Tag: public drug use

Harrell Issues Order on New Drug Law, Clarifying “Harm to Others” Standard and Requiring Data Collection on Drug Users

By Erica C. Barnett

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.

Fentanyl Task Force Agrees on Need for Evidence-Based Court Alternatives—With One Notable Exception

Photo by Andrew Engelson

By Erica C. Barnett

A task force convened by Mayor Bruce Harrell to come up with proposals to address illegal drug use in public spaces has been meeting for several weeks to discuss how Seattle’s court system can address a potential influx of cases from the City Attorney Ann Davison’s office. This summer, the council is expected to pass a new law empowering Davison’s office to prosecute people who use drugs in public by aligning Seattle’s municipal code with a new state law making public drug use or simple possession a gross misdemeanor, rather than a felony.

The city council rejected the proposal last month; Councilmember Andrew Lewis, who cast the deciding vote, plans to bring the measure back this summer and vote for it, a switch he says he feels comfortable making now that the task force’s work is underway. Only one of three sub-groups had met as of last week: The one focused on how the court will respond to a potential influx of new drug cases.

After just a couple of meetings, there appears to be broad consensus (with one exception that I’ll get to in a moment) in favor of expanding the Vital program, which provides intensive services to people with behavioral health issues, including addiction, and LEAD, a program run by Purpose Dignity Action (formerly the Public Defender Association, or PDA) that offers services and case management to people before they are arrested.

Even Davison, who unilaterally withdrew the city from community court earlier this year—ending a program that allowed some people to avoid charges by participating in short-term programs—is reportedly open to expanding programs that divert drug users away from jail.

The idea, according to Councilmember Andrew Lewis, is to focus on “things that fall way short of the court” level and “keep things as far away from the court as possible,” since the court has essentially no extra capacity to take on a flood of new drug cases.

The task force includes representatives from Davison’s office, the PDA, Seattle Municipal Court, and—since last week—the King County Department of Public Defense, which was excluded from Harrell’s initial list.

The group, according to Lewis, generally agrees the city should focus on “things that fall way short of the court” level and “keep [cases] as far away from the court as possible,” since Seattle Municipal Court has essentially no extra capacity to take on a flood of new drug cases.

“This conversation is really laying bare that a lot of policy discussions are based on assumptions that aren’t true,” Lewis said. “It really did call out that we could arrest everyone downtown for smoking fentanyl and the King County Jail wouldn’t be able to book them—so where does that leave us?”

The exception to this consensus, according to multiple sources, is City Councilmember Sara Nelson, who has expressed support for a new local misdemeanor drug court that would push people into long-term treatment instead of diversion or services based on harm reduction, such as medication assisted treatment and focused case management. Nelson—who has objected to funding PDA-run programs in the past—supports an abstinence-only approach to addiction and has argued that programs that provide methadone and suboxone to opiate addicts are “not aimed at long-term recovery.”

King County has a special drug court for people facing felony drug-related charges; defendants who opt in must go through a rigorous, abstinence-based program that includes mandatory treatment, frequent drug testing, and regular court appearances. The program is high-risk and high-reward: If a defendant completes the program, which lasts a minimum of 10 months, the charges are dropped. If they don’t, the judge can find them guilty and sentence them for their original felony, which could mean a long jail sentence.

For misdemeanors, the reward at the end of the process would be comparatively minuscule—the dismissal of low-level charges that don’t usually lead to jail sentences in the first place. It’s unclear how many, if any, misdemeanor defendants would opt in to such a court; currently, every drug court in Washington state is focused on felony-level offenses.

The group Harrell announced last month includes two other task forces, in addition to the one focused on the courts, that will discuss treatment and enforcement.

Lewis said that now that the work groups are meeting to discuss the best way to respond to public drug use, the legislation making public use a gross misdemeanor in Seattle is “almost a Macguffin”—a device that gets the plot going, but isn’t particularly significant in itself.

PDA co-director Lisa Daugaard agrees with that assessment. In an op/ed for PubliCola last month, she said the city’s primary focus should be on investing in evidence-based approaches to drug use and homelessness, regardless of whether the council gives Davison the authority to prosecute drug users.

Despite Concerns, Seattle Council Could Criminalize Drug Possession and Use in Seattle Next Week

By Erica C. Barnett

Next Tuesday, the Seattle City Council could adopt legislation to incorporate parts of a new state law criminalizing public drug use and simple possession, adopted during a short special session earlier this year, into the city’s municipal code. The proposal, sponsored by City Councilmembers Sara Nelson and Alex Pedersen and backed by City Attorney Ann Davison, would empower the city attorney’s office to prosecute people for possessing or using illegal drugs for the first time in the city’s history.

The legislature adopted the new law, which makes public drug use and simple possession a gross misdemeanor, during a special session earlier this year. The law is a response to a state supreme court decision known as State v. Blake, which overturned a state law making simple drug possession a felony. The legislature passed a temporary law making possession a felony while it hashed out a more comprehensive proposal, which passed during a special session this year. The new law makes drug possession and public use a misdemeanor, effectively bumping drug cases down from King County Prosecutor Leesa Manion’s office to Davison.

If the council doesn’t pass the new law, Manion would still have the authority to charge drug misdemeanors in addition to felonies, but is unlikely to do so; in a letter to council members, Manion said that even if her office “magically had the staff and resources necessary to take on a new body of work, we would focus those resources on felony prosecutions because the PAO has misdemeanor and gross misdemeanor jurisdiction in only unincorporated areas of King County.  … The City Attorney’s Office is better equipped to handle these cases immediately[.]”

