Addressing the Historic Backlog Created by COVID-related Court Slowdowns
On March 1, the King County Prosecuting Attorney’s Office took additional steps to address the historic backlog of charged court cases awaiting trial that was caused by the COVID-19 pandemic. The backlog was highlighted last month in our presentation to King County Council.
In that presentation, Prosecutor Dan Satterberg and Dan Clark, Chief of the Criminal Division, sounded the alarm about the backlog of serious charged felony cases awaiting trial or resolution. You can watch video of that hearing here, starting at 43:00. This pandemic-caused backlog is not unique to King County: the same backlog problems are being seen across every county in the nation. (Here are some recent examples in Texas, Indiana, South Carolina, Tennessee, Georgia and Maine.)
In their testimony, they explained how the impacts of COVID have stretched Prosecuting Attorney’s Office (PAO) staff far beyond overcapacity. No immediate solutions were discussed at that meeting, but King County Councilmembers expressed support for providing additional resources to help the PAO and the criminal justice system dig out of the COVID backlog. In the last King County budget, which was affected by the pandemic, our office budget was decreased by approximately $1 million. We are hopeful that the King County Council can provide assistance, and we plan to meet with them again in March.
There are three ways a criminal case leaves the system:
- Guilty pleas
- Bench warrants
- Trials
All three exits have been significantly impacted by COVID-19 restrictions, made separately from our office. That means cases we have already filed are awaiting resolution.
While King County Courts and prosecutors have been taking steps for remote hearings and moving forward following public health guidelines, 2020 saw only a fraction of the trials in a normal year. Between March and November there were 24 criminal jury trials completed in King County Superior Court — and that’s the highest number we’ve seen in the nation for a county court.
Each day, we continue to file felony cases because we do not ignore serious felony crimes — especially when they’re committed by prolific offenders. Each case that’s referred from police is reviewed individually. Here is a random sample of each felony case we filed over three days in February, which shows the seriousness of the types of cases we handle daily.
Some of the most serious cases — murders, rapes, felony domestic violence — have suspects who have been ordered held in jail. Other defendants have been released by judges. That decision in each case ultimately is up to a judge. Despite the increasing number of cases awaiting resolution, the King County Jail numbers have remained consistent since the start of the pandemic with lower numbers based on Public Health guidelines and the Executive’s direction.
At the same time—in part due to the effect COVID-19 has had on our economy — the King County Prosecuting Attorney’s Office has been asked to do more with less. Rather than add prosecutors and staff, our office was required to take a significant budget shortfall — forcing us to make even tougher choices as to the cases we can address. We are prioritizing violent crimes, weapons crimes, domestic violence, sex crimes, homicides, and repeat offenders.
Despite the lack of criminal trials, we have not stopped filing cases to hold defendants accountable — in violent crimes and other felony cases. In 2020, we’ve seen increases in gun crimes, murder cases, domestic violence, animal cruelty, and other felony-level crimes. The pandemic has led to an unusual surge in violence.
For context, our criminal justice system typically has an average of 3250 pending felonies. We now have over double that number. And of those pending felony cases, nearly 3,000 are “more serious” offenses, including nearly 200 murder cases. We would be remiss if we did not take action to focus our limited resources on these more serious cases.
Taking Action to Help Address the Backlog
Our office is assisting the Executive’s Office in developing a pre-filing diversion program (Community Diversion Program) which is slated to go live in late 2021 or early 2022. This effort started in 2020.
The general plan is to divert some people with first time low-level qualifying property and drug offenses into culturally-competent community-based programs where they can still be held accountable in a manner that reduces recidivism and addresses their underlying needs. The program will be limited and will not include people with repeat offenses or people suspected of violent or sexually motivated crimes. The program is also being designed to ensure that property victims can be made whole for their out-of-pocket losses up front. We will continue to share updates as the planning progresses.
