When a homeless individual in Seattle decides to set up camp on your front lawn or a drug addict steals from your business, City Council Member Lisa Herbold is looking to make all misdemeanors not just the norm, but legal.
The legislation called "the poverty defense," was proposed and discussed Tuesday by the Seattle City Council's Public Safety Committee after it was introduced by Herbold and Anita Khandelwal, King County's director of the Department of Public Defense.
In October, Herbold, chairperson of the Seattle City Council's Public Safety Committee, introduced legislation to "excuse and dismiss" almost all misdemeanor crimes committed in Seattle by "persons with symptoms of addiction or mental disorder." At the time, Herbold was criticized for trying to sneak the legislation in as part of the budget cycle rather than through the normal legislative process and with no public discussion about the proposal.
Herbold now wants to add legal defense to the Seattle municipal code, which would provide an affirmative defense for someone who committed a crime because they needed "...to meet a basic need to survive." Herbold said she wants a jury to hear a defendant's explanations for the crime and for the jurors to decide if the crime was committed to "...supply a basic need."
Additionally, an exception would be added to the new version of the proposal that would allow for the reselling of stolen goods to raise money to pay for a "basic need."
"If somebody stole a bunch of cell phones and intended to resell them to pay their rent, it would apply to that defense," Asha Venkataraman, a member of the council’s Central Staff, told the committee. Bike chop shops and fencing of stolen property has become common place in Seattle homeless encampments.
"It's a green light for crime," Scott Lindsay, a former mayoral Public Safety Advisor told KOMO News. "If you are engaged in 100 different misdemeanors that are in our criminal justice system code, you are not going to be held liable," Lindsay said. "You are not going to be held accountable."
According to Lindsay "Last year, Seattle Police made approximately 12,000 non-DUI/DV misdemeanor arrests (two-thirds of all SPD arrests). The City Attorney charged 5,421 of those cases in Seattle Municipal Court (the rest were declined by the City Attorney for a variety of reasons).
"The 2019 charged cases included 1,850 theft cases, 1,345 assault cases, 816 trespass cases, and 473 harassment cases. In total, last year, Seattle Municipal Court saw cases charged under 108 different Seattle criminal codes (e.g., stalking, cyberstalking, sexual exploitation, animal abuse, unlawful carrying of a pistol, indecent exposure, etc.)."
Crime in Seattle has spiked over 250 percent in 2020 in the wake of the defunding of the Seattle Police Department by the council. Homicides have more than doubled in 2020 and the year is not over yet.
If approved, the ordinance would excuse and dismiss, and thereby legalize, almost all misdemeanor crimes committed in Seattle by offenders who could show, not just that the crime provided for a need, but also:
- Symptoms of addiction without being required to provide a medical diagnosis
- Symptoms of a mental disorder
Offenses that would be covered by the legislation would include almost every crime below the level of a felony, but excludes charges of driving under the influence or domestic violence.
"The legislation proposes that any perpetrator with a credible claim of behavioral health symptoms anything from drug use to depression," Lindsay said, "would effectively have blanket immunity from prosecution for misdemeanor assault, theft, harassment, trespass, stalking, car prowl, and 100 other Seattle criminal laws."
In a lawsuit filed by the City of Seattle against Perdue Pharma in 2018 the Seattle homeless response team "...estimates that 80 [percent] of the homeless individuals they encounter in challenging encampments have substance abuse disorders." Encampments have only grown since then as the majority of campers refuse city services and now that the council has defunded the homeless response team.
In a letter of support for the legislation sent to the council in October City Attorney Pete Holmes said his staff is already doing much of what the poverty defense would provide. "I have worked to move the City Attorney's Office away from prosecuting property crimes that appeared to be committed out of survival necessity," he wrote.
The City Attorney's actions are most likely a major contributing factor of Lindsay’s 2019 report entitled System Failure: Report on Prolific Offenders in Seattle's Criminal Justice System which examined 100 prolific offenders who had repeatedly cycled in and out of jail, mostly on misdemeanor charges. The main findings of that report were that all of the non-DUI/DV offenders with the largest number of cases (often 10 or more arrests per year) were suffering from substance use disorders and homelessness and that these individuals had repeatedly committed the same crimes in Seattle's busiest neighborhoods
Seattle Interim Police Chief Adrian Diaz said last month, before the council and mayor defunded SPD by another 18 percent, that he does not believe the amount of deployable officers Seattle has is safe for the public. "No. Even when I was pushing out our budget for next year with the city council, I was explaining the need for us to have people that are going through the academy, that are going through our FTO [Field Training Officer] phase, and then being able to deploy them out," he said.
Business owners and residents in Seattle have begun a letter writing campaign to the council, specifically to push back on Herbold's proposal. One business owner wrote: "My personal experience over the last several months since we’ve moved into and renovated the property has been very frustrating.There is an illegal motorhome encampment near my property, the result of which has been the destruction of private party, illegal camping, theft, dumping of mass amounts of garbage, physical threats and open toilets. I would ask that you consider carefully the unintended consequences of your actions, and recognize our contribution to our cities well being, with the enforcement of laws that allow for a logical and orderly society."
A Seattle resident wrote to the council "If CM Herbold's proposed legislation is allowed to pass, I believe that all of the Anarchy that’s happening down here will be condoned by the City of Seattle, and the actual number of crimes will skyrocket through the roof. Since the crime won’t be prosecuted, your numbers might look good, but the businesses and residents of the community will be suffering greatly. Excusing crime in no way will decrease the actual crime that is happening, it will just excuse it. I watched the City Council meeting this morning and I’m appalled the City is even considering allowing and completely sponsoring Anarchy in our once beautiful city. The City Council is blind about the real problem that’s going on down here. Please DO NOT ALLOW crime to become legal!"
A resident and business owner of the Georgetown neighborhood which has been particularly hard hit by the defunding wrote in an email: "CM Herbold’s proposed legislation is just looking the other way. The city is in a BIG hole and this is just digging it deeper with seemingly no way out. If you think this action makes Seattle kinder and gentler, you are wrong. People can not be allowed to continue to live in the wet and cold on the street. I've personally funded the building of a Tiny Home and I care about low income and no income individuals, but the City's refusal to address the problem quickly is mind boggling. I drive by piles of garbage every day all around the city and I think how did Seattle, our beautiful city, end up like this?”
The council took no action Tuesday on the proposal, but its members are expected to discuss the proposal again in January.