The Blake Refund Program and Washington’s 39 Flavors of Rabbit Hole

Suspect arrested, police officer finds drugs during the search.

“Welcome to my rabbit hole, Colin,” Ali Hohman said, “where dreams go to die.”

Hohman is mostly joking—mostly.

She’s the director of legal services for the Washington Defender Association (WDA), where much of her recent work has been focused on issues arising from the Washington Supreme Court’s earth-shattering decision in State v. Blake. In 2021, a court majority ruled that Washington’s strict liability drug possession statute is unconstitutional. That ruling was like dropping a thermonuclear bomb on almost a half-century of felony drug policy. It immediately prompted hurried statements from law enforcement agencies, a stop-gap measure by the Legislature in 2021, and a renewed legislative correction earlier this year that required a special session to finalize.

And as lawyers, legislators, and cops scrambled to unwind the implications of Blake on the future of Washington drug policy, an equally complex process extended back into the past. What about all the people who were arrested, prosecuted, and convicted of a law that is now deemed unconstitutional? According to the Administrative Office of the Courts (AOC), at a minimum there are roughly 200,000 felony drug possession charges, and as many as 150,000 misdemeanor marijuana charges dating back to the 1970s that, because of Blake, are eligible for conviction vacations and refunds of the legal financial obligations (LFOs) placed on those who were convicted of the now unconstitutional law. On June 12, the AOC announced plans to launch a Blake Refund Bureau to provide legal and financial recompense. The Legislature approved $47 million to vacate those hundreds of thousands of convictions and another $50 million to repay the lost income from LFOs.

It’s clearly a massive undertaking, but the many complexities, nuances, and inconsistencies endemic to Washington’s decentralized court system help explain why Hohman has been working remotely from her rabbit hole.

Washington has a non-unified court system, meaning “trial courts are funded and administered locally by each county or city,” according to the AOC. (It’s tricky to catalog the exact number of non-unified versus unified state courts, but the National Center for State Courts lists 26 states that are legally described as unified.) That leaves our state with 39 decentralized county court systems that are affected by Blake.

“With Blake, there’s 39 different flavors at least…,” Hohman said. “We have all these cases where it’s not clear who vacates the cases and gives refunds. That’s where the AOC came in.”

Sharon Swanson is the Blake implantation manager at the AOC. She said there were several challenges that led the agency to create a Blake Refund Bureau. The labor shortage, particularly as the AOC tries to compete for IT and development talent, has long been a challenge for the organization and has become more so recently.

“Additionally, we needed to develop a process that was not only as automated as possible, to assist our courts and clerks with sending AOC information related to vacates and refunds, we also needed to develop a system that works for all 39 counties (Superior and District courts) as well as 112 municipalities (Municipal Courts),” Swanson said. “That involves a great deal of communication, compromise, development, and testing. We really want to make sure we have a process that is straightforward for the Blake impacted individuals and that allows for quick refunds that can be safely and accurately delivered.”

Those are just a few of the challenges when trying to turn back the drug-policy clock by 50 years for nearly a half-million people.

“In the beginning things were a little bit wonky and even now things are not standardized at all,” said Josiah Lara, staff attorney with The Way to Justice, a nonprofit law firm based in Spokane.

Some counties have pushed back against the Blake decision, Lara said, and some prosecutors have threatened to re-file charges because, for instance, they believe that vacating some Blake convictions violates earlier plea agreements. Some counties have created processes to handle Blake cases while some others haven’t processed a single case.

“One of the judges I spoke to was not even aware that there were all these Blake cases in her court … ,” said The Way to Justice Executive Director Camerina “Cam” Zorrozua. “I think she appreciated the fact that it was brought to her attention that there was this whole load of cases.”

Drug charges are frequently tied up with other charges, meaning the now-unconstitutional Blake cases are mixed up and entwined with past or even new criminal charges.

“If you have a Blake conviction … we look at the severity of your current case against your criminal history, and then we do lawyer math,” Hohman said. In other words, someone sitting in prison with a Blake conviction and others can vacate the conviction, which can affect their sentencing scoring and possibly get them out.

However, some jurisdictions have vacated convictions without informing the affected individuals. It might sound like a case of silent heroism to wipe away a conviction, but there are pile-on effects. For instance, different counties use different codes to mark a dismissal, and the wrong code might make the dismissal not count in the way an individual actually needs. In these cases, Hohman said, she has had to have the dismissals dismissed and re-filed correctly.

The LFOs for a Blake conviction might range from zero to a few hundred dollars to as much as $10,000.

“They have no idea that a conviction is off of their history; they have no idea that they’re entitled to all this money,” Lara said. “If prosecutors are now going through and just vacating these with no notice, some of these individuals are being harmed a second time.”

Farther down the rabbit hole lie other complications with immigration proceedings. A drug charge might kick in automatic deportation procedures in federal immigration cases, which would have to be reevaluated once a Blake conviction is vacated. For instance, an FAQ posted by Washington Law Help explains that “If your conviction is vacated under State v. Blake, it will no longer count as a drug conviction for immigration purposes. Once you have your case number/s, you can get a copy of the Judgment and Sentence (J&S) from each case.”

That’s easier said than done. The necessary forms haven’t been standardized from county to county and the information available hasn’t been translated in some jurisdictions. More so, not even legal professionals are up to speed.

“People in our profession still don’t know about Blake,” Lara said. One of their clients was told by an attorney that it would cost $5,000 to vacate their Blake conviction, when in reality they could do it for free at the county clerk’s office.

To help smooth out the inconsistencies between counties and court jurisdictions that are behind the main challenges of the Blake Refund Program, information needs to get out to the individuals and communities most affected by the war on drugs. This means publicizing Blake information in courts, translating the information, and directly notifying the affected communities, which in line with drug prosecutions tend to be BIPOC communities, tend to be poor, and tend to be unbanked, which creates further challenges for people to access their refunds after they qualify.

With hundreds of thousands of cases eligible for vacation and refunds, there’s also a need for more bodies.

“We’re running out of lawyers, we’re running out of public defenders and prosecutors,” Hohman said.

In short, any refund program encompassing five decades and hundreds of thousands of cases was bound to be complicated. What’s needed now is the right information getting where it needs to go, enough legal professionals to process the workload, and willingness to collaborate on such a massive project.

“Really what we’re doing is responding to the disproportionate impacts on our communities from the war on drugs—the failed war on drugs,” Zorrozua said. “This is not the time for ego to come into play; our Supreme Court made the finding that this was unconstitutional.”