Seattle ‘Poverty Defense’ Proposal Sparks Viral Outrage

On December 14 2020, right-wing clickbait site the Daily Wire claimed that the city of Seattle, Washington was mulling over a “poverty defense”:

The article was cribbed from the UK tabloid Daily Mail, and it began as follows:

The Seattle City Council is considering changing the criminal code so that criminals who have committed trespassing, theft, or even simple assault could be exempt from prosecution if they could prove that their survival depended on their criminal acts.

Councilmember Lisa Herbold and Anita Khandelwal, the King County’s director of the Department of Public Defense, introduced the idea of changing the criminal code. Herbold first brought the idea of what is nicknamed the “poverty defense” in October [2020].

On December 13 2020, the Daily Mail published a story with five bullet points, the fifth being perhaps the most relevant:

Seattle City Council considers new ‘poverty defense’ to excuse misdemeanor crimes such as theft and assault if culprit is homeless, addicted to drugs or has mental health issues

• The ‘poverty defense’ would absolve a suspect accused of a misdemeanor crime if the act can be linked back to poverty and possibly addiction or mental health
• Attorneys would be required to prove the defendant committed the act to meet a basic need to survive – and were not just impoverished at the time of the crime
• The proposal, however, excludes misdemeanors related to domestic violence
• Lawmakers suggested the creation of a public fund for restitution, to compensate theft victims even if the offender cannot pay them
• While the proposed legislation hasn’t even yet been written, it is generating a lot of discussion between local lawmakers – and plenty of criticism
  Seattle has recently been experiencing an uptick in homicides and violent crime

At some point between the Daily Mail and Daily Wire, the caveat that the legislation had not even yet been written somehow disappeared, implying a more imminent and definitive change to policy. Daily Wire also linked to October 2020 reporting from Seattle-area outlet KOMO, which reported:

The offenses that would be covered by the Seattle ordinance would include just about any crime below the level of a felony while excluding charges of driving under the influence or domestic violence.

[…]

Although the measure could radically alter the way Seattle levies charges in criminal court, there have been no public hearings about it and it has not been discussed so far by the council’s Public Safety Committee.

It was proposed late in the third hour of a council Budget Committee meeting.

KOMO reported that Seattle City Councilwoman Lisa Herbold had proposed the ordinance in October 2020:

If approved, the ordinance would excuse and dismiss — essentially legalizing — almost all misdemeanor crimes committed in Seattle by offenders who could show either:

• 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. The accused could not be convicted.

On December 8 2020, KOMO reported that the proposal was once again discussed at a council meeting — and, again, resulted in no actual amendments to the Seattle municipal code:

During the committee meeting, council members heard an update to the poverty defense argument, which was first presented by Herbold, chairperson of the committee, in October [2020]. The council took no action on the proposal on [December 8 2020] but its members are expected to discuss the proposal again in January [2021].

The story also included commentary from Herbold and fellow council staff member Asha Venkataraman on the intent of the proposed “poverty defense”:

The new twist is that Herbold wants the new legal defense to be added to the Seattle municipal code. It would provide an affirmative defense for someone who committed a crime because they need to meet a basic need to survive.

“The defendant would just have to prove that the needs fit within the definition of immediate basic need,” Asha Venkataraman, a member of the council’s Central Staff, told the Public Safety Committee.

Herbold said she wants a jury to hear a defendant’s reasoning and leave it up to jurors to decide if the crime was committed to supply a basic need.

“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,” Herbold told the committee.

Another element of KOMO’s reporting that did not make it to aggregated versions was commentary by City Attorney Pete Holmes, who addressed the poverty defense discussion in late October 2020. At that point, Holmes said that the City Attorney’s Office was moving away from prosecuting property crimes which “appeared to be committed out of survival necessity”:

In a letter sent to the council on Oct. 30 [2020], City Attorney Pete Holmes said his staff is already doing some of what the poverty defense would provide.

“I have worked to move the City Attorney’s Office away from prosecuting property crimes that appeared to be committed out of survival necessity,” he wrote.

Seattle City Councilman Alex Pedersen was quoted as asserting the proposed poverty defense would “create too easy of a way for repeated vandalism, trespassing and shoplifting and other misdemeanor crimes” to go unpunished. However, King County Department of Public Defense director Anita Khandelwal maintained that “jurors are going to be able to understand when someone is trying to meet an immediate need and when they are not.”

Khandelwal was quoted by Seattle-area broadcaster KUOW on December 8 2020 to address concerns about the proposed changes:

Anita Khandelwal said the “poverty defense” isn’t meant to ignore the needs of businesses and others harmed by these offenses. She said the current system doesn’t provide them redress either, and it does more harm to offenders.

“It’s meeting nobody’s needs,” she said. “This is not that we don’t care about the business community or about people who have experienced harm. It is that we know that this process – this processing of human beings through the system – is harmful to our clients and again very racially disproportionate, and also not getting business owners what they need either.”

Khandelwal said Seattle should follow King County’s example in creating a public fund for restitution, so victims of theft can be compensated even if the offender can’t pay them.

KUOW reported that the proposal had yet to be fleshed out and it was uncertain whether such a change would ever become a reality:

Councilmember Herbold chairs the Public Safety Committee which has scheduled a briefing [December 8 2020] on “the concept of amending the Seattle Municipal Code to add a defense against prosecution of misdemeanors on the basis that an individual committed a crime to meet an immediate basic need.” Briefing documents say the Council would need to define whether the new affirmative defense applies only to someone meeting immediate basic needs, like stealing a sandwich in order to eat, or to items that are stolen for resale “so the defendant can pay rent.” Herbold says her committee will continue its work on the proposal in January [2021].

In mid-December 2020, tabloids like the Daily Mail wrote about a “new” Seattle poverty defense proposal, addressing a measure first introduced in October 2020, which had not yet been written as of December 2020. Members of Seattle’s City Council discussed measures to address crimes committed out of “immediate need,” such as theft to pay rent, obtain a winter coat, or feed themselves or their families. The October 2020 proposal — discussed again on December 8 2020 — led to predictable backlash and viral outrage-baiting articles, despite the fact the nascent measure remained theoretical. Further, Seattle attorneys addressing the proposal in October 2020 indicated that prosecutions were already being proactively handled in the fashion addressed by the proposal — and that city attorneys had shifted away from prosecuting property crimes “that appeared to be committed out of survival necessity.”