1. On Monday night, the Burien City Council expanded the number of hours per day in which being unsheltered will soon be illegal, changing the daily deadline for homeless people to be off the streets from 10 pm to 7 pm. The change, an amendment to the sleeping ban the council passed just one week earlier, bans people from “living on” public property between 7 in the evening and 6 in the morning.
During Monday’s meeting, Burien City Attorney Garmon Newsom II said the city decided to make the adjustment after learning that many shelters “begin making their decisions” about who to admit around 4:30 in the afternoon; by 10pm, most are closed and “it would be too late” to take people there. By starting the ban earlier in the evening, the city seems to believe it can plausibly say shelter was “available” and that people refused to accept it, making it legal for police to remove or arrest unsheltered people from the streets.
Signs of camping, according to the ordinance, include “bedding, cots, sleeping bags, tents or other temporary shelters, personal belongings storage, and cooking equipment use or storage.”
During the meeting, Newsom inaccurately claimed the new proposal actually increases “the amount of time they are able to camp” by allowing “camping” between 7 pm and 6 am; in fact, it does the opposite, making it illegal to be unsheltered in public spaces between those hours. Councilmember Cydney Moore, who opposed the underlying ordinance, tried to correct the record, prompting a brief back and forth with Newsom that Mayor Sofia Aragon cut off, saying Moore should limit her comments to “these technical changes.”
The council’s agenda also suggests proponents were confused about what the amendment does. According to the bill description, it “clarifies, consistent with the council’s previously stated intent, that there will be no camping outside of the hours stated in the ordinance. At this time, the proposed amendment would change the start time for camping from 10:00 p.m. to 7:00 p.m.” In reality, it changes the start time when “camping” is illegal.
Before voting for the change, deputy mayor Kevin Schilling said the King County Sheriff’s office had signed off on the change. A spokesman for King County Executive Dow Constantine told PubliCola Tuesday that the county still has not made a decision about whether and how to enforce the law.
2. Daniel Auderer, the Seattle Police Officers Guild vice president caught on body-worn video joking with guild president Mike Solan about the killing of 23-year-old student Jaahnavi Kandula by another police officer, Kevin Dave, has been reassigned to review red-light camera footage and sign traffic tickets, PubliCola has learned.
Only a handful of officers are assigned to red-light camera duty at a time. Often, these officers are near retirement or, like Auderer, have been removed from patrol duty because of a complaint or other problem with their performance.
Auderer’s comments came to light when the King County Prosecuting Attorney’s Office, which is considering criminal charges against Dave, released the video to PubliCola and a reporter for the Seattle Times in response to records requests.
The changes are subtle—so subtle PubliCola didn’t notice them when we wrote about the executive order last week. The order reinstates language saying officers “will” determine the level of threat and make reasonable efforts to divert people from arrest when possible, and restores language Nelson deleted saying that officers should not arrest a person “absent articulable facts and circumstances warranting such action.”
3. In his executive order order clarifying how SPD should implement a new law criminalizing public drug use last week, Mayor Bruce Harrell mostly restated the language in the underlying bill, which says police should try to divert people to social service programs that will help them address their drug use instead of resorting immediately to arrests. But the EO includes a couple of subtle tweaks that could undo changes Councilmember Sara Nelson inserted at the last minute to give officers extra discretion to make arrests.
The changes are subtle—so subtle PubliCola didn’t notice them when we wrote about the executive order last week. They’re about the words “will” and “may.” In her amendments, Nelson changed language stating that officers “will” determine whether a person poses a threat of harm to self or others, and language stating that officers “will make reasonable efforts to” use diversion rather than arrest to say that officers “may” do both things, making each decision completely discretionary.
Harrell’s executive order reinstates language saying officers “will” determine the level of threat and make reasonable efforts to divert people from arrest when possible, and restores language Nelson deleted saying that officers should not arrest a person “absent articulable facts and circumstances warranting such action.”
Mayoral spokesman Jamie Housen told PubliCola, “As was discussed extensively during Council debate, the legislative branch cannot direct the actions of executive branch employees through legislation. Mayor Harrell has made it clear that under this bill he wants officers to conduct a threat of harm assessment and that diversion is the preferred outcome rather than further criminal legal system engagement.”
Under the language Nelson added to the bill, there would be little recourse if officers decided, using their broad discretion, to arrest every person using drugs in public without determining if they posed a threat, and no legal reason for officers to try to get people into diversion programs instead of arresting them. By changing both words back to “will”—in the implementing executive order, if not the legislation—Harrell strengthened the bill (which, we feel obligated to add, still does not require diversion or fund any new diversion programs).
