Lawsuit Challenges State and Counties to Refund Financial Penalties for Drug Charges

by Paul Kiefer

(This article originally appeared on PubliCola and has been reprinted under an agreement.)

A nonprofit representing formerly incarcerated Washington residents is suing the state and its 39 counties in an attempt to address one of the loose ends left by the state Supreme Court's landmark opinion in February ruling all simple drug possession charges unconstitutional.

The Seattle-based Civil Survival Project filed the class action lawsuit on Thursday, April 15, in an effort to stop the state, county superior courts, and private contractors from collecting Legal Financial Obligations (LFOs) tied to simple drug possession convictions. An LFO is a financial penalty that a court imposes when convicting a person of a crime; the penalty is broken into components, including a fee to cover the costs of filing the criminal case and a fee to cover the collection of a DNA sample.

The lawsuit also asks the state and its counties to provide refunds to those who have already paid court-mandated LFOs at any time since 1971, when the state's strict liability drug possession law — now unconstitutional — went into effect.

Courts and prosecutors statewide are still scrambling to respond to the state Supreme Court's decision, known as State of Washington v. Blake, leaving the Civil Survival Project without a clear picture of how many people owe LFOs for simple drug possession convictions.

"We're estimating there may be at least hundreds, and possibly thousands, of people who still owe LFOs towards convictions that are no longer constitutional," said Prachi Dave, one of the attorneys bringing the lawsuit and the policy and advocacy director of the Public Defender Association. "The lawsuit is a first step towards learning more about exactly how many people are impacted, and exactly how many people are owed refunds."

LFO debt can vary greatly. Before a 2018 change in state law in 2018, every LFO — which can range from hundreds to thousands of dollars — carried a 12% annual interest rate. Christina Zawadieh, a peer counselor at a social service agency in Everett who joined the lawsuit as a plaintiff to represent those with LFO debts, told PubliCola that she owes more than $3,000 for possession charges in Snohomish County. Even as the interest fees outgrew her original debts, she has continued to send money to the county Superior Court. "I have to do it to avoid having a warrant issued for failure to pay," she said.

Dave added that there is currently no clear way to determine whether any counties in Washington have continued to collect LFOs after the state Supreme Court's decision in February. The King County Superior Court has already stopped collecting LFO payments; according to the court's clerk, the county now returns LFO payments it receives.

An additional complexity, Dave said, is the checkerboard of regulations governing the private collections agencies that often contract with county courts to collect unpaid LFOs. Unlike the courts themselves, the collections agencies can garnish the wages of people with unpaid LFOs. Additionally, depending on the county, collections agencies charge between 18% and 100% of their original LFO as a "collection fee" — in addition to the interest payments expected by the court. Once the state can ascertain how much money private collections agencies have extracted in the form of collection fees from people with simple drug possession convictions, Dave said that the plaintiffs hope "to ensure that the collections agencies return that money in addition to the LFOs themselves."

At the moment, the Washington Association of Counties roughly estimates that the Blake decision will require more than $80 million in refunds to people cleared of their drug possession convictions. Counties will also have to carry the estimated costs of resentencing current inmates to reflect the state's updated drug possession laws — roughly $65 million.

Paul Faruq Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work withKUOW,North Carolina Public Radio, andThe Progressivemagazine, and he is currently working on a podcast forKUAFin Fayetteville, Arkansas. Paul reports on police accountability for PubliCola.

📸 Featured Image: Pierce County residents attend a 2019 event to receive legal assistance in reducing their LFO debts. Photo courtesy of Civil Survival Project.