While the CDP will ultimately help address some of the high volume of cases, due to the pressures borne by COVID-19, the criminal justice system cannot wait for that program to be fully developed and implemented. (Also, the program will require newly committed cases once it is operational so it can be most effective). As a result, we have undertaken an individualized analysis of all of our lower level cases, both currently pending and awaiting filing, to identify where immediate action can be taken. Through this process, we have identified some cases that will either be allowed to plea to lesser charges with restitution still ordered, dismissed without prejudice (meaning they can be refiled later), or declined. This review has been overseen by multiple senior leaders in our office.
In addition, we recognized that the dollar value thresholds in our filing standards for property crimes have not been updated since 2008 and have never been adjusted for inflation. We will continue to charge those cases, through the filing threshold for certain property crimes will increase from $1000 to $2000. This is the first increase to adjust for inflation in 13 years. As we told investigators, we have exceptions built into our filing and disposition standards for certain types of cases/situations and are always willing to discuss exceptions with detectives. Based on our analysis, this should not impact a large number of cases, and those cases may be handled by municipal prosecutors.
So far, we have identified about 100–150 cases for dismissal and an additional 148 cases that can be handled with plea offers or as misdemeanor. But we know those number will be increased by the State Supreme Court’s decision on drug possession cases. Additional details are in the Q-and-A below.
Note that for a system that has over 6,500 pending felony cases, this is a very small percentage. But every bit counts with a historic backlog caused by the pandemic.
In order to be as transparent as possible, our office sent a message internally and also notified police chiefs in all 39 King County cities, and notified the Department of Public Defense that these interim filing and disposition standards are necessary to help alleviate some of the pressures on the system.
Again, this will be limited and will not include people with repeat offenses or people suspected of violent or sexually motivated crimes. Each case will be reviewed individually. Case outcomes will be made public in each specific case file.
We will also retain the ability to refile cases should a person reoffend.
These decisions have not been made lightly. In short, we have tried to do the least harm while preserving our ability to prosecute the more serious offenses. We have an obligation to the victims we serve to make these tough choices and we are committed to doing so.
We also have told each of the 39 police agencies in King County that if investigators have any questions about a case that we’ve taken these actions on, they’re encouraged to reach out to our office to discuss them. We always are willing to put an extra pair of eyes on any decision we make to ensure the health and safety of our community.
Below is a Q-and-A on how we are addressing the case backlog created by the court-ordered delays in response to the Covid-19 pandemic:
How many felony cases are waiting for resolution in King County?
For context, our criminal justice system typically has an average of 3,250 pending felonies. We now have over double that number. And of those pending felony cases, nearly 3,000 are “more serious” offenses, including nearly 200 murder cases. More serious includes crimes with guns, domestic violence, crimes against people and several repeat offenders. We would be remiss if we did not take action to focus our limited resources on these more serious cases.
Did the King County Prosecuting Attorney’s Office stop preparing criminal cases for filing?
No. Despite the lack of criminal trials, we have not stopped filing cases to hold defendants accountable — in violent crimes and other felony cases. This year we’ve seen increases in gun crimes, murder cases, domestic violence, animal cruelty, and other felony-level crimes. The pandemic has led to an unusual surge in violence. Here is a random sample of each felony case we filed over three days in February to show the seriousness of the kinds of cases we file daily.
Is this happening elsewhere?
Yes, the same backlog problems have been seen across every state in the nation. The backlog caused by the pandemic is not unique to King County. Here are a few examples from Texas, Indiana, South Carolina, Tennessee, Georgia and Maine.
Are the court-ordered case delays expected to continue?
Yes. Court slowdowns are decided by judges in King County — not by our office — and are based on public health guidelines. As long as in-person jury trials are limited because of the pandemic, we expect the backlog of charged cases waiting for a resolution to grow — even with our efforts to promote hearings via Zoom and other digital platforms.
Do you have an additional budget to address this?
No — rather the opposite. In addition to this historic backlog created by pandemic, the Prosecuting Attorney’s Office adopted budget decrease of approximately $1 million over the next two years. We are faced with doing more with less. We are hopefully that the King County Council can provide assistance and plan to meet with them again in March.
So how are cases selected for possible dismissal?
Senior leaders within our office have worked diligently to ensure that the only eligible cases will be ones where:
1. the defendant does not have any felony criminal history,
2. there is no restitution owed to a victim, and;
3. the defendant has spent a number of months in the community with no additional felonious activity.
