Washington State Representative Tarra Simmons (D), the first person convicted of a felony to be elected to the state legislature, no longer has a felony record. A Superior Court judge vacated five felonies from Simmons’ criminal history on September 8, a day Simmons has dubbed “Freedom Day.”
People who have been convicted on felony charges carry the stigma of those convictions long after they leave prison. They restrict what jobs you can get and what housing you can live in. Applications to both are often denied because criminal histories appear on the National Crime Information Center (NCIC) and can be released upon request for background checks. Parents can lose custody of their children when their record is used against them during family court disputes.
Simmons is currently vice chair of the Washington’s Community Safety, Justice & Reentry Committee as well as a practicing lawyer. But her record was initially used to prevent her from taking the bar exam, before the state Supreme Court intervened to support her in 2017.
This stigma is what Simmons described to Filter as “collateral consequences.” Vacatur means someone’s criminal history can no longer be released to anyone other than law enforcement. It also means they’re no longer obligated to disclose vacated felonies on applications that pose that question. Those convictions can still be used against you in court, however, and do not allow someone to apply for restoration of firearm rights.
“Never give up,” she told Filter.
— Tarra Simmons (@TarraSimmons5) September 9, 2023
Simmons recounted how her first felony conviction came at age 13, for assault in the second degree. She applied for a pardon in 2005, but even though the Washington State Clemency & Pardons Board recommended granting it, then-Governor Christine Gregoire (D) refused to sign it.
Assault in the second degree was not eligible to be vacated at the time. But that changed in 2019 with the state’s New Hope Act, which cleared the way for Simmons and others by expanding the circumstances under which certain convictions can be vacated.
“I fought for zero incarceration, and decriminalization. This combats the collateral consequences and stigma … [but] nothing about this law makes sense.”
Simmons previously had a sixth conviction, felony drug possession, which was overturned by the Blake decision in 2021. In the months leading up to that temporary law expiring on July 1, Simmons played an integral role in shaping the new law that recriminalized drug possession as a gross misdemeanor, rather than a felony.
Simmons initially voted against the law. She told Filter she wanted possession to remain decriminalized, as it had been for the past two years, but that she ultimately voted for the law to pass because it was what her constituents wanted.
Before doing so, she successfully proposed that rather than all gross misdemeanor convictions for drug possession being punishable by up to 364 days in jail, someone’s first and second convictions should carry a maximum jail time of six months.
“I fought for zero incarceration, and decriminalization,” she said. “This combats the collateral consequences and the stigma of having a record … [but] nothing about this law makes sense.”
The law provides an option of diversion to drug treatment in lieu of jail time, with charges automatically dismissed upon completion of the assigned treatment; the gross misdemeanor never makes it onto their record. Though gross misdemeanors don’t necessarily appear on the NCIC or affect post-release life the way felonies do, Simmons said she’s personally known people who’ve been fired from job sites because Washington background checks pull up gross misdemeanors.
“Prosecutors from local jurisdictions will want to divert,” she said, describing how state funds provide an incentive to do so. District and municipal court budgets come from local funds, and diversion to treatment means not having to pay to keep someone in jail.
But this option is inherently fraught. For one thing, mandated treatment is not ethical or effective, and many people diverted to it will not reach the point of automatic dismissal. For another, if prosecutors decide to prosecute rather than recommend the diversion route—even if the judge overrules them and no jail time is served—the charges aren’t eligible to be automatically dismissed to begin with.
So if a prosecutor wants to ensure someone has a record, all they have to do is say they intend to prosecute. That power is usually wielded against people of color and especially those in poverty, most of whom won’t have their records cleared.
Photograph via Washington House Democrats