1. Upzoning property adjacent to transit stations to promote walkability and maximize housing, AKA Transit Oriented Development (TOD), has become a basic tenet of sustainable city planning.
However, per Josh’s New Year’s prediction, state Rep. Julia Reed (D-36, Seattle) proposed a TOD bill this week that allows cities to go small, with zoning requirements well below the standard for adding the number of units our housing-shy region needs. Reed’s bill sets the minimum allowable “Floor Area Ratio”—an equation that determines the amount of housing it’s possible to build on a lot—at 3.5 within a half-mile of a stop on a light rail and 2.5 within a quarter-mile of bus rapid transit lines.
An easy way to visualize this: Under a 3.5 FAR, you could have a 3.5 story building that completely covers one lot, or a seven-story building that covers half the lot. Since cities have all kinds of requirements for setbacks, landscaping, and maximum lot coverage, it typically takes a FAR of 4 or more to make a modest six-story apartment building feasible. Seattle, for example, uses a FAR of 4.5 to allow six-story apartments, and Redmond is already building six-story buildings adjacent to the coming light rail.
Last year’s more aggressive TOD proposal, which won support from a broad coalition, including the Housing Development Consortium, Futurewise, the Washington State Labor Council AFL-CIO, and Transportation Choices Coalition, went with a FAR of 4 in the station area and 6 around the station “hub,” a designation Reed’s bill doesn’t mention.
In other words, Reed’s bill is not an upzone for a city and region that’s currently in the process of building and planning the largest light rail expansion in the country. And it will allow cities that implement mass transit (like bus rapid transit) in the future to limit housing to densities far below what the Seattle region is already building.
By the way, Josh also predicted that this bill would come with “steep affordability requirements that will chill development.” Et voilà: Reed’s bill would require every new building in a station area to include 10 percent of units affordable to people making 60 percent or less of the area median income, a requirement that goes well beyond Seattle’s Mandatory Housing Affordability law. It would also allow up to a 5 FAR for a building that’s 100 percent affordable.
2. We reported earlier this week on the emerging shape of the new Seattle City Council, whose new president, Sara Nelson (citywide Position 9), wrote an op/ed in the Seattle Times this week laying out her priorities, including a vow to “break our reliance on new revenue (taxes) to pay our bills.” But council members also serve on a number of important regional committees, helping shape policy on homelessness, transportation, mental health care, and more. Here’s a summary of those regional assignments.
City Councilmember Dan Strauss (D6) will take over the seat formerly held by ex-city councilmember Debora Juarez on the Sound Transit Board, King County Executive Dow Constantine announced Friday afternoon. Juarez, who was council president, held the position for the past four years. Strauss was the vice-chair of the council’s transportation committee, but never led it. The council’s new transportation chair is Rob Saka (D1).
On the King County Regional Homelessness Authority (KCRHA) governing board, Nelson and new councilmember Cathy Moore (D5) will replace Lisa Herbold and Andrew Lewis. Nelson hasn’t weighed in that much on homelessness directly from the council dais (and wasn’t a member of the homelessness committee, which—along with the renters’ rights committee—no longer exists), but the brewery she owns, Fremont Brewing, uses illegally placed concrete “eco-blocks” to prevent homeless people from parking around its location off Leary Way. The company also worked actively to remove people living in tents on a piece of city-owned land immediately adjacent to its production facility.
Nelson championed legislation empowering City Attorney Ann Davison to prosecute people who use drugs in public spaces, who are mostly unhoused. (People who possess or use illegal drugs in their houses are not subject to the law).
Nelson has also expressed skepticism (verging on outright opposition) to harm-reduction approaches to drug use and homelessness, such as Let Everyone Advance With Dignity (LEAD), which diverts people from arrest and prosecution and does not make sobriety a condition for shelter. On that note: Kettle, who vowed to hire more police and end the culture of “permissiveness” toward drug use and crime in Seattle, will replace Lisa Herbold on the LEAD policy coordinating group, which oversees the program.
Joy Hollingsworth (D3), Kettle, and Nelson will take over on the King County Board of Health for Lisa Herbold, Tammy Morales, and Teresa Mosqueda. Mayor Bruce Harrell will serve as an alternate “representing the city council” on the health board—an unusual, and possibly unprecedented, comingling of the legislative and executive branches on a regional committee with influence over major decisions about public health.
The board of health makes policy recommendations relating to mental health and addiction, as well as communicative diseases like COVID.
