Despite the shift in rhetoric, the City Attorney’s Office may not have changed as much under Ann Davison as you’d think.
by Guy Oron
(This article was originally published on Real Change and has been reprinted under an agreement.)
When Seattle City Attorney Ann Davison took office, she pledged to bring “quiet, behind-the-scenes” leadership and integrity to the law department. Her election was hotly contested, narrowly beating out abolitionist public defender Nicole Thomas-Kennedy in what many perceived to be a conservative “backlash” election.
After the election, the one-time Republican lieutenant governor candidate became an early backer of Mayor Bruce Harrell’s “Operation New Day” to tackle visible homelessness and poverty, meeting with business owners in Little Saigon and Westlake and pledging to increase prosecutions in order to “disrupt the cycle of addiction, theft, drug sales, and human suffering.”
As part of this renewed focus on the criminal legal system, Davison instituted a number of policy changes to the City Attorney’s Office (CAO), including reducing the filing deadline for non-domestic violence charges to five business days and introducing the “High Utilizer Initiative” (HUI), a program targeting about 100 people who are disproportionately involved in the criminal legal system. Davison’s team believed that these so-called “high utilizers” of the legal system were responsible for a “disproportionate impact” on the city’s public safety.
Many of Davison’s new policies have made headlines over the past year, with some criticizing her for cracking down on people experiencing poverty and mental illness. Yet others pointed to a broad continuity: that the CAO in 2022 was prosecuting Black, Indigenous, and poor people at similarly disproportionate rates as her more moderate predecessor, Pete Holmes.
In some ways, Davison’s tough-on-crime rhetoric didn’t fully align with her policy positions, which resembled a post-coronavirus return to the status quo more than a definitive lurch to the right. For example, to clear the 5,000 case “backlog” of charges referred to the CAO from the Seattle Police Department (SPD), the office quietly dismissed thousands of old cases in the spring and fall of 2022. Similarly, Davison recruited Natalie Walton-Anderson, an attorney with a more progressive reputation who has worked in the offices of the King County prosecutor and U.S. District Attorney.
In light of these myriad trends, Real Change produced this retrospective into Davison’s first year in office to try to understand the state of Seattle’s misdemeanor criminal legal system after one year in office.
Davison agreed to answer written questions by email but was unable to provide them by press time. Real Change has published her responses in a web article online.
After 12 years of Holmes’ leadership at the CAO, many staff attorneys at the department were accustomed to stability. However, when he failed to win a fourth term in the August 2021 primary, employees began to fear for their future careers. The stark ideological divides between a Republican and an ardent abolitionist led some to wonder if they would have a future at the law department after the election. So when Davison won her election, her first task as city attorney was to stem the tide of desertions.
While observers may have been skeptical of Davison’s lack of experience as a trial lawyer or elected official, she managed to mitigate the chaos at the law department fairly quickly, in part by hiring temporary staff such as former Trump-appointed U.S. Attorney Brian Moran to help handle the leadership transition.
By March 2022, the CAO had a clear policy direction with the introduction of the HUI. Davison’s deputy Scott Lindsay has long been a critic of people who get caught up in the cycle of criminalization. A public safety advisor to disgraced former Mayor Ed Murray who lost to Holmes in the 2017 city attorney race, Lindsay made headlines in 2019 after publishing two reports analyzing the impact of “repeat offenders” on the city. Much of this work has been directly translated into the HUI, albeit with a gentler, more obfuscated term of “high utilizer.”
To implement the HUI, the CAO signed a new contract with the King County jail, reserving 20 cells for the jailing of high utilizers that cost the City more than $100 per person per day. Davison has also had to face down opposition from the Seattle Municipal Court (SMC). In April 2022, the CAO wrote a letter to Judge Damon Shadid — the architect of the SMC’s community court, an alternative system that offers people charged with misdemeanors non-punitive options to resolve their cases — to ask the court to exclude people targeted by the HUI from participating in community court.
Shadid initially opposed the suggestion, saying that community court should be open for all. Eventually the SMC relented, agreeing to Davison’s request. It’s unclear if the court had much of a choice — PubliCola reported that because the CAO had control over all misdemeanor charges filed by the City, the office could effectively kill community court entirely if it chose to by not allowing any diversion to the “therapeutic court.”
The biggest change between Davison’s first year and Holmes’ last is arguably the large increase in prosecutions. According to SMC filing data, the total cases prosecuted by the CAO increased by nearly 65% between 2021 and 2022, from 3,503 to 5,775. The number of individuals prosecuted also increased by nearly 25%, with many people receiving more than one charge.
This surge in prosecutions is in part due to the disruptions of the COVID-19 pandemic. In 2020 and 2021, the number of charges filed dropped dramatically. Though 2022 prosecutions were higher than the previous two years, they were still lower than in 2019. Much of the decline was due to the CAO not making a decision on many cases, which the department dubs “the backlog.”
