Bob Boruchowitz started to watch large numbers of people move through the Seattle Municipal Court in 1974.
Back then, there was “ladies day” — the one day a week that the court heard prostitution cases, and the court filled up with women with meager resources. It seemed more an ugly spectacle than a show of justice.
Much has changed since then, Boruchowitz said. Those charges are rarely filed at the misdemeanor court these days — and over the past 20 years, the overall number of misdemeanor cases in court has shrunk even as the population has grown — but many of the functions that contribute to the cycling of poor people through misdemeanor courts remain consistent.
“The reality is that, often, misdemeanor courts sweep people in, they’re high-volume and often the people who are charged don’t really understand what’s happening to them,” said Boruchowitz, now director of the Seattle University School of Law’s Defender Initiative.
A proposal introduced during Seattle City Council’s budget deliberations is aimed to dramatically change that. The proposal would allow judges and juries the option to dismiss misdemeanor crimes that were committed because of poverty or while a person was experiencing symptoms of a mental illness or substance-use disorder.
Last week, it created fear and frustration among public-safety advocates who say that the idea, which had not yet been drafted by council staff as a bill, could, in effect, legalize most crime in Seattle.
“What was so upsetting to me about this proposed bill is it did not offer any proposed solutions,” said Scott Lindsay, former public-safety adviser under Mayor Ed Murray, who in 2017 unsuccessfully ran for city attorney against incumbent Pete Holmes.
For Lindsay, who has authored two reports on offenders who repeatedly cycle through the criminal-justice system, the concern was twofold: One, that the idea would result in a wave of dismissals in a vast majority of misdemeanor cases, and two, that it was introduced through the budget process, which wraps up in a month.
The latter concern partly put the idea on hold. The proposal was tabled for this budget cycle. But it is scheduled to return this winter.
The idea could enormously impact the city — and set Seattle apart from the rest of the country in its approach to misdemeanor crimes. But the reality of the proposal, and the way the courts now function to reduce and deter crime, is much more complicated.
Boruchowitz is holding off from endorsing the idea’s specifics. But what’s important, he says, “is taking a look at doing it differently.”
“And,” he adds, “recognizing the terrible impact of convictions and the widespread problem of substance abuse and mental illness.”
A historic proposal
The idea to change what happens at municipal court follows a wave of activism and historic protests after the police killing of George Floyd in Minnesota this spring, which motivated public defenders and community organizers to take advantage of the attention to police and court reforms and push a potential fix to a long-held frustration.
“What we’ve already known is that the misdemeanor system is basically a system of cycling people in poverty through municipal court over and over again without meeting their basic needs,” said Angélica Cházaro, an organizer with Decriminalize Seattle and one of the catalysts for the proposal.
Seattle City Councilmember Lisa Herbold submitted the proposal in late October. Herbold, chair of the public-safety committee, said hearing from the Department of Public Defense about the way the court now works motivated her to push the idea forward.
“I think when you’re talking about folks who are committing offenses to survive or because of underlying mental-health or substance-use issues, incarceration does not have the deterrent effect people believe it has,” Herbold said.
While the idea would likely have widespread effect, defenders say it wouldn’t mean blanket immunity from punishment, as critics have suggested.
Attorneys would have to prove that the crime was committed because a person was trying to meet a basic need — not just that a person was experiencing poverty at the time the crime was committed, according to King County Director of Public Defense Anita Khandelwal.
Khandelwal uses the example of someone without shoes stealing a pair from Goodwill. The defense would need to show that the accused didn’t have shoes at the time of the crime and stole the shoes because of it.
“It empowers our juries to be given more information over whether the criminal behavior has occurred,” Khandelwal said.
The defense proposed by the public defenders becomes more controversial when applied to someone with symptoms of a behavioral-health issue.
Drunk or high driving and domestic-violence assault are carved out as exceptions in the bill, but what’s left in has been troubling to some who point to misdemeanors like non-domestic assault, harassment, communicating with a minor for immoral purposes and more.
In a statement published Friday, police- reform group Mothers for Police Accountability worried that a person committing assault would be acquitted “by simply asserting that they were suffering from anxiety or depression or the ‘triggering’ of some past trauma or some other symptom of a mental disorder, including alcoholism and addiction.”
Some also expressed concern about what would then happen once people with behavioral health issues were back on the street, and criticized the idea for lacking a plan to then address the behavioral health and economic issues at the root of people’s behavior.
Herbold told The Seattle Times that the system now does not reduce those behaviors but said that jail-savings from reduced incarceration “can help fund alternatives.”
‘Another round of frustration’
The proposal could have a massive impact on the city, according to Seattle University’s Crime & Justice Research Center director Jacqueline Helfgott.
