Seattle City Councilmember Andrew Lewis takes questions from reporters after yesterday’s press conference
By Andrew Engelson
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.
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.
Council member (and swing vote) Andrew Lewis; screenshot from Seattle Channel recording
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.
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.
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.
On Tuesday, during the special legislative session called by Gov. Jay Inslee, and after hours of emotional testimony, the legislature passed a new drug possession bill.
The legislation was a response to the state supreme court’s 2021 Blake ruling, a landmark decision that invalidated the state law which historically defined drug possession as a felony. Legislators, set on addressing the court’s decision, failed to pass a bill during the regular session. Yesterday, however, Democrats passed their compromise, which focuses on criminal penalties and coercive treatment over a harm reduction-centered approach. The bill was actually less punitive than a previous version that failed to pass, but is still centered on the threat of jail time for drug users.
The vote was 43 to 6 in the Senate, with Democratic senators Bob Hasegawa (D-11, Seattle), Jamie Pedersen (D-43, Seattle), and Rebecca Saldaña (D-37, Seattle) and three Republican senators voting no. The House passed the bill 83 to 13 and sent it to Inslee, who signed it the same afternoon. The House “nay” votes included several Republicans and nine Democrats, all from Seattle or Shoreline: Reps. Emily Alvarado, Frank Chopp, Lauren Davis, Nicole Macri, Gerry Pollet, Cindy Ryu, Sharon Tomiko Santos, Darya Farivar, and Chipalo Street.
“Is this bill perfect? Absolutely not,” the bill’s original sponsor, Sen. June Robinson (D-38, Everett), said before the vote, adding that she believed the compromises were necessary to pass uniform, statewide rules for drug use and possession.
“This legislation offers a balance between accountability and compassion,” said Rep. Peter Abbarno, (R-20, Centralia) who did not vote for a previous version in the House but supported Tuesday’s bill.
Rep. Lauren Davis (D-32, Shoreline), who voted “no,” called the bill ““bad drug policy” on the house floor before the vote. “Harm reduction programs meet people where they are, they don’t leave people where they are. No one can recover if they’re dead.”
In an attempt to win support from left-leaning reformers, the bill does tone down punishment. The bill defines drug possession – and a new offense of public drug use – as gross misdemeanors, but rather than the standard maximum of 364 days in jail, it limits the maximum sentence that can be imposed for each charge to 180 days for the first two convictions, and 364 days for the third or additional convictions. Fines for each instance are limited to $1,000. The bill also encourages local authorities to offer pre-arrest referral services such as LEAD and the state’s Recovery Navigator Program, and also encourages and describes a process for prosecutors to employ post-conviction diversion programs.
“I personally would like to get to a place where we can decriminalize drugs. But I’m also pragmatic and I don’t just represent myself, I represent a district.” —Rep. Tarra Simmons (D-23, Bremerton), who voted “yes.”
But ultimately, it defers to local prosecutors to decide whether to press criminal charges for drug possession.
“The prosecutors really insisted that they be the gatekeepers and that they be the party that consents to the diversion,” said Rep Roger Goodman, (D-45, Kirkland) who chairs the house Safety, Justice, and Reentry committee and who was a key player in the negotiations that led to the current bill.
Goodman, who in his career as an attorney has worked to shift drug policy from a criminal justice issue to a public health issue, said, “As the chair of the committee, my role was to manage this process, and move through a piece of legislation that’s politically tenable. In doing so, I have permanently tarnished my drug policy reform credentials. But this is only a step in the continued evolution of our drug policy.”
“I’m grateful for the negotiators from all four caucuses for reducing the amount of incarceration,” said Rep. Tarra Simmons, (D-23, Bremerton) in a floor speech. Simmons, who once served time in prison for a drug possession conviction, voted no on the previous version of the bill because she thought its penalties were too harsh, but reluctantly supported today’s version. “I personally would like to get to a place where we can decriminalize drugs,” Simmons said, “But I’m also pragmatic and I don’t just represent myself, I represent a district.”
The state budget, which Inslee also signed Tuesday afternoon, includes nearly $1 billion for behavioral health services, treatment services, supportive housing, and harm reduction for people with substance use disorders. Notably, that operating budget also includes $300,000 to create a “work group” tasked with studying how the state might create a safe supply system that would provide drug users with medical-grade sources of controlled substances such as opioids and stimulants.
A new work group will evaluate “potential models for safe supply services and make recommendations on inclusion of a safe supply framework in the Washington state substance use recovery services plan to provide a regulated, tested supply of controlled substances to individuals at risk of drug overdose
Creating a safe supply work group was one of the few recommendations from the state’s Substance Use Recovery Services Advisory Committee (SURSAC) report issued late last year that survived the current legislative session.
Like SURSAC, the safe supply work group will include representatives from public health agencies, elected officials, prosecutors, law enforcement agencies, harm reduction organizations, housing and treatment service providers, and active and former drug users.
