingham says he agrees with Haskell that there should not be two different forms: One for citizens, and one for noncitizens.
"I don't believe it's best practice to have two separate forms based on someone's immigration status," Bingham says. "But I'm certainly open to have a conversation to tweak our general form. If there's some way to have the best of both worlds, I'm open to considering that."
Finally, in his letter, Haskell argues that defense attorneys have shown no examples where a person was deported based solely on one of these agreements.
"Absent such precedent, this change seems overly broad and reactionary in light of the fact that there is no federal case law that defines 'conviction' that broadly," he writes.
Nelsen, the attorney for World Relief Spokane, cautions against that logic. The Texas case is at least one example. Beyond that, she says, the most likely reason there aren't numerous other cases on the topic is because people facing deportation are not provided a lawyer at the government's expense, as they would be in criminal court. The majority go through deportation proceedings without an attorney, Nelsen says. In order for this issue to appear in case law, the defendant would need a lawyer to file an appeal.
"So what happens is this disproportionately affects those who are disenfranchised economically," she says. "There are very few nonprofit organizations that are working with detained immigrants, and they can't meet the need. There's just not enough of them to go around.
"They're doing this in other areas of the state," Nelsen says of making the agreements more immigrant-safe. "So I don't understand why [Haskell] thinks it's more difficult to do in the Spokane area." ♦