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.
On Wednesday, the Seattle City Council adopted a new law empowering City Attorney Ann Davison to prosecute people who use drugs in public, or who are caught with illegal drugs other than cannabis, on a 6-3 vote, with every council member except Teresa Mosqueda, Kshama Sawant, and Tammy Morales voting “yes.” The new law makes public drug use and simple possession gross misdemeanors for the first time in Seattle history.
An earlier version of the bill, which would have incorporated a new state drug criminalization law into the city’s municipal code, died on a 5-4 vote after Councilmember Andrew Lewis, a former city prosecutor, changed his mind in response to public testimony and Davison’s decision to unilaterally end a local therapeutic court called community court. The state law is as the “Blake fix” because it re-criminalized drug possession and public use after the state supreme court overturned an existing law that made public drug use and simple possession a felony.
The new version of the bill is significantly longer, but substantively similar, to the previous legislation. The new bill is significantly wordier, largely because it now includes more than 30 nonbinding “whereas” clauses stating the city’s intent to, among other things: Strongly recommend that police consider diversion before making arrests; avoid “repeating the mistakes of the past”; and review the impact of the legislation in the future.
The bill targets only people who use drugs in public, Councilmember Tammy Morales noted, targeting users who are poor or homeless while ignoring all the drug use that takes place behind closed doors. “If we wanted to address drug addiction, we would not be focused only on those who use it in the streets where we can see their suffering.”
It also contains new provisions saying police will, in the future, adopt policies governing when and how to divert people instead of arresting them, along with a section saying police “may” consider whether a person using drugs is harming others or just themselves when deciding whether to make an arrest.
Finally, the bill contains some reporting requirements and sets up a new committee to evaluate how the law is going in the future.
Proponents of the bill, with the exception of its original sponsor Sara Nelson, made a lot of all these nonbinding suggestions and reporting requirements. (Nelson wanted to eliminate the evaluation committee as well as a nonbinding recommendation that the police use officers who have received crisis training, who make up more than half the department, to respond to public drug use, saying both proposals infringed on the authority of Police Chief Adrian Diaz and Mayor Bruce Harrell. After other council members noted that Harrell’s office approved both provisions, a majority of the council voted down both of Nelson’s amendments.)
“This does not create new [police] authority. It seeks to limit it in a way that does not exist under state law,” one of the bill’s two sponsors, Councilmember Lisa Herbold, said. “This is a commitment to not repeat the errors of the past.”
Lewis, who co-sponsored the legislation with Herbold, said the bill was not intended to be “the magic solution that fixes the situation that we are facing,” but added that it “gives additional guidance and [a] focus on public health best practices that are alternatives to incarceration and entering the criminal legal system.”
Opponents of the bill pointed out that not only is that “guidance” nonbinding, the legislation comes with no additional funding to implement diversion or treatment; instead, Councilmember Teresa Mosqueda said, it offers a “hollow promise” of alternatives to arrest. Under the council’s regular process, the legislation would have been on the agenda for next week, coinciding with Harrell’s 2024 budget proposal, which will reveal how much, if any, funding Harrell will propose for expanding diversion programs such as LEAD, which is already oversubscribed for this year.
“So while the emphasis is on pre-arrest diversion and not arrest, we are not actually able to follow through with that without assurances that [these strategies] will be in the budget,” Mosqueda said.
Mosqueda, who chairs the council’s budget committee, also noted that Harrell’s “plan to invest $27 million toward facilities, treatments, and services to address the opioid crisis” is not actually a new $27 million investment. Instead, that number includes $7 million in unspent capital grants that will fund a new DESC overdose recovery site on Third Ave., as PubliCola exclusively reported last month, among other investments, plus an average of about $1 million a year from statewide settlements with opioid manufacturers and distributors, spread over the next 18 years.
Additionally, Harrell can’t actually commit that future money (whose value will depreciate with inflation over time), because the city allocates funding annually through the budget, so the money—which does have to be spent on purposes related to drug addiction—could pay for other things in the future.
Tammy Morales’ challenger Tanya Woo held a rally outside City Hall before the vote. The legislation, she acknowledged, isn’t perfect, but at least it “does something” to address public drug use in places like 12th and Jackson, in the Chinatown/International District.Councilmember Tammy Morales—whose challenger in this year’s election, Tanya Woo, held a rally with Chinatown/International District residents outside City Hall to highlight Morales’ opposition to the bill—said the legislation was “ineffective… unnecessary, and dare I say, performative.” The bill targets only people who use drugs in public, Morales noted, targeting users who are poor or homeless while ignoring all the drug use that takes place behind closed doors.
