The Seattle City Council just held its first Public Safety and Human Services committee meeting on a proposal to create an additional defense for people who commit misdemeanors because of poverty. The defense would also apply to people who commit misdemeanors while experiencing behavioral health or substance use disorder symptoms.
If codified in the Seattle Municipal Code, the defense would allow judges and juries to dismiss misdemeanor charges if a person committed the crime while trying to satisfy "a basic need." The proposal was born out of the defund movement and was catalyzed by Decriminalize Seattle.
Today's conversation on the proposal was mostly introductory and drenched in legalese. The Seattle City Attorney's office and the King County Department of Public Defense (DPD) went back and forth about how broad the defense should be, and about whether the burden of proof should be placed on the defendant or the prosecutor.
While the technical legal conversation was a bit dry, the public comment was filled with fiery testimonies, and Councilmember Alex Pedersen seemed determined to nip this shit in the bud. The council is in for a lot of debate as this proposal moves through the process toward becoming legislation.
Pedersen, who isn't even officially on the committee but who filled in for Councilmember Kshama Sawant as an alternate, expressed certainty that Seattle would become a national embarrassment if the council ultimately passes the proposal. If the courts give people caught shoplifting baby formula an opportunity to explain the circumstances around their crime instead of throwing them directly into jail, then the Democrats will lose the Senate races in Georgia, he basically argued.
Pedersen wants the council to slow down on modifications to the criminal legal system. Look at all the reforms we just passed for policing, Pedersen said, referencing cuts to the Seattle Police Department budget, investments in community policing, and the funding for the participatory budgeting process.
Groups for and against the proposal mobilized for public comment this morning, but the majority of the comments came from the opposition. Members of the business community called this a "piecemeal approach that leads to bad policy" and a "get-out-of-jail-free card."
Tiffani McCoy, the lead organizer with Real Change, spoke in favor of the proposal. She said the "sweeping, emotionally-charged claims" from critics were "simply fear-mongering."
Committee Chair Lisa Herbold, who sponsored the proposal, chastised Pedersen for spreading a "false narrative." Herbold explained that the proposal the committee was discussing would not decriminalize certain crimes. In fact, it wouldn't be much different from what the City Attorney's office does currently, she said.
Pete Holmes, the City Attorney, said in a letter to the council that his office already directs prosecutors not to put people in jail for crimes of survival. The council's policy, however, would codify those directives, which can change depending on who leads the City Attorney's office.
The proposal creates an "affirmative defense" for crimes committed out of basic need. Affirmative defenses require defendants to admit they committed a crime but allow them to explain the circumstances of the crime. Then, the judge and jury decide whether or not to throw out the case based on what they hear. Courts already recognize affirmative defenses such as duress or the common law defense of necessity, where people commit crimes to avoid injury, death, or greater harm. Crimes committed out of poverty or mental health don't really fit into those pre-existing categories.
"We want jurors to be able to hear the full story," Anita Khandelwal, Director of King County Department of
Public Defense, said about the council's proposal. "When every member of our community has enough to eat and is sheltered from the elements we will applaud the irrelevance of this law and not need to use the defense at all."
John Schochet, an attorney with the City Attorney's office, disagreed. Should a poverty defense cover all types of misdemeanors? Schochet and the City Attorney think no. Khandelwal and the DPD think yes because a jury will ultimately determine whether a defense is valid. Should the defendant or the city have to prove that the defendant committed a crime because they were poor or experiencing mental health issues in these cases? Schochet said the defendant should. Khandelwal said the city should.
Pedersen was upset that the council was asking "how" to implement this policy and not "whether" to implement the policy. Councilmember Andrew Lewis said that council members shouldn't "prejudge" a policy this early in the process.
Ultimately, nothing changed from the committee meeting today. More committee meetings on the policy will happen in January.