“This is a crisis” — Prosecutors Highlight Exploding COVID Case Backlog

Yesterday, King County Prosecuting Attorney Dan Satterberg and Dan Clark, Chief of the Criminal Division, spoke to members of the King County Council about the historic backlog of filed criminal cases awaiting resolution because of the restrictions in place due to the COVID-19 pandemic. These are cases where defendants have already been charged, and a large majority are considered to be “more serious” cases (i.e. murder, rape, domestic violence) — which are especially concerning to the community and take longer to reach resolution.

There’s no way to sugarcoat this. This is a crisis. And it’s going to last for years to come and the sooner that we can start digging out of it, the better. There’s simply too many cases that are pending. — King County Prosecuting Attorney Dan Satterberg

With the traditional “exits” for criminal cases — guilty pleas, bench warrants, and trails — largely blocked because of COVID, Satterberg and Clark raised the alarm about the growing number of unresolved cases. They also explained the compounding nature of this crisis: as the number of cases awaiting resolution has grown, we’ve seen a rise in violent crime, particularly with homicides, domestic violence and sexual assaults.

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.

We are very supportive of diversionary programs, we have a robust Drug Court, Mental Health Court, Law Enforcement Assisted Diversion (LEAD), we are working on a diversionary program called the Community Diversion Program. But some of the cases we are talking about — rapes, robberies, and murder cases — you cannot put in a diversionary program and our system is getting more and more of those cases every single day. — Dan Clark, Chief of the Criminal Division

In their testimony, they explained how the impacts of COVID have stretched Prosecuting Attorney’s Office (PAO) Staff far beyond overcapacity. It was also made clear that these challenges are being experienced in criminal justice systems across the country — they are not unique to King County. No immediate solutions were discussed, 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.

You can watch their full testimony, which starts at 43:00, HERE. Some highlights are transcribed below.

This presentation was the first of multiple. Our office expects to present potential solutions in an upcoming presentation.

King County Council Community, Health and Housing Services Committee — Presentation by the King County Prosecuting Attorney’s Office

9:30 a.m., Feb. 20, 2021

Dan Clark: Our current pending felony case load is quite alarming to us. Historically, we’ve had an average of 3,250 pending felony cases at any one time in our criminal justice system. Post-COVID, that number has jumped to over 6,450 pending felony cases — and by the summer of 2021 that number is projected to rise to between 7,000 and 9,000 pending felony cases.

Clark: The cases here in the system are not just low level offenses. In fact, the large majority are more serious offenses. Pre-COVID, we had approximately 1,700 of what we call more serious offenses — homicides, rape, domestic violence, robbery, shootings. Now we have approximately 2,800 more serious pending cases in our system. […] That almost equals what our entire system looked like prior to COVID. It is probably obvious — the more serious cases take exponentially more resources for us to prepare, they take longer to try, they take significantly more work with the victims and families of the county.

Clark: Even then [pre-COVID], we were operating somewhat on a shoestring and barely making it. Now that the more serious cases have nearly climbed to that entirety rate of 3,200 cases, we are beyond overcapacity. And lest you think that this just applies to mainstream cases, the same numbers we are seeing for domestic violence cases with an 50% increase in pending cases and our Special Assault Unit — which handles sex cases and crimes against children — have also seen a 33% increase in pending cases.

Clark: Let me explain why we are seeing these jumps because it may not be obvious. The answer is a one-two punch. The first is COVID-19 has prevented cases from resolving. There are three primary ways that a case leaves the criminal justice system: by guilty pleas, bench warrants, and trials. And unfortunately, COVID-19 has caused all three of these exits to be significantly impacted; resulting in the unprecedented growth we are seeing in the criminal justice system right now.

Clark: I will give credit to Superior Court — they were able to find a system to do about 24 criminal jury trials after CVOID. I was on a bunch of national calls, and I will tell you that is at least three times higher than any other jurisdiction that I am aware of.

Clark: In addition to the three exits that are typically there that allow cases to move through the system that are blocked because of COVID-19, the other “punch” is that the crime rates in King County are continuing at pre-COVID rates or even higher. So new serious cases continue to come in at a time when we are unable to offload cases from the system.

