By Erica C. Barnett

Seattle City Councilmembers Sara Nelson and Alex Pedersen, along with City Attorney Ann Davison, proposed legislation on Thursday that would make public consumption of illegal drugs, other than cannabis, a misdemeanor, punishable by up to 90 days in jail and a maximum fine of $1,000.

The legislation comes in the context of the state legislature’s failure to address drug possession in the session that ended Sunday. In 2021, the state supreme court issued a called State v. Blake, which decriminalized simple drug possession—previously a felony. In response, lawmakers passed a temporary law that made possession a misdemeanor, rather than a felony, giving themselves until July of this year to come up with a permanent replacement. Gov. Jay Inslee is expected to call a special session on the issue next month.

Meanwhile, cities around the state are already proposing their own local laws criminalizing drug possession that would go in effect if the legislature fails to take action by July.

The proposal in Seattle does not directly address drug possession. Instead, it focuses on the kind of visible, public use that grabs headlines—people smoking meth or fentanyl on park benches, in doorways, and on public transit. At a press conference announcing the legislation on Thursday, Davison, Nelson, and Pedersen all framed public drug use as a public safety issue and suggested that their legislation would send a signal to drug users that they could no longer use in public spaces.

“Our buses are unhealthy to use. Our transit centers feel unsafe to wait in, and people walking down the street feel afraid,” Davison said. “Enough is enough. We need to reclaim our public spaces—all of them. We need to intervene in the lives of people who are suffering and to do that we must see them and say that what they’re doing in public is not okay for them, or for us collectively.”

Nelson said the “economic revitalization of downtown” depended on “giv[ing] our officers a tool to interrupt” public drug consumption. Workers “are afraid to ride public transit to work or walk to their office past people smoking fentanyl on the street,” she said. “Meanwhile, summer’s around the corner, and parents want to be able to take their part their kids to the park without people doing drugs right in front of them.”

Despite all the tough talk, the legislation—if it passes—is unlikely to have much of an impact on public drug use downtown or elsewhere. (Notably, although all of its supporters focused on mitigating harm to children, the legislation is silent on private drug use by parents or caregivers, which causes far more harm to actual children than walking past a stranger smoking fentanyl in the park).

For one thing, as Davison acknowledged, the Seattle Police Department doesn’t have enough officers to enforce the drug laws that are already on the books, including laws against dealing and trafficking. For another, the downtown jail isn’t booking people on low-level misdemeanors, and won’t be starting any time soon—just last month, the county moved 100 people from the downtown jail in because of understaffing.

“I recognize that [SPD is] down 30 percent of their force, and we need to make sure that they’ve got adequate staffing levels to be able to improve the public safety of people and businesses across the city,” Nelson said. “What I’m worried about right now is getting the basics right, and making explicit that we don’t allow the public use of illegal drugs.”

As she did during Harrell’s executive order announcement, Nelson distinguished between “deadly” illegal drugs and alcohol, supporting Harrell’s proposal to legalize “sip and strolls” events where people participating in downtown events can consume alcohol on sidewalks and other public spaces. Prior to the pandemic, alcohol use killed 140,000 Americans every year, according to the CDC, and alcohol consumption as well as binge drinking has only increased since then.

Davison said she hoped to work with “our diversion partners to get people into treatment. … The goal is always recovery—to disrupt antisocial behavior, to encourage people into treatment, and to make our streets parks and buses safer.”

The city’s primary pre-filing diversion program, LEAD, is not primarily focused on putting people in treatment as an alternative to jail; instead, it provides intensive case management based on a person’s needs, with a focus on harm reduction.

The co-director of the organization that runs LEAD, Purpose Dignity Action (formerly the Public Defender Association), said Thursday that the legislation “could be far worse, as we can see from the bill that was passed by the Democratically controlled Senate.” That bill made drug possession a gross misdemeanor, punishable by up to 364 days in jail, with a treatment alternative that carried harsh penalties for “failure to comply” with mandatory treatment.

“Aside from using the criminal system for what are fundamentally health issues, this legislation doesn’t inflict any additional problems or harm,” Daugaard said.

In a statement, City Councilmember Lisa Herbold, who chairs the council’s public safety committee, said she would “not consider a local Blake decision fix or any local drug laws” until the legislature has had a chance to meet in special session and come up with a fix. … I remain committed to Seattle’s approach, as outlined as recently as last week in Mayor Bruce Harrell’s Executive Order, to work to ensure people struggling with addiction get the treatment they need.”

As we reported earlier this month, Harrell’s executive order includes support for a new pilot contingency management program that will provide incentives for drug users who abstain from their drug of choice; it also expands the fire department’s Health One program to include a new overdose response unit.

In a statement, Harrell said that although “[i]t is never acceptable for people to smoke fentanyl or consume illegal drugs on Seattle sidewalks and public spaces… it is essential that we advance evidence-based policies, programs, and services that help those in need get the treatment they deserve–and continue focusing on arrests of those dealing or taking advantage of people in crisis, both of which are critical to restoring feelings of safety downtown and for all Seattle neighbors.”

“I want to see that this legislation was created with appropriate input from impacted communities, law enforcement and first responders, and providers of triage and treatment,” Harrell continued. “Another policy tool helping people accept services may enhance our efforts, but recreating the war on drugs would crater them.”