Herbold proposes to create new defenses to misdemeanor crimes

Seattle’s political Twittersphere has been lit up over the last forty eight hours with frenzied discussion of a proposal by Council member Herbold to introduce legislation that would create new defenses for misdemeanor crimes in Seattle. The goal of the legislation is to reduce the number of people entering the criminal justice system for so-called “crimes of poverty.”

Fanning the flames of the controversy is a white paper published by Scott Lindsay, former advisor to Ed Murray and former candidate for City Attorney, which claims that the legislation would eviscerate nearly all prosecutions for misdemeanors in Seattle by providing new defenses that are trivial to prove and that judges would be powerless to set aside.

Further raising the temperature, Herbold has chosen to introduce the legislation through the Council’s budget process, rather than as a standalone ordinance that would run through her committee. Some have interpreted that as an attempt to quickly sneak it through amidst all the budget noise without attracting attention from those who might speak up in opposition.

There is a lot of bad information floating around about this proposed legislation, and there are important legal nuances that must be understood to fully grasp what it does — and does not do.

Let’s dive in.

First of all, while it’s true that Herbold is using the Council’s 2021 budget development process to move the legislation forward, she has not actually introduced a bill yet. What she has been discussing so far are principles based upon a model bill proposed by the King County Department of Public Defense (DPD). Council members do sometimes sponsor bills proposed by outside groups, though they rarely are introduced verbatim; the Council’s staff and the City Attorney’s Office tend to edit them first, after reviewing the legality of the bill and whether it accomplishes its intended goal with minimal side effects. What Herbold has done so far is to raise the proposed legislation as an issue in last week’s deliberations, and to formally propose it as a “council budget action” this week (it’s up for discussion today). In order for it to continue on through the process, it needed two co-sponsors; to that end, Council members Sawant and Morales signed on. In this week’s budget committee meetings, we will probably get a good idea of what the other Council members think of the bill. That’s important, because budget chair Mosqueda will be looking for a consensus view in deciding whether to include it in her “balancing package” two weeks from now. If it makes it into the balancing package, then shortly afterwards the actual bill will be introduced.

Why would Herbold use the budget process for this? While the bill itself has no direct budget impact, Herbold has stated that she expects if adopted it will reduce the city’s need for space in the King County Jail. And since the city and county are currently re-negotiating that contract right now (the Mayor’s Office has confirmed this), moving her bill forward now could potentially save the city money under a new contract. While there is some validity to that argument, it’s weak at best: a new jail contract is unlikely to be finalized before the 2021 budget is done in four weeks (the Council will need to approve the contract too, and will undoubtedly want to make some changes), so it will have no effect on the adopted 2021 city budget. Plus, the budget process doesn’t provision the time necessary for the kinds of policy conversations required for a major change to the city’s criminal laws. Rushing this through in November has little actual benefit over using the regular legislative process in December and January, and several disadvantages.

In the absence of an actual bill from Herbold, we can nevertheless learn much from the King County DPD model bill. It proposes amendments to two sections of the Seattle Municipal Code:

1. section 12A.04.170, which allows duress to be asserted as a defense to a crime;
2. section 12A.04.180, which grants judges discretion to dismiss certain “de minimis” infractions.

 

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Before we go further, it’s worth taking a moment to parse through the legal taxonomy of a criminal “defense.” In a criminal case, the burden is on the prosecution to prove beyond a reasonable doubt that the defendant committed a crime; if the prosecution fails to do that, then the defense is not required to mount a defense at all. Taking it one step further, the defendant may actively try to contradict or undermine the prosecution’s case so that it doesn’t reach the level of “proof beyond a reasonable doubt.” But defendants may also choose to mount an “affirmative defense,” in which they assert facts that defeat the prosecution’s case even if all of the prosecution’s alleged facts are true. Affirmative defenses fall into two general categories: “justification” defenses, perhaps the most common of which is asserting that the action was committed in self-defense or in defense of one’s property; and “excuse” defenses, such as duress, coercion, involuntary intoxication, or insanity.