Teresa Mosqueda, who attended some meetings from home, chided Nelson last year when she made a point of noting that she was present at one particular meeting “in person”; in her op/ed, Nelson said “coming in to work in person” will help spark a “major reset in tone and direction at City Hall.”
LEAD’s ability to take community referrals has shrunk over time, with huge geographic losses after the new drug law went into effect October 20.
By Erica C. Barnett
Let Everyone Advance With Dignity (LEAD), a program that diverts people who commit low-level crimes away from the criminal legal system, was touted by supporters of a new law criminalizing public drug use as an all-purpose response to concerns that the new law would clog local jails and courts with people who need social services, not punishment. LEAD, a program of Purpose Dignity Action (formerly the Public Defender Association), provides case management and referrals to resources, including housing and addiction treatment.
But the law, which stipulates that police should use diversion as a first resort, didn’t come with any additional funding, and Mayor Bruce Harrell’s budget slightly cut funding for the program rather than increasing it, which meant that if LEAD was going to be the conduit for all drug arrest referrals, it would need to stop taking new clients through avenues other than arrests, such as referrals from community members—a zero-sum game, because the total amount of diversion LEAD could provide in Seattle would remain about the same.
For years, LEAD worked purposefully to expand its scope so that clients could enter the program through many avenues, not just arrests. By moving back to an arrest-first approach, LEAD—which originally stood for Law Enforcement Assisted Diversion—will effectively be returning to its roots.
“Right now, we’re controlling our capacity issue by denying community referrals, but we will not even be able to continue to accept police referrals—even arrest diversions that are called for by the ordinance and called for by the SPD policy—by late spring.”—LEAD co-director Lisa Daugaard
Already, LEAD has limited community referrals to three areas of the city—Third Avenue downtown, the Rainier Valley, and the Chinatown/International District. “So what this means, effectively, is that if you are a community partner in Ballard, U District, Aurora, SoDo, the East Precinct, or West Seattle, and you’re identifying a totally appropriate LEAD candidate who we could probably help with, we’re saying no and we’re routinely blanket denying those,” PDA co-director Lisa Daugaard told the City Council’s public safety committee earlier this week. ” And of course, that’s having a depressing effect on people’s interest in making referrals, because it’s pointless” outside the three focus areas.
Without additional funding from the city or state—which funds LEAD programs in other parts of the state but has never funded LEAD in Seattle—LEAD will have to stop taking all new referrals sometime between April and May, when they’ll max out their capacity at 1,060 clients. “Right now, we’re controlling our capacity issue by denying community referrals, but we will not even be able to continue to accept police referrals—even arrest diversions that are called for by the ordinance and called for by the SPD policy—by late spring.”
Referrals to LEAD spiked in late October, when the new drug law went into effect. On that date, the Seattle Police Department swept through the area around 12th and Jackson—a favored spot for high-profile, camera-friendly SPD operations—and arrested 25 people on drug charges, jailing 10 of them on outstanding felony warrants that had nothing to do with the drug law. (Police touted these arrests but did not explain why they needed an unrelated misdemeanor law to arrest people for pre-existing felonies). The one-day operation led to a brief spike in LEAD referrals, Daugaard said, and any future operations will have a similar effect.
City attorney Ann Davison talked tough about arrests when she first proposed the new law earlier this year, while making vague comments about “treatment.” However, if SPD began arresting people en masse for using drugs in public, there would be little point, since the downtown jail doesn’t have the capacity to book people on low-level drug cases, and the city attorney’s office doesn’t have the capacity to prosecute them all.
Mayor Bruce Harrell issued an executive order on Thursday providing direction to the Seattle Police Department as it develops policies to implement a recently passed law that makes public drug use, along with simple possession, a gross misdemeanor. The law also criminalizes simple drug possession and empowers the city attorney, Ann Davison, to prosecute drug cases. The new law does not apply to public use of alcohol or cannabis.
The order, which describes fentanyl use as a “health crisis,” says that “diversion and referral to services is the preferred response to public possession and use” in instances where police determine a drug user poses no potential harm to anyone else. But it also says that arrests may be appropriate when a drug user poses a “threat of harm to others,” then defines this potential “harm” broadly, to include any drug use that impacts “the ability of others to use shared public space.”
The drug law adopted last week defines “harm to others” in similarly expansive terms, asserting that “unchecked” drug use “in certain areas of the city” harms “businesses, transit riders, and people traveling to school, work, retail stores, or trying to enjoy the City’s parks and other public places.”
SPD is expected to issue its own guidelines to officers who will be implementing the law within the next few days.
