Truth About Consequences: The Proposal to Change Prosecution of Misdemeanors is a Bad Idea

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Image by Kira Hoffmann from Pixabay

Just how out of touch some members of our City Council are became painfully clearer this past week when prosecution of misdemeanor crimes was discussed. Some Councilmembers want to make it more difficult to successfully prosecute these cases.

Misdemeanor crimes are those where punishment is capped at 364 days in jail — think simple assault, fighting, retail theft (shoplifting), car prowl, harassment, non-retail theft (stealing your bicycle from your porch or backyard), and many other offenses.

In December, or perhaps January, the Council will consider a proposed new city ordinance expanding the already existing affirmative defenses available to offenders charged with misdemeanors. These existing defenses include diminished capacity, insanity, necessity, self-defense or defense of others, defense of property, involuntary intoxication, and duress, to name some. This new legislation would create an expanded defense of duress if the offender was acting to meet an “immediate basic need” or was suffering from a “behavioral health disorder,” a broad condition that covers drug or alcohol addiction and mental health. A “basic need” is defined as “a commodity or service without which life cannot be sustained and includes, but is not limited to, adequate food, shelter, medical care, clothing, and access to sanitation.” (The proposed law does not provide these new defenses in cases related to domestic violence or driving under the influence.)

On the surface, this new law might seem appropriate to some. After all who wants to arrest people suffering addiction or mental health challenges and throw them in jail? But this legislation needs to be carefully examined in the context of what already happens with misdemeanor arrests and prosecutions in Seattle and what it might mean to public health and safety in our neighborhoods.

In 2019, Seattle police forwarded approximately 12,000 misdemeanor cases to the city prosecutor. After screening, the prosecutor filed criminal charges in 5,421 cases, less than one-half of the referred cases, not counting domestic violence or DUI cases. Talk to business owners in your neighborhood or downtown and you will hear consistent criticism of city government for not adequately enforcing misdemeanor crimes, especially shoplifting. When businesses shut down, the owners often cite rampant shoplifting as one of the reasons.

Statements from the city’s elected leaders and the passage of laws sends a powerful message to police officers and prosecutors about what the city government expects. Passing this proposed law will strongly signal that the City Council doesn’t believe misdemeanor crimes committed by some are important. It will discourage officers from making arrests and it will discourage prosecutors from filing formal charges in Municipal Court. As one criminal defense attorney said to me, this proposed law “is a defense attorney’s dream.”

Think carefully about what this means. Someone walks into your neighborhood store, steals a few things, sells these items to a fence, and pockets the cash. His defense under this law: “I’m poor.” Or, someone walks up to you on the sidewalk and asks for money, you decline, he punches you and runs away. The police arrest the offender for simple assault, but the prosecutor declines to file a criminal charge because the offender asserts that he’s suffering from PTSD or some other mental health challenge. Or, someone sets up their tent in your yard, trespassing on your property. You call the police, but they decline to remove the camper, explaining that because he’s homeless and apparently poor, he can’t be successfully prosecuted. These are not wild hypotheticals.

If adopted by the City Council, these new affirmative defenses will make misdemeanor crimes — except for those related to domestic violence and driving under the influence — much more difficult to prosecute. Of course, that is the stated purpose of those advocating for this law — they want fewer prosecutions.

This proposed legislation is extreme. It destroys any chance of controlling behaviors that are harmful to the victims of these crimes and to neighborhoods across Seattle. It reflects an ideology that certain individuals are excused from accountability because of their physical or economic standing, going far beyond already existing protections in our laws related to mental illness, for example.

Sadly, this approach sustains what has been a serious problem for years in Seattle — city government just can’t seem to thoughtfully discern how to balance its public health and safety obligations with its desire to compassionately help people in need. I’ve argued consistently that we must do both; it’s not an option to do just one or the other. This proposed city ordinance tips the scales hard, away from the balanced approach I believe the people of Seattle desire. In fact, this ordinance could be read as excusing criminal behavior by some at the expense of everyone else.