Clark: Pre-COVID, the number of pending homicide cases in our system was 115 at anyone given time. We now have 175 pending homicide cases right now. Our office responds to homicide scenes to assist police officers — we assist with search warrants and investigations. Our average number of callouts — these calls in the middle of the night — is 86 a year. Last year we had 146, and this year, we have 13 call outs and are on pace for 2020. This isn’t a King County issue — this is an issue I see nationally; homicide numbers are on the rise.

Clark: Thanks to our Shots Fired Program we are able to calculate the amount of shots fired annually within King County. The three year average annually is about 870. In 2020 that number jumped to 1,034, there was an increase in shooting victims by 36% and an increase in fatal shootings by 27%. Again, consistent with national trends — but alarming.

Clark: I would love to tell you the future is bright, but it is not encouraging. In addition to the extraordinarily bloated system we have now, and the new crimes coming in, we have over 3,000 unfiled felony cases for the prosecutor’s office to review. We are prioritizing them just as all of you would: we are filing our most serious cases up front, we are filing priority cases up front, and we are being very thoughtful in terms of the types of cases we are putting into the system. We are very supportive of diversionary programs, we have a robust Drug Court, Mental health Court, LEAD, we are working on a diversionary program called the Community Diversion Program. But some of the cases we are talking about you cannot put in a diversionary program because you cannot put rapes, robberies, and murder cases in alternative programs — and our system is getting more and more of those cases every single day.

Clark: It’s going to take several years to work through the backlog that has been caused squarely by COVID-19. I should point out that we have been given no additional resources to address these issues. Public Defenders, properly so, have case limits in terms of the number of cases they can handle so that they can ensure they are constitutionally effective. There is no similar for prosecutors to ensure they are effective advocates for the community and the people of the County. So anything that comes in the door, we need to handle, and I can tell you that we have exceeded that threshold already and I am worried about what’s to come.

Councilmember Jeanne Kohl-Welles: Yesterday in our general Council meeting we did pass a motion that lays out our Council priorities for allocating funding that will be coming we hope from the federal government. And we updated the one we passed from last May to add a priority for access to justice and to provide additional funding for the courts and the prosecutors and so forth so we wouldn’t have such a backlog.

Clark: I appreciate that, and I think there may be some concern in the community that if we add prosecutors we are going to end up putting more people in jail. I want to assure the Council that that is not the case. We are watching the jail numbers very closely, and we were one of the groups, working with the public defenders and the courts in getting that jail number down. The addition of prosecutors and advocates and staff members will allow us to have more thoughtful resolutions to our cases and give us the time and energy we need to make sure that the victims of King County are also accounted for and that offenders are held accountable [..] and that we find productive resolutions that identify the root causes of criminal conduct.

King County Prosecuting Attorney Dan Satterberg: There’s no way to sugarcoat this. This is a crisis. And it’s going to last for years to come and the sooner that we can start digging out of it, the better. There’s simply too many cases that are pending.

Councilmember Girmay Zahilay: There was a time when we spoke that you mentioned we could dismiss large swaths of cases that are not as serious as these most serious cases you are mentioning. Is that something that is possible to help address the backlog? Not going through every single one, but is there a systematic way of clearing the backlog by dismissing the cases that are not the most serious like homicides?

Satterberg: That is among the options that we have to consider, but I want to restate: we don’t have a lot of not serious cases. These are serious felony cases. In that stack of 3,000 that we haven’t looked at yet there may be some cases that would otherwise qualify for a Community Diversion Program if that person hasn’t been arrested in the past year; there may be some things that we’ll do on a case-by-case basis but it’s an individual review and we can’t just dismiss thousands of cases without knowing what they are, knowing what the harm is that was caused and making sure that the victim can be made whole. There’s no simple thing here. We really have more than two years’ worth of work piling on our people right now and before we can even dig deep enough into individual cases to know whether or not they might be something that could find an alternative resolution, we have to have the people to do it and our people are absolutely buried right now with a normal years’ worth of caseload, plus another years’ worth of caseload plus incoming violent crimes that continue to happen. So to dig out, we need more eyes, more attorneys, more staff, and more victim advocates to really even know what we have on our plate