By Erica C. Barnett

When public defender Nicole Thomas-Kennedy decided to run for city attorney in May, it was a spur-of-the-moment decision, one fueled by her frustration that there were no candidates in the race who believed that the current criminal legal system is not just flawed but broken.

Thomas-Kennedy didn’t expect to end up with more votes than incumbent Pete Holmes, or that she’d be facing off against Ann Davison, a three-time candidate who joined the Republican Party during the Trump administration and whose spotty record as an attorney dried up around 2010. Davison ran for lieutenant governor on the Republican ticket, led by far-right conspiracy theorist and gubernatorial candidate Loren Culp, in 2020, after running for Seattle City Council the previous year with a platform that included plans to confine unhoused people in large warehouses.

Now, the unabashed abolitionist—Thomas-Kennedy argues that we can eliminate the need for police and prisons by “developing programs and support systems for our communities to decrease the need for police”— is in the spotlight. Critics, including some former elected officials and the Seattle Times’ ill-informed editorial board, have created a cartoon version of the candidate, claiming she wants to unlock jail doors and end all criminal prosecutions. Cable news, social media, and—again—the Seattle Times’ ill-informed editorial board have also shown an almost pathological obsession with tweets Thomas-Kennedy posted during the Black Lives Matter protests last summer, turning them into endless #content while soft-pedaling Davison’s hard-right views and her lack of qualifications.

The tweets, which cheered property destruction and violence against cops, look bad when taken out of the larger context in which they were posted (the 2020 protests against police violence; Twitter) and splashed across cable-news websites and Facebook feeds; if they were someone’s campaign platform, they would be disqualifying. But they aren’t a political platform; they’re tweets —tweets expressing a growing mainstream consensus in the summer of 2020 that the criminal justice system was beyond repair.

Nonetheless, the tweets seem to be all anybody wants to talk about. That’s a shame, because Thomas-Kennedy’s plan for the Seattle City Attorney’s Office is far more nuanced and thoughtful than the hysterical headlines suggest. Those who say they disagree with her ideas should be willing to actually listen to what they are.

PubliCola sat down with Thomas-Kennedy last week. We talked briefly about the tweets before jumping into her plans for the city attorney’s office, what it means to stop prosecuting misdemeanors, and how she would defend legislation that she personally finds abhorrent.

PubliCola: Can you tell me a bit about where your mind was at when you were posting on Twitter in June 2020? I know was a time of really heightened emotions.

Nicole Thomas-Kennedy: I was outraged. People went out to protest racist policing and the Seattle Police Department responded with a level of retaliation that I was not expecting, including tear-gassing the neighborhood I live in 11 times. And, you know, I had to buy a gas mask for my nine-year-old daughter. And, yeah, I was really upset, and I feel like I had every right to be. They’re not private citizens, they’re out here as a group, making these decisions that affect other people—that kill people. I remember the guy that called into the city council meeting saying, “My infant was foaming at the mouth from tear gas,” and it kept happening. So that’s kind of where my head was.

PC: What has the fallout been like for you in the campaign and how has it impacted your ability to focus on the issues in your race?

NTK: Initially, we were just like, “This is dumb.” Like, let’s not give any heat to this. But it’s just being pushed so heavily now that I have had to address it in the media, which to me is just an utter waste of time. Because my opponent is so deeply unqualified for this role and doesn’t understand what the job is. And my platform is backed by evidence, by stuff that’s happened in other places that have shown to be effective. We’re all, I think, pretty aware of the fact that mass incarceration is a failed social experiment. And we are not the safest country in the world even though we lock up the most people.

I’m here to make things better. And if people have to hate me for it, then I’m fine with that. And  the unfortunate thing about the tweets is that it gave [Davison’s supporters] something to distract with. I think that’s the worst part, because I do think that my knowledge, my plan is very tight. I’m specific about what I’m going to do. I know what needs to happen, and it’s really hard to speak back to that. I mean, my opponent really doesn’t talk in specifics, ever.

PC: If you win, what are your top priorities for your first weeks and months in office? Do you plan to shake things up at the office itself?

