In 2016, the Pierce County Prosecutor’s Office launched a new division called the High Priority Offender Unit (HPO for short). The idea was that prosecutors would use data from a defendant’s prior criminal history to assess whether this defendant is – compared to other criminal defendants – disproportionately committing crimes within the community. Once a defendant is identified as an HPO, the prosecutor’s office seeks to maximize charging and conviction outcomes to remove the defendant from the community. This data-driven prosecution is apparently modeled after programs on the east coast, and by 2017 the Pierce County Prosecutor’s Office claimed to have sent more than 650 HPOs to prison, which – they claim – dramatically reduced crime in the community.
All of these claims range from suspicious to flat out untrue.
The first issue readers should be aware of is that the process of how a defendant is designated an HPO is shrouded in mystery. None of the seven deputy prosecutors who make up the unit claim to really know how a defendant is assigned to them, other than to say “there’s a formula.”
While campaigning for re-election in 2018, then incumbent Pierce County Prosecutor Mark Lindquist explained that the HPO program assigns points to a criminal’s record depending on the priorities of the office. For example, a drug possession charge being half a point, a felony theft being 2 points etc. If the collective points topped a certain number, the defendant would be sent to the HPO unit. The formula is apparently designed to identify the top 20% of criminal offenders and remove them from the community. The prosecutor claims the average HPO defendant has been arrested 26 times and has 11 felony convictions.
Nevertheless, as I write this post, I am simultaneously representing multiple people designated as HPOs with NO PRIOR CRIMINAL HISTORY OF ANY KIND. This includes a decorated US army veteran who served her country for 7 years and is now charged with causing $3,000 worth of damage via identity theft. If she were not an HPO, she would be looking at a 90 day jail-sentence. Instead, the prosecutor is demanding 6 years in prison. I’m also representing a single mom with no prior criminal history but who nevertheless fell into drug addiction. She made the mistake of attempting to buy drugs from a dealer who was in the midst of a sting operation and was consequently charged with being a dealer herself – against the recommendation of the very officers who arrested her – because the prosecutors want to use the threat of serious prison time to compel her to testify against her dealer. She almost lost her job and her child waiting in jail because HPO elevated bail was imposed on her without any evidence of her involvement with the drug dealer beyond being his customer.
Meanwhile, I’m simultaneously representing someone with 90 prior criminal convictions, including 20 felonies, who has been on Washington’s Most Wanted. And yet, his case has NOT been assigned to the HPO unit.
How is this possible? The simple answer is that, if the HPO unit is really taking out the worst of the worst in our community, then it is only a matter of time before lesser criminals become “high priorities” because they, by default, become the “worst” of what’s left. If data was neutral, and the HPO unit was as successful as the Pierce County Prosecutor’s Office alleges it to be, then theoretically the volume of HPOs would be diminishing. It is not, and it will not, as that would interrupt the flow of grant funding for the HPO unit.
Another curious fact about those in the HPO unit is that – generally speaking – the evidence against those defendants is stronger than against those defendants who are facing mainstream prosecution. This allows the prosecutor’s office to claim that by channeling more of their efforts toward these high priority defendants, they are securing a higher conviction rate. In reality, they are just cherry-picking cases that are easier for them to win and making mountains out of mole hills. That’s why we in defense secretly suspect that that “HPO” really stands for Highly Probable Outcome. It’s not that these people are disproportionately committing crimes, it’s just that there is disproportionate evidence of guilt against them.
Another important thing to remember is that all criminal statistics are suspect in their origin and thus any “data” used to make prosecutorial policy should be met with extreme skepticism by the public and the Court. Prosecutors and police are empowered with extreme discretion in how they charge criminal conduct and this leads to frequent abuse and misleading statistics.
For example: suppose you were pulled over by the police on a traffic infraction. Your license is suspended so when the police officer asks you what your name is you tell him a lie about who you are and get caught. Some prosecutors would charge you just with driving with a suspended license and let you go on the false statement. Other prosecutors would charge you with driving with a suspended license and add the gross misdemeanor of giving a false statement to a police officer. Still other prosecutors would use the fact that you assumed a false identity to charge you with identity theft, a class C felony. This is important, not just for SRA scoring purposes but also for determining whether someone ultimately is designated an HPO. Yet how the defendant gets charged in this scenario has less to do with what they actually did and everything to do with how the individual prosecutor decided to charge it.
And this is where flagrant abuse in criminal statistics occurs. If the prosecutor’s office wants to prove that its policies are effective, it just needs to file more robberies and burglaries as thefts and trespasses so they can claim that burglary and robbery is down. If, by contrast, they want to shake down the tax payers for more revenue, all they need to do is upcharge minor offenses as felonies. There’s literally nothing stopping them given the expansive language of many of our criminal statues.
IS THE HPO UNIT CONSTITUTIONAL?
The short answer is yes. There is no evidence thus far to suggest that the HPO unit impermissibly discriminates on the basis of a protected class such as race or gender. Prosecutors are empowered with extreme discretion in how they charge and negotiate cases. Theoretically they could make everyone an HPO defendant.
What is concerning though is that judges appear to be going along with Pierce County’s PR scheme. Bail on HPO defendants is always higher than non-HPO defendants, even if the defendant has no prior criminal history and the charges are non violent. The same is true with contested sentences. Getting an HPO defendant into a therapeutic court such as drug court is also extremely difficult – though not impossible.
WHAT CAN YOU DO
Most of us believe punishment should fit the crime. That should be determined by the facts of the individual case and the standards set by the legislature through a democratic process. Unfortunately, because we have empowered prosecutors with so much discretion, in Pierce County a pre-assigned algorithm built upon flawed, misleading and inconsistent data is arguably the primary factor in determining the outcomes for hundreds of people.
Sharing awareness of this problem is the first step to correcting it, and then we must ultimately work to bring Pierce County back in line with the rest of the state.