During the year-long period when drug possession was a felony, Manion’s office only prosecuted two possession cases, according to an analysis by city council central staff. That same analysis says that although Davison’s office “has not explicitly stated how they would act upon the authority to charge knowing possession or use of illegal or controlled substances,” a Seattle Municipal Court analysis estimates an additional 700 to 870 cases a year, “based on historical filings before the COVID-19 pandemic” and the state’s own estimate of 12,000 new drug cases annually across the state.

In a letter to the council, the union representing King County Department of Public Defense employees, SEIU 925, called the legislation “an unconscionable abuse by the City Prosecutor, which dismisses solid empirical evidence that the War on Drugs and increased incarceration cause widespread harm throughout our community.

How the new proposals will play out in practice, if they pass, is a matter of significant debate. Opponents say they will empower police to do “stop and frisk” searches and arrest drug users with impunity, clogging up courtrooms and crowding the understaffed county jail. Proponents say the changes will create consequences for people committing crimes and—as Nelson put it in a press statement—”remove any further cause for inaction on the most critical public health and public safety issue of our time.” A third group—let’s call them reluctant proponents—argue that the new laws won’t have much impact, because the city hasn’t prioritized drug cases in the past and shows no sign of changing course now.

In a letter to the council, the union representing King County Department of Public Defense employees, SEIU 925, called the legislation “an unconscionable abuse by the City Prosecutor, which dismisses solid empirical evidence that the War on Drugs and increased incarceration cause widespread harm throughout our community.” Criminalizing drug use at the local level, the letter continued, “would create the same dynamic within SPD which led to the New York Police Department’s ‘stop and frisk’ programs,” which “ultimately led to a class-action lawsuit from public defenders in New York on behalf of their clients.” The letter was signed by all four SEIU chapters in Seattle.

During an online “emergency teach-in” to discuss the proposal on Tuesday, Drug Policy Alliance director Kassandra Frederique said the pressure to re-criminalize drugs in Seattle was part of a nationwide trend toward more punitive approaches to drug use and addiction. “Not only are we criminalizing, or re-litigating, issues that we have decided were inappropriate [for criminalization], we are now creating new crimes in order as a way to deal with the issues at hand,” Frederique said.

A majority of the City Council would probably agree that criminalizing drugs is not the best approach to the rising number of people using and selling drugs in public. However, the legislation may pass with a slim majority, if Councilmembers Andrew Lewis and Dan Strauss—both up for reelection this year—join Nelson, Pedersen, and Council President Debora Juarez in voting for the law. Both were reportedly still considering their votes this weekend.

Why would council members vote for a law criminalizing drug use in Seattle? Politics. Three council incumbents are up for reelection this year, and two—Andrew Lewis and Dan Strauss—are facing challenges from the right that could push them into voting for the law to avoid handing political fodder to their opponents. (Tammy Morales, in District 2, is also up for reelection but has already said she will vote against the bill). Although neither Strauss nor Lewis has said publicly how they plan to vote—in a recent candidate questionnaire, Strauss told the Seattle Times he was a “maybe” on the law—if they were to vote against the bill, opponents aligned with Davison and Nelson could blame them, and the council generally,  for tying the city attorney’s hands and allowing open drug use to continue. The campaign ads practically write themselves.

While it’s true that the city generally incorporates new state laws into its code, the proposed criminalization bill itself actually breaks from that convention, by picking and choosing which parts of the state law the city should adopt.

On Tuesday, expect to hear the argument that it would be highly unusual for the council not to incorporate new state laws into its municipal code, and the counter-argument that refusing to criminalize drug possession at the local level sends an important message that Seattle’s priorities are different than the state’s.

While it’s true that the city generally incorporates new state laws into its code, the proposed criminalization bill itself actually breaks from that convention, by picking and choosing which parts of the state law the city should adopt. According to the council staff analysis, the ordinance “only adopts some portions of the state bill” because some of the provisions include “work that SPD and CAO are not focused upon.” So the council does have, and is already exercising, discretion when it decides whether to make local laws conform with the state’s.

Even the bill’s proponents have acknowledged that the police and courts are unlikely to prioritize low-level drug cases over more serious misdemeanors, such as domestic violence and DUI; the Seattle Police Department is currently hundreds of officers shy of its hiring goals, and the city attorney’s office, county public defense department, and Seattle Municipal Court are also short-staffed.

The state law encourages prosecutors to refer defendants t diversion and treatment programs, but that would require additional funding beyond what the city has already provided for new adult pre-trial diversion programs. (The funding has been sitting at the Human Services Department, unspent, since the council allocated it in 2021.) The city attorney’s office has said it plans to use those diversion funds, once they’re available, for a different purpose: Taking on cases that would have gone to community court, a therapeutic court from which Davison unilaterally withdrew the city last week.

“Building out the needed infrastructure to be able to address root causes of these issues and get individuals into treatment and services may require time and resources,” the central staff memo notes.

Some—including PubliCola guest columnist Lisa Daugaard, who argues that the outcome of the drug law debate is largely beside the point—are unconvinced that the new law will result in mass arrests, prosecutions, and jail, because the city has already reduced its alliance on punitive strategies, even before the Blake decision forced the legislature to pass a new state law. Mayor Harrell, Daugaard wrote, oversees SPD, “and has gone out of his way to make clear that he has no intention of arresting, jail or referring drug users for prosecution.”

Opponents of the proposed new drug laws say that argument is short-sighted, because priorities can change, but laws are permanent. “It is extremely dangerous precedent for a bill to be passed that criminalizes [drug use] and where our elected officials try to placate advocates and community members by saying that they will that they will be able to manage it,” Frederique said during Tuesday’s teach-in. “Those people are temporary actors. Election happen all the time. And what people will look at is the law.”