NTK: I’m going to leave the civil division largely as it is. I do think Pete was doing a great job in the civil division defending the JumpStart tax and [prosecuting] the lawsuits against Monsanto over polluting the Duwamish. I would like to call in a couple progressive, more aggressive lawyers over there. But I don’t intend to make huge changes over there because it is working.

In the criminal division, I’m going to come in with my policies laid out: This is how they’re going to be implemented, this is how we’re going to do things from now on. There’s a huge backlog of cases, which is I think a great opportunity to really turn the corner with how we’re doing things, prosecution-wise.

I anticipate having maybe one or two more attorneys making the direct decisions about which cases to file, because my policy on filing is going to be much more nuanced. It’s not just going to be like a prosecute-or-not type situation. And then also, what can we do to make sure [unnecessary prosecutions aren’t] happening again moving forward? Because, you know, putting somebody to jail for sleeping under an awning doesn’t make them less likely to need to sleep under an awning.

PC: Are you concerned that there’s going to be a brain drain, either on the civil or the side? A lot of people who have worked for Pete for a long time are leaving, because they have concerns if you win, and they have concerns if Ann wins.

NTK: On the civil side, I think that’s a much bigger danger, just because there is a lot of institutional knowledge there. So one of the responsibilities that I will have going in, if I get elected, is to start talking to people in the civil division and letting them know that I want the work that they’re doing to continue and to see if they will stay under me.

In the criminal division, I’m not so concerned about that because there is no shortage of lawyers that want to do things the way that I am proposing. And because it is pretty different than what they’re doing now, I do anticipate a lot of people leaving. But there’s a lot of lawyers in this town that have reached out to me that would want to work in that division.

PC: If you have a mayor and potentially a city council who are proposing and passing laws that you personally consider abhorrent, are you going to be able to defend those laws, or would you feel the need to farm that work out to private attorneys?

NTK: I think that the city attorney has to work with the council and the mayor to craft defensible legislation and defensible policy. So that would be the role of the city attorney—not necessarily directing where policy should go or how it should go, but really making it as defensible as possible.

PC: What if someone living in their car sued to strike down the law requiring people to move their vehicles every 72 hours and you had to defend that law. How would you go about doing that?

NTK: Unfortunately, I think that’s part of the job. I was a public defender, and I did not agree with everything that my clients were accusing doing, yet I was their defense attorney. I don’t see it as any different than that. At the end of the day, the job is to be the defender for the city of Seattle. And so if there are elected officials that make these crappy laws, I don’t really get to say, “I don’t want to do that.”

I do think that a bigger issue is implementation. So when it comes to the criminal realm, it’s not like a prosecutor files every time a law is broken. We know that only some people are criminalized. There is a recognition within the criminal system that it would be impossible to prosecute every single person for everything. So I would have to probably defend the legitimacy of the law, but if it’s a criminal matter, that doesn’t mean it has to be enforced.

PC: On the flip side, the city attorney can push an agenda from within their limited scope, and they can help the mayor and the council draft laws that reflect the city’s values. What kind of legislation would you be excited to work on and defend?

NTK: I’m really excited to defend the JumpStart tax and fair housing—all of our tenant protections. I’m really excited about that, which why I think the developers are really angry at me. Any sort of progressive revenue would be the thing that I would be most excited about, along with anything related to climate change. I think those two things are really intertwined in a lot of ways, because climate change is here, and we’re going to need revenue to deal with and to survive this crisis.

PC: How would you approach criminal prosecutions against people accused of misdemeanors? Is your plan to stop prosecuting certain laws on day one, and how realistic is that, given how slow the city has been to fund things like alternatives to arrest and prosecution?

NTK: The goal is to end misdemeanor prosecution. Do I think that I can get there in four years? I don’t know. I don’t know if it can happen in eight, 12 years. But that is the goal, because ultimately what we know is a lot of the prosecutions don’t result in actual repair or safety. I mean, prostitution—I’m never, ever going to prosecute that. Drug possession—not gonna prosecute that either. But for most things, it’s going to take a really nuanced approach to see what is really going on. Sometimes people think of criminal cases as if they’re really this very straightforward thing, and it never, ever is. And so that’s why I’m really hesitant to say that there are specific crimes that I wouldn’t prosecute, because there’s always going to be some weird fact pattern out there.

