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Hearing: July 27, 2017
Time: 1:30 p.m.
Court: Judge Donahue

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IN SEATTLE MUNICIPAL COURT FOR THE STATE OF WASHINGTON

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CITY OF SEATTLE,
Plaintiff,

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vs.

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KAREEM JALIL,

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Defendant

No. 617327
MOTION for DIVERSION
DECLARATION & MEMO
IN SUPPORT

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COMES NOW, DEFENDANT, KAREEM JALIL, by and through counsel, Robert
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Goldsmith, and MOVES for an Order requiring the City Attorney’s Office to permit the defendant to
apply for diversion of his charge under SMC 12A.10.040, “sexual exploitation.” This motion is based

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on the Equal Rights Amendment (ERA) of the Washington Constitution, Art. 31, § 1, and the due

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process clause of the Washington Constitution, art 1, §3. This motion is supported by the following

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declaration of counsel and memorandum of law.

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Dated this 14th day of July, 2017.

Respectfully submitted:

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____s/_______________________
Robert Goldsmith, WSBA #12265
Attorney for Defendant.

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Motion- Declaration – Memo - 1
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

 DECLARATION

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Robert Goldsmith declares the following to be true and accurate:

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1.

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I am the defendant’s attorney in the above case and am familiar with the facts and

circumstances of this case.

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2.

In February 2017, The City of Seattle charged Mr. Jalil with a violation SMC

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12A.10.040, a petty misdemeanor, stemming from a Seattle Police undercover sting – “Operation
EuroSpa” in July 2016. According to media reports, Mr. Jalil was one of 204 people arrested as part of
this operation.
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My client was born and raised in Washington, is 28 years old, has no criminal record and

has never even been arrested before the arrest in this case. As Mr. Jalil’s attorney, I have requested a
diversion of this case, since he is eminently qualified.

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4.

The City Attorney’s office has indicated that diversions are no longer available for this

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offense, even though diversions were previously available for the offense of “Offer and/or Agree to an
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act of Prostitution,” under SMC 12A.10.020, at least since 1991.
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This policy shift away from diversions for first offenders is an intentional effort to single

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out and punish men. See Exhibit 1 printouts of: Kiro7, May 10, 2017, “In Seattle’s approach to

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prostitution, city attorney made a pivot.” http://www.kiro7.com/news/local/in-seattles-approach-to-

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prostitution-city-attorney-made-a-pivot/521100391; Seattle Times January 11, 2012, “City Attorney’s

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Office to go after johns.” http://www.seattletimes.com/seattle-news/city-attorneys-office-to-go-after-

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johns/ ; Seattle City Attorney’s Office E-Newsletter, August 2012, “Rewriting the Prostitution
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Narrative,”
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Motion- Declaration – Memo - 2
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

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http://www.seattle.gov/Documents/Departments/CityAttorney/pr/15Jan12_PR_rewritingprostitutionnarr

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ative.pdf.

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6.

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Not only has the City Attorney’s Office declined to permit “johns,” or accused male

customers of prostitution, to enter a diversion program, at the same time, the City permits the women,

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working as prostitutes to be eligible for diversion in Seattle Community Court (Exhibit 1) and in a
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program entitled “LEAD—Law Enforcement Assisted Diversion.” Exhibit 2, printout of this program.
http://leadkingcounty.org/.
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Just last week, the City, through the media, announced another sting operation. This one

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resulted in the arrest of 139 men. “Holmes says law enforcement agencies in Seattle and King County

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work with nongovernmental agencies to connect those engaged in commercial sex with services.”

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Presumably he is referring to women engaged in “commercial sex,” who are provided “services.” This is

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further proof of the disparate treatment of the men who are arrested and prosecuted. See
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http://www.seattletimes.com/seattle-news/crime/139-men-arrested-in-seattle-prostitution-sting/
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The City of Seattle has denied the defendant an individualized opportunity to enter a

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diversion program on account of his gender and requests this Court to order the Seattle Attorney’s office

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to allow him to apply for diversion.

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I declare under penalty of perjury under the laws of the State of Washington that the foregoing is
true and correct.
DATED this 14th day of July, 2017, at Seattle, WA.

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___s/____________________
Robert Goldsmith

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Motion- Declaration – Memo - 3
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

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MEMORANDUM OF LAW

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ARGUMENT

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THE CITY ATTORNEY’S REFUSAL TO PERMIT DIVERSIONS
DISCRIMINATES AGAINST MEN AND IS UNCONSTITUTIONAL.