One of Davison’s key priorities as city attorney has been addressing these roughly 5,000 outstanding cases that lay inactive without a decision of whether or not to file charges or dismiss. The CAO argued that a lack of speedy resolution of charges led to disillusionment from victims of crime, who would lose faith in the system if their cases were left to languish for months or even years. However, some critics have argued that the new restrictive filing deadline might also lead to the CAO prosecuting weaker cases because of the limited time staff attorneys had to collect evidence.
So far, it appears that the filing deadline hasn’t had a conclusive impact on the rate of guilty and not-guilty verdicts in the SMC. As has been the case for years, the vast majority of cases result in plea deals. In cases that end up with trials, roughly 60% of cases resulted in a guilty verdict, while 40% were not guilty — similar to pre-2020 rates. A notable exception is the fourth quarter of 2022, when the guilty rate spiked to more than 80%. For much of the pandemic, guilty rates remained above 80%, suggesting perhaps that the CAO was more selective in which charges it decided to file or bring to trial.
Driving the increase in prosecutions were theft, first degree trespass, DUI, and assault cases. By far, theft prosecutions had the highest increase, with the number of cases filed more than doubling from 446 to 1,076. Assault, which was the single-most prosecuted crime in the SMC in 2022, rose at a slower rate, from 1,012 to 1,230.
Additonally, between 2021 and 2022, prosecutions against drivers under the influence of intoxicants rose from 257 to 498, first-degree trespassing cases rose from 288 to 493, property destruction charges more than doubled from 157 to 335, and harassment filings increased from 200 to 332.
Black and Indigenous people were disproportionately prosecuted in both 2021 and 2022. Black people make up 7.1% of the city’s population, but constituted 32.2% of defendants in Seattle Municipal Court in 2022 and 31.3% in 2021. Indigenous people, who make up 0.5% of Seattle’s population, made up 2.3% of all defendants in 2022 and 2.1% in 2021. These racist disproportionalities remained remarkably consistent between 2021 and 2022, indicating that simply increasing or decreasing the number of prosecutions as a whole will not necessarily lead to less racism in the criminal legal system.
The SPD’s role in referring cases to the CAO may be central to explaining why the levels of racial disproportionality are so high. Last year, Real Change reported that the CAO’s racial disproportionality in filings mirrors that of the police department. So while the city prosecutor may not be actively combating racist bias within the system, police officers are responsible for targeting Black and Indigenous people for criminal referrals at astoundingly disproportionate rates.
Poor people were also disproportionately prosecuted by the CAO. In 2022, 83.9% of defendants at the SMC were represented by public defenders, compared to 15.9% with private representation. In 2021, the numbers were a little more even, with 80.2% of people qualifying for public defenders and 19.8% having private representation — though these numbers are incomplete because about 500 defendants had unknown representation type, according to the SMC filing data obtained by Real Change.
To qualify for public defense, a person must receive public assistance, be involuntarily committed to a mental health facility, have a household income of less than 125% of the federal poverty line, or otherwise not have funds to hire an attorney.
The King County Department of Public Defense (DPD) has denounced the CAO’s approach to prosecution during Davison’s tenure, setting up a Twitter account at @CourtWatchSMC called “Seattle Municipal Court Watch” to monitor cases when the CAO has filed charges against poor residents and people experiencing mental health illnesses. Notable cases that the DPD has highlighted include prosecution of people for stealing paper towels, selling cigarettes without proper licensing, sleeping under a tarp in a business parking lot, and staying in a building slated for demolition to stay warm. These selected anecdotes seem to align with the data, which shows that the vast majority of SMC defendants rely on public defense.
DPD Director Anita Khandelwal wrote to Real Change that the inequities within the criminal legal system are longstanding and predate Davison.
“The criminal legal system is ineffective, is racially disproportionate, and undermines public safety, no matter who is at the helm in the Seattle City Attorney’s Office,” she wrote. “That’s true today; it was true a year ago; it was true five years ago. Seattle Municipal Court disproportionately ensnares those who are Black and brown, those who are poor and unhoused, those who suffer from behavioral disorders or mental health disorders.”
However, while there is significant continuity, Khandelwal affirmed that under Davison’s tenure issues of inequity have intensified.
“That said, the harms of the system have deepened under the current administration at [the CAO],” Khandelwal wrote.
Khandelwal said that increased prosecution has not made Seattle communities safer and that her department’s clients need homes, medical and mental health care, and financial support instead of involvement in courts and jails.
Not So Tough?
Davison’s rhetoric during her first year in office has certainly been tough, repeating decades-long talking points that argue incarceration is a key component of maintaining public safety. However, not all of her policies have been so harsh.
