Concerns with Misdemeanor Defense Proposal: unconventional, untested, unwise

December 8, 2020: Here are excerpts of my remarks to the Seattle City Council’s Public Safety Committee:

Good morning, Colleagues.  Under the City Council’s new rules for its committees, I’m able to participate in today’s Public Safety Committee because I am an “Alternate” member and a regular member is absent today.  I appreciate this opportunity to share input on this proposal from my colleague to expand the affirmative defenses available to defendants arrested and prosecuted for misdemeanor crimes within the city of Seattle.

Following the murder of George Floyd by Minneapolis police and other tragic and unjust deaths at the hands of law enforcement, City Hall has been responding to public calls for restorative justice, reinvestment in marginalized communities, and the development of public safety alternatives. Earlier this year, our city government has taken numerous policy and budget actions to reimagine and revamp public safety. Regarding the reform of our Seattle Municipal Code, I was proud to co-sponsor and vote for changes that repealed misdemeanor loitering laws that had racist outcomes (Section 12A.10.010 of the Seattle Municipal Code). We have much more hard work to do.

I agree we must continue to craft public policies that are compassionate and data-informed. We must continue to address the long-standing stigmas that demonize our neighbors experiencing homelessness, addiction, and poverty — and the disproportionate negative impacts on communities of color.

It also remains the responsibility of policymakers to strike an appropriate balance by assessing whether any proposed policy that is unconventional and untested may, in fact, make matters worse or cause harm to others in our communities.

Just as I appreciate the good intent in which your proposal is being floated, I hope you appreciate the good intent of my wanting to share the serious concerns of many constituents who have contacted me in recent weeks. Big picture, I’m very concerned that the analysis thus far is framed as HOW to enact this unconventional, untested policy rather than WHETHER to enact it. At this time, I have 10 specific concerns:

  • First, I agree that reimagining public safety should include preventing crime, increasing police accountability, and investing more in community health and wellness. It’s important to have local laws that foster respect among each other, rather than enabling individuals committing crimes to sidestep codes of conduct and avoid consequences for breaking basic laws that set standards for how we interact with each other. I’m concerned that minimizing consequences for breaking our laws will not make our communities safer. While it has made sense to reform laws such as drug possession meant to protect oneself, I’m concerned about weakening laws meant to protect each other and our communities. This proposal seems to create too easy of an excuse for repeated vandalism, trespassing, shoplifting, and other crimes that harm other people.
  • Let’s First See Effects of Other Big Changes: I believe we should wait until we can see the impacts of the recent cuts to the police budget, the results of the community-led participatory budgeting process next year, the implementation of alternatives to traditional policing, and the revamping of the police contract to finally put in place the missing reforms. Let’s first see how these other changes work before this Council is immersed in a time-consuming and distracting debate over whether we should be the first city in the U.S. to weaken basic local laws that protect each other. Once again, it seems we would be unwisely proceeding with a controversial proposal without a plan.
  • Negative Impact Beyond Seattle: As with the unfortunate incident called C.H.O.P. where Seattle became, in the eyes of many, a national embarrassment, I’m deeply concerned that such a controversial proposal could have a negative impact that reverberates beyond the bubble of City Hall and the boundaries of our city. It could inadvertently impede police reform efforts we want enacted at the state level in Olympia early next year…The Seattle Times recently quoted the concern of State Rep. Roger Goodman, a Kirkland Democrat who chairs the House Public Safety Committee: “Those who are alarmed by this can use this as a talking point to undermine what I believe are responsible justice system reforms on the state level…” [Update 1/6/2021: Thankfully, both Democratic candidates won the U.S. Senate runoff elections in Georgia; my concerns about that turned out to be wrong.]
  • Ignores the Victims of the Crimes: The December 7 memo from Central Staff does not discuss any impact to the victims of the crimes, including physical, emotional, or economic harm to the victims. (Watering down a law and then creating a “restitution” fund for victims is like saying you can run red lights if you’re late for work and worried you’ll lose your job, but we’ll use tax dollars to create a fund for the car crash victims.)
  • Ignores Input from General Public: We often say proposed legislation must have stakeholder input and, in this case, I strongly believe the general public and small businesses are key stakeholders.  While advocates might have the ear of some Councilmembers and offer some commendable ideas, we also need to listen to the general public and small businesses which is harder to do as communications are limited during the COVID pandemic. Our city cannot afford to have more local businesses leave our city and shrink the tax base we rely on to fund programs to help our low-income neighbors.
  • Could Increase Insurance Premiums: The December 7 memo from Central Staff does not discuss the cost borne by renters, homeowners, and small businesses to replace stolen merchandise or broken windows or increased insurance expenses.  I’m concerned this could give insurance companies an excuse to classify all of Seattle as a high-risk zone which will, in turn, increase the cost of renters insurance, homeowners insurance, and business loss insurance.
  • National Guinea Pig? The December 7 memo from Central Staff does not say whether any other U.S. cities have experimented with expanding affirmative defenses to misdemeanor crimes.  If other cities are doing this, can we review the data of how it actually works elsewhere? If no other U.S. cities are experimenting with this, why should our communities and small businesses in Seattle once again be the guinea pig?
  • Inviting Trouble? Would this apply just to Seattle residents? If not, how would this proposal prevent those struggling economically throughout the region from simply driving into Seattle to shoplift because they know they can claim poverty as a defense?
  • Not Needed Now (City Attorney): This proposal is not needed for at least 1 to 5 years because the existing City Attorney who is likely seeking another 4-year term next year has already acknowledged in his October 30th memo that he does not prosecute so-called crimes of poverty.
  • Not Needed Now (Can Use “Necessity” Defense): The proposal is not needed because, as the City Attorney already points out in his October 30th memo, defendants can already use the common law defense of “necessity.”

I urge the Chair and members of this City Council Public Safety Committee to table this controversial idea until after our Washington State legislature concludes its Spring session in 2021.  Thank you.

More Information:

Note: While Councilmember Lisa Herbold, the Chair of the Public Safety & Human Services Committee, presented a rough draft detailing how the Seattle Municipal Code could be amended, an actual Council bill has not been formally introduced. The original proposal from October included behavioral health and substance use disorders but, as of December 7, 2020, the proponents seem to have scaled this back to only “crimes of poverty” (also known as “immediate basic need”) .

  • City Council Central Staff memo, December 7, 2020: CLICK HERE.
  • For an article from SCC Insight, November 1, 2020: CLICK HERE.
  • City Attorney Holmes public memo, October 30, 2020: CLICK HERE.
  • Seattle Times editorial, October 29, 2020 against original proposal: CLICK HERE.
  • CM Herbold’s original proposal (“duress legislation”) via the Fall budget process which was withdrawn (insufficient nexus with the budget), October 2020: CLICK HERE.
  • King County Department of Public Defense original rough draft proposal: CLICK HERE.
  • Criminal Code sections of Seattle Municipal Code (SMC): CLICK HERE.

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