“If we wanted to address drug addiction, we would not be focused only on those who use it in the streets where we can see their suffering. We would be standing up real alternative for everyone,” like medication-assisted treatment, counseling, social supports, residential treatment, and walk-in clinics, Morales said.
The bill mentions many of these things—identifying “treatment” as a preferred approach, for example, in ten different places—but does nothing to make it happen. Instead, it doubles down on a law enforcement-based approach to a public health crisis.
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.
The Seattle City Council narrowly rejected Councilmember Andrew Lewis’ proposal to fast-track a bill empowering City Attorney Ann Davison to prosecute people for drug possession and public use, voting to allow the bill to go through the regular committee process. The impact of the vote is that the council will take up the bill after they return from the regular August recess, allowing council staff the time to draft amendments and analyze the latest version of the legislation.
Councilmembers Sara Nelson and Alex Pedersen introduced the first version of the drug criminalization bill last April, after the state adopted legislation making drug possession and public drug use a gross misdemeanor. Initially, Lewis voted against the legislation, citing Davison’s unilateral decision to abandon Seattle Community Court, but he has since become one of the bill’s most vocal advocates, arguing that the work of Mayor Bruce Harrell’s fentanyl task force will produce policy and legal alternatives to the traditional arrest-and-prosecution system.
While the bill says diversion and other options are the “preferred” alternatives to arrest, it does not require diversion or lay out the kind of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop “guidance on diversion” as part of policies that will “state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations.”
The latest version of the bill includes 13 additional “whereas” clauses, along with eight new findings about the state of the drug crisis in Seattle. It also adds a new section to the Seattle Municipal Code stating that, in the future, police will adopt policies governing arrests for drug possession and public drug use, and that those policies will state that alternatives like diversion and treatment “are the preferred approach” when police make arrests under the new law.
At a committee meeting to discuss the drug criminalization bill Monday afternoon, council members discussed several issues with the legislation that PubliCola pointed out two weeks ago.
First, while the bill says diversion and other options are the “preferred” alternatives to arrest, it does not require diversion, provide funding for alternatives to arrest, or provide examples of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop “guidance on diversion” as part of policies that will “state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations.”
Beyond this, the ordinance delegates to individual officers the authority to decide whether a person poses a threat, based on “the totality of the circumstances and the officer’s training and experience,” which is essentially the current system, augmented by some new training on what constitutes a drug-specific threat.
“The standard mirrors the practical thought process that officers ordinarily apply in the field when deciding whether to make an arrest, and it allows for it encourages officers to exercise discretion,” mayoral advisor Andrew Myerberg told the council. If a person is only a “threat to self,” the bill says officers should “make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives,” but leaves that decision, too, up to individual officers.
“The fundamental goal of this ordinance and executives overall approach to the synthetic opioid crisis is to increase the proportion of individuals suffering from addiction who seek and accept treatment services,” Myerberg said.
Councilmember Teresa Mosqueda pointed out the obvious: The mayor’s office has not proposed funding for addiction, treatment, or diversion programs. “It seems important that the resources be sufficiently invested into the alternative strategies so that people are not being given a false promise that there will be a diversion strategy [but] we don’t have those resources,” Councilmember Teresa Mosqueda said. “And where will that funding come from?”
The law does not address private use of illegal drugs inside people’s homes.
Second, while Harrell has stated (and mainstream media outlets have inaccurately reported) that the bill includes $27 million for treatment and other alternatives to arrest, the bill never mentions money or spending priorities. In fact, as council budget chair Teresa Mosqueda noted repeatedly on Monday, the “new” $27 million is a combination of $7 million in grant funding the city didn’t spend in previous years, plus $1 million a year from two state settlements with opioid manufacturers and distributors. Harrell has indicated he wants to use the money to stand up and staff the proposed opioid response center he announced in April. That would leave no additional funding for programs like LEAD, REACH, and We Deliver Care, to which Myerberg said police could direct people who break the new law.
“When I’m talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on [officers. Personally I believe that the council should have incorporated state law, and then if some council members and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance.”—Councilmember Alex Pedersen
At Monday’s meeting, Pedersen and Nelson raised concerns that the bill would create ambiguity and introduce new challenges for police officers that would make it harder for them to do their jobs.
“When I’m talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on” officers, Pedersen said. “Personally, I believe that the council should have incorporated state law into our Seattle Municipal Code and then if some council members and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance.”