The executive order, echoing the Harrell Administration’s earlier effort to prosecute “disorderly conduct” near transit stops on Third Ave., specifically notes that locations where drug use presents an “inherent impact on public safety and security” may include any location “in or within close proximity to a transit stop, rail station, or other transportation structure or facility.”
Harrell’s order is mostly suggestive rather than prescriptive. Officers who believe a person’s drug use inherently threatens those around them can decide, based on their training and “the totality of the circumstances,” to arrest a person or attempt to divert them to LEAD, the city’s primary diversion program. The number of arrests that officers will actually make is constrained by the booking capacity of the downtown jail, which is severely limited due to a shortage of guards.
The order also requires outreach providers that contract with the city to create a “by-name list” of every person “significantly affected by” the opioid crisis in downtown Seattle between the Denny Triangle and the stadiums south of the Chinatown/International District. (Since the new law and the rest of the executive order refers only to people using drugs in public, it’s safe to assume the list will exclude housed downtown residents who use addictive drugs indoors.)
Jamie Housen, a spokesman for the mayor’s office, said the city “is not planning to collect a list of names or individual clients, but instead to use an approach that creates a baseline estimate of those using drugs and in need of treatment and services, so that we can measure those needs, changes over time, and if progress is occurring.”
Alison Eisinger, director of the Seattle King County Coalition on Homelessness, said the order released on Thursday “inappropriately uses a By-Name List,” which is supposed to be “a tool used by people who are offering focused engagement and have appropriate resources to connect people with.”
Providers that serve unsheltered people often create “by-name lists” of people living in a discrete area, such as an encampment, in order to keep track of them as part of a specific project. Recently, the King County Regional Homelessness Authority acknowledged that its own effort to create a “by-name list” of every unhoused person downtown, as part of the Partnership for Zero effort that recently folded, was unproductive, because people can and do move around.
Data on drug users from providers, including the number of drug users they’re serving downtown and the kinds of issues those individuals are facing, “will help determine how many individuals the City is trying to assist and to provide a better understanding of the underlying issues and facts addressed by this [order].” After 12 months, according to the order, the city will “conduct a follow-up assessment” and compare the two sets of data “to gauge the effectiveness of the strategies” in the order.
Council members who switched their votes on the drug law, a version of which failed back in June after Andrew Lewis decided to vote against it, said they were convinced to vote “yes,” in part, by the mayor’s promise to propose an executive order that would emphasize diversion over arrest. Before Harrell issued the order out on Thursday, Lewis said he expected that it would “provide clarification” on how the city will implement the new law. We’ve reached out to Lewis for comment on the order.
The Seattle City Council’s public safety committee approved legislation on Tuesday that will empower City Attorney Ann Davison to prosecute people for public drug use and simple possession. Councilmember Teresa Mosqueda cast the lone “no” vote, saying the council should be “focusing how on how we get people into public health services, not how we double down and recreate a punitive system … to prosecute more people.” Committee chair Lisa Herbold, along with Councilmembers Andrew Lewis, Sara Nelson, and Alex Pedersen, voted yes.
The legislation now heads to the full council, which will take it up on September 26—or sooner, if Herbold and council president Debora Juarez decide to amend council rules to push it through faster.
Substantively, the bill is more or less the same as a version the council narrowly rejected, with Lewis casting the deciding vote, in June; that is, it criminalizes public drug use and simple drug possession at the local level, mostly aligning the city’s law with state legislation that made public drug use and simple possession gross misdemeanors earlier this year. (Unlike state law, the city bill exempts cannabis.)
The newest version, which includes pages of new “whereas” clauses describing the fentanyl addiction crisis and stipulating that the city does not want another drug war, says police should show a preference for diversion to treatment and other programs when deciding whether to book people for drug use or possession. The new reference to diversion mirrors the new state law, which says that police are “encouraged to offer a referral” to treatment or diversion programs “in lieu of arrest.”
Proponents of the bill, including Lewis, called this new clause a substantive change that helped transform the bill into a “balanced” piece of legislation. “What we’re really focusing on here is how to take full advantage of our provider community and the resources that they bring to to the forefront to facilitate warm handoffs from law enforcement” into programs like LEAD (Let Everyone Advance With Dignity), a successful pre-arrest diversion program, Lewis said. The state law adopted earlier this year also encourages LEAD referrals, mentioning the program by name 36 times.
