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Originally published July 16, 2010 at 2:44 PM | Page modified July 16, 2010 at 4:45 PM

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Law tweak injects fairness for noncitizens charged with misdemeanor crimes

Seattle City Attorney Pete Holmes offers a smart tweak that ensures equal treatment of citizens and noncitizens charged with a crime. The effort lines up squarely with the city's "don't ask, don't tell" policy relating to citizenship status.

SEATTLE City Attorney Pete Holmes offers a smart tweak that imposes fairness and proportionality to crime and punishment for citizens and noncitizens alike.

Holmes is asking Seattle Municipal Court prosecutors to ask for no more than 364-day sentences rather than the current 365-day sentence allowed for most gross misdemeanors.

One day less is all it might take to avoid triggering federal laws requiring deportation of any noncitizen sentenced to one year or more.

Many in Seattle have legal permanent status but are not citizens. They have green cards or hold refugee status. But if they are charged and sentenced for a misdemeanor such as shoplifting, they can be deported despite the fact prosecutors typically ask in these cases for a 365-day sentence with between zero and all 365 days suspended.

Federal law doesn't make distinctions about how little time a defendant serves. State misdemeanor sentences of 365 days are treated as federal felonies. A year sentence on the record of a noncitizen is grounds for deportation.

Credit Holmes for injecting a dose of fairness in a law that was part of the 1996 Welfare Reform Act's expansion of aggravated felony to include, in immigration cases, not just murders, rapes and severe assaults but any crime receiving a 365-day sentence.

Prosecutors and judges retain the discretion to go beyond Holmes' recommended 364-day sentence if the offense is serious enough. The new policy does not shield undocumented defendants from immigration consequences. For example, crimes such as domestic violence may still trigger deportation regardless of the sentence.

But the new approach will be of tremendous help to people here legally who commit a minor infraction and find themselves caught in the tangle of deportation rules. It also brings criminal prosecutions in line with Seattle's municipal ordinance preventing all city employees except law-enforcement personnel from inquiring into immigration status of defendants.

It was never rational or fair to treat a misdemeanor as a mild infraction involving little or no jail time in the criminal-justice system and yet treat it as a deportable crime in the immigration system.

Holmes' tweak brings equality and fairness to the system.

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