For starters, Davison has largely stayed the course when it comes to the City’s pre-filing diversion programs, which provide people charged with certain crimes an opportunity to not be further involved in the criminal legal system and to access services instead. These include programs for young adults and people who drive with a suspended license in the third degree.
In December 2021, the City Council considered imposing restrictions on the CAO to maintain these diversion programs, but later relented after opposition from Davison. Instead, the council requested that the CAO file regular reports on the impact of its diversion programs.
In May 2022, Real Change reported that the CAO had established a new pilot diversion program with Gay City to support a limited number of young people between the ages of 18 and 25, a project that was negotiated at the end of Holmes’ administration. While Davison can’t take credit for the start-up of this third diversion program, its existence shows that the CAO wasn’t taking a solely carceral approach in 2022.
One of Davison’s biggest accomplishments in 2022 was the slashing of the backlog from a high of more than 5,000 to fewer than 2,000. However, this was not accomplished through increased prosecution but dismissing thousands of old cases.
In April, the CAO announced the dismissal of nearly 2,000 low-level misdemeanors, resulting in the number of outstanding cases dropping to less than 4,000 by August. Then, between October and December of 2022, the CAO dismissed thousands more, claiming that these old cases were “un-fileable.” Contrary to the boisterous language of cracking down on crime, Davison’s signature campaign promise of cutting the backlog was achieved by declining to file charges.
An Unjust Status Quo
While the criminal division was a major focus of the 2021 city attorney race, the majority of the CAO’s budget is dedicated to the civil division, which is responsible for defending the City from lawsuits, providing the City Council and mayor with advice and handling a variety of day-to-day legal matters for the City.
This section of the CAO was relatively low-profile and shied away from controversy. A notable exception is when the Human Rights Commission tried to seek friend-of-the-court status in the Seattle consent decree with the Department of Justice over unconstitutional policing practices. The South Seattle Emerald reported that commissioners accused the CAO of trying to bully them into reversing course.
Davison has also begun to hit her stride when it comes to activist litigation, though with her own conservative, anti-property-crime perspective. In January 2023, the CAO announced that it was suing Kia and Hyundai for creating a public safety hazard by failing to install proper security measures on some vehicles, leading to an exploit that went viral on social media and was allegedly responsible for an increase in car thefts.
Davison’s tough-on-crime rhetoric may have also inspired a progressive counter-backlash. In November 2022, Democrat Leesa Manion won the election for King County Prosecuting Attorney, beating out populist Federal Way Mayor Jim Ferrell. The decisive 15-point victory was largely due to Seattle voters, who voted overwhelmingly for Manion. Seattle voters also re-elected Shadid and elected public defender Pooja Vaddadi to the SMC bench, both of whom campaigned on less carceral approaches.
However, for many community members, the status quo is still far too oppressive.
In the winter and spring of 2022, the Northwest Community Bail Fund (NWCBF) held a 60-day court watch at SMC to observe how prosecutors and judges were requesting and granting bail for misdemeanor offenses. The organization, which fundraises to give defendants who cannot afford bail an opportunity to be released before trial, found that there were racial disparities in the percent of defendants who had no bail imposed on them, with 53% of white defendants not having bail imposed, while only 45% of Black or African American defendants received similar treatment. NWCBF concluded that “these findings make it clear that racial disparity is in fact present.”
Chanel Rhymes, the director of advocacy at NWCBF, said that the legal system is causing harm by locking up defendants just because they can’t afford to pay bail. At SMC, which only deals with misdemeanors, this means that poor defendants are forced to live in the derelict conditions of King County jail. Prosecutors like the CAO have broad latitude on whether to request bail.
For better or for worse, Seattle City Attorney Ann Davison seems to be leaving her mark on Seattle’s criminal legal system. It remains to be seen whether she will make a more definitive break with the Holmes administration in the coming years. However, advocates such as Rhymes are calling for the City to actually tackle the root causes of public safety issues instead of continuing with carceral policies, which she claims are ineffective.
“What we’re doing is that working, investing more money on police is not going to help,” Rhymes said. “People need services; people need housing; people need mental health care; people need adequate health care. Really the ultimate thing is housing: You can’t combat any other issue if people do not have a safe place to lay their head at night. And that’s something that we have got to understand as a society: People should have a right to have a home, to have a safe place to live.”
Real Change has published Ann Davison’s responses to written questions in a web article online.
Guy Oron is Real Change’s staff reporter. A Seattleite, he studied at the University of Washington. Guy’s writing has been featured in The Stranger and the South Seattle Emerald. Outside of work, Guy likes to spend their time organizing for justice, rock climbing, and playing chess. Find them on Twitter @GuyOron.
📸 Featured Image: (Illustration courtesy of Real Change.)
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