On July 31, Mayor Bruce Harrell announced another stab at the city’s failed drug criminalization bill. Harrell’s new ordinance would make the possession and public use of drugs a gross misdemeanor, while adding funding for diversion and treatment programs and issuing guidance to police on when drug arrests are and aren’t appropriate.
“Today’s announcements represent important steps forward toward a safer, healthier Seattle, as we continue to act with urgency to build out a bold health-first approach, help those in need, curtail impacts of public drug consumption, and hold dealers and traffickers accountable,” Harrell said in a press release.
The new legislation emerges from the work of the Fentanyl Systems Task Force, which Harrell convened after City Attorney Ann Davison’s original drug criminalization bill was voted down 5-4. That bill was Davison’s attempt to align the city’s municipal code with state law, which makes public drug consumption a gross misdemeanor.
Her effort began in earnest in late May after the Washington state Legislature voted in a special session to adopt a new law that made public drug use and simple possession an arrestable offense. The state bill was a reaction to the “Blake Decision,” a 2021 Washington state supreme court ruling that overturned state law previously classifying drug possession as a felony.
The new law replaced a temporary one established in 2021 following the Blake ruling that made drug possession a simple misdemeanor punishable by up to 90 days in jail.
Prior to the old state law being overturned, which made drug possession a felony, local drug cases were handled by the King County prosecutor’s office. Now that possession and public use are a misdemeanor, those cases would typically be handled by the city attorney’s office.
However, Davison’s office requires city council approval to do so.
Her proposal was met with almost immediate backlash with local activists and public defenders branding it a “new war on drugs.” An analysis performed by city council central staff estimated that giving Davison’s office prosecutorial authority for drug cases would increase the Seattle Municipal Court’s caseload by 700 to 870 cases annually.
Criticism was also lobbed at Davison’s decision in late May to unilaterally end the city’s participation in Community Court (known colloquially as drug court), which allows individuals access to services in exchange for court supervision instead of jail time.
That set up a June 6 city council vote, which saw activists pack city hall chambers to testify against the proposal. After hours of public comment, the proposal ended up failing 5-4.
Councilmember Andrew Lewis, who was initially in favor of it, reversed course at the last minute, casting the deciding vote against Davison’s bill.
While the new bill replicates much of Davison’s original language, specifically the part that adopted the state’s recently passed legislation making the possession and public use of drugs a gross misdemeanor, it includes a significant number of new sections. Including, notably, a $27 million investment in treatment and diversion.
If passed, a $7 million chunk of that will be spent this year on “capital investments in facilities to provide services such as post-overdose care, opioid medication delivery, health hub services, long-term care management, and drop-in support,” per the mayor’s press release. The remaining $20 million will go to “a long-term multi-year strategy and plan to increase treatment and overdose response services.” The bulk of the funding comes from money the city obtained via opioid lawsuit settlements.
Jamie Housen, a spokesperson for Harrell, wrote in an emailed statement to Real Change that, while the city could not say which organizations would receive near-term funding from the $7 million, “The City is endeavoring to stand up shelter and treatment options as quickly as possible. We are already leveraging existing resources to serve our vulnerable populations suffering from addiction and will work to do so more efficiently as we build out our service continuum.”
According to the Kaiser Family Foundation, as of September 2022, the percentage of needs met for behavioral health care, which includes drug treatment, was at 16.2 percent in Washington, well below the national percentage of 27.7 percent. King County voters recently passed a $1.2 billion, nine-year crisis care levy, but the first facility funded by that levy won’t open until 2025.
Lewis, who served on the Fentanyl Systems Task Force, said the bill’s new sections relieved the concerns that caused him to vote against the original bill.
“This legislation, that I will co-sponsor, responds to the needs I laid out at the beginning of this process and gives our first responders the tools they need to divert to services where possible and make arrests when necessary,” Lewis said, also in the mayor’s press release. In an interview July 31, he said he expects the new bill, which he described as a “principled compromise,” to pass.
“I think that what we have really put forward here is a proposal that is going to emphasize these public health interventions providers and treatment, instead of solely thinking we can just kind of prosecute our way out of this, which we can’t. But it does preserve that option,” he said. “But it does it in a balanced approach instead of one that over-emphasizes that one tool above all others.”
