Jail or treatment? Seattle City Council is split on drug possession

Councilmembers narrowly rejected a bill to allow the City Attorney’s Office to prosecute possession and public use.

Seattle councilmember sara nelson sits behind the dais

Seattle City Councilmember Sara Nelson during an April 18, 2023 council meeting. (Amanda Snyder/Crosscut)

Seattle, like many cities, continues to grapple with a key question in the wake of 2020’s Black Lives Matter protests, the COVID-19 pandemic and the worsening drug-addiction crisis: Should the city attempt to arrest and prosecute its way to public safety, or should it prioritize alternatives such as diversion and treatment programs that keep people out of jail?

That debate played out over the course of a tense, nearly four-hour Seattle City Council meeting Tuesday in which Council members ultimately voted 5-4 to reject a bill that would have updated the Seattle Municipal Code to incorporate parts of a newly adopted state law that makes possession and use of illegal drugs a gross misdemeanor.

The failure of the bill does not impact whether or not drug possession is illegal, nor limit police officers’ ability to arrest people for possession or public use. It does likely limit how many of those arrests will get prosecuted. 

The bill, co-sponsored by Councilmembers Sara Nelson and Alex Pedersen and backed by City Attorney Ann Davison, would have given the City Attorney’s Office the authority to prosecute people for drug possession and public use, a responsibility that has previously fallen to the King County Prosecuting Attorney’s Office. 

Nelson, Pedersen, Councilmember Dan Strauss and Council President Debora Juarez voted to adopt the bill. Councilmembers Lisa Herbold, Andrew Lewis, Tammy Morales, Teresa Mosqueda and Kshama Sawant voted to reject. 

Supporters argued the bill would give city leaders another tool to address the drug crisis, and that it’s common sense for Seattle’s municipal code to align with state law. Detractors argued the bill would be a return to a 1980s and ’90s drug-war approach that packs already-overcrowded courts and jails without treating people with substance-use disorders, and that arrests would primarily be of people experiencing homelessness. 

Council chambers were filled with a large crowd almost entirely composed of the bill’s opponents, who frequently responded with hisses, boos and retorts to those who wanted it to pass. 

Of the more than 100 people who made public comments in person and online Tuesday, just nine testified in support of the proposal. The bloc of opponents testifying Tuesday included frontline homeless service workers, registered nurses and physicians, drug-addiction counselors, social justice activists, public defenders, homeowners and more. Those testifying in support included representatives from the Downtown Seattle Association, the Chamber of Commerce, Seattle King County Realtors, the Seattle Building Trades, Mothers for Police Accountability and some individual residents. 

“Existing interventions aren’t slowing fentanyl’s death toll in the city of Seattle,” said Nelson. “I believe we must use all means at our disposal to attempt to interrupt the cycle of addiction and move people into recovery. And as Council members we do also have a responsibility to address the very real public health and safety risks associated with public drug use on our streets, parks and transit.” 

Opponents refuted the idea that arrests help people address their substance-use orders. 

“I want to acknowledge that the people of Seattle are frustrated. They’re fed up. They’re worried about the state of the city,” said Morales. “The bill under consideration offers a sheen of an answer without providing any real solution to our crises. Jail is not a solution to a public health problem. In fact, jail will exacerbate the problem. It will increase the likelihood people will die either of overdose or by suicide in a jail with a particularly high suicide rate.” 

Morales was referencing academic studies that found people with substance-use disorders were between 40 and 129 times more likely to die from an overdose in the days and weeks following incarceration because of their reduced tolerance. 

Juarez said that in her experience, the criminal legal system can help people dealing with substance-use disorder. 

“In my years as a defense attorney, as a King County Superior Court judge, also doing drug court, I can tell you that often, even though we don’t want to admit it, sometimes the front door to treatment, whether we like it or not, is the courthouse,” she explained. 

Juarez continued, “Is it the best alternative? No. It’s one alternative.”

Although Nelson and Davison have framed arrests and jail as a path to get people into treatment, the City Council bill made no mention of prioritizing treatment programs for those arrested. An amendment introduced by Strauss and adopted by the Council would have added language encouraging the City Attorney’s Office to divert arrestees into alternative programs rather than incarcerate them, but the Council does not have the authority to require it. 

Herbold argued that King County is better suited to handle drug cases because it already has a drug court and other diversion programs paid for by existing sales tax, while Seattle Municipal Court would have to build new systems that don’t have dedicated revenue. 

The Council meeting came on the heels of Davison’s announcement that the city would no longer participate in Seattle Municipal Court’s community court program, which allows people accused of low-level offenses to access social services without pleading guilty to a crime. Davison’s decision caught many City Council members off guard.

Lewis, who became the pivotal vote on the bill, said Tuesday he was prepared to vote yes, but that Davison’s choice to exit community court without any broader discussion swayed him to vote no. 

“If the Seattle Municipal Court is going to take on these referrals … we can build the infrastructure to do that,” said Lewis. “Community court was well positioned to do that. … But part of respecting the Blake decision is figuring out how we’re going to do the diversion and treatment program part of the package, and we need to have a reset to have that proper conversation.” 

In the past, drug possession was a felony under state law and fell under the purview of the King County Prosecuting Attorney’s Office since the Seattle City Attorney only has authority to handle misdemeanors. In 2021, the Washington State Supreme Court ruled, in what is known as the Blake decision, that the felony drug possession law was unconstitutional because it criminalized “unknowing possession.”

In 2023, the Legislature passed a new law during a special session that made possession and public use gross misdemeanors. The state law encourages, but does not require, prosecutors and police to divert people arrested into treatment programs and other pre-trial diversion options.  

Under the new state law, the maximum penalty for a first or second offense is imprisonment for up to 180 days, a maximum fine of $1,000 or both. For someone with two prior convictions for drug possession, the maximum penalty can increase to 364 days.

King County Prosecutor Leesa Manion supported the bill, writing in a letter to the City Council that “It does not make sense to have Seattle’s misdemeanor work split between the Seattle City Attorney’s Office and [Prosecuting Attorney’s Office]. This approach would be cumbersome, impractical, and cause significant confusion.”

King County prosecutors are unlikely to take on misdemeanor drug cases, however, instead prioritizing felony charges such as drug distribution. In her letter, Manion explained, “The PAO does not have the staff or resources necessary to take on a new body of misdemeanor and gross misdemeanor cases.”

Mayor Bruce Harrell has said the city’s priority should be to go after drug dealers, not drug users.

“When people are using fentanyl, they are sick. They are unhealthy. … I want to treat, treat,” said Harrell during a May Civic Cocktail event. “My executive order says we’re going to go after the distributors. We will make sure we stop this dumping of fentanyl, which is cheap to make and lethal, so we will go after that trafficking. But when people are sick, I want a health strategy.”

At the same time, Harrell acknowledged that people should not be exposed to public drug use, citing bus riders as an example.

The new state drug possession and use law takes effect July 1. 

Tuesday’s Council meeting is surely not the end of the conversation in Seattle about how to align the city’s municipal code with the state law or how to establish new treatment and diversion options in the city. 

Lewis promised Tuesday to work with “all parties to talk about how we might take on this body of work post-Blake. I’m committed to that.”

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