In this way, the KCPAO seeks to ensure that the impacts to individual victims and the broader community will be minimized. Each case is being reviewed individually by senior leaders in the King County Prosecuting Attorney’s Office, and each law enforcement agency in King County has been told to please reach out if they have specific concerns about a case or in general.
How many cases are affected by the State Supreme Court’s decision regarding drug possession cases?
About 400 pending cases. Many will be dismissals after the Washington State Supreme Court declared RCW 69.50.4013 unconstitutional. Here’s more information on that, and details on recent jail bookings affected by the decision.
How many cases have dismissal options?
So far, we have identified about 100–150 cases for dismissal and an additional 148 cases that can be handled with plea offers or as misdemeanor. But we know those number will be increased by the State Supreme Court’s decision on drug possession cases.
Are people being released from prison?
No. The decision to release people from prison in April 2020 was done by the Department of Corrections, which is separate from our office. That’s not what we’re talking about here. Our Sentence Review Unit is separate and was planned pre-COVID.
Are you just giving up these cases?
No. These cases were prepared for filing. Each case is being reviewed by a senior-level prosecutor before any decision. We also have the option in most cases to re-file the case at any point during the statute of limitations for the crime.
What’s happening to victims?
Each of the cases selected are ones where there is no restitution owed to a victim.
Will cases for people with a repeat violent felony history be dismissed?
No. This policy decision maintains our focus on violent crime, repeat offenses and crimes against people, while also continuing to file property crimes. Each case referred to our office by investigators is being reviewed individually by senior-level prosecutors.
Are all of the 6,000+ cases in the backlog caused by the court-ordered delays being dismissed?
No. This cases discussed in this announcement are only a fraction of those 6,000 cases. The overwhelming majority of those 6,000 cases will move forward. This policy decision focuses on cases where the defendants are not prolific offenders, do not owe restitution to a victim, and where the defendant has spent a number of months in the community with little to no additional felonious activity.
Are cases being ignored?
No. We just need to take an ever harder look at those cases that must remain in the system. If we do not, the entire criminal justice system will backlog even further, and we won’t be able to effectively prosecute the most serious violent offenses (violent crime, crimes against people, repeat offenders).
Can cases still be filed later?
Yes, that’s an option, especially if that person commits a new offense.
Which cases are we talking about here?
The Prosecuting Attorney’s Office is working with the King County Executive’s Office in developing a Community Diversion Program to divert some people with first-time, low-level property offenses and drug offenders out of the criminal justice system and into community programs where they can still be held accountable in a manner that reduces recidivism. The program does not include people with repeat offenses or people suspected of violent or sexually motivated crimes. (Here is more information on that.)
While the CDP will ultimately help address the current problem, the criminal justice system cannot wait for that program to be fully developed. As such, the KCPAO has identified some cases — both currently filed and awaiting filing — that will be eligible for the program once it is up and running. These cases will either not be filed or will be dismissed without prejudice (meaning that they still could be filed later). In this way, the KCPAO seeks to ensure that the impacts to individual victims will be minimized.
Why is this being done?
Unless immediate action is taken to address the glut of cases in the system — caused by reduced court capacity in decisions made separately from KCPAO — there is a real risk that the KCPAO’s ability to effectively prosecute the most serious offenses will be severely hampered.
Is this information being relayed to police who investigate cases?
Yes. Any time a case is referred to us, we communicate our decision to the investigating police agency. (Police investigate cases; prosecutors by law do not have investigating authority.) When cases are not filed, we let the investigating agency know what the specific reasons are that the case is not being filed.
The message was also shared on March 1 with the Department of Public Defense and each person in our office.
How many criminal jury trials were completed in King County Superior Court after the pandemic started?
While King County Courts and prosecutors have been taking steps for remote hearings and moving forward while following public health guidelines, 2020 saw only a fraction of the trials in a normal year. Between March and November there were 24 criminal jury trials completed in King County Superior Court — and that’s the highest number we’ve seen in the nation for a county court.