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Washington's ERA, Const. art. 31, provides that "[e]quality of rights and responsibility under the

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law shall not be denied or abridged on account of sex.” Under this provision, it is well established under

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state law that a government agency cannot discriminate against one gender. The exclusion of men from

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diversion solely because of their sex, without any individualized determination of their qualifications,

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violates Art. 31, § 1. See, for example, Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882, (1975)(held that
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school district and school athletic association were not constitutionally permitted to deny two qualified
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high school girls permission to play football.) “The protections provided by the ERA go beyond those of

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the equal protection guaranty under the federal constitution.” State v. Burch, 65 Wn. App. 828, 836-837

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(1992)(holding State's gender-based peremptory challenges violated this provision.)

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“Under the equal rights amendment, the equal protection/suspect classification test is replaced by
the single criterion: Is the classification by sex discriminatory? or, in the language of the amendment,
Has equality been denied or abridged on account of sex?” Guard v. Jackson, 132 Wn.2d 660, 664

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(1997). In the City Attorney’s office public policy statements, there is no doubt that it wants to punish
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men and not the women involved in prostitution. Simultaneously, it wants to rehabilitate and
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decriminalize the stigma for female prostitutes and increase it for men. This type of gender inequality is

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at the heart of the ongoing sting operations, especially in light of the police and/or prosecutor

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engendered media attention accorded it.

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Motion- Declaration – Memo - 4
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

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Ironically, the very penalty provision for the ordinance that the defendant is prosecuted

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under refers to “diversion.” SMC §12A.10.070(A)(1) provides: “In addition to penalties set forth in

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Section 12A.10.020 and 12A.10.130, a person who is either convicted or given a deferred sentence

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or a deferred prosecution or who has entered into a statutory or nonstatutory diversion agreement

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as a result of an arrest for violating Section 12A.10.020 or 12A.10.130 shall be assessed a fee of
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Fifty Dollars ($50.00).” (emphasis added.) Hence the City Attorney’s office has instituted a policy
of discrimination that is beyond what the City Council legislated or contemplated!
Governmental actions which are applicable only to a particular sex and place an increased

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burden upon one gender on the basis of sex alone, are inherently suspect, and will be subject to strict

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judicial scrutiny. “A compelling state interest must exist to justify such legislation.” Hanson v. Hutt, 83

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Wn.2d 195, 517 P.2d 599, 1973 (1973)(held pregnancy restriction on unemployment benefits was

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unconstitutional.) Here, there is no compelling interest. The City cannot justify this “pivot” against
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men on the basis that previous prosecutors treated the “johns” more favorably than the prostitutes, or
that the prostitutes may have been “victims” themselves. The crime of prostitution has never been a one

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way street where men are the ‘evil exploiters’ and women the ‘innocent victims’ any more than the

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reverse. Both sides need to take responsibility for their actions. And that is undermined by the City’s

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simplistic discriminatory approach.

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Const. art 1 § 3 provides: “No person shall be deprived of life, liberty, or property, without due

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process of law.” The City’s blanket refusal to exercise discretion in determining that all male
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defendants do not qualify for diversion violates constitutional due process. In State v. Pettitt, 93 Wn.2d
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288, 609 P.2d 1364 (1980), the Supreme Court held prosecutors must exercise their discretion. In that
Motion- Declaration – Memo - 5
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

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case the Lewis Count Prosecutors’ Officer had a mandatory policy on filing habitual criminal

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informations with no individualized review. It was remanded for resentencing as an abuse of the

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discretionary power to charge or not to charge a suspect. "In our view, this fixed formula which requires

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a particular action in every case upon the happening of a specific series of events constitutes an abuse of

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the discretionary power lodged in the prosecuting attorney." Pettit, Id. at 296. As to the decision to
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divert a case or not, State v. Ws, 40 Wn. App. 835, 835 (1985) held that a blanket rejection by a
diversionary unit of all juvenile prostitutes was arbitrary and capricious and reversed for individual

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consideration. “In the instant case, the diversionary unit is precluding from diversion an entire class of

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offenders regardless of the individual characteristics of the offender or his behavior. Such an exclusion

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is arbitrary.” Ws, Id., at p. 838. As for a court’s supervisory power, State v. Tracy M., 43 Wn. App.