“We have spent the last three years finding one-time funding sources to plug that gap at LEAD. If the funding gap from last year is the same [in Harrell’s 2024 budget], it will start to impugn our ability to actually do what this bill purports that it will do.”—Council budget chair Teresa Mosqueda
For those who end up arrested under the new law, Lewis said, the legislation also provides the option of pre-trial diversion, in which the city attorney’s office would decline to file charges if a person agreed to go through one of several programs offered through Davison’s office. “If they complete that referral, then they decline the the case,” Lewis said during a recent episode of the Seattle Channel’s “Seattle Inside/Out.”. “They won’t pursue it. Incredibly effective program. Twice as many people who go through pre-file diversion do not re-offend as people who go to jail. Very important statistic.”
While this may be true, as PubliCola has reported, the city’s pre-trial diversion programs are targeted toward young adults and people who are generally high-functioning; they are specifically inappropriate for the chronically homeless and profoundly addicted people the drug legislation is meant to target.
An amendment by Sara Nelson removed language requiring officers “make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives to arrest consider diversion” before arresting someone under the law. That amendment, which passed 3-2 (with Mosqueda and Herbold voting “no”) effectively means that it will be up to officers to decide whether to direct people to diversion based on unidentified criteria. The bill says that the mayor plans to issue an executive order stating that diversion is the city’s “standard approach.”
Some councilmembers appeared reassured by this rhetoric, as well as apparent closed-door commitments from Harrell’s office to find money for diversion programs, which are chronically underfunded. But as Councilmember Teresa Mosqueda noted at Tuesday’s meeting, the bill itself commits no new funding to any of the city’s existing diversion programs, which are already stretched thin. This means that the council is putting great faith in Harrell’s budget, which won’t be released until late September. Historically, the mayor’s budget has underfunded diversion programs like LEAD, leading the council to add funding to keep existing programs going.
“We have spent the last three years finding one-time funding sources to plug that gap at LEAD,” Mosqueda noted. “If the funding gap from last year is the same [in Harrell’s 2024 budget], it will start to impugn our ability to actually do what this bill purports that it will do.”
Additionally, Mosqueda noted, the city faces a budget shortfall, starting in 2025, of more than $200 million a year. “Everyone should have that front and center,” she said.
Without new funding, the primary impact of this recommendation could be that existing diversion programs, such as LEAD, start getting new referrals primarily from police, instead of the community-based referrals that now make up the bulk of their work. For most of its existence, LEAD stood for “Law Enforcement Assisted Diversion”; last year, the group changed its name to reflect the shift in its priorities. Reverting to the old model would mean, “effectively, that the only entry point to LEAD is by a police officer,” Mosqueda said.
The committee also voted 3-2 for another amendment from Nelson that water down the second purportedly substantive change to the legislation, which originally would have required officers to use their discretion and judgment to “determine whether the individual, through their actions and conduct, presents a threat of harm to others” before making an arrest.” Nelson’s amendment changes “will” to “may,” making the use of discretion itself discretionary.
The change won’t have much practical impact, since the original version of the bill already defined “harm to others” so broadly it included any “street disorder” witnessed by “businesses, transit riders, and people traveling to school, work, retail stores, or trying to enjoy the City’s parks and other public places.”
But it does codify the notion that police officers get “confused,” as Nelson put it, “in the moment [about] … what we are expecting them to do,” and that requiring them to use their judgment before arresting drug users will make it harder for them to do their jobs (and, presumably, drive them away). “There are practical concerns for officers and prosecutors … includ[ing] time burdens and confusion for the prosecution of criminal cases to time burdens and confusion for officers that are trying to enforce our laws,” Nelson said. Given recentrevelations about the way officers behave behind closed doors, one could reasonably argue that officers need more oversight and guidance from the city, not less.
Earlier in the meeting, Mosqueda proposed tightening the definition of “harm to others” to include only physical harm, as opposed to feeling uncomfortable or unsafe. That amendment failed, after Nelson said that someone “being exposed to fentanyl” should be enough to justify an arrest. During public comment, Rev. Harriett Walden, a member of the Community Police Commission, said she “had a fentanyl exposure and almost died.” According to numerous studies, fentanyl vapor contains almost no trace of the drug, and does not pose any physical risk to people who aren’t smoking it.
Source: City attorney’s office 2022 4th-quarter report
By Erica C. Barnett
Before casting the deciding vote to reject a bill that would have given City Attorney Ann Davison new power to prosecute people for using or possessing drugs, Councilmember Andrew Lewis said he was swayed to vote no by Davison’s unilateral decision to stop sending cases to community court, a therapeutic court that allows people accused of specific low-level misdemeanors to access services and life-skills classes in lieu of prosecution.
