Editor's Note: Councilmember Lisa Herbold is under fire from many quarters for her sponsorship of legislation that would effectively decriminalize more than 100 misdemeanor crimes in Seattle.

Attorney Scott Lindsay details the legislation and how it came to pass here.

 

By Phil Tavel

Are we really heading towards mass decriminalization and a gutting of the Seattle Municipal Code?  That’s what it feels like.  I understand that the motivation is to keep from criminalizing poverty and to stop using incarceration as the only answer for criminal activity.  It is time to focus on compassion and rehabilitation rather than blindly punishing and incarcerating.  However, this proposal is not the way to do it.

I have spent much of the past 15 years of my life working as a Public Defender, and in that time I have indeed witnessed a broken criminal justice system; a system that is screaming out for reform.  In the past 6 years I have also spent a great deal of time looking at the problems of increased crime on our streets, a rise in substance abuse disorders, more and more people suffering from undiagnosed and untreated mental health issues, heart-breaking increases in homelessness and the associated public health and safety issues that go hand in hand with those problems.

Creating a new defense to criminal activity that is simply, “I am experiencing mental health issues, substance abuse issues and/or issues relating to poverty, therefore I should not face criminal charges,” is not the answer.  If we want to simply remove crimes like trespass, third degree theft, fourth degree assault, harassment, etc. from our criminal code, then that needs to be done by giving the people a chance to debate the pros and cons of such an idea, and to then vote on what we, as a City, want to do.  This proposal is more likely to hurt Public Health and Safety than improve it.

We have laws because they represent the rules that our society should live by, and when people break those laws they must face the possibility of punishment.  The criminal justice system, if it is functioning properly, can be an effective safety net for everyone – for those that break the law and for those who are the victims of criminal activity.  That is fundamentally why every criminal charge is stated as, “The People of… vs. the individual charged with the crime.” When a crime is committed, it is committed against all of society as much as it is against an individual or individuals.  Sadly, what frequently gets lost in our criminal justice system is that the defendant in a criminal matter is still also one of “The People” and as such, deserves the protections of our laws as well.  

When someone commits a crime, they must be held accountable.  If there is an underlying root cause to that criminal behavior, such as mental health issues, substance abuse issues or issues of poverty, then it is incumbent upon us as a society to address those underlying problems and not just punish the behavior. 

In the thousands of cases that I have had as a criminal defense attorney, primarily those that I handled as a Public Defender, the vast majority involved undiagnosed and/or untreated mental health and substance abuse disorders.  In those situations, there already exist the methods to focus on help and rehabilitation rather than punishment.  Now is the time to fundamentally and drastically improve those methods and expand their use. 

There already are legal arguments by which a defendant can get charges dismissed when the crimes were truly committed under duress, but it is dangerous to expand our definition of duress and therefore alter what constitutes an excusable criminal act.  I have seen Judges dismiss charges of theft when it was someone stealing food from a store because they were hungry and had no means to pay. There are prosecutors that will refuse to file charges on someone who steals food because they were poor and hungry.  I have worked with many prosecutors who listen to the troubles of a defendant and when their criminal behavior is clearly coming from underlying mental health and substance abuse issues, or their life situation being particularly terrible, they help get that person into Drug Court, Mental Health Court, Veteran’s Court (and previously Community Court in Seattle).  Those are all Cooperative Courts where the defense attorney, the prosecutor, the Judge, probation, health services, treatment providers, the defendant and sometimes the victim all work together to make sure that the defendant gets the help they need, AND they take responsibility for their actions.  It is methods like these that need to be expanded if we are going to take positive steps forward in solving the issues that are facing our City today.  When someone is forced to accept responsibility for their actions and is given the opportunity to participate in their own rehabilitation, they are far more likely to succeed and return to being a law-abiding member of society. 

It is time to change our strategy with respect to helping people in distress get the help and hope they need and to create a safer and healthier Seattle for everyone.  We should have parks where anyone can go without being assaulted, coming across needles or human waste, where everyone can feel safe and experience the benefits of green spaces.  We need streets that are also free from those things, where businesses can thrive and the City can grow.  That starts with making sure that everyone can have a place to live, with a roof over their head, that they can get treatment and support for substance abuse issues, where they can get help for mental health issues and access to the support systems they need to have a better life.  The criminal justice system can help do that, but not if we merely choose to excuse more criminal behavior. 

This should not be about saving a few million dollars in the budget by incarcerating fewer people. This should not be about giving more excuses to people for criminal behavior.  We need a tangible commitment to fund equitable housing and supportive services, and the criminal justice system needs to play an active and beneficial role in that process.  

Phil Tavel is former Public Defender in Seattle