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888, 891 (1986) rejected the prosecutor’s argument that since diversion is part of the charging function,

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and that function is traditionally reserved to the discretion of the prosecutor, there can be no judicial
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review of the decision to grant diversion or not. “However, we note diversion, even before a charge is
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filed, entails more than the charging function. The ABA Commission on Correctional Facilities and
Services comments:
It is one thing not to charge and let the accused go totally free, but it may be quite
another to withhold a charge, and hence not to invoke the jurisdiction of the court system, on
condition that an uncharged, untried, unconvicted person submit to a correctional program.
State v. Leonardis, 73 N.J. 360, 379, 375 A.2d 607, 617 (1977).” State v. Tracy M., Id., at 891.
It concluded that “the prosecutor's decision is subject to judicial review, albeit of limited scope.

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The courts possess inherent power to review an administrative agency's decision to determine if its
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Motion- Declaration – Memo - 6
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

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conclusions may be said to be, as a matter of law, arbitrary, capricious, or contrary to law.” State v.

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Tracy M., Id., at 891. (internal cites omitted.)

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In this case, the City’s decision to deny pretrial diversion to all men accused here is not only
arbitrary but intentionally discriminatory.

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CONCLUSION

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The Court should Order the City to stop discriminating against men and permit qualified
candidates such as the defendant to apply for diversion.

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Dated this 14th day of July, 2017.

Respectfully submitted:

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_____s/______________________
Robert Goldsmith, WSBA #12265
Attorney for Defendant.

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Motion- Declaration – Memo - 7
Robert W. Goldsmith
Attorney at law
1300 Hoge Bldg.
705 Second Ave.
Seattle, WA 98104
(206) 623-1592

 EXHIBIT 1

http://www.kiro7.com/news/local/in-seattles-approach-to-prostitution-city-attorney-made-apivot/52110039l

In Seattle's approach to prostitution, city attorney made a pivot
by: Natasha Chen Updated: May 10, 2017 - 12:51 A
SEATTLE - For five years, the city of Seattle has touted its unique approach in targeting the
buyers of sex rather than the prostitutes themselves. While the number of cases filed against
prostitutes dropped dramatically in 2012 and 2013, it has increased again slightly in recent years.
KIRO 7 obtained data from City Attorney Pete Holmes' office that shows the number of cases
filed for prostitution and for sexual exploitation since 2010.
Prostitution data for Seattle
Holmes said the increase in prostitution cases in 2014 through 2016 came after his office realized
many women were not seeking the diversion program called LEAD, or Law Enforcement
Assisted Diversion.
''If the defense bar, representing people accused of prostitution, know that we are deemphasizing it, unfortunately they will then recommend clients not even take LEAD as an
option," Holmes said. ''We had to adjust our prosecution policies over time to make sure that
women in the life that want to get out, that need some incentive to get out, that it's not an option
to continue.''
Holmes said he therefore pivoted to use the real possibility of prosecution, as a way of
encouraging people to take advantage of LEAD instead.
Still, the target is on the men who demand commercial sex.
For two years, there has been a ''buyer beware'' program where Internet ads will pop up for
anyone using search terms that suggest possible solicitation of sex.
Holmes told KIRO 7 the measure of success would be twofold: ''One is some of the arrest and
prosecution statistics you've been talking about. Those will vary over time for a variety of
reasons that are not in. our control. The more important measure, I believe, is what I've been
receiving f1 om organizations like the Organization for Prostitution Survivors. For instance, in
essence, the message is out on the street that women in particular, especially if they are in pretty
serious circumstances, know that they can report an assault, for instance -- something that they
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were reluctant to do."

 Alisa Bernard, a former sex worker, said she has also seen an increase in the women seeking
help at the Organization for Prostitution Survivors.
Bernard said she left prostitution about 10 years ago, before the city's approach shifted.
''There was this quiet understanding that we're going to arrest the women, but we're definitely ot
going to arrest the buyer," she said.

Now that the paradigm has changed, she said it has also changed the community perception and
understanding of the women involved in the business. She, as well as most other survivors she
knows, has experienced sexual assault and domestic violence.
She was also initially working with a so-called "boyfriend pimp" before being hired by someone
for a two-year period.
Bernard said that arrest records made it difficult for women to exit that life and be able to rent an
apartment or get a job.

''When you arrest the women within prostitution, you're just creating more barriers to them
exiting," she said.
Holmes said it may take a few years for the policy to show clearer results.

© 2017 Cox Media Group.

City Attorney's Office to go after johns

By I, y r1 r1 'l'l1() 111 JJS() r1
Seattle City Attorney Pete Holmes said his office is trying to increase the number of men
prosecuted for soliciting prostitution while giving prostitutes the opportunity to receive social
services designed to help get them out of the business.