Generally speaking, the affirmative defenses available are codified in law, though there are some that are “common law” defenses. Defendants decide which, if any, affirmative defenses they will assert when they present their case; judges then decide whether there is sufficient evidence in the record to consider those defenses, and they instruct the jury accordingly. Judges and juries, when deciding on the guilt or innocence of a defendant, may weigh an affirmative defense as a binary guilty/not guilty factor, or they may weigh it as a mitigating factor alongside other elements.

However, there is also the legal concept of an “absolute defense,” which is an affirmative defense comprised of “a factual circumstance or argument that, if proven, will end the litigation in favor of the defendant.” For example, in a libel case, proving the truth of the allegedly libelous statement is an absolute defense. An absolute defense is not subject to mitigation: if it’s proven, the case is dismissed.

If a defendant chooses to assert an affirmative defense, then the burden for proving that defense shifts onto that defendant, and the standard that must be met is “a preponderance of the evidence” — lower than “beyond a reasonable doubt,” but still substantial.

 

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Section 12A.04 of the Seattle Municipal Code sets out the affirmative defenses available in criminal proceedings for violations of the city’s criminal code. Within that section, 12A.04.170 defines the defense known as “duress”: The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he/she or another would be exposed to immediate death or immediate grievous bodily injury; and That such apprehension was reasonable upon the part of the actor; and That the actor would not have participated in the crime except for the duress involved.

The DPD-proposed bill extends this:

D. In any prosecution for a crime, other than a crime of domestic violence, as defined in SMC 12A.06.120 or Driving Under the Influence, as defined in RCW 46.61.502, it is a defense that:

1. The actor participated in the offense with the intent of meeting an immediate basic need related to an adequate standard of living for the actor and/or their family, including adequate food, clothing, sanitation, and housing; or

2. At the time of the offense, the individual was experiencing symptoms of a behavioral health disorder not arising to a defense under SMC 12A.04.160;

3. Definitions:

a. For the purpose of this section a basic need is a commodity or service without which life cannot be sustained and includes, but is not limited to, adequate food, shelter, medical care, clothing, and access to sanitation.

b. For the purposes of this section, behavioral health disorder is defined as defined in RCW 71.05.020.

The first thing you’ll notice is that this has nothing to do with “duress.” That’s an example of something that the City Council’s staff will fix, probably making it a separate section of the Municipal Code rather than packing it in with the duress defense.

Other things to notice: this is defining two new defenses: participating with the intent of meeting an immediate basic need, and experiencing a behavioral health disorder. If one chases the definition of “behavioral health disorder” down the rabbit-hole of state law, one ends up here, which defines it as either a substance use disorder, a mental health disorder, or both concurrently. Neither of the two new defenses is defined as an “absolute defense,” which means that there is some room for judges and juries to consider them as mitigating factors rather than grounds for immediate dismissal. Though the extent to which that is true will be determined by actual case law since the proposed written law doesn’t say (unless Herbold adds it to her version).

Section 12A.04.180 defines “de minimis” infractions, circumstances in which a judge may dismiss a case if the infraction is minimal, the expected harm from the infraction didn’t occur, or it was due to circumstances unforeseen by the legislators. The DPD-proposed bill adds two more kinds of de minimis infractions:

The result of attempting to meet an immediate basic need the defendant or that the defendant’s family was experiencing; or

At the time of the offense, the defendant was experiencing symptoms of a behavioral health disorder.

Again, these have nothing to do with the classic definition of “de minimis.” In fact, either of these could entail a very substantial violation of the law. But putting that aside, the addition here is also in many ways redundant with the changes to the section above, since they relate to the same two circumstances. In this section, however, it gives judges the discretion to directly dismiss the case — though it falls short of an “absolute defense” that a judge is required to grant.

 

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So we have in this proposed legislation a broad grant of discretion to judges to dismiss cases where the violation stems from an attempt to meet a basic need, or where the defendant was experiencing symptoms of a behavioral health disorder; and two new affirmative defenses, along the same lines, where the judge doesn’t have clear authority to prohibit a defendant from asserting them but the judge and jury have some level of discretion in deciding whether the defendant has met the burden of proof and in weighing them against other factors.

