To prosecute, or not to prosecute, that is the substantive question at the heart of the Seattle City Attorney race.
Based on her experience defending 600 cases in the Seattle Municipal Court (SMC) system, Nicole Thomas-Kennedy vows not to prosecute most misdemeanors.
She and many other public defenders argue that poverty and/or untreated mental health issues drive most of the low-level crimes the city chases. About 90% of the people charged in SMC live in poverty, more than half are homeless, and the city spends at least $176 per jail bed each night to hold people who, in many cases, have stolen items worth much less than that.
Weirdly enough, prosecuting and jailing poor people for stealing food and clothes does not stop them from getting cold and hungry in the future, and the process of punishing them for committing those crimes can trap them in a destructive cycle.
To list a few of the many issues with the process: summonses mailed to homeless shelters often go unanswered for obvious reasons and then lead to more warrants; ubiquitous plea bargaining creates longer rap sheets; fulfilling jail sentences or probation requirements can rob people of housing and job prospects; etc.
In 2019 the city filed more than 7,300 misdemeanor cases based on more than 13,000 referrals from law enforcement. In an attempt to find more effective ways to reduce recidivism and cruelty, over the last 12 years City Attorney Pete Holmes’s office worked with public defenders and the courts to set up pre-booking and pre-trial diversion programs. Some of those programs, such as the nationally renowned Law Enforcement Assisted Diversion (LEAD) program and the most recent version of community court, have shown promising results.
Ann Davison, who became a Republican during the Trump administration, wants to reverse course. Though she’s paid some lip service to diversion programs, she and her corporate backers think prosecution prevents the world from descending into madness, and that prosecuting more misdemeanors will prevent people from committing more felonies despite growing evidence to the contrary.
At this point in the “debate,” the conversation can become abstract to people outside the system. Why are many public defenders so mad about the way the system works? What would it look like to get tougher on low-level crimes?
To get a sense of the world Davison wants to revert back to, I asked NTK and some other lawyers to send me along the kinds of cases they think the city shouldn’t pay attorneys, judges, and jailers to punish. I reviewed the police reports and dockets, and then wrote down the plain facts of the cases.
Four caveats: 1) First and foremost, I derive the following narratives from police reports, which the cops use to justify arrests. Cops lie all the time. 2) I’m not using names because I don’t want to make life for these people harder than we’ve already made it. 3) Judges dismissed many of these cases before they went to trial, and some defendants didn’t see jail time beyond the time they spent in jail awaiting hearings. That’s typical; my aim here is to highlight a few cases that are a waste of everyone’s time and money, not to gawk at overly punitive sentences, though there are a few. 4) Most of the cases are older — from between 2015 and 2018 — but that’s on purpose for a few reasons. The pandemic prompted the legal system to change booking criteria to reduce jail populations, so prosecutors haven’t been able to go after as much bullshit lately. But if Seattle elects Davison, the city will end up going after more cases like these.
Stealing a Sleeping Bag in Winter
Five days before Christmas in 2018, some “Major Crime Task Force Detectives” were working a retail operation at a Fred Meyer in Ballard. Around lunchtime, a 53-year-old homeless man walked into the store, took a $30 sleeping bag off the shelf, and then walked out the door with it. A uniformed cop arrested the man and threw him in jail for the night. The judge said he’d let him off if he promised not to return to the Fred Meyer for six months. He didn’t return, and so the judge dismissed the case.
Stealing Shoes at the Goodwill in Winter
In January of 2018, a loss prevention officer at the Goodwill off Dearborn caught a 26-year-old guy swapping his shoes with another pair on the rack. The store priced the donated shoes at $39.99. When the man left the store without paying, the officer stopped him, took him back to the office, and then asked him why he did it. The man told the officer he “needs the shoes.” He’d also lifted a $7.99 sweatshirt, and so he used this opportunity to return it.
Though the store recovered the $48 worth of merchandise, the city went after the guy. The man, who lives in Carnation, WA, didn’t show up to his court date. A warrant was issued, they put him in jail, and he pleaded guilty to get out in four days.
According to a report from KUOW, Seattle prosecutors charged 318 people for stealing from Goodwill between November 2017 and November 2018. Over 29% of the defendants were homeless, over half did jail time (average sentence: 13 days), and nearly 22% of the defendants were Black.
Grapes of Wrath
Shortly after 2 am in May of 2017, a 7-Eleven clerk called the cops on a 38-year-old man who took two turkey sandwiches and a bunch of grapes. The clerk “yelled” at the guy to put back the food, but the guy ignored the clerk, picked up a bottle of Kombucha, and said, “If you want to call the police, I can’t give you anything.” He then returned the sandwiches but kept the grapes. Had he eaten the sandwiches, the total heist would have amounted to $10.
