Bill creating a new diversion-type program, without prosecutor support, passed House policy committee

HB 1994, sponsored by Rep. Darya Farivar (D–Seattle), could substantially change current practice related to diversion programs for simple misdemeanors and gross misdemeanor cases.

The bill would allow a judge, on their own or upon a motion of either party, to essentially create a 12-month diversion program. The judge would impose court-ordered conditions, such as substance use disorder or mental health treatment. If the defendant substantially complied with the court-ordered conditions and paid full restitution, the court would be empowered to dismiss the defendant’s misdemeanor and gross misdemeanor charges. The prosecutor’s agreement to these terms would not be required.

If the defendant willfully failed to comply with the court-ordered terms and conditions, the prosecutor could move to terminate this diversion-type program and would have the burden to prove by a preponderance of the evidence that the defendant was willfully failing to substantially comply with the conditions.

All misdemeanors and gross misdemeanor charges would be eligible except: DUI/physical control, assault, stalking, animal cruelty, communication with a minor for immoral purposes, discharging a firearm, any offense with a finding of sexual motivation, or any offense involving a commercial driver’s license. This new judicial authority also could not be used where a case was originally filed as a felony and the charges were subsequently refiled as a misdemeanor. Defendants with a prior DUI conviction or a domestic violence conviction also would be ineligible.

AWC has significant concerns about usurping prosecutorial authority regarding what would functionally be a new diversion program. While we support therapeutic courts, diversion programs, and other options that encourage a defendant to seek treatment for substance use disorders and mental health conditions, decisions regarding the prosecution of a case should be left to the discretion of the prosecutor. AWC is actively working to address these concerns as the bill continues to move through the legislative process, and encourages city councilors to contact your legislators to express concerns with this bill. The bill was approved by the House Community Safety, Justice, and Reentry Committee and will likely move into the House Rules Committee where it will await a vote on the House floor.