Those who favor this new law will argue that the vast majority of people charged with misdemeanor crimes in Seattle are indigent, perhaps upwards of 90 percent. They will suggest that these individuals are committing crimes out of necessity or because of their physical status (mental health, addictions). They will argue that continuing to enforce misdemeanor laws against this population perpetuates poverty, addictions, or mental health challenges. Of course, this proposal doesn’t actually do anything to solve the presenting problems of addictions, mental health, or poverty. Nothing.

If the City Council is interested in actually curing, not just excusing, the problems we see across Seattle they should seriously consider the following steps. First, correctly identify the problem to be solved. If homelessness is the problem, then more housing is the solution. But, if the core problem is actually substance abuse or mental illness, and I believe it is for those living unsheltered in our parks and on our sidewalks, then the solution is a medical one first and foremost.

Second, city government should ramp up on-demand treatment services for addiction and mental health challenges. Waiting for the state or county governments to provide an adequate level of these services is extremely expensive in terms of the harms caused by people experiencing these issues. Such harms include criminal behaviors and disorder, decline in the public’s perception of safety, and the ramifications of that decline on economic sustainability.

Third, we should reevaluate our standards for when treatment services should be mandatory. There are multiple examples of extreme harm being caused because people decline or discontinue treatment. Rather than affirmative defenses, we should focus on how prosecutors can use their discretion to divert offenders into treatment services and how we might boost the Municipal Court’s post-conviction treatment options.

Fourth, the City Council should ask why less than one-half of the misdemeanor cases the police refer to the city prosecutor result in formal charges. Why is the filing rate so low? Are the cases poorly prepared by the police? Are there evidence problems? Does the prosecutor believe the offenses are not serious enough to warrant prosecution? There is a huge disconnect between police arrests and formal charges being filed. Why?

This proposed new ordinance is very unwise. It tells the victims of these crimes — mostly small businesses across the city — that you’re on your own (or you need to start hiring private security). The roadblocks to successful prosecution this proposal establishes will discourage police from making arrests, amplifying a condition that already exists today, and discourage prosecutors from taking cases to court.

You can read other commentary about this proposed legislation herehere and here. This idea was proposed by Councilmember Lisa Herbold (District 1 West Seattle/South Park), with support from Councilmember Teresa Mosqueda (Citywide), Councilmember Tammy Morales (District 2 Pioneer Square/SoDo/Beacon Hill/Rainier Valley), and Councilmember Kshama Sawant (District 3 Capitol Hill/First Hill). Sadly, it is another example of the Council rushing an idea forward without solid review or consultation with those most impacted — the police, prosecutors, and the small businesses in our city that are already hanging on by a thread.

This article first appeared in a blog written by Burgess, “Seattle Forward.”

6 COMMENTS

    • The proposed ordinance does not “give a judge more latitude”. They create “affirmative defenses” that force a judge to dismiss charges and/or prevent a prosecutor from bringing them in the first place. Judicial “latitude” is what happens when a person is charged and convicted, and a judge then can decide whether substance abuse treatment, jail time, or community service is an appropriate remedy.

  1. Thank you for your analysis. Shoplifting is a huge problem for downtown retailers, and a contributor to many retailers throwing their hands up and leaving downtown. I live downtown and see shoplifting occurring, blithely and with impunity. Also intravenous drug use on the sidewalks. There is another longterm problem this leniency generates – immoral contagion, similar to what Robert Frank described in Sunday’s NY Times about the unintended consequences of cutting the IRS’s budget for auditing and enforcement. Your four-pronged approach seems full of common sense; unfortunately common sense is often absent with our current City Council.

  2. The lady in the photo (attempted shoplifting at NW Art & Frame), also came into our office at 4554 California Ave SW. She asked specifically for “a lighter so she could light her joint”. When I told here we had no lighters or matches, she proceeded to have a seat in our lobby. I took her temperature and allowed just a moment for her to shuffle with her bags, as I watched. There seemed to be some mental illness, somewhat disoriented. Can’t say that she is homeless, but I hope she receives help with her mental stability. She was not threatening.

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