Seattle’s Stalled ‘Poverty Defense Law’ Could Reform Policies for Hunger-Related Crimes

Birds sing, flitting between apple branches heavy with fruit in Kyrrah’s backyard. Fennel and basil plants fan an herbaceous scent from a raised garden bed nearby. The smell, fresh and delicate, hangs in the air as Kyrrah recounts the day he was arrested for taking food. Now a software developer and college professor, in 1997 at age 27, Kyrrah was homeless and starving. He hadn’t eaten in three days when he spotted someone eating a candy bar outside a Bartell drugstore. Hunger — and the bright-yellow wrapper — drove him inside. When he thought no one was looking, Kyrrah grabbed a Butterfinger that cost less than one dollar and made a run for it.

“Just as I started running, the manager tackled me right around my knees,” he says. As he fell, Kyrrah reached up to catch himself, somehow grabbing hold of a phone. Because the receiver fell upon the manager’s head when they both crashed to the ground, Kyrrah was initially charged with second-degree robbery, a felony that can carry a prison sentence of up to 10 years. Facing the possibility of a decade in prison for a piece of candy, Kyrrah didn’t hesitate when he was offered a plea deal to reduce his charges. After pleading guilty, Kyrrah was sentenced to six months.

Last year, Seattle Councilmember Lisa Herbold introduced the Misdemeanor Basic Need Defense. Nicknamed the “poverty defense law,” the statute would refer nonviolent misdemeanors committed out of desperation (like shoplifting a candy bar) to diversion programs where people can connect with help and resources. In an interview with KUOW, Anita Khandelwal, King County’s director of public defense, described the motivation for drafting the legislation: “In a situation where you took that sandwich because you were hungry and you were trying to meet your basic need of satisfying your hunger; we as the community will know that we should not punish that.”

Five Seattle restaurant owners told Eater they experience multiple break-ins each year; all asked to remain anonymous out of fear that it might sound like they are complaining. Repairs after a break-in and theft are an additional expense for restaurant owners on top of challenging profit margins, rising food costs, and high rent. Not all nonviolent misdemeanor theft is motivated by poverty, but most restaurant workers and owners Eater spoke to for this story agreed that it would be better to address these needs before someone reaches that level of desperation. If passed, the poverty defense law won’t fix Seattle’s extreme economic disparity overnight, but it might help decriminalize hunger. Or, as city attorney candidate Nicole Thomas-Kennedy said: “Nothing about prosecution makes people less hungry or provides housing.”

Seattle’s extreme economic disparity and housing crisis impacts restaurants in many other ways. Patrons eating on a patio may find themselves seated in the vicinity of someone unhoused and hungry, sleeping on the sidewalk beside their table. Many of Seattle’s chefs, dishwashers, and front-of-house staff are unable to afford to live near their place of work, competing for housing in a rental market dominated by tech workers who earn $100,000 per year or more. Line cooks, baristas, dishwashers, and servers working in Capitol Hill, South Lake Union, and other Seattle neighborhoods may commute hours from cities with more affordable rent, like Renton or Tukwila.

Chef Melissa Miranda, owner of Musang, a Filipinx restaurant in Beacon Hill, believes that people facing food insecurity and poverty should always be connected with resources, not forced into the carceral system. During the pandemic, Miranda transitioned her business into a vital support center for the community, preparing meals for hungry kids in need of school lunches. “Incarceration solves nothing. Incarceration heals nothing. It only reinforces structures of poverty like hunger,” she says. Musang’s menu, brimming with “Filipinx dishes inspired by our childhood memories,” embodies Miranda’s philosophy of community, connection, and generosity. Nearly two years after beginning its student lunch program, Miranda continues Musang’s work as a mutual aid hub by raising relief funds and distributing donated food to those in need.

Last discussed by City Council in 2020, City Attorney Pete Holmes dismissed the need for the new law. In a memo, Holmes asserted the legislation would be redundant because his office already follows a similar policy and emphasized that no prosecutor actually wants to punish people for being poor.

