The City Council continues its budget review this week – looking at what the mayor proposed, and floating some of its own counterproposals and additions. The next step happens Tuesday night, when the council holds another public hearing (5:30 pm online). In her weekly email/online update last Friday, West Seattle/South Park Councilmember Lisa Herbold listed 14 of the items she has suggested in the “issue identification” phase; she’s been including budget-process updates each week. Among the 14 items was this one:
Duress and Di Minimis Defense Legislation:
This bill redefines the City’s definition of duress and di minimis in the Seattle Municipal Code to reduce the use of the King County Jail in instances where a jail sentence is not appropriate. If the bill passes, the duress and di minimis defenses could be utilized for individuals who, “at the time of the offense, experience symptoms of a behavioral health disorder or a behavioral health condition.” Or when, “the defendant committed the offense with the intent of meeting a basic need the defendant was experiencing at the time of the offense.”
Today, this proposal has gotten some extra attention because of social-media circulation of this opinion piece on the advocacy website ChangeWA, in which author Scott Lindsay contends the proposal would “excuse and dismiss almost all misdemeanor crimes committed in Seattle by persons with symptoms of addiction or mental disorder.” Several readers sent us the link today, so we checked out the proposal.
First, note that this has not yet been officially introduced as legislation. It was brought up last Wednesday in the stage of the budget process where councilmembers throw out ideas for consideration – Herbold’s newsletter explains that process. The ideas in that stage are not introduced legislation, not often discussed at length, not yet to the stage of being voted on for inclusion in the budget bill, or not.
Here’s what is on the record – from the council-staff memo for last Wednesday’s meeting, during the public-safety discussion:
Consider passage of legislation allowing dismissal of crimes of poverty (Councilmember
Herbold) – This proposal would amend the criminal code to revise the definition of defense
against prosecution because an individual was under “duress” and include as a de minimis
charge crimes committed due to poverty or if an individual is having a behavioral health
incident. A reduction in County Jail services could result if these cases are dismissed and do not
result in sentencing to jail
That’s exactly what the slide deck for the meeting said. ChangeWA points to the King County Department of Public Defense website for a draft of what legislation about this might look like. Note that city law already includes “duress” and “de minimis” defenses – this would add to them. To the former, the public defenders’ draft adds:
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
Also from the public defenders’ draft, here’s what would be added to “de minimis”:
D. Was the result of attempting to meet an immediate basic need the defendant or that the defendant’s family was experiencing; or
E. At the time of the offense, the defendant was experiencing symptoms of a behavioral health disorder.
1. 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. …
2. For the purposes of this section, behavioral health disorder is defined as defined in RCW 71.05.020
So what does the councilmember herself say? We asked Herbold for her reaction as well as explanation. First off: “The legislation would not legalize most crime. … The goal of this legislation 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.”
SMC, in her reference, is Seattle Municipal Court, and it should be noted again, this is the court that considers the lowest-level crimes – misdemeanors – not felonies. Most of the crimes we report on here, for example, are felonies – vehicle theft, robbery, shooting, burglary. Those involve state laws and county courts.
So what does Herbold see as the need for this change? “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.”
WHAT’S NEXT: As mentioned above, the City Council has a public hearing on the budget Tuesday night, if you have something to say about this or any other proposal – 5:30 pm, online; the agenda explains how to watch and/or participate. Councilmember Herbold says the idea is next planned for discussion at Wednesday’s meeting, during the 9:30 am session, which also will be preceded by public comment – here’s that agenda. We will follow up on this, as well as any other of her proposals that actually get to the legislation stage.
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