The group will be tasked with evaluating “potential models for safe supply services and make recommendations on inclusion of a safe supply framework in the Washington state substance use recovery services plan to provide a regulated, tested supply of controlled substances to individuals at risk of drug overdose.” The group must present a final report to the legislature by December 2024.
“In order to help people be in recovery, you have to make sure they’re alive,” said Sen. Manka Dhingra, (D-45, Redmond), who chairs the Law and Justice committee and included the work group in an earlier version of the drug possession bill. “I think it’s important to have those conversations about how we can keep people alive so we can help them recover. This work group is going to help us with that discussion.”
Caleb Banta-Green, a research professor at the University of Washington School of Medicine, says safe supply isn’t a radical notion if you’re trying to prevent overdose deaths, of which there have already been 524 in King County this year.
“We have a fundamentally unsafe supply, to put it very simply. That is obviously true of fentanyl,” Banta Green said, noting that the state currently has a safe supply system for alcohol, cannabis, and treatments for opioid addiction. “We’ve had methadone for 50 years and buprenorphine for 20 years. And those are forms of safe supply.”
The drug possession/public use bill that passed Tuesday was much less centered around harm reduction. To attract Republican votes, the bill included a provision that allows local jurisdictions to outlaw or restrict harm reduction services. It does, however, decriminalize drug paraphernalia such as syringes and smoking supplies statewide, when used in harm reduction efforts.
“There’s no evidence that a criminal charge is going to help. And there’s lots of evidence that criminal charges and incarceration all have negative consequences, both in the short term and the long term. I’m saddened.” —Seattle Rep. Nicole Macri, who voted “No.”
The bill also allows those convicted of either possession or public use to vacate their convictions, but only if they enter treatment for substance use disorder and can show six months of “substantial compliance” with those treatment programs. In addition, prosecutors cannot press charges for both possession and use for the same instance, preventing “stacking” of charges for one incident.
Another concession that House Republicans asked for and got was a provision requiring the state let local media know when a methadone clinic or other opioid treatment facility is opening. Such notices can often inflame public opinion: late last year, a new opioid treatment center in Lynnwood faced furious opposition from local residents before it opened in January.
The bill that passed today replaces a temporary bill passed in 2021 that had set possession at a simple misdemeanor punishable by up to 90 days in jail. The temporary law was prompted by the Washington State v. Blake ruling, which tossed out the former statute which defined possession as a felony over a fairly narrow question of “knowing” possession. That temporary law was set to expire in July, thus forcing the legislature to take action this session.
“I wish there were no criminal charges,” Rep. Nicole Macri (D-43, Seattle), who voted against the final version of the bill, told PubliCola, “There’s no evidence that a criminal charge is going to help. And there’s lots of evidence that criminal charges and incarceration all have negative consequences, both in the short term and the long term. And so, I’m saddened.”
The drug bill also includes $62.9 million ($19.6 million more than the previous version of the bill) in spending on an array of services and programs including housing, recovery and treatment services, diversion programs, new mobile methadone clinics, creating pilot “health hubs” designed to lower barriers to treatment and services, and funding to boost the number of public defenders.
Alison Holcomb, political director for the ACLU of Washington, which has been supportive of decriminalization and investigating a safe supply system, says her organization is disappointed in Democrats—who control both houses of the legislature and the governor’s office—for failing to end the war on drugs in Washington state.
“It’s fairly heartbreaking that legislators who negotiated this bill prioritized partisan compromise over what modern science tells us can save lives,” Holcomb said. “We’re continuing the same strategy of holding punishment over people’s heads as a motivator to coerce them into treatment that is of a finite length of time. And both the coercive feature of that approach and the notion that treatment is something that we can get done in 28 days, six months, or even a year, contravenes modern science.”
Holcomb pointed out that a fiscal note prepared for a previous version of the drug possession bill that set drug possession as a gross misdemeanor estimated that 12,000 new cases will be filed each year in district and municipal courts across the state because of the bill.
Rep. Goodman, who described the negotiating process over the final bill as collegial but akin to being “subjected to a series of small surgeries,” said he’s hopeful this won’t be the last time the legislature reworks its approach to drug use. “The conversation on the failure of the war on drugs will continue to progress,” he said. “I think we’ll be demonstrating through these policies that harm reduction works. So I’m not too disappointed. But I’m not living in a fantasy world.”
In Seattle on Tuesday, council members Sara Nelson and Alex Pedersen, alongside city attorney Ann Davison, announced they would introduce a new version of their legislation to criminalize public drug use that will put that proposal in line with the state’s new drug possession and public use laws.
In April, the three proposed a new ban on public drug use at the city level in response to the legislature’s failure to pass a Blake-related drug bill. In a press release, Nelson said, “Now that Olympia has appropriated resources for treatment and adopted a fix for Blake, we’re bringing our legislation into alignment to remove any further cause for inaction on the most critical public health and public safety issue of our time.”
However, after Davison abruptly 