With so much at stake, and many incumbents heading for resignation after November’s election, it’s important to note that Holmes’s statement that the city attorney’s office already follows a policy similar to that being proposed is not entirely accurate. Kyrrah, for example, has watched many friends in Seattle be incarcerated for poverty in recent years, including one friend who was locked away for four months after taking a single chicken wing when they were homeless. Data shows that impoverished, unhoused neighbors have repeatedly been prosecuted for taking clothing from Seattle locations of Goodwill, a nonprofit organization that operates on community donations. There is also evidence that city prosecutors do not apply their office’s policy equitably, disproportionately choosing to prosecute Black, Brown, and Indigenous Seattle residents. This is exacerbated by the fact that Seattle police arrest many fewer white people for committing misdemeanors, in spite of Seattle’s overwhelmingly white demographics. A Seattle University study found that those Black or Indigenous and starving in Seattle are seven times more likely to be arrested for taking a sandwich.

Eric Rivera, chef and owner of Addo in Ballard, believes that “if somebody needs something that badly, they’re going to do whatever it takes. I don’t think a lot of people have ever felt that way.” Committed to building a more sustainable and equitable restaurant industry, last year Rivera hired delivery drivers for Addo customers in order to avoid using predatory gig economy delivery apps. He also began a mail-order alternative to help boycott Goya products, offering an inventory of Puerto Rican items including adobo, sazón, rice, and more. Rivera says that growing up here, he has watched income disparity grow as newcomers bought million-dollar properties in Seattle neighborhoods that they treat like gated communities within the city. Without adequate access to housing, healthcare, and universal basic income, Rivera says he is skeptical of how effective court diversion programs can actually be at helping anyone. Ideally, Rivera says, there would be housing and access to services “before we even get to that part of arresting somebody.”

Holmes conceded the race in August, thereby thrusting future policies into uncertainty. For this reason, debate over the poverty defense law is likely to heat up again in the wake of today’s election, waged between two remaining starkly contrasted candidates: Ann Davison, who changed her political affiliation to Republican in 2020; and Thomas-Kennedy, whose campaign platform is based on efforts to decriminalize poverty and disability (she uses the hashtag #JusticeNotJails on her social media). Davison was unable to attend an October 10 debate due to a family emergency, so Thomas-Kennedy answered questions alone, at one point stating that “for shoplifts based in poverty, which is a great deal of them, we need to be figuring out how we can meet people’s basic needs.” In an email, Thomas-Kennedy explained how she would address business owners’ concerns as well: “I am also going to have a victim’s compensation fund for people and small businesses to access when they have suffered economic harm, like a broken window or a shoplift.”

Rivera and Miranda are both skeptical that the city would compensate restaurants for damages. Rivera questions how quickly the funds might run out and how effective the strategy would actually be for protecting businesses and especially unhoused residents: “It doesn’t help people that actually need food,” he says. Miranda feels the proposal would come with limits, saying: “It’s hard for me to imagine the city compensating us if something were stolen from us, because the city has not shown to us that it wants to support the most vulnerable members of our community. As long as the city cannot provide basic resources to our communities, then I don’t know that compensating businesses for theft makes sense.”

When asked how she might change policies around misdemeanor prosecution if elected, Davison answered via email: “This would be a policy decision by the council and mayor; the job of the city attorney is to enforce the ordinances that the policymakers enact.” Although accurate, Davison’s response sidesteps whether she intends to keep Holmes’ status quo, or upend the office’s policy unless City Council codifies it into law next year.

Over the last year, the basic need defense proposal has faced national and local criticism. In the New York Times, Timothy Egan argued that the proposal would “incentivize misdemeanor crime.”

Councilmember Alex Pedersen released a statement citing concerns that the “proposal seems to create too easy of an excuse for repeated vandalism, trespassing, shoplifting, and other crimes that harm other people.” Contrary to these concerns, the law would not eliminate consequences, but it would help address the underlying motivations for crimes committed out of need. Defendants who take a sandwich because they are starving will still spend time in jail and court, probably perform community service, and be told what to do in order to comply with their diversion program.

