Image: Seattle Councilmember Alex Pedersen and Sara Nelson stand with City Attorney Ann Davison during a press conference in front of City Hall to announce new legislation “to improve public safety and discourage the public consumption of controlled substances”
North American local politics have become dominated by the belief that the criminal justice system should respond to the visibility of abject poverty, crisis, and substance use on the streets. This position is brought forward in commentary anytime a Target or Rite Aid closes (regardless of unrelated corporate blunders), when public transit is discussed, or when a new housing project is proposed. As part of the wider media backlash in wake of 2020 Black Lives Matter protests, city councils have shifted away from their previous piecemeal support for public health-informed models, including decriminalization, harm reduction, and housing first, and towards the stigmatizing rhetoric and mass incarceration of decades past, viewing anything other than arrest as “enabling.”
This year, Washington State responded to the hubbub by increasing penalties for simple drug possession from a misdemeanor after two treatment referrals to a gross misdemeanor carrying a maximum 6-month jail sentence, with treatment diversion at the discretion of officers. When our more progressive King County Prosecutor announced that she would not prosecute drug users, the City of Seattle, under the helm of a Republican City Attorney, passed the first ever municipal-level drug criminalization law mirroring the state law, again with no defined standards for diversion, only thoughts and prayers that the “of limited value” Seattle Police Department will act ethically.
The City of Seattle is among left coast municipalities currently appealing to the US Supreme Court to overturn the 2018 Martin v Boise decision, which barred cities from arresting unsheltered people for sleeping outside if no shelter beds are available. Mayor Harrell and others don’t care whether sleeping outside is a “choice,” they want the Clarence Thomas-given right to arrest whoever they please. Burien, a Seattle suburb, has forged ahead with an ordinance making sleeping outside a misdemeanor in defiance of the current court precedent. Charitably, they’re doing this because of a deluded belief that “tough love” will force people to pull themselves up by the bootstraps. More cynically, they want to presume, moralize, and punish the behaviors that lead up to being stuck without housing and without options.
They often argue this is a good faith response to the horrific scale of overdose deaths, but it’s very clearly not just about drugs. Enforcement is not targeting white-collar coke-fueled parties or college student experimentation. They’re squarely targeting visibly homeless individuals, people who use drugs on the street, and people having a public behavioral health crisis. They see these individuals with disabilities as at “rock bottom” and with nothing to lose, and see prosecution as the only thing that can get them out of it, or at least prevent tourists and business workers from having to see it.
I want to counter that idea of “rock bottom.” Everyone can be irreparably harmed by our criminal justice system. Someone with any combination of housing, benefits, ID documents, a job, pets, and a care team has a greater chance of recovering from any illness as someone who does not. Criminalization, or even forced treatment, does not pave a path towards recovery. It demolishes the one that was already there in the form of protective factors.
For any multitude of minor to moderate charges, someone who has resources is likely to post bail. Then, if the evidence is substantial enough for prosecutors not to just drop charges, they’ll be offered a plea deal with some combination of fines, probation, and community service. The criminal justice system can destabilize almost anyone – certainly putting employment at risk with cascading effects, but when someone can’t post bail and is identified as mentally ill, the results are devastatingly quick, cruel, and unusual.
When someone can’t post bail, they’ll wait a week in jail, and their overworked public defender will probably request a competency evaluation at the arraignment hearing. It’s an ethical dilemma for the lawyer, if they’re unsure about whether their client can understand and consent to a plea, it’s a necessity, even if it’s against the client’s best interests. The evaluation will be done in another two weeks. Assuming they’re found not competent, this will lead to 3-6 months in jail waiting for a competency restoration hospital bed to finally open up. Washington State has been fined $100 million by a federal court for how long it’s leaving people in jail awaiting hospitalization, but so far, it’s still happening.
When they finally get hospitalized, they’ll be there for a 45-day hold. At that point, a hearing will determine if they’re now competent, or order another 90-day restoration hold if they’re not. And then finally, 6-months or more into this ordeal, charges, if minor, will probably be dismissed.
The Seattle regime ignores the immense amount of progress in recovery that someone stands to lose the moment they’re arrested.
- Medicaid is immediately turned off upon arrest. This one is easy enough to get turned back on after release.
- Mental Health and SUD case management is usually a Medicaid-tiered service. Agencies will be forced to drop the client at some point, and the person on the outside that’s most batting for their patient’s care will no longer be able to. The continuity of care is disrupted, and upon release the client might find themselves needing to get on a waitlist to re-enroll. That often includes someone’s psychiatrist and therapist too. It could be it took years for individual staff to slowly build rapport with their client necessary to accomplish anything.
- After 30 days, their Social Security SSI or SSDI will be shut off. SSI is the $914/month form of disability that disabled adults who have never had substantive employment qualify for, and SSDI is taking early retirement due to disability. If someone remains institutionalized for a year, they have to start a grueling multi-year application process all over again.
- At no more than 6 months, federally-subsidized housing is lost. That’s a best case scenario you might see in Permanent Supportive Housing, where collecting a tenant’s portion of rent is not heavily enforced.
- If someone has a Section 8 voucher that they use with a private landlord, as 70,000 formerly homeless people received from the pandemic-era American Rescue Plan, you can bet the landlord will start eviction proceedings as soon as the tenant’s portion of rent is late. If this goes through to a legal eviction, they will lose the entire housing voucher – something people are on waitlists for decades to get, and likely spent months working to actually get leased up using.
- And with that, anything important in someone’s apartment is lost. Their pets, Emotional Support Animals or Service Animals. Their critical ID documents, like ID, Social Security Card, and birth certificate, that are incredibly hard to get replaced without having at least one already. Re-establishing ID is a delicate art that can take months of records requests and hundreds of dollars.
Not even by being found guilty of a crime, but merely by being arrested and seen as requiring competency evaluation, every protective factor going for someone, things that they and the social service workers around them may have spent years working to achieve, has been set back. Their competency might be restored, but they’re coming out of institutionalization with no continuity of care, no income, no housing, no ID documents, no case management, and no reasonable path to getting any of that back. Mayor Harrell, City Attorney Ann Davison, do you really think that’s going to prevent recidivism?
That’s not even delving into the horrendous traumas that people behind bars are exposed to, nor the rampant availability of drugs largely brought in by correctional officers, nor the lack of SUD and mental health care in jail.
Our existing system of involuntary civil commitment is an uncomfortable necessity in some cases; when someone will imminently die of an infection if they don’t engage in medical treatment that their state precludes understanding; in cases where it seems their escalating delusions will imminently result in causing bodily harm. It’s efficacy is in responding to acute symptoms with a 72 hour to two week hold that has a chance of returning someone home with improved insight on treating chronic conditions outpatient. The circumstances that would lead to an ITA hold are developed from an entire care team or family, having exhausted other options and submitted an affidavit detailing how they’ve decompensated from their baseline and need urgent attention. A cop investigating simple possession cannot glean the kind of context necessary to determine whether involuntary treatment is appropriate from simply seeing someone sleeping in a tent, using drugs, or presenting as distressed or bizarre. Someone’s baseline simply having an out of place appearance does not indicate they are a threat to themselves and others.