Davison’s office has argued that community court and its onetime presiding judge, Damon Shadid, have been too lenient on low-level defendants, allowing people to elude charges by attending a single online life-skills class. Some service providers have actually echoed this complaint, arguing that the court does too little to get people into meaningful services like addiction treatment and job assistance programs.
Proponents of community court, including Shadid and the King County Department of Public Defense (DPD), say community court graduates were less likely to reoffend (one measure of success) than people who go through mainstream court, and that the court offered a vital alternative to prosecution and incarceration, which clog up court dockets and put more pressure on the understaffed downtown jail.
“Community Court was a collaborative effort to reduce the harm of the system and instead connect people charged with nonviolent misdemeanor offenses to services,” DPD director Anita Khandelwal said after Davison announced her decision. “Nonetheless, the Seattle City Attorney … seeks to push push people deeper into a criminal legal carceral system that is expensive, deadly, and deeply racially disproportionate.”
Lewis, a former assistant city attorney, has said he will vote for a future version of Davison’s legislation if and when the city comes up with an alternative, or “successor,” to community court that includes access to services like addiction treatment for people who participate. So far, Lewis—who’s up for reelection this year—has outlined no specific plan, timeline, or proposal for what the new court would look like and who would be eligible.
In this context, the debate over Seattle’s now-defunct community court is still highly relevant. If the whole concept is doomed to failure, as Davison has suggested, the solution might be some combination of expanded pre-trial diversion programs and prosecution, which Davison’s office maintains the Seattle Municipal Court is better equipped to handle now that one judge (Shadid) has been “freed up” to hear mainstream cases. If it was a success, as DPD maintains, a new court might look more like community court 4.0, perhaps with more requirements—Davison’s office bristled at Shadid’s elimination of a community-service mandate—and a more punitive prosecute-and-jail track for people who fail to engage after signing up for the program.
The City Attorney’s Perspective
In her letter to the city council announcing the city’s withdrawal from community court, the city attorney’s criminal division chief, Natalie Walton-Anderson, said community court had an extremely low completion rate, with just a 22 percent “graduation” rate among defendants referred to the court. This, the city attorney’s office argued, has led over time to “a huge volume of unresolved and unaccounted for cases”—growing from a handful in August 2020, when the court was launched, to more than 1,500 as of last September.
“Prosecutors, judges and defense sitting in empty courtrooms is extremely costly, not just in staff time but in opportunity cost,” a spokeswoman for the city attorney said. “There are many more effective uses of this staff time. It also imposes a public cost—if there is no effective response to repeat criminal activity then the public pays through reduced safety and increased victimization.”
This backlog, Walton-Anderson argued, is the result of people failing to engage in court by showing up for hearings or complying with court requirements, even though “most participants only had to participate in an assessment with a pre-trial service counselor and attend a 90-minute life skills class.”
“Prosecutors, judges and defense sitting in empty courtrooms is extremely costly, not just in staff time but in opportunity cost,” a spokeswoman for Davison, Marina Yudodik, told PubliCola. “There are many more effective uses of this staff time. It also imposes a public cost—if there is no effective response to repeat criminal activity then the public pays through reduced safety and increased victimization.”
Community court—which excludes anyone accused of serious misdemeanors, such as stalking, harassment, and motor vehicle offenses—has three tiers for engagement, ranging from a 14-day program that includes the online life-skills class and information about available services to a 45-day program that includes mandatory engagement in services assigned by the court. According to Seattle Municipal Court data, Tier 1 defendants—the lowest level of engagement—account for fewer than half of those who enter community court, and there are about the same number of Tier 3 defendants as Tier 1.
But even among people who do engage with services, Davison’s office argues, the majority only access items to help with their immediate needs, rather than ongoing services like drug treatment or job training. According to community court records, in the court’s first 16 months, 31 participants accessed drug treatment, including medication-assisted treatment with suboxone—less than a third of the number referred to treatment services. In contrast, 214 people received bus tickets, 132 got clothing, and 166 accepted food bags.
In addition, the city attorney’s office argues, community court has is open to people who are accused of “significant criminal acts,” and does not screen out people with “serious criminal histories,” including in other states. In her letter, Walton-Anderson gives several examples of cases that her office believes are “inappropriate” for community court, either because they’ve committed more serious crimes in the past or because their specific cases are more serious than their charges indicate.