Speaking at a Human Trafficking Awareness Day news conference at Seattle City Hall today,
Holmes said his office is working with the Seattle Police Department to reverse the usual 60-40
prosecution ratio of female prostitutes to male customers.
''Prostitutes are more often than not victims and, in most instances, Seattle Community Court
will be an option for them, coupled with appropriate services," Holmes said.

 Seattle Community Court allows non-violent offenders to avoid criminal sentencing if they
agree to participate in programs aimed at addressing the root causes of their crime, including

chemical dependency, education, unemployment and homelessness. If the offender fails to
complete the treatment plan, the criminal sentence is imposed.
Kelley's journey toward independence (4: 10)
Men prosecuted for soliciting a prostitute won't have that option and even first-time offenders
will face prosecution, Holmes said. Currently, first-time offenders qualify for pretrial diversion
and can pay a fine and complete community service. Holmes said cases against johns are often

harder to prove because the men often speak in code and can raise doubts about their intentions
with a jury.
But, Holmes said, ''As long as we have probable cause, we'll prosecute the cases, even if there's
a risk we won't win."

The City Attorney's criminal division prosecutes misdemeanor crimes punishable by up to one
year in jail. Between January and Aug. 31, 2011, the office filed 187 prostitution cases in Seattle
Municipal Court. In the same period, it filed 79 cases of patronizing a prostitute.
Lynn Thompson: 206-464-8305

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The City Attorneys Office has updated its sentencing recommendations to reflect these findings. As part
of new sente11cing guidelines, first-time buyers of sex are required to attend Joh11 School, a progra1n that
educates buyers of sex about the conditions inflicted upon prostituted people and the harm of their own
actions to the community at large. In addition, collective fines of around $1,300 are routinely levied.
Finally, as a condition of sentencing, convicted buyers must not be subsequently found buying sex, and
will be is-sued orders to avoid certain areas of the City designated as ''areas of prostitution'' by the court.
Repeat offenders will face i11carceration for 10 to 60 days for second offenses a11d 30 to 180 days for third
offenses.

 EXHIBIT 2

LEAD - About LEAD

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Search

About LEAD
• Frequently Asked Questior1s
• LEAD Policy Coordinating Gro11p

• Funders
Law Enforcement Assisted Diversion (LEAD) is a new innovative pilot program

that was developed with the community to address low-level drug and prostitution
crimes in the Belltown neighborhood in Seattle and the Skyway area of
unincorporated King County. LEAD \.Viii divert low-level drug and prostitution
offenders into community-based treatment and support services - including

housing, healthcare, job training, treatment and mental health support -- instead

of processing them through traditional criminal justice system avenues.
A unique coalition of law enforcement agencies, public officials and community
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groups collaborated to create this pilot program, These groups make up LEAD's

Policy Coordir1ating Group, which governs t11e program.
LEAD's goal is to improve public safety and public order, and to reduce the
criminal behavior of people who participate in the program. The program will be
thoroughly evaluated to determine whether it has been successful or not.

Below are frequently asked questions about LEAD. If you have further questions

about the program, please contact us.
What is LEAD?
LEAD is a pre-booking diversion program that allows officers to redirect lowlevel offenders engaged in drugs or prostitution activity to community-based
services instead of jail and prosecution. LEP,D participants begin working
imn1ediately with case managers to access services. LEAD's goals are to

reduce the harm a drug offender causes him or herself, as well as the harm

that the individual is causing the surrounding community, This public safety

http://leadkingcounty.org/about/

6/20/2017

 LEAD - About LEAD

Page 2 of 4

program has the potential to reduce recidivisrr, rates for low-level offenders

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and preserve expensive criminal justice system resources for more serious or

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violent offenders.

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How does LEAD differ from other drug programs?
First. LEAD is the result of a commitment from law enforcement agencies,
public officials, and community organizations to work together in

implementing a new approach to addressing drug and prostitution activity.
Second, the diversion in LEAD is made at the pre-booking stage, in the
hopes of bypassing the costs and time entailed in booking, charging, and

requiring court appearances of an individual. Finally, LEAD provides
participants with immediate case management services, and access to
additional resources not available through existing public progran1s.

Who is eligible for diversion into LEAD?
Individuals who are arrested for eligible offenses within specified boundaries
for Belltown or Skyway may be diverted into LEAD. Eligible offenses include

low-level drug offenses. and engaging in prostitution. individuals who have
certain violent offenses in their criminal history are ineligible for diversion.

Who designed LEAD?
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LEAD is the result of an unusual collaboration among diverse stakeholders.

