SEATTLE — A new law making the possession and public use of drugs both gross misdemeanors takes effect in Washington state on Saturday, but is — at least temporarily — excluded from Seattle’s criminal code.
The change follows month of deliberation and a special session of the Washington state Legislature over how strongly, if at all, to criminalize possession and public use. Even with the new state law, Seattle is grappling with finding its own solution.
Below are answers to some frequently asked questions about the new law and its impact on Seattle.
During a special session in May, the state Legislature passed a law that criminalizes public drug use, and makes both it and drug possession gross misdemeanors. The change replaces a statewide stopgap drug possession bill that had replaced the old state law, which made possession a felony and was deemed unconstitutional by the Washington Supreme Court in the 2021 State v. Blake decision.
The new statewide drug statute took effect Saturday.
As gross misdemeanors, the charges are more severe than a simple misdemeanor but less than a felony. Gross misdemeanors usually carry a maximum penalty of 364 days in jail and a fine up to $5,000. In the new possession law, however, the maximum penalty is 180 days in jail for first and second convictions and up to 364 days for a third conviction.
In early June, the Seattle City Council voted 5-4 to reject adopting this new law into the city’s criminal code, which would have given the city attorney permission to prosecute drug possession and public drug use arrests, after robust criticism from people who fear the charges may be enforced in a discriminatory way and result in more people in jail.
Now the city falls into a gray area on enforcement of the law.
- Is it legal to possess or use illegal drugs in Seattle?
No. While the new drug law is not in the city’s municipal code, both possession and public use are gross misdemeanors statewide.
- Can Seattle police make arrests?
Yes. SPD is still allowed to make arrests to enforce state law, even though prosecution is less certain without adopting them into the city’s code.
While public use arrests can begin today, SPD and other police departments in the state are required to offer a referral to diversion for the first two arrests and cannot book someone into jail on the third arrest until Aug. 15, because of a delay after replacement of the existing possession law.
Possession arrests are already infrequent in Seattle with SPD having made 25 arrests in the first four months of the year, according to SPD’s crime dashboard. For comparison, the Mayor’s Office says the police made 175 felony trafficking arrests from January through May.
- Who will prosecute arrests?
It will be up to the King County prosecuting attorney to determine whether to prosecute these charges.
Though state law gives the Seattle city attorney’s office power to prosecute misdemeanors, by excluding these two particular charges from the city’s criminal code, the City Council effectively decided that the city attorney cannot prosecute.
While King County can choose to prosecute these cases, Prosecuting Attorney Leesa Manion has said that misdemeanors are the city’s responsibility and her office is at capacity focusing on the felony cases it is responsible for handling. Manion has urged the City Council to adopt the code.
- Will the council adopt the charges eventually?
The council will likely reconsider and reverse its decision in the next few weeks.
The original bill to adopt the code only failed by one vote, with Councilmember Andrew Lewis saying he would support the bill if the city increases pretrial diversion options and establishes a new therapeutic court to replace the recently abolished Seattle Community Court to encourage alternatives to prosecution.
Mayor Bruce Harrell established a work group the same week, which is expected to introduce new legislation by the end of July, addressing Lewis’ concerns and ultimately asking the council to adopt the state code. The legislation will also specify when police should arrest people for misdemeanor drug crimes and when to provide paths to treatment and pretrial diversion, according to Harrell.
- What about other drug charges?
No existing drug charges are affected other than these two gross misdemeanors addressed in the Blake fix. Other charges, like felonies related to distribution, continue to go to the county prosecutor, who is responsible for all felony cases.