The letter provides four examples of “inappropriate cases and individuals” that ended up in community court, including one man who had several felony cases pending in King County Superior Court who went on to carjack a vehicle with a child inside; one man who was charged with multiple felonies while in community court but still graduated; and another man who committed multiple misdemeanors and felonies while his cases were pending in community court.
In her letter, Walton-Anderson said the office plans “to dismiss a significant number of cases that were filed prior to January 1, 2022” to clear out the community court docket, and the city attorney’s office has said it plans to send more cases into pre-trial diversion, where appropriate, while routing other cases to mainstream municipal court. In a statement about her decision to stop sending cases to community court, Davison noted that people who participate in pre-filing diversion are less likely to reoffend than those referred to community court.
The city’s existing pre-filing diversion programs are aimed at people under 25, not the older adults who commit a large and growing number of drug-related crimes. Other programs, such as the longstanding program now called Let Everyone Advance with Dignity (LEAD), serve older adults, including those with significant behavioral health challenges and extensive criminal justice involvement, but LEAD is a pre-booking program separate from the pre-filing programs Walton-Anderson referred to in her letter.
Recently, the CAO did sign new pre-filing diversion contracts with several nonprofit groups, including the Urban League, the LGBTQ+ Center (formerly Gay City), and Unified Outreach, an arts program for at-risk youth that is expanding to serve adults. The city council provided $750,000 for expanding diversion to people 25 and older in 2021, but—after a protracted battle with Davison in 2021—moved the funding from the city attorney’s office to the Human Services Department, which spent more than a year analyzing potential diversion strategies. During this time, the funding sat unspent for “many months,” Davison spokeswoman Yudodik said.
These programs, once they’re up and running, will still be aimed at people who are fairly high-functioning—excluding, for example, those who are in active fentanyl addiction and need more services than a light-touch diversion program can provide.
Source: City attorney’s office letter, May 26, 2023
The Public Defenders’ Perspective
Community court has many defenders, including the attorneys who represent clients accused of low-level misdemeanor crimes.
DPD director Khandelwal recently told PubliCola that “if the CAO opts for traditional prosecution, we expect we’ll see more dismissals. This means that more people will churn through a costly and ineffective system and will be harmed and destabilized in the process.” Data from the city attorney shows that in 2022, municipal court judges dismissed nearly 800 cases out of 5,700 filed by the city attorney’s office.
Advocates for community court have also argued that criminalizing low-level crimes, and jailing people who would have been eligible for community court, will only destabilize defendants with major challenges that contribute to their criminal activity, such as mental illness, addiction, and homelessness.
“We have been able to hook people up with housing, with inpatient treatment, with mental health services, with Apple Care [Medicaid] insurance, right there at the court,” Shadid told PubliCola last year. “I just think this way is proven to have more positive effects for our community than putting people in jail, destabilizing them, making them lose their services, and then releasing them back into the community with less connections to services than they had when they entered.”
In her letter, Walton-Anderson provided several examples intended to demonstrate that community court doesn’t work, and that eliminating the court would give the city attorney the ability to prosecute people who cause harm. However, it’s debatable whether the cases she picked as examples would have gone differently if community court did not exist.
For example, the letter describes Ryan, who was accused of theft and property damage. After opting in to community court, he committed a felony by attempting to steal a car that had a child inside. However, both of Ryan’s charges stemmed from arrests in 2021 for which he was booked and quickly released, long before he opted in to community court last year. Both of those cases were dismissed for lack of proof. Ryan has been in jail on the felony charge since last May in lieu of $350,000 bail.
It would be one thing if this was unique to community court, but failure to appear is extremely common across all parts of the municipal court system. Scott Lindsay, now Davison’s deputy city attorney and a vocal opponent of community court, estimated in a 2019 report for the Downtown Seattle Association that around 65 percent of people failed to appear at their initial court hearing.
In another case, William racked up a large number of shoplifting misdemeanors before his 2020 referral to community court. The jail repeatedly released him directly into residential treatment for his substance use disorder, but he left each time before finishing. The reason William’s cases were dismissed, though, was a separate plea deal with the King County prosecutor on a felony case, not his failure to participate in community court or treatment. Additionally, William is on the “high utilizers” list Davison categorically excluded from community court more than a year ago, and has been ineligible for community court since then.
