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 a mandatory community service.
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 arrests 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 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 the community court for people the city attorney categorizes as high utilizers, and to “clarify how many individuals get to have their cases referred to Community Court. ” Currently, defendants can go through community court a maximum of four times.
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) is the wrong place for those committing repeat, high-mechanismimpact criminal activity,” Davison’s letter says.
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.”
“Our people do not believe that meeting the High Utilizer criteria are a good fit for Community Court, where the main obligations are a life skills class or meeting with service providers.”—C Attorney’s Office Spokesperson
According to a spokesman for Davison, Anthony Derrick, the 2019 agreement “removes [the city attorney’s] Prosecutor’s 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 modifications 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 addition, “our office does not believe that individuals meeting the High Utilizer criteria are a good fit for Community Court, where the main obligations are general, he added a life skills class or meeting with service providers.”
Deputy city attorney Scott Lindsay has insisted for years that a key to addressing issues like shoplifting and general “disorder” downtown is to target repeat offenders for more punitive treatment than people accused of fewer crimes. (The term “high utilizers” is a new name for a group of people described, in previous iterations of similar policies, as “familiar faces,” “prolific offenders,” “high-impact offenders,” and “high-barrier individuals. ” )The issue was a centerpiece of Lindsay’s campaign for city attorney in 2017 as well as a report he released independently called “System Failure” that became the basis of Sinclair-owned KOMO TV’s infamous “Seattle Is Dying” viral video.
It’s unclear, however, whether treating repeat offenders more punitively will actually reduce crime by getting “high utilizers” off the street and in jail. According to an analysis by the King County Department of Public Defense cited by the city council’s public safety committee chair, Lisa Herbold, at a meeting earlier this week, about six in ten of the people currently on the “high utilizers” list could be Eligible for services as Trueblood class members, which means that they have been held in jail awaiting treatment or a ruling on their competency to stand trial. Between 51 and 58 percent of those on the list have been declared incompetent in the last five years.
According to the same analysis, about 20 percent of the “high utilizers” are eligible for Forensic PATH services, an enhanced case management program focusing on Trueblood class members who are homeless. And more than half provided addresses indicating they are homeless, such as 77 S. Washington—the Compass Center, which offers mail service to unhoused people.
Herbold said Davison “assured me that not every person on the HUI [high utilizers initiative] list that is arrested will be incarcerated and they are working to review every case individually to determine whether they are a good fit for LEAD or other diversion programs.” At the same time, she said, “I have asked the CAO to explain … why they are willing to divert some HUI defendants to programs like LEAD but they are simultaneously seeking to exclude this group of individuals from community court, developed on a model of collaboration and including a network of supports outside the criminal justice system.”
The jail, meanwhile, is currently so understaffed that inmates are frequently kept in their cells all day, making any plan that relies on tossing misdemeanor offenders in long-term highly untenable jail. Adding more cases to the municipal court’s mainstream system will contribute to a major backlog the court is already facing.
PubliCola reached out to Judge Shadid and the county’s Department of Public Defense, a partner in community court, and will update this post. This is a developing story and will be updated.