Public defenders help people convicted under unconstitutional drug possession law

Last month, King County public defender Kimberly La Fronz helped a client – incarcerated on what’s called a Drug Offender Sentencing Alternative – walk out of prison seven months before his sentence was set to end. He returned to his family. He had a job already in place. “He got his life restarted,” she said.

La Fronz’s client is one of thousands in Washington state who has already benefitted, or stands to benefit, from what some are calling “Blake relief” – resentencings due to the State Supreme Court’s far-reaching ruling that the state’s felony drug possession law is unconstitutional.

The state Legislature rushed to “fix” the law this spring, passing in the final days of the session a new version that makes simple drug possession a misdemeanor. But that legislative act doesn’t negate what the State Supreme Court had already determined – that the law used for more than 50 years to incarcerate tens of thousands of people violated their due process rights and exceeded the state’s police power.

King County public defenders hailed State v. Blake when it was handed down in February, particularly in light of its impact on Black, Indigenous, and People of Color, who have long been disproportionately incarcerated due to these kinds of laws.

“Possession charges have been a tool in the war on drugs, weaponized against Black and Brown people, for years – here in King County and across the state,” Anita Khandelwal, director of the King County Department of Public Defense, said shortly after the court issued its decision. “The Court’s decision is an important step, helping to address the racism and bias embedded in so many of our laws.”

The State Supreme Court’s decision in State v. Blake threw out a law that had been in place more than 50 years.

Now, attorneys throughout the state – including many at DPD – are filing motions to secure resentencing hearings for people who are in prison on a Violation of the Uniform Controlled Substance Act (VUCSA) or whose sentences were made longer because of VUCSA convictions. Some are also filing motions to get previous convictions dismissed or vacated.

The department has already assigned about 230 cases to DPD attorneys or members of its assigned counsel panel for resentencing under Blake, according to Jonathan Rudd, who oversees case coordination for the department. Hundreds more are awaiting assignment.

The department has established a tiered system to sort the many cases, assigning cases first on behalf of people who could be released within 24 months once their “Blake points” are removed from their offender scores. After that, the department will assign cases to address those who are under community custody due to a VUCSA conviction or who need past convictions vacated. Also at the top of the list are those who could face deportation or other immigration consequences because of a drug possession conviction.

Some, like La Fronz’s client, will walk out of prison due to DPD’s work. The father of three had been in custody since October after the second half of his prison DOSA – which was to be served in the community – was revoked. Thanks to Blake, La Fronz was able to get two prior convictions struck, reducing his sentence considerably and enabling him to be released. “It was great for him,” La Fronz said.

Others won’t be released but will see their sentences shortened, many of them by years. Still others – those whose only felony convictions are drug possession – will no longer be felons once their convictions are vacated. “They’ll be eligible for student loans, for housing, for jobs,” said Scott Ketterling, an attorney at DPD who’s helping to oversee the assignment process. “The impact will be considerable.”

David Montes, an attorney at DPD, recently got three drug convictions vacated for a client.

But even with the high court’s unequivocal ruling that the state’s simple drug possession law was unconstitutional, DPD attorneys are facing some challenges in the courtroom. Some prosecutors have objected to DPD’s motions, and some judges have declined to set hearings where there’s a dispute between the prosecutor and the public defender.

Ketterling finds that analysis mind-boggling. “The whole basis of the court system is to resolve disputes,” he said.

DPD attorneys continue to file motions, working to overcome objections by prosecutors when they arise. “It’s very frustrating,” said David Montes, a DPD felony attorney. “I’ve had to push hard against both the court and the prosecutor.”

At the same time, he’s experienced some significant successes. Recently, for instance, he got three past VUCSAs vacated for a client who was about to be sentenced in federal court, significantly reducing the length of his prison term.

“It’s deeply gratifying,” Montes said. “The system has long ensnared people on low-level drug charges. We’re now beginning to reverse that. We’re beginning to address some of the harms that were done.”

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