The bill will not immediately create a replacement for Community Court, which Lewis said handled around 2,000 cases a year, but does attempt to lighten that caseload by instructing Seattle Police Department (SPD) officers arresting people for drug possession or public use to divert arrestees to treatment rather than booking them.
To do that, the bill establishes a new rubric that will guide police decision making during drug arrests: harm. More specifically, whether someone’s drug use is more likely to cause harm to others or to themselves.
“When considering making an arrest for knowing possession or public use, officers will determine whether the individual, through their actions and conduct, presents a threat of harm to others,” the bill reads.
Conversely, “[w]hen an officer determines there is probable cause to believe public possession or public use of a controlled substance has occurred as described under this Section 3.28.141, and the user does not pose a threat of harm to others, the officer will then make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives to arrest. An officer will not arrest in this situation absent articulable facts and circumstances warranting such action.”
The bill itself does not offer specific guidance on how officers should assess harm when considering a drug arrest, but it includes a promise that such guidance will be given shortly via executive order. That order, per the bill’s text, will make diversion and treatment the SPD’s “standard approach” to drug arrests.
However, the application of diversion, be it pre-arrest or pretrial, has historically been fraught with racial bias.
According to an August 2022 report on youth diversion by the Sentencing Project: “[i]n 2019, 52% of delinquency cases involving white youth referred to juvenile courts were diverted, compared to only 40% of cases involving Black youth. For Latinx, Tribal, and Asian American youth, the share of cases diverted ranged from 44-48%.”
A 2013 study in the journal “Race and Justice” found that Black defendants were 34 to 55 percent less likely to receive diversion for a drug-related offense, depending on their criminal record and history of incarceration.
“Diversion decisions are often highly subjective, leaving candidates vulnerable to the racial biases held by police, prosecutors, judges, or other decision makers. Even when an individual qualifies based on their charge, criminal record, or need for treatment, they must ultimately be offered diversion,” wrote Leah Wang, a research analyst with the Prison Policy Initiative, in a blog post examining racial disparities in diversion.
SPD spent more than a decade under a federal consent decree designed to amend the department’s racially biased policing.
Recently, a tombstone mocking a Black man killed by SPD officers was found in a precinct breakroom, along with a flag supporting former President Donald Trump.
Both Lewis and Harrell said that they were confident SPD would enforce the new ordinance equitably.
“We are committed to reducing disparities whenever possible,” wrote the mayor’s spokesperson in his statement. Housen said, “As noted in the proposed legislation, the City intends to collect data on those suffering from addiction who we are trying to assist and treat, including demographics where readily available. We are committed to use this data to approach this new law, including diversion decisions, equitably.”
Lewis praised Harrell’s work on crafting the bill, saying that, while he didn’t want to speak in advance of Harrell’s forthcoming executive order, the mayor had been “incredibly mindful” of equity issues.
“I think [the mayor] really feels getting that right, because all of that goes down to enforcement, you know? And I think that you can see, in section three of this bill, that emphasis on really, really prioritizing diversion, really, really prioritizing warm handoffs to providers,” Lewis said.
Proponents of the law say that giving officers a stick — the ability to arrest drug users — will make the carrot — that warm handoff to providers — more appealing. Not everyone is so sure.
The American Civil Liberties Union of Washington (ACLU-WA), for example, is one of the groups that organized in opposition to Nelson’s original drug criminalization ordinance.
“We applaud Mayor Harrell’s investments in treatment facilities, services, and diversion programs. These public health investments will help to stabilize and move people toward recovery,” wrote Jazmyn Clark, the ACLU-WA’s Smart Justice Policy Program Director. But, she concluded:
“We remain deeply concerned about aspects of the proposal that are reminiscent of failed War on Drug-era policies. Leading with criminal sanctions are, and always have been, rooted in public shaming and do little to save lives.”
Tobias Coughlin-Bogue is Real Change’s associate editor.
Marcus Harrison Green is the interim editor of Real Change.
Read more of the Aug. 2-8, 2023 issue.