Myerberg said the legislation isn’t “asking [officers] to reinvent the wheel.” While it is Harrell’s “intent” to steer people toward diversion and treatment, officers will still get to make the calls they consider appropriate in all cases, including arrest if they believe it’s necessary to prevent harm or get someone to go into treatment or crisis care. “[Harrell is] asking them to do what they already do,” Myerberg said. “The executive remains clear that such a decision will be within the discretion of the officer. It will be fact-specific and individual-dependent.”
In late July, the Seattle Police Officers Guild “applauded” the new legislation, saying it would help “restor[e] public safety to the city.” This suggests that, at the very least, SPOG —which has a history of opposing substantive police reforms—does not expect the bill to cause major disruptions to officers’ usual way of doing business.
Including a preference for diversion in the police manual could lead to incremental change. But without significantly more funding, it’s unlikely to result in different outcomes, either for people using drugs in public or the general public witnessing public drug use.
Myerberg noted Harrell’s personal commitment to encouraging alternatives to arrest and prosecution, which stem partly from his direct experience as a Black man growing up in Seattle during the drug war. But intent is not the same thing as law; mayors come and go, and their lasting impact isn’t meaning well, but pushing through tangible, legally binding changes that last longer than a single administration.
Yesterday, following last week’s city council vote rejecting a bill that would have given City Attorney Ann Davison the power to prosecute people for drug possession and public use, Mayor Bruce Harrell announced the creation of a 24-member “Fentanyl Systems Work Group” tasked with finding and implementing solutions to the opioid overdose crisis. In King County, 462 people have died of overdoses involving opioids this year alone.
In a press conference at city hall on Monday, Harrell said he was committed to passing a new drug possession and public drug use ordinance that would align the Seattle Municipal Code with a statewide “Blake fix” law passed by the legislature in May, which set drug possession and public use as gross misdemeanors.
“We will pass a law that allows our department to make arrests,” Harrell said. “But we will do that with compassion, to protect people when we have to.” Talking about how the war on drugs harmed his own community, Harrell wiped away tears and briefly stepped away from the podium.
“I believe in my heart, the people that are using drugs, many of them are sick,” Harrell said. “They’re not healthy. We’re not going to go out and fill our jails with sick people.”
The Seattle Police Department is already authorized to arrest people for drug use and possession under the statewide law, although King County Prosecutor Leesa Manion would have to agree to prosecute those cases, which she has said she will not do. Currently, few people are arrested or prosecuted under existing felony drug laws.
When pre-booking or pre-trial diversion don’t work or aren’t appropriate, Councilmember Andrew Lewis said he would support a new therapeutic court “where there would basically be a court-supervised check-in treatment regime—which is basically King County Drug Court.”
The work group will include municipal judges (including former community court judge Damon Shadid), several city council members, Davison, Police Chief Adrian Diaz, department directors, and representatives from service providers, diversion programs, community groups, and racial justice organizations.
Councilmember Sara Nelson, one of the sponsors of the drug possession bill, was adamant that the council pass a law soon. “I don’t want to see any infringement upon the city attorney’s prosecutorial discretion,” Nelson said after the press conference. “And I don’t want anybody telling the mayor what he’s going to do, what he’s going to direct his officers to do.”
Councilmember Andrew Lewis, who cast the deciding “no” vote last week, has said that in order to vote for a new bill granting the city attorney new authority to prosecute misdemeanor drug crimes, he wants to see a replacement for community court, more funding for prefiling and pre-arrest diversion programs like LEAD, and other “necessary treatment and diversion programs.”
“I’m looking forward to hearing from everybody,” Lewis told PubliCola. “We’ve got two judges who are on this task force. We’ve got the city attorney’s office on this task force. I think that we can work through whatever differences we have to get a plan in place to have a successor therapeutic court.”
Community court has been the primary alternative to Seattle’s mainstream municipal court system since 2020. Though Lewis said he’s committed to finding a replacement for the court, he added that he’s actually more invested in diversion programs that target people before they get arrested in charged, such as LEAD for adults and Community Passageways for youth.
Lisa Daugaard, co-director of Purpose Dignity Action (formerly the Public Defender Association), which runs the pioneering pre-booking diversion program LEAD, said the debate over adding drug possession and public use to Seattle’s municipal code is something of a distraction, since diversion programs have existed as an option for more than a decade and will continue to.
“Since 2012,” Daugaard said, “we’ve had a framework in Seattle where even when there is legal authority to arrest, book someone into jail, refer them to prosecution, and prosecute them, our local law enforcement agencies and prosecutors have very often chosen not to do that, in preference for a pre-booking diversion framework where people get a warm handoff to harm reduction-based care.”