She likened the effect to decriminalizing up to 90% of misdemeanor crimes in Seattle, if attorneys follow it strictly.
While the idea doesn’t necessarily prevent people from being arrested or charged with misdemeanors, in practice, the proposal could potentially look a lot like what happened before recreational marijuana was legalized, Helfgott said. If police feel that there’s a good chance an arrest they make could be declined by the prosecutor or dismissed, enforcement could lapse.
Seattle police strongly oppose Herbold’s proposal. In a statement to The Seattle Times, the police department said the proposed legislation “seems intent on eliminating any accountability or deterrent to engaging in these behaviors and would endanger the safety and rights of all people of Seattle.”
“Seattle Police Department officers will continue to focus on holding individuals accountable who commit one of the thousands of assaults or thefts that occur in our community each year,” the statement read.
The proposal has also vexed business leaders who say they already deal with theft and vandalism. Reports of property crime to Seattle police have declined since a peak in 2014, though frustrations have steadily grown as the area’s homelessness crisis has exploded.
Denise Moriguchi, president and CEO of Uwajimaya, said she agreed something needed to change about the misdemeanor system. But to her, the idea seemed like something that wouldn’t address root issues like housing and substance-use-disorder treatment.
“It’s one thing to say if you get caught you don’t go to jail,” Moriguchi said. “But how are we really helping them to make sure they don’t need to be in that situation?”
City Attorney Pete Holmes said he agreed with public defenders that incarceration doesn’t solve the root problems motivating many low-level crimes. In a letter to council Friday, his office outlined changes to defenders’ proposed idea that would, among other things, allow defendants with behavioral health issues to be diverted to treatment programs in a model similar to Mental Health Court and Veterans Court.
Holmes said he was frustrated by some of the response to the public defenders’ idea, which hadn’t yet been drafted as proposed legislation by council staff.
“Please, everyone, let’s calm down,” he said.
The heart of the issue, according to Holmes, was lack of resources — particularly housing — that would allow people to stabilize and access treatment.
“On the one hand, throwing a mentally ill person in jail is not going to help their problems, but also turning people loose untreated is just as bad,” Holmes said. “We can talk about this statute all you want, but if it’s not coupled with real resources at the end of an informed, civil debate, I think, we’re going to just see another round of frustration.”
Disparities continue
Academics who study the impacts of misdemeanor convictions say that misdemeanor arrests don’t do very much in the way of guaranteeing public safety or deterrence.
“There’s very little to no evidence that the traditional criminal legal response to low-level crimes works in any sense of the word,” according to University of Washington law, societies and justice department chair Katherine Beckett.
Seattle’s arrest rate for misdemeanors has declined in recent years — down 33% in 2016 from a peak in 2010, according to research from Seattle University and the Data Collaborative for Justice at John Jay College.
Still, the arrest rate remains highest for Black and Indigenous men. In 2016, according to the same report, Black people in Seattle are arrested on misdemeanor charges nearly six times the rate for white people.
The people who move through Seattle’s municipal court system are overwhelmingly poor; many struggle with mental health, substance use and homelessness, according to public defenders. About 90% qualify for public defense, which means the court recognized they were too poor to afford their own lawyers.
Third-degree theft, one of the top charges pursued by the Seattle City Attorney, often resulted in jail for homeless defendants who could be charged for small amounts of stolen — and returned — merchandise from Goodwill, according to a KUOW analysis last year.
Jail stays are usually short, and the time spent inside can destabilize a person’s life even more, Beckett said. For the people the proposal would target — those who are homeless or in jeopardy of it — jail stays often result in missed work, missed rent, or returning to stolen belongings and setting off a cycle of needing basic necessities they can’t afford.
Outcomes also differ by race. According to an analysis of monetary sanctions imposed by the Seattle Municipal Court published this summer, Black men and women are much more likely than other groups to serve jail time for unpaid fines and fees. And even when they do pay court-imposed penalties, Black men and women were more likely to be sentenced to incarceration through a superior court.
Alexes Harris, a University of Washington sociologist, professor and one of the authors of the monetary sanctions analysis, said she thought the draft ordinance from public defenders met the demands of the moment to dismantle the current system.
But Harris said she doesn’t believe Seattle can break down the current system without creating social support like housing, treatment, education and employment opportunities on the other side.
Even without arrest and incarceration, people would still be on the street, suffering those conditions.
“What then?” Harris asked. “What then are we going to give folks?”
For now, the proposal has switched to a slower track outside of the budget process.
In a council meeting last week, council president M. Lorena González said she felt Herbold’s proposal was only marginally related to the budget and would require too many resources from council staff during budget season to consider.
The council is set to take up the idea in Herbold’s committee this December, Herbold said, once the budget process is over.
That provides more time for officials — and the public — to explore what it would mean.