“If you’re suggesting that my prosecutorial discretion was for sale, I absolutely reject that.”—King County Prosecuting Attorney Dan Satterberg
A situation long brewing in King County raises important ethical questions, both locally and nationally. Investigative reporting has uncovered that the Prosecuting Attorney’s Office (“KCPAO”) entered into a funding agreement with an organization called Demand Abolition that channels funds from the Hunt Alternatives family foundation. While it is not unusual for law enforcement agencies to seek grants from non-public sources, this particular arrangement is ethically dicey, to say the least.
Our Washington readers likely know that KCPAO and other local law enforcement agencies have garnered a great deal of positive publicity in the past few years for taking an aggressive stance against sex trafficking. Or, more accurately, for saying that they are aggressively tackling sex trafficking. In reality, their efforts target buyers of sex who purchase from adult consensual sex workers. Yet, blurring the lines between trafficking (which involves coercion and exploitation) and prostitution (which does not involve coercion) is part-and-parcel of its strategy. That strategy, it turns out, was planted and fed by Demand Abolition, an interest group focused on ending the demand for paid sex—even if the exchange occurs between consenting adults.
Consider KCPAO’s participation in the arrest of several men who ran and used “The Review Board,” a web forum on which sex workers and buyers communicated, and buyers left reviews of workers. At a press conference in which he described the takedown, Prosecuting Attorney Dan Satterberg said, “The systematic importation of vulnerable young women for sexual abuse, exploitation, and criminal profiteering has been going on for years and it came to a stop this week . . . . This is what human trafficking looks like.” KCPAO landed high-profile “Nightline” coverage of its shut down of “The Review Board.” But, as Alison Bass explained at The Intercept:
There is no mention in the 10-minute “Nightline” segment of the fact that [KCPAO prosecutor Valiant] Richey’s work was handsomely supported by Demand Abolition, a nonprofit group whose stated mission is to end demand for sex work by going after buyers, or that the cost of some of his travels around the country has been defrayed by the same group. Nor is there any mention of the fact that Demand Abolition, in exchange for providing approximately $191,667 in funding to the King County prosecutor’s office over four years, asked Seattle-area law enforcement to carry out regular arrests and prosecutions of buyers with the goal of disrupting demand. As part of signed agreements for the funding, Richey and other law enforcement officials in King County were required to frame the activities of sex buyers and men involved with The Review Board as sex trafficking, according to court records and internal documents obtained through public records requests—even though there was no evidence of trafficking in these cases.
If these facts were presented in a law school student’s legal ethics exam, there would be a lot to unpack here. Why did Satterberg describe this as sex trafficking when there was no evidence of trafficking? Don’t prosecutors have to follow rules and be careful about how they describe arrestees’ alleged criminal conduct in the media? (Short answer: yes.) Do his irresponsible statements raise liability concerns? (He may soon find out, with a defamation lawsuit on his doorstep.) The KCPAO’s public conflation of trafficking and prostitution is an important matter of public interest, and Elizabeth Nolan Brown’s excellent Reason article offers a thorough and well-deserved evisceration of the tactic: “For all the bluster about busting up a ring of international bad guys, the worst offenders in the case can only be said to have ‘provided a place’ for consensual prostitution to take place.” The background facts presented here raise myriad ethical concerns, from speaking to the media to setting enforcement priorities, but we want to focus here on the simple fact that KCPAO accepted money from an outside interest group so prosecutors would crackdown on sex-buying with increased arrests and prosecutions.
Public records reveal that KCPAO prosecutor Val Richey first submitted an application to Demand Abolition in 2014 that set forth a law enforcement strategy he knew the organization desired. Among other things, he described the following goals:
- Increasing the number of arrests and prosecutions of sex buyers across King County by 50%, using baseline averages from 2010-2013 across King County jurisdictions;
- Incorporating into criminal justice responses additional deterrents such as car impound, increased monetary fines, community service, and sex offender registry to increase effectiveness of sentences;
- Ensuring imposition and collection of statutorily authorized sex buyer fines to enhance financial sustainability of law enforcement efforts and victim services;
- Increasing publicity on arrests, prosecution, and penalties in King County through traditional media to create a credible and demonstrated threat of arrest and prosecution.
His application did not come out of the blue; he had been vetting it with key players for quite some time. Demand Abolition responded positively to his request. The grant agreement that Demand Abolition ultimately signed did not specifically require that KCPAO and affiliated law enforcement increase arrests and prosecutions. Nonetheless, that was the underlying goal. Lina Nealon, the founding Director of Demand Abolition, authored an email in January of 2014 that sought to address internal concerns about an early version of Richey’s application. In it, she wrote that she “agree[d] . . . 100%” that a law enforcement strategy was necessary and explained that “[w]e were being ‘sneaky’ by requiring a sex buyer intervention program, as it by default means that buyers need to be arrested. It’s one of the reasons we are adamant that there be law enforcement participation on the core team . . . .”
If Demand Abolition wanted more prosecutions, and KCPAO planned to deliver that result, then why was there a need to be “sneaky”? The answer, we propose, has to do with prosecutorial discretion. How would it look for a prosecuting agency to take money from a private organization and undertake arrests and prosecutions in accordance with that organization’s wishes? It sure seems like Richey and Nealon anticipated the possibility that this would appear unethical if not worse, and they drew up the papers in a way that circumvented the concern in black-and-white, despite their clear intent to the contrary. If an email before-the-fact about being “sneaky” were not enough to suggest that there was a real problem with the arrangement, consider the Demand Abolition website’s interesting announcement made the same month that The Intercept and The Stranger published thorough pieces about the agreement between it and KCPAO:
Demand Abolition’s CEASE Network (Cities Empowered Against Sexual Exploitation) was a collaboration of pioneering cities committed to ending exploitation caused by prostitution and sex trafficking by stopping the demand for paid sex. . . . While Demand Abolition’s funding and direct oversight ended in March 2018, CEASE cities continue to collaborate informally and implement measures to combat demand for paid sex.
There is compelling evidence that KCPAO made efforts to deliver the results that Demand Abolition sought. Public records show that Richey made a sustained effort to work with City Attorneys and local police agencies to push the tactic of targeting sex buyers. He also encouraged a shift in how prosecutors handled defendants’ cases after arrest, halting the diversion that they typically offered to first-offender buyers and instead imposing fines and fees while requiring enrollment in a buyer intervention course (that just so happened to be offered by an organization that also received funding by Demand Abolition). Richey also worked closely with Demand Abolition and with consultants hired by Demand Abolition throughout the time he received grant funding, including to craft communications efforts that deliberately conflated adult consensual sex work and trafficking.
At the end of the day, the question in King County is: Did Val Richey and Dan Satterberg sell prosecutorial discretion to Demand Abolition? More broadly, can prosecutors’ offices raise funds by promising to undertake specific prosecutorial charging activities? It seems like one thing for an office to receive grants that give it even greater capacity to do work to which it is committed. It seems like another for an office to actually promise specific outcomes or guarantee a change in the number of prosecutions. (Richey admitted in an interview that Demand Abolition was not going to pay him for work he would have done regardless of the grant.) Arguably, the former arrangement gives prosecutors the continued ability to use their independent judgment and do so with greater effect. The latter, however, obviously constrains discretion, committing it to the foundation’s goals no matter the prosecutor’s judgment. It is not clear how many District Attorney Offices around the country have made agreements like the one KCPAO has with Demand Abolition. But, it is a ripe area for more public scrutiny. And perhaps for professional ethical discipline.