Peter S. Holmes, City Attorney

October 30, 2020
Seattle City Council President M. Lorena González
Seattle City Councilmember Lisa Herbold
Seattle City Councilmember Debora Juarez
Seattle City Councilmember Andrew Lewis
Seattle City Councilmember Tammy Morales
Seattle City Councilmember Teresa Mosqueda
Seattle City Councilmember Alex Pedersen
Seattle City Councilmember Kshama Sawant
Seattle City Councilmember Dan Strauss
Seattle City Hall
600 4th Avenue, 2nd Floor
Seattle, WA 98104
Via email
Dear Councilmembers:
I am writing regarding the proposal to redefine the terms “duress” and “de minimis” to
create new means of defense for certain misdemeanor-level offenses rooted in poverty,
behavioral health crises, or substance abuse. I understand model language was developed
by the King County Department of Public Defense (DPD) in partnership with other
advocacy organizations, and some of that content may inform a forthcoming refined
proposal to be sponsored by Councilmember Herbold. DPD’s model legislation has
received significant attention over the past few days, so in the interests of transparency
and candor I am writing all of you to share my and my office’s thoughts and suggestions
regarding this proposal. These legislative decisions are yours to make, and I hope my
perspective provides you some insight that may help shape your decisions should you
decide to adopt a bill.
This letter reflects my policy input regarding this proposal, not my office’s legal advice,
so we do not consider it attorney-client privileged. My attorneys are always available to
provide privileged legal advice regarding any proposed legislation through a separate
communication.

SEATTLE CITY ATTORNEY’S OFFICE
701 FIFTH AVENUE, SUITE 2050, SEATTLE, WASHINGTON 98104-7095
(206) 684-8200 FAX (206) 684-8284 TTY (206) 233-7206
an equal employment opportunity employer

 Page 2
First, several of the provisions in this bill codify what my office already practices. Since I
became City Attorney in 2010, I have worked to move the City Attorney’s Office away
from prosecuting property crimes that appeared to be committed out of survival necessity;
for example, no city prosecutor is interested in sending an impoverished new parent to jail
for stealing baby food. It’s not only a just choice by prosecutors, it’s also one reenforced
by Seattle jurors who are loath to convict for crimes committed out of pure necessity. I
have also long supported efforts to divert defendants with behavioral health issues to
appropriate treatment rather than traditional prosecution when there is evidence that
treatment may help address the defendant’s behavior.
My office has made great strides in expanding diversion opportunities, thanks in large part
to our strong collaboration with DPD, the Seattle Municipal Court, and community
stakeholders. While codifying many of the elements in DPD’s proposal isn’t necessary to
continue reducing traditional prosecution and expanding diversion opportunities, I can
appreciate your interest in adding permanency to the way Seattle approaches prosecution
alternatives. Thank you again, Councilmembers, for recently allocating my office funding
to conduct a racial equity toolkit to expand pre-filing diversion opportunities to those older
than 24-years-old.
I do have concerns that other elements of DPD’s draft proposal could negatively impact
our existing diversion efforts and our specialty court programs such as Mental Health
Court and Veterans Treatment Court. However, with some revisions, which I discuss
below, I believe you could make constructive additions to Seattle’s criminal legal code.
Currently, the proposal treats both “meeting an immediate basic need” and “experiencing
symptoms of a behavioral health disorder” the same. We suggest treating them separately
because in the courtroom context poverty and mental health issues present distinct
challenges.
We believe “meeting an immediate basic need” is best structured exclusively as an
affirmative defense that a defendant can raise at trial, while “experiencing symptoms of a
behavioral health disorder” is better structured as a diversion alternative that a judge can
order where certain criteria are present. When a behavioral health crisis causes a person to
assault a stranger, dismissing the case without the judge also directing the person to
treatment could potentially leave that person’s unique condition unaddressed. A new
statutory diversion structure would better complement Seattle Municipal Court’s existing
mental health programs and, in our view, better serve defendants.
We also suggest removing the amendments to the “de minimis infraction” section of the
Seattle Municipal Code – that section is a little-used provision stemming from
amendments to the Seattle Municipal Code in the early 1970s with no parallel in
Washington state law, and the concepts raised in the proposal could be better implemented
with different statutory structure.

