OPINION | The Drug Bill Did Nothing

by Tobias Coughlin-Bogue

Depending on how you slice it, the City Council's recent bill to add criminal penalties for the public use and possession of controlled substances took about six months to become law, as Councilmember Sara Nelson said the day of its passage. Six months, she implied, was way too long.

For the first time, I agree with her — it did take too long. But I don't agree that getting it done did anything. As the associate editor of Real Change News, I followed the process intently. There was an aura of urgency around it that was undeniable. I'll admit I wrote my fair share of breathless articles about how bad this would be for Seattle. Then, during a Sept. 12 hearing on the second, successful version of the bill at the Council's Public Safety & Human Services Committee, I realized I'd gotten it all wrong.

In reality, the bill does nothing. It amounts to a waste of six months of the Council's extremely precious time and ungodly amounts of its already very limited political will.

As Councilmember Andrew Lewis said during that hearing, "The City Council cannot order the police to do anything."

And yet, the bulk of the bill is devoted to police procedure around choosing when to arrest versus when to direct people to alternatives, like treatment or diversion. Indeed, the initial bill failed because Lewis feared it didn't do enough to ensure arrestees would be sent to treatment rather than jail.

This bill doesn't do anything the original didn't. It contains a number of very strong suggestions that cops opt for kinder, gentler solutions to the problem of people using drugs in public. It attempts to clarify what the Council means by harm to oneself versus harm to the community, a metric it would very much like officers to use when enforcing the new law. It also makes diversion the "preferred" method of dealing with public drug use. What it 100% does not do is guarantee that more people suffering from substance use disorder will make it to treatment.

Binding guidelines for the police were promised by way of a soon-to-arrive executive order from Mayor Bruce Harrell, who does have the power to set police policy. He's since issued it, but it, too, contains nothing more than suggestions, albeit stronger ones. Officer discretion still reigns supreme.

Supporters of the bill, like Nelson, have heralded its passage as a change in our city's approach to drugs. At long last, our poor, beleaguered police officers will be empowered to take back the streets, presumably by hauling public fentanyl users into the back of their cruisers to choose, on the spot, between arrest and treatment. The implication here is that prior to the bill's passage, police officers' hands were tied.

The thing is, cops have always been able to arrest people for drug possession. Let's turn it over to Councilmember Lisa Herbold, who in a June 7 blog post tackled the question of whether drugs were suddenly and magically legal in Seattle, absent a municipal drug law.

"[D]rug possession and public drug use are illegal in Seattle and will remain illegal," she wrote. "The Seattle Police Department still has the power to arrest people for breaking Washington State's drug laws. The King County Prosecuting Attorney's Office will still have the power to prosecute people for breaking Washington State's drug laws."

Seattle cops could have, at any time, arrested anyone they saw smoking fentanyl, crack, meth, or any other illicit substance on Seattle's streets. Why they haven't for so long is a question only they can answer. Whether the passage of this bill will be the symbolic nudge they need to get back to it is another question that, similarly, only they can answer.

On the other hand, there is no law preventing cops from approaching people and offering them information on and even a ride to treatment services. Cops have cars and cellphones. If they are so inclined, they can call around to see what treatment options are available. The police can transport people to treatment or connect them with services without placing them under arrest.

Long story short, under the new bill, the experience of people suffering from substance use disorder in our city will be, as it has always been, almost entirely dependent on what kind of mood cops are in.

At the end of the day, the only thing this bill truly changes for drug users is what venue they can be charged in. Now that the City has codified public drug use and possession as a crime, City Attorney Ann Davison can prosecute those arrested for it in Seattle Municipal Court. As one of the authors of the original, failed bill, she is surely eager to do so.

Unfortunately for her, both the King County Jail and Seattle Municipal Court have told her they're at capacity. No new low-level drug cases, please. As Lewis put it, in an interview with Publicola's Erica C. Barnett on the drafting of the second version of the drug bill, "[W]e could arrest everyone downtown for smoking fentanyl and the King County Jail wouldn't be able to book them."

In the same interview, he described the bill as "a Macguffin" — something that advances the plot but is itself irrelevant. And therein lies the rub. Our Council, our media, and our community came together to argue endlessly about something that doesn't meet the expectations of anyone on any side of the issue.

The Council could have spent that six months tweaking zoning to make it easier to build treatment and mental health facilities in more places. The Council could have approved proven harm-reduction programs, like safe consumption sites or safe supply, with Davison spending her time preparing to defend them in court. The Council could have crafted a bill to reallocate funding from so-called "ghost" police positions to proven outreach organizations like LEAD, while also providing the transitional housing those programs depend on to succeed.

Instead, we got a limp-wristed re-endorsement of the war on drugs. It is surely a bad bill. But while we should be upset about the intent behind this bill — to foist involuntary (or at the very least coerced) treatment on the city without having to have the very important moral and philosophical debate such a policy deserves — we should be more upset about what a waste of all of our time it was.

Why, when we are facing unprecedented crises in housing affordability, homelessness, climate change, public transit, mental health care, infrastructure, and many, many other areas, are we playing political theater? Why is our City Council so obsessed with the optics of things rather than the actuality of them? Why, when we need policy that rapidly and tangibly improves the material reality of everyday Seattleites, do we get nonbinding resolutions and 26-member task forces and symbolic commissions and studies that no one ever reads?

With the election just around the corner, I, for one, am hoping we stop falling for this tired war on drugs propaganda and start asking those questions. Our region's right-wing commentariat is already twisting this issue to attack the three incumbents who are up for reelection this year, including the two who voted in favor of this bill, Lewis and Dan Strauss. While I think we should absolutely be mad at those two, it should be for caving to the manufactured outrage that hucksters like Brandi Kruse and Jason Rantz traffic in.

While Lewis and Strauss' opponents would be absolute disasters on City Council, we don't have time for legislators who are simply better than the other guy. I've talked to Lewis and Struass enough to know that they both know this was bullshit. I just wish they'd been brave enough to say so on the dias.

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Tobias Coughlin-Bogue is a journalist based in Seattle. His work has appeared in Vice, The Stranger, Crosscut, and Thrasher Magazine, among other outlets. He was most recently the associate editor of Real Change News.

Featured image attributed to h2kyaks (under a Creative Commons CC BY-NC 2.0 license).