If you’re convicted of a first-time DUI in Washington state, you could be sentenced to one night in jail, pay up to $5,000 in fines, and lose your driver’s license for 90 days.
If you’re an undocumented immigrant convicted of drunk driving, you could be deported.
That’s why in King County, prosecutors may choose to charge undocumented immigrants with a lesser crime.
“Fundamentally it’s a matter of justice,” said King County Prosecutor Dan Satterberg.
“It’s not fair that if two people who commit the same offense, one may risk being sent back to a country where they haven’t been since they were a child.”
That disparity in potential consequences is why King County is expanding its efforts to mitigate the possible impact of criminal charges against undocumented immigrants.
Since December 2015, King County has had a policy requiring its attorneys to consider immigration consequences when determining criminal charges, plea agreements and sentence recommendations.
That policy doesn’t require any charging decision or plea to be altered, but immigration consequences must be considered in most cases.
Any criminal conviction puts undocumented people at risk of being deported. The more serious the conviction, the greater the risk.
In the case of a DUI arrest, Satterberg said he could choose to charge someone with reckless driving or negligent driving instead.
[asset-pullquotes[{"quote": "\"I would worry about unequally applying the law to people and treating people differently ... There are some people who get convicted of a crime, and it might cause them to get divorced.\"", "style": "full"}]]“There are some cases where the label is important,” Satterberg said.
For young people who are protected under the Deferred Action for Childhood Arrivals, or DACA, program, a DUI could trigger a revocation of DACA status, which could lead to deportation proceedings.
Satterberg said charging them instead with reckless or negligent driving “will greatly reduce that person’s vulnerability to deportation.”
An executive order signed by President Donald Trump in January widely expanded the scope of who would be targeted for deportation.
And last month, Department of Homeland Security Secretary John Kelly said a single DUI could lead to deportation proceedings.
"We’re having to consider things that we didn’t used to consider, because ICE has broadened the net," Satterberg said. "They are going after people they didn’t used to go after."
Satterberg said the circumstances of each case involving an undocumented immigrant will be looked at carefully.
In some instances, a felony charge could be reduced to a misdemeanor, or the prosecutor could choose not to bring charges at all for minor crimes like trespassing or misdemeanor theft.
King County’s policy doesn’t apply to serious violent felonies, repeat violent felony offenders, or people charged with felony sex crimes.
When determining charges against anyone, prosecutors consider a wide range of factors, including criminal history. Satterberg said immigration status is one factor among many.
Now, King County is taking further steps to protect immigrants from being deported.
It’s developing a network of immigration attorneys to advise prosecutors about immigration consequences, and help determine whether someone is particularly vulnerable to being deported.
Annie Benson, senior directing attorney with the Washington Defender Association is working with the King County prosecutor’s office to put the network together. “Prosecutors wield an enormous amount of power in the criminal justice system,” Benson said.
“The prosecutors are the gatekeepers in terms of whether someone is going to end up in the deportation pipeline. This is a great development that they are getting in-house expertise to help them make decisions about the criminal charges they file, and how they resolve cases.”
But not every county in the Puget Sound region is embracing this idea.
In Snohomish County, prosecutors don’t consider immigration consequences when making charging decisions. In fact, it’s Snohomish County’s policy that immigration status will not be considered.
“I would worry about unequally applying the law to people and treating people differently,” said Snohomish County Prosecutor Mark Roe.
“There are some people who get convicted of a crime, and it might cause them to get divorced, too," he said. "Once we start looking into all those different things, I think you really lose sight of trying to just equally apply the law to everyone.”
But along with King County, Snohomish County doesn’t honor detainer requests from Immigration and Customs Enforcement that don’t come with a warrant.
Roe said he’s no fan of President Trump.
“I do feel like he has put a target on people’s backs unfairly,” Roe said. “But if we exempt people who are in the country illegally from our laws, and treat them differently, I think that’s really a political move. And I try not to make political moves. I make legal moves.”
Across the United States, more and more prosecutors are implementing policies that consider immigration consequences. Similar policies have emerged in Baltimore and Brooklyn in recent months.
The Trump administration has come out against them.
At a public appearance in New York in April, Attorney General Jeff Sessions spoke out strongly against prosecutors who consider immigration consequences.
“Some have advertised they will charge a criminal alien with a lesser offense than presumably they would charge a United States citizen so they won’t be deported,” Sessions said. “That baffles me.”
Meanwhile, King County is charging ahead to bolster its policy.
“To make sure that we’re not unwittingly serving a minor offender up to ICE," Satterberg said.