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Collaborators include the King County Prosecuting Attorney's Office: the

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Seattle City Attorney's Office, the Seattle Police Department, the King County

Sheriffs Office, the King County Executivel the Mayor's Office. The
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Washington State Department of Corrections, The Defender Association, the

i.

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ACLU of Washington. and community members. The collaboration of these

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stakeholders was motivated by a shared dissatisfaction with the outcomes
and costs of traditional drug law enforcement.

Who runs LEAD?

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As noted, LEAD is the result of a collaboration among a number of
stakeholders. All stakeholders are represented on LEAD's Policy

'

Coordinating Group! and the group makes decisions by consensus via a
memorandum of understanding. LEAD is entirely voluntary, and any

!

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stakeholder may choose to withdraw from LEAD at any time.

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!

Who will provide services to LEAD participants?

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LEAD stakeholders have contracted with Evergreen Treatment Services
(ETS) to provide services to LEAD participants. ETS has provided addiction
treatfnent services in Washington for over 30 years, and has been actively

involved in federally-funded research projects. ETS' REACH Program has
been a key provider in the delivery of street outreach services to chronically
homeless and chemically addicted adults in Seattle for 15 years. ETS wilJ

follow harm reduction principles and will attempt to provide immediate access
to services.

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How will we know if LEAD works?
All LEAD stakeholders are committed to evaluating the program rigorously.

The evaluation will consider, among other factors, whether LEAD has

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http://leadkingcounty.org/about/

6/20/2017

 LEAD - About LEAD

Page 3 of 4

resulted in reductions in drug use and recidivism, whether LEAD is n1ore
cost-effective than traditional criminal justice processing: and whether LEAD
has had a positive impact on a community's quality of life.

How much will LEAD cost the City of Seattle and King County?
Nothing. LEAD stakeholders obtained funding from private foundations to
implement the program. Its funders include the Ford Foundation, Open

Society Foundations, Vital Projects Fund, RiverStyx Foundation, Massena
Foundation! and the Social Justice Fund Northwest.

Do community members support LEAD?
Community mernbers strongly support LEAD. LEAD will be piloted first in
Belltown, and then in Skyway (in partnership with the King County Sheriff's

Office). Members of both communities have participated in the program's
design: and will continue to provide feedback about the program. For
example, the LEAD Community Advisory Board in Belltown includes
representatives from the Betltown Community Council. Belltown Business
Association Downtown Seattle Association/Metropolitan Improvement
1

District, Recovery Cafe, YWCA, Plymouth Housing Group, and Millionair
Club Charity. The LEAD Con1rnunity Advisory Board in Skyway includes
representatives from Skyway United Methodist Church: Westhill Community

Council. and Skyway Solutions.
For how long will LEAD be implemented?
LEAD formally began on October 1, 2011. The program is anticipated to run
for two years before an evaluation is begun, and to continue with foundation
funding for an additional two years while the evaluation is conducted and
analyzed. If LEAD is found to be effective. an ongoing source of funding will
be sought.

Have programs like LEAD been implemented elsewhere?
LEAD was inspired by "arrest-referral'' programs in the United Kingdom.
Those programs have recently been implernented in virtually every police
department in the United Kingdom because pilot projects proved to be so

effective.

Pol~_Coo.rdinating_Grouo
LEAD is governed by a Policy Coordinating Group. The group makes decisions
by consensus via a memorandum of understanding. LEAD is entirely voluntary,
and any stakeholder may choose to withdraw from LEAD at any time. The

menibers include:
• Seattle Office of the Mayor

• King County Executive Office
• Seattle City Council
• King County Council

• Seattle City Attorney's Office
• King Cour1ty Prosecuting Attorney's Office

• Seattle Police Department

http://leadkingcounty.org/about/

6/20/2017

 Page 4 of 4

LEAD - About LEAD

• King County Sheriff's Office

• Washington Department of Correctior1s
• Belltown LEAD Community Advisory Board
• Skyway LEAD Community Advisory Board

• The Defer1der Association, Racial Disparity Project
• ACLU of Washington, Drt1g Policy Project

Funders
LEAD is currently operating as a pilot program and is being funded by private

foundations. It is hoped that LEAD will eventually find permanent funding from
public sources. The cost-effectiveness of the progra111 will be studied in detail as
part of the evaluation for LEAD.

Current funders include:
• Ford Foundation

• Open Society Foundations
• Vital Projects Fund

• RiverStyx Foundation

• Massena Foundation
• The Social Justice Fund Northwest

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6/20/2017