After the guy left, he threw a couple rocks at the convenience store, leaving “scratches” on the window. The city went after him for the "property destruction," and made him report to court twice a week (and then once a week) for five months. The man obliged. The court almost dinged him for skipping day reporting for work training down in Oregon but decided against it after the man explained he thought he’d asked to be excused but messed up a minor administrative task. The judge dismissed the property destruction charge citing "proof problems," but dismissed it without prejudice, so the case could theoretically return.
In early June of 2018, someone called the cops on a man who stole a “bottled drink” from the Subway on Madison St. Seven minutes later, the cop saw a man matching the description hanging out down the block. When the cop stopped that guy and asked his name, the guy said his name was “Martha Stewart.” After the cop told the guy that “lying to me was a crime,” the guy gave up his real name.
The cop later interviewed a Subway employee, who quoted the price of the bottled drink at $2.19. The cops eventually drove the employee out to the scene of the arrest to have her affirm the guy’s identity, which she did. They ordered the man to report to court once a week, and eventually dismissed the theft case for reason of incompetency.
Stealing a Souvenir Penny
In April of 2015 the cops arrested a 41-year-old homeless man for stealing a $7.99 bottle of wine at a drug store downtown. When asked why he stole the wine, the man said, “My wife died a few years ago, and I come here and get drunk. I just didn’t have the money for it.”
A police document showed that the store recovered the $8 for the wine. Nevertheless, the man faced prosecution…eventually.
For one reason or another, the city prosecutor did not file the theft charge for the wine until late September of 2015 — five months after the crime. Before the court held a hearing on that case, in October the cops booked the same man on another misdemeanor. This time, they locked him up for stealing a souvenir penny from a Walgreens and for providing a false report to a cop. (The court documents included no police report, so I saw no details on the false reporting allegation.)
The man spent 27 days in jail, and then at the end of the month finally negotiated to plead guilty on the penny theft.
Though the prosecutor’s office could have dealt with both the penny case and the wine case at the same time, it did not, which led to this scenario: While the man was sitting in jail on the penny theft, a judge issued a warrant for his arrest for skipping a hearing on his wine case.
The guy popped back up in the system again in August of 2016, and the court decided to give him a pre-trial diversion — they ordered him to do eight hours of community service and pay $7.99 for the wine. He didn’t do any of that, so in November of that year Judge Ed McKenna issued a $2,500 bench warrant with no possibility for release on personal recognizance.
In March of 2017, the guy ended up in custody somewhere else, and at that point the court finally decided to address the wine case. He ended up pleading guilty to stealing the bottle and got credit for time served.
Stealing Food at Dinner Time
This case involved the same homeless guy who did 27 days for stealing a penny he couldn’t spend.
In April of 2018 the man walked into Uwajimaya around dinner time, then walked out with “2 deli cold dishes” and two mochi. A cop arrested him after he left the store and then booked him for theft, using his shelter ID as verification.
Though this event happened in the spring of 2018, the prosecutor’s office didn’t file the case until January of 2019. But four months after the food theft, a cop arrested him for giving a false report. Unlike the last false report case against this guy, this time we actually do have a public police report.
In that report, a cop said someone called 911 at around 3:30 pm to complain about three people “injecting what they suspected to be narcotics” in Denny Park. The cop showed up, saw two guys lying on a blanket that matched the “limited suspect description provided,” saw a “blue rubber tourniquet (that is commonly provided to narcotics users free of charge at needle exchanges),” detained the men, and asked for IDs.
The homeless guy didn’t have an ID, and he misstated his name and birthday: he was off by two letters and two years, respectively. The cop basically thought the guy was fucking with him, and so arrested him for giving a false report.
That day the homeless man pleaded guilty and spent a day in jail. Despite this incident, the city again missed or ignored the referral from the cops regarding the food theft, and so didn’t take care of the case until January of the following year. At that point, the judge dismissed the case because the prosecution had no witness.
March 2017. An Uwajimaya security guard told a cop that a man failed to pay for $3.56 worth of merchandise, including “bottled tea and some candy.” The man told the cop he would pay for the stuff and had the money on him to do it. But during the screening, the cop ran the guy’s name, found a misdemeanor warrant for skipping two dates on his twice-per-week day reporting obligation, and booked him.
The City Attorney sought $1,000 bail, and the judge approved $500 because of a “substantial likelihood” the man would fail to appear. The guy posted bond for more than he stole.
The court had ordered the day reporting after an incident the previous summer. In that case, an undercover cop claimed the guy, who was in crisis and/or self-medicating, crossed the street and “forcefully kicked” his unmarked car. After the cop got out of his car and “yelled” at the guy, the man kept walking away but then briefly brandished a hatchet. The cop and some back-up units gave chase, but the guy escaped. The cop noted mental health issues in his report.
