By Erica C. Barnett
After a tense, emotional meeting Tuesday, the Seattle City Council voted 5-4 to reject legislation proposed by City Attorney Ann Davison that would have empowered Davison to prosecute Seattle residents for simple drug use and possession.
The bill, co-sponsored by Councilmembers Sara Nelson and Alex Pedersen, would have incorporated most of a new state law making drug use and possession a gross misdemeanor into the city’s municipal code. The state legislature changed the law this year after the state supreme court overturned the state’s felony drug possession law in a decision called Washington v. Blake.
The swing vote was Andrew Lewis, a former assistant city attorney who represents downtown Seattle and is up for reelection this year. On Tuesday, Lewis said he had planned on voting for the bill, but changed his mind after Davison abruptly and unilaterally announced the city would no longer participate in community court, a therapeutic court that did not require people to plead guilty of a crime to participate.
Lewis’ vote, he said, came down to the fact that he didn’t believe Davison would use the law judiciously after she effectively eliminated the city’s only therapeutic court.
“What it really came down to was that I don’t have any guarantee right now, with these misdemeanors, that jail isn’t going to be the primary remedy that’s sought to enforce them” in the absence of community court, Councilmember Andrew Lewis said. “”This infrastructure has to be in place, or at least there has to be a commitment or an outline for what we are going to do, and I ultimately didn’t feel comfortable giving that authority without that.”
“I came out here on the dais today fully prepared to vote for this measure,” Lewis said. “I am not necessarily opposed to incorporating the statute into our [city code], and I was prepared to do this. I think it is generally proper for us to do it. But with the ending of community court, without any additional process, I just can’t do it today.”
On Wednesday, Lewis told PubliCola that what his vote “really came down to was that I don’t have any guarantee right now, with these misdemeanors, that jail isn’t going to be the primary remedy that’s sought to enforce them” in the absence of community court. “It doesn’t exist now, but maybe we could make a successor court” to community court, he said. “This infrastructure has to be in place, or at least there has to be a commitment or an outline for what we are going to do, and I ultimately didn’t feel comfortable giving that authority without that.”
This afternoon, Lewis announced he would propose a path toward passing a version of Davison’s law, after working to develop a “successor court” to community court, develop and fund treatment-based pre-filing diversion, working “to scale and deploy” an evidence-based response to fentanyl use in Seattle, and “finally, after creating those necessary pathways for treatment and diversion, propose legislation making the Seattle Municipal Code consistent with State Law on possession and public use.”
Tensions were high in council chambers on Tuesday, as dozens of public commenters opposed to the law expressed their grievances with the council in general, and Nelson—who owns Fremont Brewing, a brewery and bar, with her husband—in particular.
“We all know that the Seattle Police Department will not be investigating, arresting, and charging anyone who is doing lines of coke in the bathroom of the Fremont Brewery,” Molly Gilbert, head of the union representing King County Department of Public Defense employees, said. “You are literally a drug dealer!” another commenter quipped.
Others responded to claims that the proposal was not tantamount to a “drug war,” because it would only make drug use and possession a misdemeanor, by telling the council how their own lives were derailed by misdemeanor drug convictions. Liletha Williams, one of the last people to speak, testified that her misdemeanor convictions in the 1990s “destroyed my life.”
“I’m 62 and I don’t have any retirement,” Williams said. “I have to work. I’m sick. I can’t have surgery because I can’t miss work. This is all because of my drug addiction in 1990.”
Moments after listening to this testimony, Nelson said her legislation had nothing in common with the drug war of the 1990s.
“I believe that equating this legislation to the war on drugs is frankly to diminish and minimize the damages and the heinousness of that stain on our history,” Nelson said. “Those were felonies. People were thrown into jail for years on felony charges having to do primarily with cannabis and coke and crack and heroin, etc. We are talking [about creating a] gross misdemeanor to address the most potent and dangerous drug to hit our streets, ever.”
Juarez—who briefly put the meeting into recess after people objected to her proposal to end public comment before everyone had spoken—also described fentanyl as a uniquely deadly and dangerous new drug.
“Let me be clear,” Juarez said, “fentanyl is poison. The effects are different and more deadly than than we have ever witnessed with other dangerous drugs like cocaine or heroin. There is no such thing as a functioning fentanyl user. You either have treatment or you die. And you die soon.”
In fact, fentanyl has been legally manufactured and prescribed in the US since the 1960s for long-term pain management and is on the World Health Organization’s list of essential medicines, along with many other potentially addictive drugs. (Nor—despite frequent claims to the contrary—can people get high or overdose from secondhand fentanyl vapor, according to the Seattle/King County Department of Public Health.)
“Let me be clear,” Council President Debora Juarez said, “fentanyl is poison. The effects are different and more deadly than than we have ever witnessed with other dangerous drugs like cocaine or heroin. There is no such thing as a functioning fentanyl user. You either have treatment or you die. And you die soon.”
So what happens now? As it has since May, the new state law applies in Seattle, meaning that drug use and possession are both illegal. (This is true despite a false claim from Davison that “Seattle will now be the only municipality in the State of Washington where it is legal to use hard drugs in public.”). Seattle Police Department officers retain their existing authority to arrest people under the state law, and King County Prosecutor Leesa Manion retains her existing authority to prosecute people for misdemeanor drug use and possession. And Davison can continue prosecuting misdemeanors related to drug use, such as shoplifting and trespassing—something that has already been keeping her busy in the absence of broad the broad new authority she sought.
In all likelihood, SPD won’t start rounding up fentanyl users on Third Avenue, and Manion won’t start prosecuting people for simple possession, but that would have been the case even if the legislation had passed. Manion, who supported the bill, rarely pursues even felony drug cases, and SPD has been focusing its resources on people higher up the illicit drug food chain—”the dealers and traffickers bringing this poison into our communities,” as Mayor Bruce Harrell put it in a statement after the vote. Harrell, no fan of drug-war policies, has stayed largely silent on the legislation; in his statement, he said it was “unacceptable for people to consume illegal drugs in public spaces,” but also emphasized “new and innovative approaches to ensure those in need receive the treatment they deserve,” such as contingency management.