Misdemeanors and their consequences don’t attract much public attention. We refer to them legally and colloquially as petty of- fenses, a label that attracts less public attention and scrutiny than felonies. It’s easy to conclude from this
lack of public interest that misdemeanors have little impact
on offenders or society. However, do not be deceived. The
majority of criminal charges filed are misdemeanors. In King
County, 43,726 misdemeanors were filed in 2014, compared
with 6,371 felonies. Contrary to common belief, the long-term
consequences of a misdemeanor conviction persist well past
the sentencing date. The collateral consequences can be significant (e.g., employment consequences, license suspensions,
travel restrictions, gun rights), but the immediate consequence
of most misdemeanor convictions in Washington is probation.
While the concept of probation does not seem problematic on
its face, the laws governing its implementation in Washington
can devastate an offender’s life beyond what reasonable minds
would agree is an appropriate punishment for the underlying
crime. This rings particularly true for indigent defendants.
Washington divides misdemeanors into two classes: simple
misdemeanors are punishable by a maximum of 90 days in
jail and a $1,000 fine, and gross misdemeanors that have a
maximum punishment of 364 days in jail and a $5,000 fine.
Under state law, the sentencing court may suspend some or
all of the jail time on stated conditions, which commonly include law-abiding behavior and compliance with court-ordered
1 At sentencing, it is common practice for the court
to impose the maximum amount of jail allowed (either 90 or
364 days) and then suspend most, if not all, of the sentence. All
or some of this suspended jail time can then be imposed at a
later date if probation is violated.
Courts have broad discretion in setting conditions of probation for misdemeanor convictions. Conditions are lawfully ordered if they tend to prevent the commission of future crimes
or reasonably relate to the offender’s duty to make restitution.
While modern cases upholding this vast discretion quote
mid-20th-century opinions that “probation . . . is a rehabilitative measure, and as such is not a matter of right but is a matter of grace, privilege, or clemency to the deserving,” (See, e.g.,
City of Aberdeen v. Regan, 170 Wn.2d 103, 108 (2010) (
quotations omitted)), the 21st century reality is that in most courts
all offenders — deserving and undeserving alike — receive a
The practical effect of this framework is that convicted pet-
ty offenders are placed on probation for two years with a large
amount of jail time hanging over them. To assist with an offend-
er’s rehabilitation, sentencing courts frequently inquire into an
offender’s chemical dependency or mental health and then or-
der the offender to undergo an evaluation and treatment. This
decision may occur even when the court-ordered treatment
bears no relationship to the underlying criminal conduct. Un-
fortunately, treatment typically must be done at the offender’s
own expense at an agency selected from a court-approved list
of predominantly for-profit businesses. And if the offender
doesn’t comply with the treatment, they are in jeopardy of hav-
ing some or all of that suspended jail time revoked, even if they
have maintained law-abiding behavior. This approach to pun-
ishment can be particularly problematic for indigent offenders.
Treatment Costs and Ability to Pay
The majority of offenders are indigent. The Office of Public Defense estimates that 81% of misdemeanor and felony defendants
in 2014 in King County were appointed an attorney, and the U.S.
Bureau of Justice put this number at 82% nationwide in 2000. To
be eligible for a public defender in Washington, you must be statutorily indigent. In practice, this typically means that you must either already receive state assistance or that your income must be
125% or less of the federal poverty line. For a household of one,
125% of the 2015 poverty line is $14,721 per year. This comes out
to a monthly income of zero to $1,226 per month.
Measured against even the high end of this income range,
the costs of treatment are staggering. Outpatient chemical dependency treatment is estimated to cost on average
around $1,500. Mental health treatment costs can vary widely, as there can be more state-funded resources available, but
for-profit agencies will typically charge a rate equivalent to
chemical dependency treatment. A one-year domestic violence treatment program costs on average $1,400. Thus, even
“well-off” indigent offenders will be expected to pay over 10%
of their income for any court-ordered treatment or risk going to jail. For people already living at or below the poverty
threshold, finding an extra $150 a month to pay for treatment
is an insurmountable barrier.
Despite the fact that most offenders are indigent, and despite the relatively large costs of treatment, there is no legal
requirement for the sentencing court to inquire into the offender’s ability to pay for treatment. The punitive paradox
presented when an indigent offender’s jail time is suspended
on condition that they engage in self-funded treatment is evident. Not only is there a low chance of successful treatment
due to an inability to pay, but there is also a corresponding-