Seattle’s new drug law takes effect Friday and (shocker) Mayor Bruce Harrell failed to deliver on his promise of a compassionate, health-minded approach to public drug use. Now the City must scramble to scale up diversion programs, as the Seattle Police Department (SPD) estimates it will add 700-800 new people per year into either our overburdened system of services or (the more likely scenario) the understaffed King County Jail.

The new ordinance creates new gross misdemeanor crimes for drug possession and public use (excluding marijuana). New SPD policies say cops should opt to send people caught with drugs to diversion or treatment rather than to jail. But the policy and the Mayor’s order encourages arrest if a drug user presents a “threat of harm” to the public, and then basically defines “public” to mean anywhere outside.

Is the person within “close proximity” of a school or a park? Bookable. What about in the plain old “proximity” of a bus stop or a rail station? Bookable. What about in the “near vicinity” of a business?!? Yes, book them, send them to jail, that's a business they’re disturbing. (The policy doesn’t define any of those spatial guidelines.)

Council members expect Let Everyone Advance with Dignity (LEAD, a diversion program formerly known as “Law Enforcement Assisted Diversion”) to absorb these new cases, but that would represent a pretty major shift in the program’s dynamics. LEAD allows both cops and community members to refer people to its case workers and services instead of sending them through the criminal legal system. Right now, 64% of LEAD’s clients originate from community referrals, 25% come from “social contact” with SPD (which means no arrest, just a cop calling LEAD and saying a person needs help), and just 3% come from cops actually diverting people after an arrest. 

If cops decide to change their behavior and start diverting more people to LEAD, then the program faces a major capacity issue. In 2023, LEAD served about 750 clients with a budget of $9.9 million. With the new drug ordinance now in place, SPD expects to add another 700-800 on top of that, but the City plans to give the program $1 million less in funding for 2024 ($8.9 million). So LEAD will need to manage double the case load with less funding. 

Drug law ordinance co sponsor Council Member Lisa Herbold, who should be championing police alternatives, pointed out that as a result of her bill LEAD could end up having to solve the case load problem by only taking these drug-related cases from cops, making SPD the sole referrer for the program. Not exactly a treatment-first approach. Moreover, Herbold's bill results in asking cops to do “delicate, time-consuming” outreach work, which could potentially increase SPD’s overtime costs, according to a memo from the City’s Office of Civil Rights (OCR). That’s funny, because in 2021 the City estimated that LEAD would need $30 million to be able to handle referrals from both law enforcement and the community, which amounts to a little less than SPD’s overtime budget this year. So maybe instead of paying SPD’s untrained, armed cops more overtime, Herbold could suggest sending some of those dollars to the LEAD’s trained outreach coordinators. But that would make too much sense. 

Herbold defended the law repeatedly during a budget hearing last week. At one point, she emphasized that Harrell never promised any funding for expanded diversion programs. When Council Member Teresa Mosqueda pointed out that cops will inevitably just jail people if no resources for diversion exist, Herbold pointed back to the language of the ordinance, which says that cops cannot cite a lack of diversion programs as a reason to arrest and book someone. Ah hah! An ironclad defense! Or…not. SPD’s policy says the department will not punish cops for any arrest, booking, or diversion decisions related to the new law, rendering it toothless. Herbold seems to be giving SPD the benefit of the doubt, with little reason to do so.

Purpose Dignity Action (PDA), which manages LEAD, plans to create a list of other case management organizations that could share the load created by the new law, and council staff said the City could possibly fund those entities in the future, though it’s unclear where that money could come from given the budget deficit. 

But pre/post arrest diversion makes up just one part of the criminal legal system that will need to manage a surge of new cases from this law. The King County Department of Adult and Juvenile Detention, which has been raising alarms about dangerously low staffing levels for years, will also need to find more room for people caught with drugs in their pockets.

The County’s jail booking restrictions might prevent most people from having to spend time in a cell for these charges, but this week the jail said it can make exceptions for people who present a public safety threat. A spokesperson for the jail did not immediately respond to a question about whether an arrest for smoking fentanyl at a bus stop fell under the department’s definition of a “public safety threat.” 

The Seattle Municipal Court will have to make room for the potential new cases, too. If cops put people into jail, Republican City Attorney Ann Davison’s office then decides whether to prosecute or divert those cases. However, the City Attorney’s pretrial diversion program has limited spots, and with the elimination of Community Court, judges have far fewer options to quickly dismiss cases that prosecutors don’t divert.

Whatever the case, keeping people in jail for using drugs outside is a costly prospect. A night in jail costs the City anywhere from $250 to $679 per night, and King County expects to increase those rates in coming years. 

When Herbold and Council Member Andrew Lewis first voted down this drug ordinance in June, Harrell made a big show of promising a new ordinance that would include a strategy for cops to get people into treatment. But that “strategy” turned out to be unfunded and unenforceable, which is exactly what we expected. In his budget proposals, Harrell shows us again and again that he doesn’t want to fund anything other than unfillable cop positions and police gadgets, such as ShotSpotter.

The legislative body doesn't appear to mind. Rather than pressure him to fund LEAD or a replacement to Community Court with that money, Lewis and Herbold seem happy to sit back and live in a fantasy world where their toothless drug ordinance and Harrell’s executive order created the diversion programs they said they wanted when they voted down the drug ordinance this summer. 

As a result, we can expect to continue to see people forced into ineffective mandatory treatment programs or caught in the disastrous and expensive criminal legal system, rather than see the City stand up evidence-based programs proven to reduce both public use and overdoses. 

Editor's note: This story was updated to clarify Council Member Herbold's statements regarding LEAD funding.