By Erica C. Barnett
City Attorney Ann Davison sent a letter to the entire Seattle Municipal Court on Wednesday asking the court to give her the ability to deny “high utilizers” of the criminal justice system—a group of about 120 people who have had 12 or more referrals from the Seattle Police Department to the City Attorney’s Office (CAO) in the past five years—access to community court, a therapeutic court in which defendants define their own goals, such as reduction of substance use, and participate in mandatory community service. The change would effectively make prior criminal history a factor in determining someone’s eligibility for community court.
Currently, people whose charges consist entirely of low-level misdemeanors are automatically eligible for community court, which allows defendants to access services without requiring them to plead guilty to a crime. Crimes like theft, pedestrian interference, and resisting arrest are eligible offenses; more serious misdemeanor offenses like reckless driving, harassment, and DUI are not.
For weeks, Davison’s office has been negotiating with Municipal Court Judge Judge Damon Shadid, who presides over community court, over how to treat this group of defendants. As of Wednesday, according to Davison’s letter, those discussions “have come to an impasse.” In her letter, Davison asks the judges to overrule Shadid and allow the city attorney to deny access to community court for people the city attorney categorizes as high utilizers, and to “clarify how many chances individuals get to have their cases referred to Community Court.” Currently, defendants can go through community court a maximum of four times.
In a statement responding to Davison’s letter on Thursday, the municipal court said community court was ”
founded to address the root causes behind low-level criminal activity while reducing the harm of pretrial incarceration” and “designed with the Washington State Pretrial Reform Task Force Final Recommendations report and The Vera Institute of Justice’s 2020 report front and center.” (Links in original.) The court said it was still evaluating Davison’s proposal and “will continue to work with her office and the Department of Public Defense to identify how to move forward together and create a prioritized plan for people whose needs and issues are not being addressed, and have not been addressed historically, by our criminal justice system.”
“The letter mischaracterizes Judge Shadid’s statements in the meetings (and I have been in attendance at these meetings). The letter causes me concern about the possibility for good faith negotiations with the City Attorney’s Office given the inaccuracies in their statements.”—King County Department of Public Defense director Anita Khandelwal
Davison released her letter in a press release at 8:00 Wednesday night after PubliCola obtained a copy and sent her office a list of questions about it Wednesday afternoon.
“Unfortunately, in the Community Court Steering Committee meeting last Friday, Judge Shadid insisted that he would not agree to exclude those meeting the High Utilizer criteria from Community Court and would potentially refuse to oversee Community Court if his fellow judges agreed to the changes that I have requested,” Davison’s letter to the Municipal Court judges said. “At this juncture, I am formally requesting that the full Seattle Municipal Court consider this important modification of the 2019 Community Court agreement.”
That agreement, signed by then-city attorney Pete Holmes, lays out a process for the city attorney’s office to refer defendants to community court and describes the court’s less punitive approach to misdemeanor crime. “Simply stated, this version of Community Court (with its ‘release-first model,’ voluntary referrals to services, and limited accountability mechanisms) is the wrong place for those committing repeat, high-impact criminal activity,” Davison’s letter says.
King County Department of Public Defense (DPD) director Anita Khandelwal says Davison’s letter “mischaracterizes Judge Shadid’s statements in the meetings,” which Khandelwal has attended, and “causes me concern about the possibility for good faith negotiations with the City Attorney’s Office given the inaccuracies in their statements.”
Judge Shadid, Khandelwal said, did not “insist on anything,” as Davison’s letter claims. Instead, she said, he suggested postponing any major changes to community court until July, to “allow for us to work collaboratively to develop a plan for people on the list, because the only plan that the City Attorney’s Office seemed to be putting forward involved incarceration (including overriding jail booking criteria) and traditional prosecution.”
Importantly, the 2019 agreement removed a requirement that defendants plead guilty before getting access to community court—a requirement for other alternatives to the mainstream court system, such as King County Drug Court. According to the community court rules and procedures, “An individual should not have to choose between their Constitutional rights to a trial and having the ability to access services that will help them exit the criminal justice system. Therefore, a person doesn’t have to give up trial rights to participate and gain benefits from Seattle Community Court.”
Khandelwal says community court is designed to avoid the harmful outcomes that are common in the mainstream court system, which often leads to a cycle of incarceration and disproportionately impacts people of color, unsheltered people, and people with a history of being declared incompetent to stand trial because of mental illness.
In fact, a DPD analysis found that the people on Davison’s “high utilizer” list are overwhelmingly people who fit into one or more of those three categories. Nearly six in ten have “indications of housing instability,” such as giving 77 South Washington—the Compass Center shelter in Pioneer Square—as their address. More than half (51 percent) have been through a court-ordered evaluation to determine their competency to stand trial. And 40 percent were Black, Indigenous, or People of Color (BIPOC), higher than the proportion of BIPOC Seattle residents.
“Prior criminal legal system involvement is often a result of racially biased policing, which is only perpetuated or deepened by prosecution,” Khandelwal said. “DPD worked hard with the court and CAO to develop a court that did not look at criminal history to avoid perpetuating that bias.”
“Our office does not believe that individuals meeting the High Utilizer criteria are a good fit for Community Court, where the main obligations are completing a life skills class or meeting with service providers.”—City Attorney’s Office spokesman
According to a spokesman for Davison, Anthony Derrick, the 2019 agreement “removes [the city attorney’s] prosecutorial discretion to consider prior criminal history. Because community court is a release-first model, individuals with a history of repeat criminal activity are able to immediately return to their criminal behavior without consequence. Ultimately, as this agreement is written, we have no discretion to screen out any candidates that fit the high utilizer criteria without being in violation” of the agreement.
“Without modification to this agreement, many individuals meeting the high utilizer criteria are required to be repeatedly routed through Community Court despite little to no change in their criminal activity,” Derrick said. In general, he added, “our office does not believe that individuals meeting the High Utilizer criteria are a good fit for Community Court, where the main obligations are completing a life skills class or meeting with service providers.” Continue reading “City Attorney Davison Asks Court to Let Her Deny “High Utilizers” Access to Community Court”