Update on proposed misdemeanor defense legislation (updated)

A couple of notable updates have happened in the last few days related to Council member Herbold’s controversial proposal to add new defenses for misdemeanors for defendants who committed an act to meet an immediate basic need or are showing symptoms of a behavioral health disorder.

(update below)


For background, here is my article from last week breaking down the proposed “model legislation” offered by the King County Department of Public Defense.

During last week’s Council budget deliberations, both Council member Lewis and Council President Gonzalez voiced their support for the principles behind the proposal, but raised other concerns. Lewis said that he had reviewed the model ordinance and didn’t believe it was in the form that the Council should pass; he urged the Council to “take a step back” and “make sure we do it right without hyperbole.”  Gonzalez, who as Council President manages the Council’s central staff, noted that the staff are already completely inundated by work due to the 2021 budget process. “I can’t imagine,” she said, “knowing what I know about their workload, asking them to add a bill of this significance and import into the budget process.” She pushed for the bill — when Herbold eventually introduces it — to be referred to Herbold’s public safety committee and taken up once the budget process completes in late November and their staff can give it the attention it deserves.

In the meeting, Herbold said that she would defer to Gonzalez’s recommendation; on Friday a staff person in Herbold’s office acknowledged that the bill “will likely not be included in the budget, but something CM Herbold would bring up after in December.”

Separately, City Attorney Pete Holmes has weighed in on the controversy, and in an uncommon move sent a memo to the nine Council members outlining his “policy input” outside of the attorney-client privileged legal advice that he and his office provide to the Council.

In his memo, Holmes claims that his office already practices several of the provisions that the model legislation attempts to codify, though he appreciates the Council’s interest in making changes to “add permanence” to those practices. “No city prosecutor is interested in sending an impoverished new parent to jail for stealing baby food,” Holmes says.  However, he raises several concerns about the approach that the bill uses to achieve that goal, and suggests that it might “negatively impact our existing diversion efforts and our specialty court programs such as Mental Health Court and Veterans Treatment Court.” Holmes lays out suggestions for alternative changes to the laws that he thinks would be “constructive additions.”

First, Holmes argues against treating “meeting an immediate basic need” and “experiencing symptoms of a behavioral health disorder” identically; rather, he suggests, crimes of poverty should be an affirmative defense, and crimes stemming from behavioral health issues should be dealt with through diversion alternatives that a judge can order when four criteria are met:

  1. the facts underlying the elements of the charged offense were a result of the defendant experiencing symptoms of a behavioral health disorder,
  2. diversion/treatment in lieu of prosecution is reasonably likely to address the defendant’s conduct that led to the charges,
  3. diversion/treatment in lieu of prosecution does not present a demonstrated risk to public safety, and
  4. a suitable diversion/treatment program is available.

Holmes makes a valid point: if modeled as an affirmative defense, a defendant could get a charge dismissed without committing to participate in a treatment program to address the underlying issues.

As for the misdemeanors related to meeting an immediate need, Holmes noted that there is a frequently-cited “necessity” defense available in common law — meaning that it isn’t codified explicitly in the law, but has been recognized by courts and is precedent in the case law. Holmes suggests that rather than extending the definition of “duress,” this “necessity” defense be codified in the Seattle Municipal Code, with its own four-part test:

  1. the defendant reasonably believed the commission of the crime was necessary to avoid or minimize a harm;
  2. harm sought to be avoided was greater than the harm resulting from a violation of the law;
  3. the threatened harm was not brought about by the defendant; and
  4. no reasonable legal alternative existed.

These are the criteria that are already given to juries in the State of Washington when they are asked to deliberate on a “necessity” defense, as per the Washington Pattern Criminal Jury Instructions. The benefit of using those criteria is that it keeps Seattle’s law consistent with state practices; the liability is that it’s one more thing to track that must be changed if and when the pattern jury instructions change, and it points out that what the City Council is considering is at some level redundant with long-standing practice and arguably unnecessary.

Finally, Holmes recommends dropping the modifications to the “de minimis” section entirely, as “that section is a little-used provision stemming from
amendments to the Seattle Municipal Code in the early 1970s with no parallel in Washington state law, and the concepts raised in the proposal could be better implemented with different statutory structure.”

Holmes concludes his memo by suggesting that what would be more important than legislative changes is “that resources must be provided to assist individuals with the underlying issues that led to them to committing the crime. Whether the funds are federal, state, county, local, or philanthropic, there is a very real need.”

I asked Holmes’ office for his thoughts on how restitution for victims impacted by the misdemeanors fits into this model — the same question that I asked Herbold’s office (and to which I still haven’t received a clear response). If he or his office provides an answer, I’ll update this article with the response.  UPDATE: here is the response from the City Attorney’s Office:

Judges are understandably reluctant to order indigent defendants to pay restitution; together with court fees and fines, the burden of such legal financial obligations (LFOs) typically exacerbate defendants’ dire financial circumstances, only perpetuating the poverty crimes cycle. Even for those cases where a judge orders restitution against indigent defendants after a traditional criminal conviction, victims can still be left empty-handed. On the other hand, police reports for retail theft cases nearly always document recovery of the stolen items when apprehending suspects. Merchants also have civil restitution remedies. 

If Council moves legislation forward, victim restitution should be considered. County Executive Constantine has proposed creation of a restitution fund in his most recent budget address, and Washington State already has one for incidents resulting in bodily injury or emotional distress. We’re happy to participate in conversations about a municipal victims’ fund with Councilmembers if that’s an avenue they wish to explore. 


This will all provide much food for though for Herbold and her colleagues if/when they take this legislation up in December.


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  1. It’s worth noting this proposed “revision” to DPD’s legislation is a de-facto rejection of it, and suggests that the council essentially codify what is already part of the common law here. SMC judges already have broad discretion to order a convicted defendant into a treatment program, and the necessity defense can already be raised in Seattle under the common law. Holmes knows just how damaging DPD’s legislation would be (nothing in this letter disagrees with Scott Lindsay’s analysis), so he’s just recommending that the SCC codify existing law and practice.

  2. Since there seems to be little upside to this policy given that its essentially in practice today and a potential enormous downside if some of the abuses/unforseen consequences being noted by Scott Lindsey et al come to pass I have to wonder what is reason Herbold and the council feel the need to pass this legislation. It just smacks of a solution in search of a problem. I guess those of us who keep hoping the council will learn from their past failures will have to keep waiting.

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