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Seattle Councilmember Pushing for ‘Poverty Defense,’ Essentially Decriminalizing Over 100 Misdemeanors
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Seattle Councilmember Pushing for ‘Poverty Defense,’ Essentially Decriminalizing Over 100 Misdemeanors

by Leah AnayaDecember 16, 2020

Seattle, WA – Seattle City Councilmember Lisa Herbold, together with King County’s director of the Department of Public Defense, Anita Khandelwal, has again brought forth legislation that includes what’s being called the “poverty defense.”

Herbold brought up the legislation at Tuesday’s Public Safety Committee meeting after originally introducing the defense argument in October. The committee is expected to discuss the proposed legislation again in January. Herbold wants the defense to be added to Seattle’s municipal code.

The poverty defense, according to Herbold, is meant to provide an affirmative defense to a person who commits a crime  if they did so to meet a “basic need to survive.” The “crimes of poverty” would be dismissed by use of the revision of the definition of “duress” to be used as a defense.

Herbold has expanded the legislation proposal since its original introduction to include a defense for stealing goods with the intent to resell them to buy food or pay rent.

In October, KOMO news reported that the legislation would essentially legalize through court dismissal misdemeanors other than DUI’s and domestic violence related incidents, as long as offenders could show:

  • Symptoms of addiction without being required to provide a medical diagnosis;
  • Symptoms of a mental disorder; or
  • Poverty and the crime was committed to meet an “immediate and basic need.” For example, if a defendant argued they stole merchandise to sell for cash in order to purchase food, clothes or was trying to scrape together enough money for rent.

Khandelwal said she doesn’t want their to be any restrictions, monetary or otherwise, on this piece of legislation, and the decision should fall in the hands of juries. She said, “Our jurors are going to be able to understand when someone is trying to meet an immediate need and when they are not.”

Central Staff member Asha Venkataraman told the committee, “The defendant would just have to prove that the needs fit within the definition of immediate basic need.”

A Central Staff memo read, “The criminal legal system is ill-suited to address the root cause of ‘crimes of poverty’ and any involvement in the criminal legal system and incarceration causes harm. As such, Central Staff understands that the intent of the proposal is to provide an exit from the system at trial and without further involvement in the system for those crimes committed because a person cannot otherwise afford to meet their immediate basic needs.”

Regarding the recent addition on stolen goods, Venkataraman added, “If somebody stole a bunch of cell phones and intended to resell them to pay their rent, it would apply to that defense.”

Herbold said the jury would hear a suspect’s reasoning and make the decision. She said, “It’s giving people an opportunity to tell their stories and giving judges and juries the opportunity to hear those stories and make a decision based on the values of our city.”

In an October letter to the council, City Attorney Pete Holmes said his office already working in that direction. He said in the letter, “I have worked to move the City Attorney’s Office away from prosecuting property crimes that appeared to be committed out of survival necessity.”

There has still been no public input or discussion on the proposal.

Scott Lindsay, The former public safety advisor for Seattle, Scott Lindsay, said the city would be the first in the nation and maybe the world to enact this type of legislation. In October, he said, “I’m not aware of any legislation like this anywhere in the United States (or) even globally. All cities have criminal codes to protect their citizens from criminal acts. This would essentially create a legal loophole that swallows all those codes and creates a green light for crime.

“If you don’t feel very protected right now, this would wipe out almost all remaining protections that we have. This would absolutely open the floodgates for crime in Seattle, even worse than what we often currently struggle with. It’s basically a blank check for anybody committing theft, assault, harassment (and) trespass to continue without disruption from our criminal justice system.”

While the legislation wasn’t added to the 2021 budget, it still has a chance of passing if five Council members agree to have it added as an amendment to the budget.

This week, Lindsay said, “If you are engaged in 100 different misdemeanors that are in our criminal justice system code, you are not going to be held liable. You are not going to be held accountable.”

Councilman Alex Pedersen asked Herbold and the committee to slow down and allow the public to weigh in before spending too much time writing out details. He said, “This proposal seems to create too easy of a way for repeated vandalism, trespassing and shoplifting and other misdemeanor crimes that can harm others.”

After the stolen goods addition, Assistant City Attorney John Schochet said, “That could broaden this and create some unintended consequences.”

Reporter Jason Rantz wrote, “If you’re poor or homeless, you could effectively get away with stealing from just about anyone or any business in Seattle. Just say you’re poor and needed to steal that bike or car stereo so you can sell it for money to buy food.

“Of course, the likelihood is that these crimes are driven by addiction that city leadership won’t treat. So they’ll use the cash to buy drugs or alcohol. But Herbold thought of that: The addict also gets a pass. You merely need to show ‘symptoms’ of addiction and it’s your legal pass.

“The crimes covered are more than just shoplifting, vehicle prowls, and buying drugs. With over 100 misdemeanor offenses in Seattle’s criminal code, you can also get a pass for driving under the influence, harassment, trespass, sexual exploitation, unlawful use of weapons, and much more…

“This bill is another giant experiment from a councilmember already killing Seattle by defunding the police. She’s successfully lobbied to create a city that gives over its parks to the homeless. And under her leadership, businesses are getting taxed more during a pandemic.

“Sure, the consequences so far have been tragic: a mass exodus of police officers, a rise in homicides and homelessness, and businesses closing or moving at record rates. But, hey, maybe it’s about short-term pain for long-term gain in her experiment.”

Judicial watch reported that the legislation “appears to have enough support to alter the city code early next year.”

Meanwhile, the City Council has so far approved an 18% budget cut to the Seattle Police Department, with more likely on the way, while crime has continued to spike dramatically.

About The Author
Leah Anaya
Leah Anaya
Leah Anaya is a medically retired police officer. She served for three years at the Oakland Police Department, and just under five at a department in Washington State. Before that, she was an intelligence analyst in the US Army. She is now a stay at home mom living with her husband, who is still serving as a police officer, and their three children. She also grew up as the daughter of a police officer in California. Leah is now a writer and Deputy Editor at Law Enforcement News Network as well as the Business Manager for Washington State FOP. She's a peer support advocate for The Wounded Blue and Serve and Protect. You can find her on social media @leahmsanaya or at www.leahanaya.com.
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