Photo by Karen Ducey/Getty Images

The consensus among Seattle restaurateurs and grocery market operators varies, and many declined to comment for this story. One corporate grocery executive asked to speak anonymously, fearing that their company might retaliate or fire them. They described growing up in poverty, but said that working in the grocery industry gives them a different view of the situation, adding: “It’s a very fine line when you set that standard.” The executive, who works for a national grocery chain with locations in Seattle, said that unless the value of a theft exceeds a threshold of hundreds or thousands of dollars (more than one piece of candy or a single sandwich), police usually won’t come to the store to investigate.

“Big corporations can absorb losses, but I don’t want laws to be in place where there are no repercussions. That can destroy a small business. I don’t think there’s enough data to quantify who is stealing out of poverty motivations,” the executive said. They explained that items like baby formula, a relatively high-priced item that parents need to buy frequently, are usually locked away by retailers because they are commonly stolen for resale on the underground market.

Calling the police on someone who is desperate to feed themselves or their children is a moral dilemma for many local restaurant employees and national grocery store chain employees — many of whom struggle with poverty themselves. It’s easy to forget that one of the most common and helpful public services that the police provide is bureaucratic record-keeping — not arresting and punishing people in crisis. When there is a theft or vandalism, restaurant owners and grocers explained, they usually need a police report to file a claim with their insurance company. Insurance reimbursement creates a catch-22 for employees and business owners who would rather not call the police.

Kyrrah, who was arrested for taking a piece of candy, agrees that unhoused neighbors should not get everything for free. But it’s clear to him that the systems intended to help people frequently make things worse and unintentionally set them up for failure. Kyrrah asserts that although Seattle’s court diversion programs are a nice idea in theory, in practice they need to be reformed with better funding and resources to actually help people in effective ways.

In a housing crisis during a pandemic, social services are in higher demand than ever before. And although the proposal is still a draft and not yet a bill, it does not clearly state whether any funding will be earmarked to expand or support Seattle Municipal Court’s existing diversion programs. Regardless of the city’s budget, pervasive poverty and homelessness are expensive for everyone — from business owners to their unhoused neighbors. One study found that declining to prosecute nonviolent misdemeanors actually lowered crime rates and repeat offenses because homelessness is a predictor of incarceration, and incarceration is a predictor of homelessness.

Rivera feels frustrated that Seattle has prioritized the wealthiest residents and biggest businesses while ignoring poverty for decades. “The resources aren’t there,” he says, emphasizing the need for housing, healthcare, and basic universal income to help people before they are in a state of crisis.

When Kyrrah enrolled in Seattle Central College following his incarceration, he almost became homeless again during the first week of class. He says that if it weren’t for a kind classmate who offered to lend him money for a deposit on an apartment, he would have ended up on the streets again. Barriers to navigating and accessing services for things like food assistance or housing makes poverty a full-time job; it’s exponentially harder if you are a parent who has to stand in line outside an agency before 7 a.m. Kyrrah mentors students who are going through similar circumstances, or supporting loved ones who are struggling after they’ve been released from prison for similar charges. Inevitably, every term, there are students who need help navigating systems that don’t work.

A representative from Councilmember Herbold’s office confirmed that the poverty defense proposal is unlikely to be on the agenda again before the end of the year because all policy development has been paused during budget reviews. But if reintroduced and approved after November’s election, the bill would make Seattle the first city to pass an affirmative defense, allowing defendants to explain the context of their misdemeanor if it was spurred by poverty. There would still be consequences, but in lieu of incarceration, they would be referred to programs and resources through Seattle’s diversion court system.

So much is at stake for Seattle in this election, which, like many off-year contests, may garner low voter turnout. Miranda knows who she is voting for on Tuesday, including a prison-abolitionist candidate in another key race, for City Council. “Incarceration is not the answer to issues of poverty in our city, and that the more social services exist, the fewer crimes we’ll see,” she says.