Walton-Anderson’s letter also cites David, a man who was arrested repeatedly for stealing from a store in North Seattle and “graduated” from community court in 2022, “having completed only the 90 minute life skills class to resolve all [nine] cases” from 2020. In fact, according to court records, David had been in a one-year residential treatment program for almost two months and “making great progress,” according to his probation officer, when he graduated from community court—precisely the kind of outcome the city attorney’s office has said it hopes to see. By the time David reoffended last August, he was already ineligible for community court because he, like William, was on Davison’s high-utilizers list.
Advocates for community court also dispute some of the statistics the city attorney uses to claim the court wasn’t working. For example, the office has frequently noted that community court has a low completion level—about 78 percent of people who opt in to the court don’t complete it. However, as Judge Shadid has pointed out, the low “graduation” rate stems from the fact that a high percentage of community court participants fail to appear at initial hearings, often because they are homeless.
It would be one thing if this was unique to community court, but failure to appear is extremely common across all parts of the municipal court system. Scott Lindsay, now Davison’s deputy city attorney and a vocal opponent of community court, estimated in a 2019 report for the Downtown Seattle Association that around 65 percent of people failed to appear at their initial court hearings. The subtitle for the report, which preceded the most recent iteration of community court, was “Declines, Delays, And Dismissals – Why Most Seattle Misdemeanor Cases Never Get Resolved And The Impacts On Public Safety.”
The city attorney’s office has pointed to higher recidivism rates among people who opt in to community court compared to pre-trial diversion programs that have more requirements, like the LGBTQ+ Center’s online Access to Change program for young adults accused of certain domestic violence crimes. However, people who get referred into pretrial diversion are a specific subset of defendants who the city attorney’s office believes are likely to succeed in diversion programs that offer a “light touch”—young people with minimal prior criminal involvement who generally do not face the same challenges as older community court defendants, like chronic homelessness, fentanyl addiction, and severe mental illness. They just aren’t the same group of people.
Community court is gone, for now, and its replacement is now in the city’s hands. Both Lewis and Davison have expressed support for expanded use of pre-trial diversion programs for the higher-functioning people who qualify, and continuing or expanding LEAD, an evidence-based program that provides case management and services to people with high levels of criminal legal involvement.
Even with those programs, both Davison’s office and the municipal court will likely be inundated with new low-level cases, which could lead to larger backlogs and more dismissals. Currently, according to records compiled by municipal court staffers, the court has almost 2,400 cases from 2022 that are still pending, along with nearly 2,000 so far in 2023. Adding cases that would have gone to community court to this pile would only increase the backlog. In 2019, for example, nearly 3,000 cases were filed that would have been eligible for community court, if community court had existed at the time.
Last year, Davison’s office declined fewer than 60 cases using pre-filing diversion programs—a small fraction of the number that will need to be diverted into programs that have limited capacity in order to avoid an even greater backlog. The city—and Lewis in particular—will have to be creative and determined if it wants to avoid the very situation Davison decried during her election campaign.
City Councilmembers Alex Pedersen and Sara Nelson; City Attorney Ann Davison
By Lisa Daugaard
Seattle can continue to lead the country toward a productive approach to substance use and related problems. This is true no matter what happens when the City Council votes next week on a proposed ordinance, sponsored by Councilmembers Sara Nelson and Alex Pedersen and supported by City Attorney Ann Davison, creating gross misdemeanors under the Seattle Municipal Code for drug possession and public drug use.
If the ordinance is defeated, its proponents are still correct that we need far more urgency in responding to the drug crisis playing out throughout the city. If it passes, its opponents are still correct that the answer to drug-related problems does not generally lie in jailing and prosecuting people for substance use. Whatever happens next week, the work before us is the same: Take the field-leading models our community has devised to foster recovery for people who are most marginalized and exposed to the legal system, and secure the resources needed for those models to have their full impact.
When responding to problematic drug use, we cannot be satisfied with engagement for its own sake. As necessary as overdose prevention and reversal and preventing disease transmission are, they are not sufficient. We have to tackle how people are living, not just prevent deaths.
As a community, we have long known and broadly agreed on what can work well to respond to individuals who use substances in a problematic way: engagement without judgment; pre-booking diversion and pre-arrest referrals to intensive case management; well-designed low barrier interim and permanent housing options for those who are living unsheltered, as well as long-term case management for people whose use is related to complex trauma and lack of other support systems.
These approaches have been branded under names such as LEAD, Housing First, JustCARE, and harm reduction, but they all share elements of evidence-based, well-researched, trauma-informed care strategies and behavior change theory. Indeed, experts in our midst have quietly been teaching other communities how to implement these approaches, nationally and internationally, for more than a decade.
