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Challenging 365 Day Sentences

Mission Statement

It has long been an entrenched (and erroneous) practice in Washington State for judges to routinely impose  365 day sentences, with 364 days “suspended”, in gross misdemeanor offenses.  This practice can, an often does have enormous consequences for non-citizen defendants.  Many of the most frequently charged gross misdemeanor offenses (theft and assault) are transformed into “aggravated felonies” under immigration law where a sentence of one year or more is imposed, regardless of time suspended.  This triggers the most drastic consequences under immigration law, which could be avoided with a sentence of even one day less (364 days, with 363 suspended.)

These materials are intended to provide guidelines and information to defenders to assist them in filing a RALJ appeal of a 365 day sentence imposition.  They are intended to facilitate a change in practice and procedure in courts where the court is routinely making such impositions and refusing to consider imposing anything less than 365 days.  While we believe these materials support challenging the practice of routine imposition of 365 day sentences in all cases, they specifically address the issue in relation to immigration law and the immigration consequences of doing so.

At the trial level, you can use the sentencing motion and brief

EAC Opinion 10-30 August 27, 2010, opinion of the Ethics Advisory Committee addressing blanket sentencing policies.

WDA Misdemeanor Sentencing Memo – 10-14-10 8-page memo for defenders, judges & prosecutors outlining relevant misdemeanor sentencing issues relating to blanket sentencing practices and noncitizen defendants.

SSB 5168 Final Bill

SSB 5168 Practice Advisory on Misdemeanor Sentence Amendments

Letter from Justice Madsen Re: 365 Day Sentences

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