When Lisa Giap opened an email from the Pierce County Superior Court in January 2024 that said her previous drug conviction from 2015 had been cleared from her criminal record, she was stunned.

It wasn’t until she called the court clerk to confirm that the reality set in.

“It was definitely a big moment for me and my family, just to know that that’s gone,” said 38-year-old Giap. “I’m finally able to put this behind me.”

Giap is one of many Washingtonians eligible to have their case vacated after the Washington Supreme Court ruled in 2021 that the state’s simple drug possession law was unconstitutional because it lacked language related to intent.

The ruling, known as State v. Blake, was historic in that it not only made Washington’s law void but also made hundreds of thousands of past misdemeanor and felony convictions dating back to 1971 eligible to be wiped from a person’s criminal record — and any financial costs stemming directly from the conviction eligible to be refunded. A new law criminalizing drug possession, coined the “Blake-fix,” went into effect in July 2023.

“Washington was one of the only states in the country that still had that draconian of language,” said Katrin Johnson, the deputy director for operations at the Washington Office of Public Defense. “That’s one of the cornerstones of our legal system, that there has to be some knowing element that the state has to prove.”

When the state Supreme Court ruling was announced, Johnson thought the work would largely be a simple fix in a database. But the reality is far more complicated — especially given Washington’s non-unified court system, which allows courts throughout the state — and judicial officers — to operate largely independently of one another.

Given the complexity and the patchwork of approaches across the state, the process to vacate the estimated 626,188 cases has been relatively slow. As of January 2025, the Washington State Patrol reports that approximately 114,567 cases have been vacated statewide, accounting for 18% of the estimated eligible cases identified by the Administrative Office of the Courts (AOC). This figure reflects a combination of data analyses from both agencies, which may affect the final count.

“Our legal system is really designed to process criminal cases in one direction,” Johnson said. “To correct cases going backward, it’s not the same thing.” In reality, she said, “it’s like putting toothpaste back in the tube.”

Varying approaches

While some courts have been proactive in identifying and vacating eligible cases, others have left it up to the impacted individuals to navigate the convoluted system and initiate the process independently.

The process, which has to be initiated at the court where the conviction was given, involves three distinct steps: resentencing cases that involve more than just a possession charge; vacating eligible cases off a person’s criminal record; and filing a refund request with the state’s Blake Refund Bureau once a vacate is issued for any associated financial costs stemming from the conviction. Refunds can be anywhere from a few dollars to nearly $9,000 depending on the financial costs, and accrued interest, associated with the conviction.

Even after years of work, courts still have a long way to go: 63% of cases in Superior Courts and Municipal Courts still need to be vacated, according to data from the Office of Public Defense, while 89% of eligible cases in District Courts still need to be vacated.

The team tasked with overseeing State v. Blake work at the Office of Public Defense estimates that it will take local courts until at least 2027 to vacate the remaining cases at the current rate.

Part of the issue is that the high court ruling didn’t impose a timeline for courts. In 2022, lawmakers tried to pass a law that would outline some basic parameters and set a timeline for the process, but the bill died after pushback from influential organizations like the Washington Association of Prosecuting Attorneys and the Washington State Association of Counties. Another bill introduced in 2023 faced a similar fate.

“Everybody’s concerned that the Legislature is going to think that, ‘Shouldn’t we be done by now?’” said Deborah Espinosa, the executive director of Living with Conviction, a nonprofit focused on the collateral consequences of criminal justice involvement. “This is a hard population to find and serve, and I just hope that people have patience.”

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Currently, a local court can also apply for state funding to hire a staff person to tackle Blake cases, but the funding is appropriated yearly which makes it difficult for local governments to recruit and hire staff, Johnson said. The state Administrative Office of the Courts is in the process of creating a separate office that could help local courts with their Blake work. But the local courts need to opt in to participate.

“There are places where the court and the prosecutor have kind of taken the attitude of, well, if people show up and file that motion to vacate, and they go through the legal process to file the appropriate paperwork and serve it appropriately, or whatever their process might be locally, well then we’ll put it on for a hearing,” Johnson said. “But people have to come out and do it proactively themselves.”