Seattle led the nation in reducing arrests, jail bookings, and prosecutions for drug possession long before the 2021 Washington Supreme Court Blake decision. The fact that there is an ordinance authorizing arrest, jail and prosecution for an offense does not dictate that it be used in a stupid, counter-productive, and evidence-defying way
What we have never done is bring these approaches to scale. Despite a unanimous City Council resolution in 2019 committing Seattle to make LEAD diversion resources available in all appropriate cases, current funding limits require turning down the majority of appropriate referrals. Nor have we complemented this approach with the housing and income supports many people need to make real breakthroughs. CoLEAD and the JustCARE model, funded by temporary COVID relief dollars, began to fill that gap over the last few years, but their future is uncertain as federal relief funding recedes.
It is absolutely true that, all other things being equal, court cases and criminal charges tend to impede recovery, for complex reasons including stigma, collateral consequences, the challenge of making it to court, and the difficulty of making even well-intentioned lawyers into trauma-informed practitioners. Jail and the inherent trauma it represents, including lack of physical autonomy for people who have often been physically abused, almost always impedes recovery. These should not be the primary strategy or the first resort in our response to problematic drug use. Those objecting to the new proposed ordinance are right to raise these issues.
Yet Seattle led the nation in reducing arrests, jail bookings, and prosecutions for drug possession long before the 2021 Washington Supreme Court Blake decision. The fact that there is an ordinance authorizing arrest, jail and prosecution for an offense does not dictate that it be used in a stupid, counter-productive, and evidence-defying way. We made enormous progress as a community, and developed a consensus approach to these issues, while there was still a valid felony drug possession law in place across the state that was fully available to local officers. Police and prosecutor discretion—and the support of city and county public officials and law enforcement leaders—meant that, while the authority to jail and prosecute existed, it was rarely used.
Mayor Bruce Harrell, who has prioritized action on conditions downtown and in the Chinatown/International District, oversees the Seattle Police Department, and has gone out of his way to make clear that he has no intention of arresting, jail or referring drug users for prosecution. And the authors of the new proposed ordinance making drug possession and public use a local crime were not even proposing criminalizing simple drug possession in Seattle until Governor Jay Inslee pressured the legislature to pass a law creating these crimes statewide. It’s regrettable that lawmakers removed the option of local choice, which would have resulted in de facto legalization of possession and private use in Seattle and King County. But it’s worth recalling that, before Inslee’s choice drove us down this road, Davison, Nelson, and Pedersen, to their credit, were championing only a very narrow role for the legal system.
We can use best practices with or without the proposed law. In six months, for example, it will be far more important whether the multi-partner Third Avenue Project is still going on—and the 400-plus people who use drugs, live unsheltered, and are having a problematic impact in the Third Avenue corridor received supportive housing and intensive case management— than whether there is formal jurisdiction for the City Attorney to prosecute these two, of many, offenses that people who use substances often commit.
Drug possession and public use are now gross misdemeanors across the state—including in Seattle. Nothing local officials can do now can formally decriminalize either. It’s evident that some local leaders feel that taking an enforcement role completely off the table sends a message that serious drug issues are unimportant or low priority, and it’s also evident that other local officials cannot stomach any steps that formally invoke the prospect of criminal system consequences for what are fundamentally health and wellness issues.
It’s important to recognize that defeating the ordinance would not in itself represent a progressive approach to drug issues. Let’s fight hardest for what will matter most: whether we actually mobilize the community-based care approach that most people in Seattle support, go and get our people, demand the housing and income support that people need to recover, and provide the wrap-around care without which there is nearly zero chance for stabilization and healing. As it stands, regardless of whether this ordinance passes, we aren’t close to scaling the plan we need—even though we know exactly what it is.
Lisa Daugaard is the Co-Executive Director for Purpose Dignity Action (PDA) (formerly the Public Defender Association), a longtime drug policy reform organization that provides project management for local LEAD diversion initiatives, technical support for other jurisdictions implementing pre-booking diversion models, and partners on the JustCARE and Third Avenue Project initiatives.
However, per Josh’s New Year’s prediction, state Rep. Julia Reed (D-36, Seattle) proposed a TOD bill this week that allows cities to go small, with zoning requirements well below the standard for adding the number of units our housing-shy region needs. Reed’s bill sets the minimum allowable “Floor Area Ratio”—an equation that determines the amount of housing it’s possible to build on a lot—at 3.5 within a half-mile of a stop on a light rail and 2.5 within a quarter-mile of bus rapid transit lines.
