The Seattle City Council rejected a bill to criminalize drug possession and public use in a dramatic 5-4 vote late June 6 afternoon.
Community organizers had packed City Hall to testify in opposition to the legislation, warning that the proposal would revive a failed War on Drugs strategy.
The ordinance, proposed by Republican City Attorney Ann Davison and conservative City Councilmembers Sara Nelson and Alex Pedersen, would have incorporated recently passed state-level drug legislation into the city’s municipal code.
In the end, Davison may have shot herself in the foot by unceremoniously abolishing Community Court the evening of Friday, May 26. The jettisoning of the therapeutic court, which provided some defendants access to services instead of punishment, prompted wavering Councilmembers Lisa Herbold and Andrew Lewis to vote against the bill.
While framed as a measure to tackle substance use disorder, critics said ahead of the vote that the proposed ordinance is a transparent attack on poor and unhoused people.
“We’re talking about the demonization of people on Third Avenue using drugs,” said Molly Gilbert, the president of SEIU 925, the union that represents public defenders at the King County Department of Public Defense (KCDPD).
“[The police] are not going to be up into Frat Row stopping people, searching them. They’re not going to be over in the Tractor Tavern in Ballard,” she said. “This is about being able to walk down the street as a police officer and contact absolutely anybody that you don’t think belongs there and search them and charge them with a crime and get them out of the area.”
Previously, the King County Prosecuting Attorney’s Office handled drug cases, not the City Attorney. When the Washington Supreme Court struck down the state’s felony possession law in 2021, the Legislature passed temporary legislation to ensure drugs remained criminalized, which was set to expire on July 1, 2023.
After two regular legislative sessions and a special session, the Legislature passed a replacement law on May 16 that made drug possession a gross misdemeanor punishable with up to 180 days in jail for the first two convictions and up to a year after that. The law also created a new crime, making public drug use a crime in itself — something advocates claim is specifically targeted at unhoused people.
“We’re essentially making people who can’t afford to have a house and who use drugs criminals,” said Blaze Vincent, the co-president of the Freedom Project, in a May 30 webinar. “What we all know is that when we criminalize particular individuals, we stigmatize them as dangerous. And then we’re electing to have law enforcement to interact with our community members as being dangerous for issues that are not necessarily dangerous in and of themselves.”
By duplicating this law on a city level, Davison hopes to get the power to prosecute these crimes herself in the Seattle Municipal Court (SMC). The SMC has been criticized for being a particularly regressive and unique court system dedicated to just prosecuting low-level misdemeanors, disproportionately harming poor people.
In 2022, 91.4 percent of defendants — excluding those accused of driving under the influence (DUI) — at the SMC were assigned public defenders. To qualify for public defense, a person must be at or below 125 percent of the federal poverty line, receive public benefits, be involuntarily committed to a mental health facility or otherwise be unable to afford an attorney.
The court has also been criticized for racial discrimination. In 2022, Black people were five times more likely to be prosecuted at the SMC for non-DUI crimes; Indigenous people were 4.9 times more likely to be charged.
Gilbert said that one of the most worrying aspects of the proposed legislation is that it would give carte blanche to police officers to stop, frisk and arrest people for drugs.
In a statement, Davison wrote that the point of the bill was to help facilitate police activity. “The purpose of the bill is to allow law enforcement to intervene and disrupt dangerous drug activity,” she wrote.
The city ordinance was proposed on May 16, the same day that the state Legislature passed its bill. It was rushed through the council, skipping committee hearings and instead going directly to the full council.
Because of this quick timetable, barely any analysis has been done about the potential impact of the new bill. In its fiscal note, the staff simply stated, “Yes. The legislation will increase the number of crimes filed in Municipal Court,” without providing any budget. Meanwhile, the Race and Social Justice analysis note is limited to just, “Yes. This legislation may have implications for the Race and Social Justice Initiative.”
For proponents of reducing mass incarceration and prioritizing public health approaches, this lack of policy analysis highlights a glaring double standard in which reactionary moral panic-driven legislation gets a free pass at the same time that diversion and harm reduction programs such as Law Enforcement Assisted Diversion (LEAD) receive intense scrutiny.
“Anytime we want to talk about alternatives to policing or something, there has to be a million studies. There has to be pilot programs,” said a staff attorney at KCDPD who wished to remain anonymous. “Look how many times LEAD has had to justify its budget and has been on the chopping block, even though it’s gotten multiple academic reviews that have demonstrated that it dramatically lowers recidivism, right?”
SEIU 925 has predicted the cost of new prosecutors, paralegals and defense attorneys will be far more than $1 million a year at a time when the SMC and King County jail are already at capacity and Seattle’s budget is stretched thin.
The union also conservatively estimated that the SMC would see 673 new cases a year, though Gilbert said this was a significant undercount. She added that 70 percent of cases assigned to KCDPD are dismissed by the city attorney, meaning that most of these new low-level drug cases won’t even make it to a conviction.
Gilbert said that Davison was trying to use the ordinance as a wedge to force City Council candidates to take a stance and ultimately drive them to the right.
“I think, firstly, the drug thing is almost a red herring on this,” she said. “I think that this is a push to interrupt the council elections that are ongoing, to force people to move to the right on an issue they normally would not, in order to maintain their candidacy. And it’s a way of Ann Davison forcing through an ordinance that normally would not pass the City Council. And I am so very sure that this is coming from the business district.”
At the May 30 webinar endorsed by a number of progressive organizations, including Real Change, advocates called on the City Council to take a stand against the reactionary backlash and instead continue with progressive drug policies.
“The ordinance that is being placed at the center of this conversation here in Seattle is a tool of dehumanization,” said Kassandra Frederique, the executive director of the Drug Policy Alliance. “It is a tool of disrupting the kind of future that we are trying to build.”
Frederique added that politicians should be mindful of the power of precedent. While their terms in office are short, the law is durable and has long-lasting effects,
Presenters called on the City Council to embrace a public health-informed approach to substance use disorder, arguing that incarceration does not offer genuine rehabilitation and is actually destabilizing to folks who are going through recovery.
“We can see that research has shown that when people are arrested and incarcerated, either in prisons or in jails, they become at increased risk of death from overdose in the time after they are released from incarceration,” said Tom Fitzpatrick, a doctor and researcher at the University of Washington. “And the risk of people overdosing and dying from that overdose can be anywhere between 10 to sometimes 40 or 50 times higher than the general population.”
“Somebody’s gonna die from these policies — as they always do,” Vincent said.
Read more of the June 7-13, 2023 issue.