OLYMPIA — A Seattle lawmaker is proposing to let judges send defendants accused of some lower-level crimes to alternatives, such as mental health or substance use treatment, instead of jail.
House Bill 1994, sponsored by Rep. Darya Farivar, a Democrat, would allow judges to set conditions, like getting treatment, and to eventually dismiss a case if a defendant complies “substantially” with those conditions.
Farivar says her bill takes aim at the root causes of the Trueblood lawsuit, which challenged the state’s failure to quickly provide competency evaluation and restoration services to defendants.
The lawsuit has been settled, but a federal monitor is evaluating whether the state is complying with timelines set by the court to provide basic mental health services. In July, a judge found Washington was out of compliance and fined the state $100 million for violating the due process rights of defendants.
When people leave jail without addressing underlying mental health issues, and then return when they get charged again, “we’re just spinning our wheels in a really expensive way,” Farivar said.
Although the bill advanced out of a House committee last week, it faces opposition from the state’s prosecutors, including Seattle City Attorney Ann Davison. And it could face hurdles because it raises similar questions over prosecutorial power that were contentious during a legislative battle over the state’s drug possession law, which spilled into a special session last year.
Trying to solve an expensive, difficult problem
You have a constitutional right to assist in your own defense if you are charged with a crime. If you’re not competent to do so, in Washington, under the Trueblood settlement, the state must evaluate you within 14 days and restore competency within 7 days — 21 days total.
But Washington isn’t meeting those timelines. And as a result, it has been fined about $400 million.
Farivar says those fines are expensive — and people moving through the system aren’t getting the help they need.
“They repeat this cycle of homelessness, behavioral health crisis, harm in our communities and then incarceration,” said Farivar. “And that’s not helping anyone.”
King County Public Defender Anita Khandelwal said criminal trespass is a common misdemeanor charge and that very often, the person charged is homeless and is sleeping in an area they’re not supposed to. Her office also sees people with behavioral health challenges who get charged with harassment.
“The clients we represent, particularly in misdemeanor courts, are people who are experiencing poverty and often, homelessness and have unmet behavioral health needs,” Khandelwal said. “And processing them through the criminal legal system doesn’t address any of those needs, and it often makes it harder for them to address those needs because they’re saddled with a criminal conviction.”
A criminal conviction, in turn, can make it harder to access housing and other resources, she said. And she says even a few days in jail can be “incredibly destabilizing” and defendants can lose housing, jobs and access to medications.
Resurrecting an “unending debate”
HB 1994 could provide another option for judges handling drug possession cases. That’s because drug possession is a gross misdemeanor and would be covered under the bill.
Last year, as legislators hammered out how much to punish drug possession, they agreed to allow people charged with drug possession to be diverted to treatment before trial, but said a prosecutor must consent.
Farivar’s proposal is resurrecting a similar debate from last year’s battle over whether prosecutors must grant permission for dismissal before a trial has taken place or a defendant has pleaded guilty.
“Part of the reason they stayed for a special session was on this exact issue,” said Russell Brown, executive director of the Washington Association of Prosecuting Attorneys.
Except, when it comes to HB 1994, the debate is not just over drug possession, but other misdemeanor and gross misdemeanor crimes, as well.
“This is … the unending debate about, who is the gatekeeper and who has the authority to dispose of a case in court,” said Rep. Roger Goodman, D-Kirkland, chair of the House Community Safety, Justice and Reentry Committee. “And there are conflicting court decisions and difference of opinion among legislators.”
Prosecutors argue that only they should be able to dismiss charges before trial, pointing to the state constitution, court rules and the code of judicial conduct.
Rep. Dan Griffey, R-Allyn, told other members of the House Community Safety, Justice and Reentry Committee on Jan. 18 that he believed the amended bill subverted the state’s separation of powers between the executive and judicial branches.
“I have talked to all of my district court and municipal court judges, and they still believe that this is an insurmountable constitutional challenge,” Griffey said.
Goodman, one of the lawmakers who negotiated the drug possession bill last year, relented on the prosecutor issue then, not because he agreed, but because they needed to pass a bill.
“I believe once a case is filed in court, it is up to the court to decide how it is disposed of,” Goodman said.
City Attorney Davison said the “basic concept of the proposed bill is fundamentally flawed.”
“Despite the amendments, the bill would still authorize judges to make decisions on criminal charges outside of the adversarial system,” Davison said in a statement last week. “This bill would undermine core tenets of our criminal justice system and would harm, rather than improve, public safety.”
Farivar says her proposal just provides another option and is voluntary. Furthermore, a judge couldn’t initiate the process. It would begin with a motion from the prosecutor or the defense, and would play out in open court.
“I trust judges to make a decision here about in what situations we’re going to get meaningful accountability from getting folks diverted into treatment vs. what situations we’re not,” Farivar said. “This bill in no way says the judge absolutely has to do this. It’s just creating another tool in their toolkit to get folks into treatment.”
Brown disputes that “substantial” compliance with conditions set by the judge is a strong enough requirement for lasting change, and says there are limited options for behavioral health services, especially when somebody has been charged with a crime. He says the prosecuting attorneys association would say there should be more investment in competency services, “upstream” mental health services and facilities where people with complex behavioral challenges can go.
“Simply dismissing it when most of our communities have no access to regular behavioral health services just doesn’t make a lot of sense to us,” Brown said.
Farivar said that some judges have gotten “fed up” with a person sitting in jail waiting for competency evaluation and restoration services for a longer period of time than the maximum sentence for the charge. Defendants have the right to a speedy trial under the U.S. Constitution.
“If we’re going to dismiss these cases anyways on the back end for it taking too long, why not take this as an opportunity to establish treatment and services?” Farivar said.