A proactive approach in Tukwila

Shortly after the Supreme Court released its Blake decision, LaTricia Kinlow, the judicial branch administrator for the Tukwila Municipal Court, got straight to work.

She hired three summer interns to help the court work on its nearly 1,000 Blake cases. She said it was important to her and Judge Kimberly Walden to do the work swiftly.

“We know what these cases did to the marginalized community,” Kinlow said. “We know the impact of having those types of charges on your criminal history, how it blocks you from a lot of opportunities.”

In Tukwila, a person did not have to appear for their vacating hearing, as is mandatory in other courts. The court sent out notices to people’s last known addresses, but if they didn’t show up in person, it didn’t delay the process.

Kinlow said that some people called the court upset, wondering why they were getting a court summons so long after their conviction. When they learned that their conviction was going to be vacated and that they could get a refund for any court fines or fees, she said their tone swiftly shifted. “People would be elated,” Kinlow recalled.

She said it wasn’t uncommon for Judge Walden to be moved to tears after a Blake hearing. “We don’t always have an opportunity to refund money or to vacate cases, and so it was a very rewarding experience,” Kinlow said.

She sees it as part of a national trend of courts focusing more on restorative justice practices.

“You can do that and still hold people accountable,” Kinlow said. “So when the (state Supreme) Court finds that we are doing something wrong, then I think we have an even greater responsibility to right the wrong.”

Other courts see it differently, she said.

“You have some courts, in my humble opinion, that aren’t processing them because they just don’t want to,” she said. “It’s not that they can’t, they have chosen to take a position.”

At the Renton Municipal Court directly adjacent to Tukwila, judicial officers have only sent out seven out of the 1,514 eligible cases to the state’s Refund Bureau, according to state data.

The court administrator in Renton Municipal Court, Yanna Filippidis, declined an interview request and wrote in an email that the court’s two judges wouldn’t comment on their Blake process. In a written statement provided by a city spokesperson, Renton’s city attorney wrote that defendants can initiate the process to vacate misdemeanor cannabis charges on their own, but that the court doesn’t have the authority to despite the high court ruling.

“Neither the judges nor the prosecutors see it as appropriate to sua sponte (without request from those with the potentially eligible convictions) move to vacate past misdemeanor convictions,” Shane Moloney, the Renton city attorney, wrote in an email.

“Unlike felony convictions of the same statute addressed by Blake, there is some legal uncertainty on how far the Blake decision extends to misdemeanor convictions identified by the (Administrative Office of the Courts) as ‘potentially’ eligible for vacation,” he added.

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It’s a reasoning that Johnson has heard from judges and prosecutors throughout the process.

“Most judges think, ‘I’m not ethically allowed to do this,’” Johnson said, given their neutral role in a court case. “But this isn’t a legal issue to battle out like there are two sides,” she said. “The Supreme Court already decided.”

‘It’s still going to take years’

Brittany North, a deputy prosecuting attorney with the Pierce County Prosecuting Attorney’s Office, has been working her way through the county’s Blake cases since 2021.

“I joke that if I were to get another dog, I’d probably name it Blake,” she said. “This is pretty much all I’ve done.”

North said the state high court’s decision took many prosecutors by surprise. “No one in the prosecuting sphere was overly happy with the decision just on the basis that there was a lot of work to be done,” she said.

But she was proud that Pierce County decided to take a proactive approach. First, they worked to identify who was being held in jail on these charges and filed emergency orders for their release. Then, they looked for cases where a person was being charged, or if there was an open bench warrant that could lead to an arrest.

“There wasn’t a master list across the state of who is being held on these charges. So it’s been a learning process,” she said.

Since then, they’ve been tackling their most recent cases and working their way backward. “Our experience has been that the more recent the conviction, the more likely it is affecting that person,” she explained.

North said their court has been working a bit slower than some others because they aren’t just looking at cases where the only charge was a Blake-eligible charge. “We’re going through every case, so even if there’s like an assault on the case, we’re going through and vacating the (unlawful possession of a controlled substance) charge, which makes it a little more complicated,” she added.

