Seattle elected officials are considering whether the city should take on the responsibility of prosecuting public drug use and possession charges, amid a new state law and a rising substance use crisis.

City Attorney Ann Davison is asking the City Council to approve a bill classifying public drug use and drug possession as gross misdemeanors, which would give the city attorney’s office the authority to prosecute both charges.

In a special session on Tuesday, state legislators passed a bill that changes drug possession to a gross misdemeanor and criminalizes public use, after the Legislature failed to agree on a replacement for the current possession law, which is set to expire in July. Gov. Jay Inslee signed the new bill into law the same day.

With the state law in place, Seattle police can make arrests and those cases will go to the King County Prosecuting Attorney’s Office for potential prosecution. But by adopting the changes into Seattle’s city code, the city attorney would be able to prosecute instead of leaving it up to the county.

Councilmembers Sara Nelson and Alex Pedersen have joined with Davison in pushing for localizing the new state law.

“Under state law, cities are responsible for prosecuting gross misdemeanor crime,” Davison said. “Now that drug possession and public drug use have been made gross misdemeanors, the job of charging those crimes falls to city prosecutors.

“The Seattle city attorney can only prosecute laws in the Seattle Municipal Code, which is why I joined Councilmembers Nelson and Pedersen to propose conforming legislation.”

Generally, the city attorney handles misdemeanor prosecutions and the county handles felonies, but in some cases, including existing possession laws, the county takes on misdemeanors. By bringing those prosecutions under the city’s purview, Davison’s office will likely prosecute possession and public use cases more frequently than the county, which often prioritizes its felony cases

Instead, King County has focused on drug distribution cases, about 70% of which have involved fentanyl or meth — or both — over the last two years, a county spokesperson said Friday.

According to the spokesperson, King County Prosecutor Leesa Manion has been regularly communicating with Davison and welcomes the city taking on prosecutions of gross misdemeanors.

In April, Manion said similar ordinances were necessary to give municipalities “appropriate jurisdiction,” and that she supports cities engaging in regulation and treatment “as part of a regional, collaborative approach that addresses the immediate public need without reigniting the war on drugs.”

Davison initially introduced legislation to address public drug use in April, alongside Nelson and Pedersen, when the Legislature had not yet set a date for a special session, and when there was still a chance the previous stopgap possession law would expire over the summer.

Nelson said he supported the ordinance because it would keep enforcement consistent across the state and would address concerns from constituents about the use of drugs on public transit, in parks and in other public spaces.

“For possession, it’s important not to have a patchwork approach,” Nelson said. “But when it comes to use, based on what I hear from my constituents, it’s very much an issue.”

In April, when unveiling a plan to “reactivate” downtown, Major Bruce Harrell directed the Seattle Police Department to focus on drug dealers rather than individual users. When asked about the proposed council bill, Harrell reiterated that distribution was the city’s top priority.

“I continue to believe we need to dedicate our limited police and prosecutorial resources to the greatest problem where they can be most effective: Addressing open air dealing and distribution of deadly and addictive drugs on our streets,” Harrell said in an email Thursday. “To that end, I’ll continue to advocate along the lines of our Executive Order, with individual users helping into proven systems of recovery and treatment as a first option.”

Davison said she believes the city should prosecute both individual users and dealers.

“It makes sense to focus significant attention on drug dealers,” Davison said. “At the same time, we cannot ignore rampant public drug use on sidewalks, parks and buses, and that is what residents and employers around Seattle are asking elected officials to address.

“Seattle police are capable of doing both.”

During his 2021 mayoral campaign, Harrell also said he supported the decriminalization of all drug possession, and he still says that’s the right direction for the future but thanked the state for “addressing a drug crisis that is harming communities,” when the possession law passed this week.

“Regarding decriminalization, I believe that is a worthy long-term goal, but the systems must be in place before taking such a shift in policy,” Harrell said. “Since 2021, the landscape has changed significantly with the explosion of cheap, readily available synthetic drugs like fentanyl and methamphetamine — poisons that are driving the surge in overdose deaths.”

The new state law establishes a maximum penalty of up to 180 days of potential jail time or a $1,000 fine — or both — for the first conviction, less than the 364 days in jail and $5,000 fine often possible for gross misdemeanors. It also prohibits prosecution for both drug possession and drug use at the same time. The City Council would not be able to change the penalties associated with the charges.

The SPD has not indicated support for either Harrell’s or Davison’s plans, and a spokesperson for the department declined to comment, citing its policy against commenting on pending legislation.

The city is also beginning to offer treatment options for people who experience substance use disorders, with Harrell announcing a pilot contingency management program to incentivize treatment through gift certificates. Last fall, Nelson also proposed a $2 million pilot program to cover the cost of treating people experiencing addiction, but the proposal failed due to budget constraints.