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Friday, February 27, 2009

Legislation to allow cities to recoup criminal justice costs falls victim to first session cutoff

Earlier this week, the first cutoff deadline of the 2009 legislative session came and went, leaving behind a lot of dead bills in its wake. One of those bills was HB 1823, which would have allowed a city to recover the costs of prosecuting cases that meet the statutory definition of felony in certain circumstances.

HB 1283 was sponsored by Representatives Larry Springer and Roger Goodman, among others. I mention Larry and Roger specifically, as they happen to be my Representatives from NPI's home district (the 45th) and I want them to get the credit they deserve for bringing the idea to the table.

[Disclaimer: I work for the City of Seattle in my professional life. I drafted the language in HB 1823 at the request of the Association of Washington Cities in my professional capacity. I am writing this post in my private capacity, and as a resident of an Eastside city. It reflects my own personal views, and not those of the City of Seattle, any agency or department within the City of Seattle, or any elected official of the City of Seattle.]

Hopefully this bill will be reintroduced next legislative session. In the meantime, I'd like to explain why it's good legislation.

First, here's a bit of general background and historical context.

County prosecutors prosecute all felony cases within the county, and all misdemeanor and gross misdemeanor cases within unincorporated county areas.

They prosecute in the name of the state, and, with some technical exceptions, bring charges under state law, which is codified in the Revised Code of Washington.

(Felonies are punishable by more than one year in prison; misdemeanors are punishable by up to 90 days in jail; gross misdemeanors are punishable by at least 91 and no more than 365 days in jail. For purposes of this post, I'll use the term "misdemeanors" to refer to both misdemeanors and gross misdemeanors.)

City prosecutors prosecute misdemeanors occurring with the city. They prosecute in the name of the city, and bring charges under city codes.

For the most part, city criminal codes define misdemeanor crimes that are similar to their state counterparts.

In the early to mid 1990s, some cities hit upon what to them seemed a great cost-cutting idea. They either refused to adopt criminal codes at all, or they adopted some less costly criminal codes but left out the difficult or expensive ones, such as domestic violence. That left the counties to prosecute what were essentially city misdemeanors, at county expense.

The counties finally woke up to the fact that some cities were shifting prosecution costs to the county. The counties went to the Legislature, which passed RCW 39.34.180(1), which essentially makes cities and counties responsible for their respective criminal prosecution costs.

Consequently, a city that decides not to adopt a criminal code or to prosecute misdemeanors occurring within city limits has two choices: pay the county for doing the work, or do the work themselves.

That provision made, and continues to make, good sense. It is not fair for cities to pass off their criminal justice costs to the county.

For the next twelve years or so, everything seemed to work okay. But the budget-generated massive cuts in county programs have shaken things up a bit. Some counties, such as King County, have suffered huge deficits, and have cut funding for the County Prosecutor's office. The King County Prosecutor has had to lay off prosecutors and change its charging practices.

The changes affect the prosecution of theft, malicious mischief (think property damage), forgery and certain types of similar crimes involving property in which the value of the property is $1,000 or less are now being referred directly by law enforcement to municipal or district courts as misdemeanor offenses.

The law currently provides that any of these crimes involving more than $250 is a felony. The practice for years had been to refer these property crimes to municipalities if the value was $500 or less.

(As an editorial aside, Seattle is required by statute to have its own municipal court and to prosecute all misdemeanors occurring within its city limits. Consequently, Seattle did not pass along its costs to the county.)

That policy essentially reduces to misdemeanors crimes the legislature has determined are serious enough to be felonies.

That poses some huge questions about how counties use resources.

But from a purely economic standpoint, the counties are doing to cities precisely what the cities were doing to the counties in the 1990s - passing along criminal justice costs to another entity by inaction. It was improper for cities to do that in the 1990s and it is improper for counties to to that today.

HB 1823 would require counties to reimburse cities for handling county "declines" that are based on budgetary filing guidelines rather than proof issues.

(A "decline" is a decision by a prosecuting entity, whether county or city, not to file charges. Cases can be declined for many reasons, but usually it involves proof problems of one sort or another.)

In other words, if a county declines to file a felony theft and instead refers it to the city, the county would have to reimburse the city if the declination is based on the county's filing standards rather than on a proof problem (such as difficulty proving that the value of stolen property exceeded the felony amount). In the alternative, the county could contract with the city to handle such cases.

Counties are understandably concerned about unintended consequences or disagreements in the interpretation of 1823’s language. But those concerns can be addressed by amending the bill with counties and cities at the table.

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