Washington State Senate Passes Bill to Expand Parental Diversion but Leaves Immigrant Families Out

Last Friday February 9th, 2018, the Washington State Senate passed Engrossed Substitute Senate Bill 5307 (ESSB 5307), which will help expand Washington State’s Family Offender Sentencing Alternative program beyond individuals with non-violent crimes and expands the definition of family to help keep more parents in the community. The bill now moves to the House Public Safety Committee for a hearing on February 15th, at 8am.

Sadly, as the Senate passed the bill on Friday, Senator Jan Angel made amendments on the floor that increased barriers for immigrant families and Senator Padden made amendments that reduced eligibility for who can apply. An Immigration Customs Enforcement deportation detainer does not necessarily mean that an individual will be deported as they may have relief or what is called cancellation from removal. Also, detainers are requests, not commands. They are not arrest warrants and do not provide probable cause for arrest. The presence of a detainer is not indicative of an individuals’ immigration status. Detainers do not begin deportation proceedings and do not signify whether a person will or will not be deported. Further, the Washington State Department of Corrections already changed the Extended Family Visit program eligibility to reflect this reality. DOC Policy 590.100 (III)(9).

It is important as we move forward with criminal justice changes we see the need to make holistic changes that support all families. With 2.7 million children with a parent behind bars currently, and with more than 5 million children who have had a parent incarcerated at some point in their lives, the impact of incarceration goes well beyond the individuals serving time and affects children, families, and our communities. Further, the impact of parental incarceration falls greater on black and latinx youth, who due to a racially unjust criminal justice system, are respectively seven and two times more likely to have a parent in prison. Although we don’t have exact numbers of how many immigrant parents are in our federal, state, and immigrant prisons, we do know that based on ICE’s own reports, in 2012 an average of 31 children per day were placed into state care.

The expansion effort is extremely important as states such as Tennessee and Massachusetts are considering primary caretaker bills for non-violent offenders. Washington’s amendments highlight that our efforts for change can go further as:

  • Many of our reform efforts have narrowly focused on individuals with non-violent crimes. However, over 54 percent of people in our prisons are charged with violent crimes and left out of reform efforts. There is an assumption that a parent with a violent crime would be more likely to harm their children, whereas many people with violent crimes are actively parenting from prison. It makes no sense to leave them out. Also, we are not going to solve mass incarceration without supporting alternatives for people with violent crimes.
  • Primary custodians aren’t the only parents or parent figures helping our children. Under a narrow reading, Washington’s current law does not explicitly cover pregnant parents or parents whose partners were expecting at the time of sentencing. Nor does it explicitly include non-custodial parents with children in open adoptions, non-parental custody decrees, or guardianship. Further, low income individuals as well as LGBTQ families often have informal parenting relationships that may not be recognized or able to be proved under the current definition. The proposed changes will ensure that all parents and important caregivers are considered.

Overall, the best option to help families involved in the criminal justice system is to keep parents out of prison in the first place. The Washington law is a promising step towards one, reducing the number of parents going into our carceral system to begin with, and two, allowing for a release valve to get out early and with supports. Most importantly, the law recognizes the pain and trauma that occurs from the separation and gives families the resources to reintegrate. Justice Strategies will continue to update as the bill moves forward.


Lill M. Hewko


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