OLYMPIA — A Seattle lawmaker is proposing letting judges send defendants charged with some lesser offenses elsewhere, such as mental health or substance abuse treatment, instead of jail.
A 1994 House bill sponsored by Democratic Rep. Darya Farivar would have allowed judges to set conditions, such as receiving treatment, and ultimately dismiss the case if the defendant “substantially” complied with those conditions.
Farivar said her bill targets the root cause of the Trueblood lawsuit, which challenges the state’s failure to quickly provide competency assessments and restoration services to defendants.
The lawsuit has since been settled, but federal monitors are evaluating whether the state complied with a court-ordered timeline for providing essential mental health services. In July, a judge found Washington state was not in compliance and fined the state $100 million for violating defendants’ due process rights.
When people leave jail without addressing underlying mental health issues and then return when charged again, “we’re just spinning our wheels in a very expensive way,” Fariwal said.
Although the bill passed a House committee last week, it still faces opposition from the state’s attorneys, including Seattle City Attorney Ann Davidson. It could face obstacles because it raises similar questions about prosecutorial power that were controversial during the legislative fight over the state’s drug possession laws, which unfolded during a special session last year.
Trying to solve an expensive and difficult problem
If you are charged with a crime, you have a constitutional right to assist in your own defense. If you do not have the ability to do so, in Washington, under the Trueblood Settlement Agreement, the state must evaluate you within 14 days and restore your ability within 7 days – a total of 21 days.
But Washington has not adhered to those timelines. As a result, it was fined approximately $400 million.
Fariwal said these fines are costly and people going through the system are not getting the help they need.
“They repeat the cycle of homelessness, behavioral health crisis, harm in the community and then incarceration,” Farivar said. “That’s not helping anyone.”
King County Public Defender Anita Khandelwal said criminal trespassing is a common misdemeanor charge and the person charged is often homeless and sleeping in places they shouldn’t be. Her office has also seen people with behavioral health issues accused of harassment.
“The clients we represent, especially in misdemeanor court, are individuals who are experiencing poverty, often homelessness, and have unmet behavioral health needs,” Khandelwal said. “Processed through the criminal legal system They don’t meet any of those needs and often make it harder for them to meet those needs because they’re burdened with criminal convictions.”
Criminalization, in turn, can make it more difficult to access housing and other resources, she said. Even a few days in jail can be “extremely destabilizing,” she said, with defendants potentially losing housing, jobs and access to medications.
Restarting the ‘endless debate’
HB 1994 could provide another option for judges to handle drug possession cases. This is because drug possession is a serious misdemeanor and would be protected under the bill.
Last year, as lawmakers finalized the level of penalties for drug possession, they agreed to allow people charged with drug possession to be diverted for treatment before trial but said prosecutors would have to agree.
Farivar’s proposal reignited last year’s debate over whether prosecutors must approve dismissals before a trial begins or a defendant pleads guilty.
“Part of the reason they stayed in the special session was to address this issue,” said Russell Brown, executive director of the Washington Prosecutors Association.
When it comes to HB 1994, though, the debate isn’t just about drug possession, but also other misdemeanors and gross misdemeanors.
“This is … a debate about who is the gatekeeper, who has the authority to handle cases in court,” said Rep. Roger Goodman, D-Kirkland, chairman of the House Community Safety, Justice and Reentry Committee. “Courts have issued conflicting decisions and there are differences of opinion among lawmakers.”
Prosecutors argued that only they could dismiss the charges before trial, pointing to the state constitution, court rules and judicial codes of conduct.
On Jan. 18, Erin Rep. Dan Griffey told fellow members of the House Community Safety, Justice and Reentry Committee that he believed the revised bill upended the relationship between the state’s executive and judicial branches. separation of powers.
“I have spoken with all the district court and municipal court judges and they continue to believe this is an insurmountable constitutional challenge,” Griffey said.
Goodman was one of the lawmakers negotiating the drug possession bill last year when he softened on prosecutors not because he agreed but because they needed to pass a bill.
“I believe once a lawsuit is filed in court, it’s up to the court to decide how to handle it,” Goodman said.
City Attorney Davidson said, “The basic concept of the proposed bill is fundamentally flawed.”
“Despite the changes, this bill would still empower judges to make decisions on criminal charges outside of the adversarial system,” Davidson said in a statement last week. “This bill would undermine the core principles of our criminal justice system and would It will harm public safety rather than improve it.”
Farivar said her proposal simply provides an alternative and is voluntary. Furthermore, a judge cannot initiate the process. It will begin with a motion from either the prosecutor or the defense and will take place in open court.
“I’m sure the judge will make a decision here about the circumstances under which we are going to have meaningful responsibility by getting people into treatment and the circumstances under which we are not,” Fariwal said. “This bill in no way Showing that judges absolutely have to do this. It just creates another tool in their toolbox to get people into treatment.”
Brown questioned whether “substantial” compliance with conditions set by judges is a strong enough requirement for lasting change and said options for behavioral health services are limited, especially when someone has been charged with a crime. He said the Prosecutor’s 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.
“It doesn’t make much sense for us to simply ignore it when most of our communities don’t have access to routine behavioral health services,” Brown said.
Farivar said some judges are “tired” of a person sitting in jail waiting for a competency evaluation and reinstatement of services longer than the maximum sentence for the charge. Under the U.S. Constitution, defendants have the right to a speedy trial.
“If we’re going to be dismissing these cases on the back end anyway because it’s taking too long, why not use this as an opportunity to build treatments and services?” Fariwal said.