Today the House decided to kill a bill that would have expanded a judge's power to dismiss cases for low-level crimes, such as theft or trespass, when defendants have complied with certain court conditions. If passed, the bill would have potentially helped reduce the number of people with mental illness languishing in jails, a practice that has cost the state hundreds of millions of dollars in federal fines

The bill died partly because KING 5 and the Seattle Times Editorial Board spent weeks fear-mongering about the legislation in sloppily reported pieces based on talking points from Republican City Attorney Ann Davison, wrongly claiming the bill silences prosecutors and victims.

In their coverage, both outlets showed a lack of understanding of the proposed legislation. KING 5 displayed its misunderstanding when the station described the bill as a debate over whether to send people convicted of a crime to jail or a court-ordered program. That framing is just factually wrong, as the bill involves a question of how to divert people out of the justice system before a conviction. As an aside, KING 5 could benefit from more diversity in their stock footage, because in one of their stories about this bill they chose to use only shots of Black men to represent defendants. The station did not immediately respond to a request for comment.

Rep. Darya Farivar (D-Seattle) called the bill in question, House Bill 1994, a pretty “reasonable” piece of legislation that didn’t deserve the frothing backlash from these outlets. The bill simply asks prosecutors to justify their prosecution of low-level offenses, especially when it comes to cases involving people who committed a crime as a result of poverty, addiction, or a mental illness. Farivar hopes to end the practice of just sticking people with behavioral health problems in jail over and over again, and instead allow courts to address the root causes of criminal behavior prior to conviction. 

The Fear-mongerer’s Argument 

The bill has the backing of the Governor’s office, as it could help the state come into compliance with the Trueblood v. DSHS settlement, which requires the Washington State Department of Social and Health Services to provide timely mental health restoration to people in jail. About 11% of Trueblood class members enter the criminal justice system on misdemeanor charges, Farivar said.

But according to KING 5 and the Seattle Times Editorial Board, this bill could make people want to move out of Seattle and make the misdemeanor court system “even more dysfunctional.” Those outlets, along with prosecutors across the state, offered three main complaints about the legislation: (1) It leaves prosecutors and victims out of the conversation. (2) The bill violates the constitutional separation of powers between the judicial and executive branches by giving the judiciary a power usually reserved for prosecutors. (3) People with extensive criminal histories should not benefit from this bill.

The Truth of the Matter 

Let’s talk about what HB 1994 actually does, because honestly it’s not so cool that it “circumvents prosecutors’ role in the court,'' as the Seattle Times Editorial Board put it. Far from silencing prosecutors, the bill gives them an opportunity to argue in front of a judge about why they should be allowed to prosecute a person for a low-level offense. And contrary to the claims of the legislation’s detractors, judges cannot unilaterally consider whether to dismiss these cases. 

Under the legislation, either the prosecutor or the defense attorney must first ask the judge to divert a defendant out of the criminal justice system. The defendant must agree to certain court conditions, such as engaging with service providers or treatment, and then, after up to a year of court monitoring, the judge can dismiss the case. This bill applies only to the lowest of low-level crimes. Judges could not dismiss charges in cases involving domestic violence, stalking, driving while intoxicated, or in cases involving violence or guns. The law also would not apply when a person pleads down from a felony charge to a misdemeanor.

Still, Davison herself wrongly characterized the bill as somehow taking prosecutors out of the conversation, saying “defense can move for this or the court can move for this and prosecutors cannot say ‘No, we don’t agree.’” Not to harp on the point, but, again, the court cannot move to dismiss the cases without one of the sides asking for it, and the prosecutors can absolutely oppose a defense attorney’s request for the judge to dismiss the case. Plus, if a person failed to comply with the court-ordered conditions, then prosecutors could present that evidence to the judge, and the judge could end the continuance and allow prosecutors to resume their case.

Both outlets also claimed victims might feel sidelined if courts dismissed these cases, with KING 5 even tracking down two residents who might consider moving because of recent property crimes and the lack of “accountability” in Seattle. However, in an interview with The Stranger, Seattle Municipal Court Judge Damon Shadid said that complainants or victims very rarely show up to make their voices heard just for low-level property crime. Regardless, Shadid emphasized that judges have a constitutional obligation to hear from any victim, and HB 1994 allows space for victims to argue that a defendant should face criminal prosecution. 

When testifying before lawmakers in support of the bill, Shadid addressed the question of whether the law violated the separation of powers doctrine, since a prosecutor acts as part of the executive branch. Shadid acknowledged multiple legal theories might exist on this point, but he argued that the Legislature passing a law allowing judges to dismiss these cases would make it constitutional. Plus, Shadid pointed out that judges already have the power to dismiss cases under a law that’s similar to HB 1994. That law is called “a compromise of misdemeanor,” and it basically says that a court can dismiss a charge against someone in some cases where a defendant can prove they’ve paid restitution to the victim. However, the result of this law means that only people with the financial means to pay for restitution can avoid a criminal conviction.

“Under a compromise of misdemeanor, you’re asking a poor person with no services to pay a fine to have their case dismissed. With HB 1994, I would be able to say, let me get you an ID, connect you to AppleCare, educate you about treatment and housing services, and if you do all those things, I can dismiss your case,” Shadid said. 

The final part of HB 1994 that irked both the Seattle Times Editorial Board as well as lawmakers such as Rep. Jenny Graham (R-Spokane) revolved around the fact that the bill offered these services to people with both long and short criminal histories. Both Graham and the editorial board balked at the idea of the court cutting someone a break even if they had 30 misdemeanor convictions. 

However, someone living unhoused or with a behavioral health diagnosis can rack up convictions pretty quick. Carmen Pacheco Jones is the executive director of the Health and Justice Recovery Alliance in Spokane, a nonprofit working to reduce recidivism and support people in recovery. For years, Pacheco Jones lived on the streets and amassed more than 30 misdemeanor convictions. She accumulated 12 of those convictions in about six months for a variety of crimes of survival, including trespassing, loitering, and shoplifting–she stole things such as feminine hygiene products, a handful of fruit she ate in a store without paying, and once a pair of shoes.

“It makes me sad when I remember it, and it was so needless, in that if there were alternatives, such as access to food, clothing, and hygiene products, I wouldn’t have stolen them,” Pacheco Jones said.

When people live unhoused their very survival becomes criminal, she argued.

But KING 5 did not speak to anyone who may have benefited from this bill in the past or in the future. Instead, they appeared content to flash some pictures of Black men across the screen and then wrongly characterize what the bill actually does. Meanwhile, the Seattle Times Editorial Board wrongly claimed that HB 1994 silenced victims and also gasped about the bill circumventing prosecutors, which it doesn’t. Great work, everybody.