It’s also worth sharing some common wisdom from defense attorneys: asserting an affirmative defense is risky, not only because it shifts the burden of proof, but because it often requires the defendant to testify — and that opens the defendant up to cross-examination. That said, the burden of proof for these new defenses is not terribly high, nor risky, since there are likely many third parties who could testify on behalf of the defendant.

That could be problematic. Taken to the extreme, if adopted this ordinance could be seen as sanctioning unlimited shoplifting in order to meet basic needs. On one hand, that’s a high-minded goal; on the other hand, shoplifting is not a “victimless crime,” and there are already numerous reports of organized shoplifting from retail stores downtown. Here is data from Seattle Municipal Court on the top criminal charges: you’ll see that a large majority of them are crimes with victims. Dismissing these cases prevents any type of restitution for the victims.

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So what are the big take-aways from this?

• There is not an actual bill in front of the City Council — at least not yet. There’s a proposal from a third party, but the bill that Council member Herbold introduces may look substantially different from it.
• This looks like a short, simple piece of legislation, but the issues it raises are large and complex.
• While it may have some indirect effect on the city budget — particularly in 2022 and beyond — it’s not terribly relevant to the 2021 budget and the argument to include it in the current budget process is weak at best. That’s especially true given the limited deliberation and attention it will get when competing with everything else in the budget process. There are interesting ideas in the bill, but it deserves to go through the Council’s regular legislative process.
• Contrary to Scott Lindsay’s assertions, it does not provide an “absolute defense” to misdemeanor charges. It is not a blanket “get out of jail free” card.
• However, it’s unclear how much discretion it truly gives judges to weigh its new affirmative defenses against other factors. And the bar could be very low for proving by a preponderance of the evidence that a defendant was trying to meet a basic need or was suffering from a behavioral health disorder.
• At least on the surface, there do seem to be ample opportunities for abuse by repeat offenders, and it appears to sanction — if not reward — petty crimes while denying victims any form of restitution.
• The intention is good: preventing some unfortunate souls from entering the criminal justice system. But particularly in a time when there are insufficient human services, substance abuse treatment programs, and mental health treatment programs to take in all the people who need them, broadly dismissing misdemeanor cases without any consequences for the offenders or restitution for the victims could create a host of other problems for the community that the Council is not prepared to address — or even acknowledge. It’s one thing for the government to assume the burden of solving a societal problem; it’s a different thing entirely to force that burden upon selected private parties.

 

This evening, Council member Herbold’s office provided a statement related to her proposed legislation:

We’re in the beginning stages still of the budget process, there is no legislation introduced yet and budget legislation won’t be voted on until November 23. The notion that this legislation is being proposed through a backdoor is nonsense.  If anything, the fact that the idea was surfaced in a budget issue paper before legislation is introduced is more transparency, not less.  Otherwise Mr. Lindsay wouldn’t have known about the concept before the bill was introduced.

The Council has received public comment at the beginning of every budget meeting, including where this proposal was initially discussed. The proposal will next be discussed at the Budget Committee meeting on Wednesday, October 28.

The goal of this legislation is to address is to authorize SMC judges to consider a duress or di minimis defense. The legislation does not provide “blanket immunity from most misdemeanors,” the legislation does not “provide an absolute defense.” 

This legislation does gives the Court and our judges the ability to dismiss a prosecution if they find the defendant’s conduct meets specific circumstances, a nexus between the crime committed and the circumstances the individual is in. It does not require it. This is an important distinction which gives additional authority to our SMC judges to address complex issues.

As we’ve seen in the massive national and international protests in the wake of the murder of George Floyd, it is past time that we reexamine our systems which often perpetuate homelessness and economic instability.  

The City currently spends approximately $20 million a year on incarceration, which is known to significantly increase the risk of housing instability and homelessness.  This legislation will provide an alternative path forward for judges seeking to assist individuals who’ve committed misdemeanors that can be clearly traced back to mental illness, substance abuse disorders, homelessness and poverty. 

As a follow-up, I asked Herbold (through her spokesperson), “What is your message to retail store owners, for whom this effectively sanctions shoplifting to meet immediate basic needs?” As of this writing, Herbold has not responded.

Herbold will be speaking to the proposal in the Budget Committee meeting today.

 

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