Though he hadn’t committed any crimes until that security guard caught him stealing food, he pleaded guilty to carrying a hatchet in exchange for dismissing the shoplifting case, two years probation, and a mental health evaluation. He was in compliance with his treatment plan as of May 2019.
A Crime for Words
This case went to trial, so we have two narratives. The first narrative comes courtesy of the cops.
At around 4 pm in January of 2018 a couple cops responded to a 911 call from Victor Steinbrueck Park. Subject: “Male drinking beer asked inappropriate questions to caller’s 12-year-old daughter, no weapons seen.” The cops showed up twenty minutes later and interviewed a family standing in the park — mom, dad, son, daughter.
Mom claimed the family was sitting on a bench when a man “approached them” and told the daughter (who was actually 15, not 12) that he thought her hair was pretty. He then allegedly asked if the “carpet matched her drapes.” After hearing that, mom “confronted” the man, who turned around and asked her the same question regarding the upholstery. When the man started offering the family booze and weed, the dad “confronted” the guy and asked him to leave.
Cops arrested the guy for “communicating with a minor for immoral purpose” and “unlawful furnishing of liquor to a minor,” and noted that he was a registered sex offender out of Pierce County. [I can’t find him listed as such on the national and county registries, but he's got cases in other courts and I could be missing something.]
The defense’s narrative, which benefited from discovery, was markedly different.
The defense argued that the guy was a homeless double amputee (one arm and one leg gone on opposite sides of his body) who liked to rap.
The homeless guy and the family arrived at the park around the same time, and he started rapping like he always does. When he started rapping about pretty hair, “the daughter assumed [the guy] was talking to her.” Mom and daughter both said they “heard him rap about whether the carpet matched the drapes.” The language confused the daughter and alerted the mother, who became “in her words, enraged.”
Mom then yelled at the guy: “What the fuck did you say to my kid—she’s a minor!” The guy — no shrinking violet — said, “I meant you! Does the carpet match the drapes?” His insouciance pissed mom off even more, which cracked him up, and so, as a sort of jovial peace offering, he offered the fam some booze. When that further upset the family, he “made a smoking motion with his fingers” and asked if they wanted some pot. At that point the dad stepped in and said “we don’t want any trouble here,” and the two parties moved to either side of the park, which is when the family called the cops.
After the cops interviewed both parties, “Officer Kim asked Officer Bandel if there was ‘like, a crime for words.’ Officer Bandel suggested communicating with a minor for immoral purposes. Officer Kim then arrested [the guy] reasoning that saying ‘does the carpet match the drapes’ was immoral.” Prosecutors amended their charge to only include furnishing liquor, but they lost the trial because no one confirmed the liquid he offered was alcohol.
Sleeping in a Fancy Parking Garage in Winter
The Aspira Apartments, where a one-bedroom apartment will run you $2,700 a month, had been “experiencing significant issues with heroin users trespassing in the building stairways,” and so “asked the Seattle Police Department to assist with additional proactive enforcement.” SPD apparently obliged.
A cop said he found a groggy homeless couple in the parking garage at noon in January of 2018. The guy had a lighter in his hand “and evidence of recent heroin inhalation (residue on foil) lying nearby,” but the cop only arrested him for trespassing. A leasing manager came down to verify that the couple didn’t live in the luxury apartments, and then “admonished” the guy and the woman “personally, warning them to remain off the property and out of the building.”
They booked him in jail for trespassing and released him two days later, requiring him to report to the court three days per week. He complied but skipped a day once. The case nearly went to trial that July, and his competency to stand trial was raised multiple times, but the judge ended up dismissing it because the guy completed a court resource overview the city requested.
A Couple Half-Zips, Gift Cards for Food, Clothes, and a Key Card
A homeless guy in his late 20s with substance abuse issues got busted several times in a row.
In late December of 2018, a cop saw the guy walking downtown wearing a coat from Macy’s with an ink tag on it. He was also holding a Santa hat stuffed with panties from Victoria Secret. The cop charged him with receiving stolen property, and then returned the coat and the panties to their respective department stores.
The following summer, a Macy’s security guard noticed the guy walking around the store because he’d kicked him out before. The guard watched the guy lift two zip jackets “valued at $24.50 each” and rang the cops. When questioned by the cop, the guy said he knew he wasn’t supposed to be in the store because he’d been kicked out before, but that he was also forgetful because he took Xanax. The cops searched his bag and found some gift cards for pizza and clothes, plus some other guy’s key card. Prosecutors charged him with theft, criminal trespass, and receiving stolen property. He was enrolled in LEAD at one point, so he was presumably getting some services.
When he finally got booked at the end of the following January, the judge rolled up all the charges and then in mid-March sentenced him to 90 days, giving him credit for time served. After he was released, he died of an overdose.