The future of misdemeanor prosecutions in Washington state

In recent years, there has been a push among some advocates and policymakers to handle certain types of offenses different in favor of diversion and “restorative” justice that differs from the current system.

It’s a concept that might garner support among state lawmakers and lead to potential legislation, though some local prosecutors stress the need to balance it with reducing crime affecting their cities.

“Public safety is…the number one issue for people from the city of Seattle,” Seattle City Attorney Ann Davison told the House Community Safety, Justice, & Reentry Committee at a Monday work session.

Davison was among several individuals to address the committee on how to handle misdemeanor cases, which constitute roughly 80% of all criminal cases, should be handled based on what they believed to be the root cause of the criminal behavior.

Washington Sentencing Guidelines Commission Chair J. Wesley Saint Clair, a former judge, told the committee that "I want to push the boundaries of ... what I think restorative practices are. Restorative justice can provide ... in transforming our judicial system into a true justice system, one that is humane, evidence-based and focused on healing.”

He added that “our current system is deeply entrenched in a retributive framework” that “not only fails our communities but perpetuates harm. We measure the effectiveness of almost every other governmental service by its outcomes and cost efficiency. Yet when it comes to the criminal legal system, we rely on outdated gut-based reactions and approaches. This has to change.”

However, Rep. Dan Griffey, R-Allyn, wasn’t convinced. “Could you give me one example of how somebody could have restorative justice and accountability? What I'm seeing is very little accountability in Washington State, because everybody wants to get to the restorative justice point before we figured it all out.”

Although Saint Clair clarified that “restorative justice doesn't mean that people don't go to jail,” Harvard Law Professor Alexandra Natapoff touted the results of her 2021 study, which examined Suffolk County misdemeanor prosecutions going back to 2004. The study concluded that defendants who were ultimately not prosecuted for misdemeanor cases were 53% less likely to face a criminal complaint in the next two years compared to those prosecuted.

The study noted that “these local average treatment effects are largest for defendants without prior criminal records, suggesting that averting criminal record acquisition is an important mechanism driving our findings.”

“Many people interpreted the results to mean we should decriminalize non-violent misdemeanor offenses,” Natapoff told the committee. “That is not how I interpret our results. Having your case dismissed during the arraignment hearing does help you avoid a criminal record and future punishment, but it doesn't mean you faced no consequences for your crime.”

Natapoff told the committee that “sometimes, the temptation is to underestimate misdemeanors as petty or minor, but they are, in fact, central to the identity and the integrity of our entire criminal system."

She added misdemeanors are “the way that most Americans will encounter our criminal system, typically, almost by definition based on minor conduct for crimes of poverty and offenses related to substance abuse.”

Natapoff also emphasized the cost of prosecuting cases for both the justice system.

“It can be devastating for the individual defendant who may lose their liberty, their job, their car, their wealth, their money, their resources, their credit, their government benefits, their immigration status," she said. "These burdens in turn affect people's families and their communities.”

While favoring custodial and community behavioral treatment to help reduce misdemeanor recidivism, Davison noted to the committee that Washington state ranks number one in the nation for retail theft, saying if “we don't address misdemeanor property crime” then “it is shifting over into just the general society" and would lead to "the increase cost of goods and ... the loss of jobs and retail employers and our locations.”

Although not considered a violent crime and classified as a misdemeanor, Davison said that theft “it is driving up costs of goods, is driving away employers, and it is making workplace unsafe for those employees that work in retail. It is significant when we're talking about where is the shifting of costs from a monetary standpoint. It is to me one of the main reasons why we've had a large exodus of downtown retailers in the city of Seattle.”