Daugaard says arrests for drug-related offenses in Seattle have plummeted in the past two decades and aren’t likely to increase. “The incidence of stops, searches, and arrests for drug crime fell over a decade from being at the very top of the reasons that people have course of contact with law enforcement to outside the top ten,” she said. “And that was not an accident.”
When pre-booking or pre-trial diversion don’t work or aren’t appropriate, Lewis said he would support a new therapeutic court “where there would basically be a court-supervised check-in treatment regime—which is basically King County Drug Court.” Participants in drug court, which lasts a minimum of 10 months, must check in frequently, stay sober, and meet other court-mandated requirements in order to have their charges dropped.
“We know that pre-file diversions are probably best for the overwhelming majority of people,” Lewis said. “But there is a small group of people where those interventions have not been successful, and they need a little bit more accountability and a little bit more structure. And that can definitely be provided by a therapeutic court.”
Daugaard says the more critical issue is finding sufficient funds for recovery services for people with substance use disorder, especially those without shelter. Though one selling point of the state’s drug possession bill was supposed to be an increase in funding for services and treatment, Daugaard says what the state actually provided is insufficient to deal with the scope of the problem statewide.
“The population in each region that it can serve is a small fraction of the total number of people who are using drugs in a way that could either be life threatening or problematic for their stability.” Addressing drug use in Seattle will require an injection of local resources beyond what the city has provided so far—something the council will have to grapple with during its annual budget deliberations this coming fall.
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.
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.
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.
Lewis’ potential legislation is the wild card. If he re-introduces some version of Davison’s bill—criminalizing drug use but securing promises from her office about diversion and treatment, for example—it could reignite a largely irrelevant debate about arresting and jailing drug users amid an overdose crisis that cries out for evidence-based approaches, not overheated drug-war rhetoric.
1. As of last week, the Seattle City Council seemed likely to vote at least 5-4 in favor of legislation, proposed by City Attorney Ann Davison and sponsored by Councilmembers Sara Nelson and Alex Pedersen, to criminalize simple drug possession and public use at the city level. The state legislature, responding to a state supreme court decision overturning the state’s previous felony law, made drug use and possession a gross misdemeanor earlier this year; the local proposal would incorporate parts of that law into the city’s municipal code.
However, after Davison abruptly withdrew the city from Seattle’s community court—a therapeutic court that accepts people accused of most misdemeanors without requiring them to plead guilty of a crime—council members who were leaning toward a “yes” vote have reportedly been reconsidering their positions. If Councilmembers Teresa Mosqueda, Tammy Morales, Kshama Sawant, and Lisa Herbold all vote “no,” all it will take is one more council member—either Andrew Lewis or Dan Strauss, both up for reelection this year—to doom the bill.
Lewis declined to comment on Monday, and Strauss did not respond to a text message last week. However, Strauss proposed an amendment on Monday that would add a “whereas” clause the bill pointing out that the state law mentions diversion, treatment, and services as alternatives to booking and prosecution, suggesting that he may believe the new law meaningfully encourages these alternatives.
If Strauss supports the bill, the decision would come down to Lewis. Although Lewis told the Seattle Times he supports prosecuting people for public drug use, that was before Davison withdrew the city from community court. In light of that decision, Lewis may want to avoid handing more authority to a separately elected official who has demonstrated she will act unilaterally to penalize low-level crimes. During Monday’s council briefing, Lewis criticized Davison’s decision, saying it was “concerning that the decision to pull out and disrupt that program has been made without a well-thought–out plan on what replaces it.”
The criminalization bill skipped past the usual committee hearing, so tomorrow’s 2 pm full council meeting will be the first time the council discusses the legislation publicly, and the first and last opportunity for the public to address the council directly before the vote.
2. Former King County Regional Homelessness Authority CEO Marc Dones, who announced their resignation last month, will reportedly receive a public contract to work on an unspecified project for the agency for up to three months after their last day on June 16. Sources close to Dones and the agency were tight-lipped about the details, but the deal is said to be a kind of payment in lieu of severance because Dones decided to resign rather than forcing the agency to fire them, which was starting to look more and more likely in the weeks leading up to Dones’ resignation.
Dones has been a divisive figure, winning praise for their big-picture vision and efforts to include people with direct experience in decisions that impact them directly, along with criticism for neglecting ground-level details, like building relationships with existing service providers and paying contractors on time.
It’s unclear exactly where the money for Dones’ potential contract would come from, and whether it would require them to be physically present at KCRHA headquarters at the same time that an interim director, Helen Howell, is working to establish a new course for the agency. A representative for King County declined to comment on the details of the potential contract, and a representative for Harrell did not respond to an email, a phone call, or a text message seeking comment.
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.