SEATTLE CITY ATTORNEY’S OFFICE
701 FIFTH AVENUE, SUITE 2050, SEATTLE, WASHINGTON 98104-7097
(206) 684-8200 FAX (206) 684-8284 TTY (206) 233-7206
an equal employment opportunity employer

 Page 3
For the “meeting an immediate basic need” defense, rather than amending the existing
“duress” affirmative defense, we suggest the common law “necessity” affirmative defense
be codified into the Seattle Municipal Code. The necessity defense, the elements of which
are as follows (taken from Washington Pattern Criminal Jury Instruction 18.02), largely
addresses the issues raised in the proposed additions to the “duress” defense:
(1) the defendant reasonably believed the commission of the crime was necessary
to avoid or minimize a harm; and
(2) the harm sought to be avoided was greater than the harm resulting from a
violation of the law; and
(3) the threatened harm [to the defendant] was not brought about by the defendant;
and
(4) no reasonable legal alternative existed.
On the mental health provisions, we recommend removing the “experiencing symptoms of
a behavioral health disorder” language from the proposed affirmative defense and “de
minimis” sections and instead placing it within a new statutory diversion structure, which
could formalize an approach similar to that already used by Seattle’s therapeutic Mental
Health Court and Veterans Treatment Court. We suggest structuring this so a defendant
could ask a judge to order diversion (with treatment) in lieu of prosecution (i.e., with
dismissal of charges upon completion of a diversion/treatment program) if the defendant
can establish that (1) the facts underlying the elements of the charged offense were a result
of the defendant experiencing symptoms of a behavioral health disorder, (2)
diversion/treatment in lieu of prosecution is reasonably likely to address the defendant’s
conduct that led to the charges, (3) diversion/treatment in lieu of prosecution does not
present a demonstrated risk to public safety, and (4) a suitable diversion/treatment
program is available. We recommend including the Municipal Court (along with the CAO
and DPD) in discussions regarding the specifics of this language and identifying
appropriate diversion/treatment programs.
We believe restructuring DPD’s proposed legislation along these lines would keep it
consistent with the spirit of the proposal while setting it up to function more practically
and effectively within the Seattle Municipal Court’s structure. More important than any
legislation you could adopt or amendment I could recommend is that resources must be
provided to assist individuals with the underlying issues that led to them to committing the
crime. Whether the funds are federal, state, county, local, or philanthropic, there is a very
real need. My office has been in dialogue with DPD regarding their proposal earlier this
week, and we are happy to participate in further discussions with Councilmembers and
staff, DPD, the Municipal Court, and all other stakeholders as these concepts develop.
Very truly yours,

Peter S. Holmes
Seattle City Attorney
SEATTLE CITY ATTORNEY’S OFFICE
701 FIFTH AVENUE, SUITE 2050, SEATTLE, WASHINGTON 98104-7097
(206) 684-8200 FAX (206) 684-8284 TTY (206) 233-7206
an equal employment opportunity employer

 Page 4

cc:

Director Anita Khandelwal, King County Department of Public Defense
Presiding Judge Willie Gregory, Seattle Municipal Court
Judge Faye Chess, Seattle Municipal Court
Judge Andrea Chin, Seattle Municipal Court
Judge Anita Crawford-Willis, Seattle Municipal Court
Judge Adam Eisenberg, Seattle Municipal Court
Judge Catherine McDowall, Seattle Municipal Court
Judge Damon Shadid, Seattle Municipal Court
Mayor Jenny Durkan

SEATTLE CITY ATTORNEY’S OFFICE
701 FIFTH AVENUE, SUITE 2050, SEATTLE, WASHINGTON 98104-7097
(206) 684-8200 FAX (206) 684-8284 TTY (206) 233-7206
an equal employment opportunity employer