I think that we do have some diversionary programs in place right now. And some of them are looking to expand, and it really is about resourcing those community groups. Even without the police part, prosecution costs about $10,000 on average for each case. And so we can be making some incredibly huge positive change by redirecting that money into community-based alternatives. I’m happy to give up some of the budget of the criminal division, because I won’t be relying on the most expensive and intrusive method of dealing with everything.

Sometimes people think if you don’t prosecute, you just don’t do anything. And that’s not the case. It is going to take time to build up those community-based resources and I don’t know how long it’s going to take. But I know that even if we just ended prosecution of misdemeanors—not all of them, but those that are rooted in poverty—without anything else, that would have a positive effect on the community as a whole.

PC: Pete Holmes has made DUIs a high priority for charging, and I’m wondering if that would change under your leadership.

NTK: DUIs are one of the few things where there is some data that shows the prosecution is effective. And of all the misdemeanors that are in that court, they are the most dangerous. But my approach, I think, would be different. [As a public defender], I’ve never had a low-level THC DUI that wasn’t a young black man. So do we need to do that? I don’t really think we do. The way we’re going to be looking at those cases is going to be different—like, is there a racial component, was there a pretextual stop?

ECB: What would your approach be for dealing with actual, dangerous DUIs?

NTK: There are some cases where traditional prosecution is actually necessary, and there’s no getting around that, unfortunately, but there’s more ways we can deal with it, and I think there’s ways that we can make it easier for people to get help with their problems.

Right now, when it comes to addiction, we have almost no options. Twelve-step programs are available to people, but other than that—like, if you want to go to inpatient treatment for alcohol or drugs, even if you have a lot of money, it’s hard to get in. But if you don’t have any money, it’s basically impossible. And so I think we need to make those systems more available to people. Also, right now, if you get a DUI, you have to get a drug and alcohol evaluation that costs around $150. And I think that if we really want people to do that, we can be funding that and making it easier for them. Getting a drug and alcohol evaluation shouldn’t be part of the punishment.

PC: Anything we didn’t get to that you’d like to talk about?

NTK: My approach to the criminal division is prevention, safety, and repair. For economic crimes, where people have a window broken or a business has someone who’s shoplifting, there’s really no recourse for those people or small businesses. If the case gets filed and if the person gets found guilty, they will be ordered to pay restitution and you might get it, eventually, if they can afford to pay restitution. So I’m going to have a victim’s compensation fund, so people can get repair much more quickly. And it’d be in a uniform manner. Because it really is a lot of first-floor small businesses, especially in the [Chinatown-International District], that are suffering these things, and they shouldn’t have to be paying for that. Those are the results of a lot of policy failures.

PC: Where would funding for this restitution fund come from?

NTK: Funding would be it would go through the city council, and is something that they’re already talking about. The total amount for the whole city, for all misdemeanors last year, was $90,000. It’s really a drop in the bucket. I’m more than happy to give up that portion of my budget. I don’t want it funded through the city attorney’s office, though. I just think the more we can move things out of the prosecutor’s office and into the community, the better. So it will be actually funded through the Human Services Department, and it will be quicker—you won’t have to wait for case to go on forever.

Also, when we’re talking about domestic violence, there is, I think, this idea that if we don’t prosecute every single domestic violence case, then we are leaving survivors of domestic violence to languish. Survivors overwhelmingly don’t want more prosecution or longer jail sentences. What they want is to be heard and feel safe, and what makes survivors feel safe is housing, child care, transportation, access to mental health services. We don’t do any of those things now. We spend $10,000 locking someone up. Domestic violence survivors need help to actually escape these situations. A lot of low income people that experience intimate partner violence have trouble leaving their partner because they don’t have the resources or resources they need to actually stay safe. So that would be the focus.