Critic says a ‘poverty defense’ would prevent misdemeanor prosecutions in Seattle

A battle is brewing over letting people charged with low-level crimes in Seattle use poverty, addiction or mental illness as a defense.

Scott Lindsay, a former mayoral public safety adviser and city attorney candidate, is out with a new analysis of an idea floated by Lisa Herbold, who chairs Seattle City Council’s public safety committee.

Lindsay said Herbold’s proposal would create a loophole that “would basically vacate most of those crimes.”

Last week, during a budget discussion, Herbold brought up a proposal drafted by advocacy groups to allow people accused of misdemeanors to show a judge or jury how their poverty, substance abuse or mental illness led them to act.

The advocates' proposal covers all misdemeanor crimes, except DUIs and domestic violence cases.

Herbold has not yet released her own proposed bill.

Herbold said the Seattle Municipal Court doesn’t currently give defendants a good way to explain their underlying life circumstances.

“It gives the defense the opportunity to share that with the court,” Herbold said of her potential legislation.

Asked if the intent was to vacate the crimes or provide a defense, Herbold answered, “The intent of the proposal is to provide a defense.”

“The notion that suddenly all of these cases are going to be dismissed — it’s not an analysis that makes any sense to me,” said King County Public Defender Anita Khandelwal.

The Seattle City Attorney’s Office already declines to prosecute most cases that are directly attributable to poverty.

“We’re not out to send people to jail for crimes committed out of true necessity, especially with community court and diversion programs helping people meet their needs,” said Dan Nolte, a spokesperson for City Attorney Pete Holmes.

Khandelwal said public defenders still encounter such cases. She said that “if they’re not being prosecuted anyway, then let’s make sure they are never prosecuted” by adding a provision to city law.

The proposal might not prevent prosecution, but it could prevent a conviction, and Lindsay argues prosecutors would simply stop pursuing cases they couldn’t win.

The idea will be discussed at Wednesday’s City Council budget committee meeting.