Their goal has been to do all steps at once, including resentencing, vacating and the refund process. “Our orders probably have two or three more steps than some other counties, but our idea is to do it once, do it correctly and don’t touch it again,” she said.

For North, the most rewarding part has been being able to give people a second chance.

“Oftentimes, on our side, we put people in (prison), and we don’t often get to see where they are at the halfway point or what progress they’ve made,” she said.

But the process hasn’t come without pain. “Some of these cases are worst-case scenarios, like rape of a child in the first degree, and they get resentenced because they had a single Blake conviction on their record,” North said. “It’s understandably difficult for family members to get.”

She said the resentencing hearings for these more serious cases can be especially difficult for victims.

“They’re talking about all the good things they’ve done in prison, how they’ve matured and grown over five to 10 to 15 years, how they’ve improved,” North said. “Oftentimes, the victim’s families are just sitting there thinking about all the ways that their lives have gotten worse over the 15 years because their family member is dead or they’ve been maimed or something traumatic happened to them.

“I think that’s the part that sometimes gets lost in all the good things that (the Blake) decision might have done,” North said.

In the first few years, her office was doing 10 to 15 resentencing hearings a week. Today, they have one or two a month. The majority of the work now is simple vacates. But the further they get in time, the harder it is to identify eligible Blake cases. For any cases before 1990, the paper records are kept off-site in boxes. Currently, they are working on cases from 2006.

Each court has faced unique challenges in accessing its older records. For example, some courts couldn’t easily access court records from the ’70s and ’80s because they were stored on small transparent film strips that could only be viewed using an old-school microfiche reader. Others have struggled with staff capacity.

“In smaller counties, I don’t doubt (they) struggle to have enough people to get this work done,” North said. “We’re big enough that I can dedicate a lot of time to this, but other counties I know struggle to get enough prosecutors to do the active work of cases that are coming in, let alone going back in the record and doing this.”

Since Pierce County started its Blake work, North estimates that the court has vacated between 12,000 and 15,000 eligible cases. She estimates they have about 30,000 cases in total. They’ve been able to expedite the process because the defense and prosecution are working collaboratively — which is not always the case in other courts.

“I literally print out a stack of like 150 to 200 (vacate orders) at a time, and I sign them all, and I hand the whole stack to the defense attorney, and he goes through and signs them,” North said. “So that way, both of us have looked at the order.”

The process has forced both sides to put aside their adversarial nature. “That being said, once we get into the resentencing, that’s where the gloves are off and we become adversaries again,” she added.

Even given their collaborative approach, they still have a long way to go.

“Even if all of us are working at our absolute maximum capacity together, it’s still going to take years,” North said.

Advocates say more outreach needed

When Giap’s drug possession conviction was removed from her criminal record, she said it helped her close that chapter in her life.

“It helped me a lot in the sense of just knowing, like, hey, I made some poor decisions in the past, but I’ve done really well at just reestablishing myself, surrounding myself with good folks, and I want the same opportunities as other people have,” she said.

She now helps others do the same as a legal empowerment navigator with Living with Conviction.

The organization has a hotline that anyone can call to ask questions related to Blake and to get help initiating the process. Having someone on the line who’s been in their shoes helps ease anxiety for people who have trauma related to the courts, she said.

The organization has partnered with others to give presentations at community events, setting up tables at Juneteenth festivals and Indigenous resource fairs. They’ve attended drug treatment resource fairs and community college events, and have done outreach in prisons to make sure people know about State v. Blake, according to Espinosa, the executive director of Living with Conviction

But still, so many people she speaks with, even those working within the system, don’t know about the State v. Blake ruling.

“I wish the Legislature would have earmarked funding for a statewide communication campaign,” Espinosa said. “Those convictions, and the costs involved, can be debilitating and keep people shackled to the criminal justice system.

“There’s still a lot of work to do,” she added.

Moe K. Clark is a collaborative investigative reporter at InvestigateWest, covering Washington’s criminal justice system and other topics. Her work is supported by the Murrow News Fellowship, a state-funded journalism initiative managed by Washington State University.

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News Source : https://www.opb.org/article/2025/02/08/washington-courts-vacate-illegal-drug-convictions/