In a 5 to 4 vote Tuesday evening the Seattle City Council voted down a measure to allow the City Attorney's Office (CAO) to prosecute people for drug possession and public drug use for the first time in the history of the city. If the proposal had passed, it likely would have increased court costs and added hundreds of new criminal cases and treatment requests that would have gummed up a system already groaning under a hefty caseload.

Council Members Andrew Lewis, Lisa Herbold, Teresa Mosqueda, Tammy Morales, and Kshama Sawant voted against passing the bill, while Council President Debora Juarez and Council Members Sara Nelson, Alex Pedersen, and Dan Strauss voted in favor.

Nelson’s closing remarks reflected the surprise on the dais. “I’m just trying to gather my thoughts because this discussion didn’t go the way I thought it would," she said. After that all-too-brief moment of silence, she managed to mangle some unsubstantiated claims about the potential benefits of criminalization and then read a list of business associations who signed a letter in support of the ordinance.

But the focus wasn't on her. Public commenters repeatedly called out Lewis as the suspected swing vote in the room, and they delivered passionate speeches to appeal to his core values. 

While explaining his decision to vote against the law, Lewis said he’d come to the meeting fully prepared to vote in favor of the proposed law, but he said he couldn’t because the public deserved a larger debate on the issue.

“If we are going to pass the statute, we need to do it with a full programmatic understanding of what the wraparound services and institutions are going to be,” he said.

Lewis mentioned Seattle City Attorney Ann Davison's decision to dissolve Community Court, a pre-trial diversion program for low-level nonviolent crimes, as a major factor in his decision to vote against the bill, arguing that something like that court could have provided people with treatment services. 

He also acknowledged that voting against the bill could cost him his seat, and that the Seattle Police Department still retains the authority to arrest people for drug use or drug possession.

President Juarez said Monday the Council skipped its normal committee process for the proposal because a new state law takes effect July 1. That law will make drug possession and public use a gross misdemeanor punishable by up to 180 days in jail for a first or second offense and 364 days for any additional offenses, replacing a stopgap measure the Legislature passed in 2021 after the state Supreme Court struck down Washington's felony drug possession statute in a case called State v. Blake

The stopgap law made drug possession a misdemeanor and required police to refer a person to treatment at least twice before arrest. The new gross misdemeanor allows for but doesn’t require law enforcement and prosecutors to divert people into drug treatment at every stage of a criminal case. 

On Monday, staff told council members in a memo that Davison couldn’t provide an estimate of how many cases her office expected to pursue under the new law, how much her office planned to spend prosecuting the additional cases, or how she might structure diversion opportunities.

While speaking on the introduction of her bill, Nelson said the approval of the bill was routine and the City had to adopt the state law into city code, especially because King County Prosecuting Attorney Leesa Manion said in a letter to the council that she didn’t want to prosecute the cases. However, Mosqueda pushed back against that idea. She shared information from King County Public Defender Office Director Anita Khandelwal, who pointed to multiple other instances where the City didn’t codify state law into Seattle Municipal Code, including other misdemeanor offenses updated in the past Legislative session.

“I don’t see any immediate rush by any council members here to apply the same level of urgency to enforce other new gross misdemeanor acts by the state,” Mosqueda said.

By adopting the new law without any plan, the Council could have caused havoc in Seattle Municipal Court (SMC), especially after Davison killed Community Court. That program helped resolve misdemeanor cases quickly, which connected people to services faster. At the moment, SMC can’t close cases as quickly as prosecutors file them, said Damon Shadid, a municipal court judge.

The rising caseload burdens prosecutors, and an attorney who practices at SMC said Davison’s office struggles to retain attorneys as it is, a problem they expect will get worse if the Council adds a whole new case genre to the docket. 

“We’ve got prosecutors telling us to our faces, saying they don’t want to bring these cases,” said the attorney, who asked not to be named due to the potential harm to their clients.

Even though the Council didn't adopt the new legislation, the state law still takes effect in July, but police will refer any charges under that statute to the King County Prosecuting Attorney rather than to the City Attorney.

King County handled all drug possession cases prior to 2021, and the King County Superior Court already runs a drug treatment court (Seattle Municipal Court does not), according to the memo from Council staff. Plus, the County can access funding streams the City can’t, including more than $100 million in sales tax funding every two years, a portion of which can be spent specifically on programs such as drug courts. 

But, as Nelson mentioned, King County doesn't want the cases anymore. If Manion’s office does decide to prosecute misdemeanor drug cases coming from Seattle, then she’ll probably bill the City for the cost. However, the City doesn’t know if those costs would dwarf the costs the City would incur while trying to develop the infrastructure to handle drug cases for the first time in its history, so the fiscal conservative move might be to just let the County handle it. 

And Manion’s bill might not end up amounting to much, after all. Under former Prosecuting Attorney Dan Satterberg, the office rarely prosecuted anyone for only carrying a small amount of drugs back when that crime was a felony. And for the moment, booking restrictions at the King County Jail prevent holding people for nonviolent crimes, such as drug offenses, said Noah Haglund, spokesperson for the King County Department of Adult and Juvenile Detention. The County has set no timeline for lifting those restrictions as staffing shortages at the jail continue.

One existing program the City could expand to help divert people into treatment and out of the court system is LEAD, a law enforcement diversion program that allows cops to connect people to services rather than to jail. In the legislation proposed by Council Members Nelson and Pedersen, however, no language directs additional funding to scale up the LEAD program or any other treatment or diversion program.