Most D.C. councilmembers seem to know that restoring the Metropolitan Police Department’s power to declare drug-free zones and sweep people off of street corners is a bad idea. But it looks like they’re ready to do it anyway.
The problems with the policy, which was created in 1989 as the crack epidemic overwhelmed the city but ditched in 2014, seem apparent to pretty much everyone involved in the debate over the Council’s latest crime bill. Criminal justice experts and lawmakers alike have pointed out the issues at length, both in public meetings and conversations with Loose Lips. The zones could enable unconstitutional conduct by police, upend the city’s efforts to help people struggling with addiction, and fail to actually disrupt the open-air drug markets that inspired the proposal in the first place. But no matter: The policy remains in the “Secure DC” bill, which will come up for its first vote Tuesday.
In a bid to make the policy a bit less loathsome, a group of councilmembers was able to secure some changes to this section of the legislation, authored by Ward 2 Councilmember Brooke Pinto in her capacity as judiciary committee chair and backed by Mayor Muriel Bowser. The amended version of the bill sets some limits on how often police can establish these zones, but leaves most of the proposal intact: MPD can set up areas where the legal standards for ordering people to disperse (or arresting them) are much lower, allowing cops to target anyone they suspect of dealing or using illegal drugs.
The fact that the idea still endures, despite these well-documented concerns, points to the animating principle behind this whole Secure DC push: The Council feels like it has to be seen doing something about crime, no matter what that something is, before voters head to the polls later this year. Ward 4 Councilmember Janeese Lewis George, one of sharpest critics of the rightward turn of D.C.’s criminal justice policies, explains to LL that “it’s so hard to say to neighbors we’re going to get rid of drug-free zones” because “they’re the ones walking their kids to and from schools seeing open-air drug markets.”
“I’m not sure that it is the panacea that people think it is,” says Ward 5 Councilmember Zachary Parker. “But I will tell you, many neighbors are desperate for something … Do I think it’s gonna be the end-all, be-all silver bullet? No. But do I think MPD will leverage these drug free zones to disrupt some of what we’re seeing in neighborhoods, like Edgewood and Carver-Langston and Trinidad? Yes.”
Patrice Sulton, the executive director of the D.C. Justice Lab, admits to no small amount of frustration with the debate over the bill due to these dynamics. “It’s very difficult to have been in the smartest, most cowardly place on Earth for the last two weeks,” she laments, arguing that most councilmembers she’s spoken with are frustrated with certain parts of Secure DC (like drug-free zones) but they’re too “afraid of their own shadow” to stand up against them.
But none of this feels particularly new for Sulton, one of the key figures in debates over criminal justice policy in the District for the last few years. It’s a bit more bewildering to a national figure like DeRay Mckesson, the racial justice activist who rose to prominence in the early days of the Black Lives Matter movement and has continued working on police reform across the country. “People are telling them to do something about crime, but ‘do something’ doesn’t mean ‘just do anything,’” Mckesson tells LL.
His group Campaign Zero first became engaged in D.C. politics during last year’s debate over the criminal code revisions, then spent the past weekend knocking doors to rally opposition to Secure DC proposals like drug-free zones, a policy that he believes is impossible to implement in a non-discriminatory way. Mckesson notes that the bill would bar two or more people from “congregating” to commit a drug-related crime, effectively giving cops license to stop and search anyone spending time together outside in poor, predominantly Black neighborhoods.
“This is literally one of the worst bills I’ve ever seen about policing that has come up in the past decade,” Mckesson says. “It is not simply that I disagree with parts of it, it is that I am stunned at how racist and just bad policy it is.”
But, no matter whether it’s Mckesson’s posts to his nearly one million social media followers, protests and outreach by local activists, or warnings from the Council’s own racial equity office, much of the pushback against the Secure DC legislation has generally fallen on deaf ears in the Wilson Building. Several lawmakers have asked probing questions about the drug-free zones during public meetings on the bill, particularly Lewis George, Parker, and at-large councilmembers Christina Henderson and Robert White, but there hasn’t been any sustained effort to actually strip the provision out of the legislation.
The closest the Council has come to amending Pinto’s proposal around drug-free zones is the push to change how it would affect the city’s harm reduction efforts for people struggling with substance abuse. Those efforts were primarily spearheaded by Henderson and Ward 1 Councilmember Brianne Nadeau, who advanced an amendment to ensure that any medical clinic in an area set to be declared a drug-free zone is notified beforehand. The bill also now directs MPD to issue a general order specifying that “people seeking or receiving medical or social services” in or near a zone won’t be “prevented, discouraged, or otherwise deterred.”
“A lot of times the caseworkers are meeting them out in public spaces, and if an area like that is declared a drug-free zone, no one’s allowed to go into it and out of it, then caseworkers lose touch with their clients and people lose out on care,” Nadeau says. “For someone with a substance use disorder, that actually can be life and death, especially if they need a substance to stay alive.”
But the amendment only makes changes around the margins that will do little to address the underlying problems with the policy. Perhaps most importantly, there isn’t much evidence that drug-free zones actually work to prevent crime.
Pinto, Bowser, and MPD Chief Pamela Smith have repeatedly sold the idea as a way to break up large crowds of people selling and using drugs out in public, where police are powerless to make meaningful change. At the Council-mayor breakfast held in Gallery Place last week, Bowser used Chinatown as an example of this phenomenon. “If [police] see you and they say, ‘We think you’re smoking marijuana on the street,’ we’ll arrest you, send you down to the police station, you won’t be charged, and you’ll do it again,” Bowser said at the Jan. 30 meeting.
These zones would give MPD a new “tool” to break these cycles, Bowser said, since it would be much easier to force people to leave these areas (or arrest them for failing to comply). Of course, as White noted at the meeting, “doing illegal drugs is already illegal.”
Lewis George and Sulton both tell LL that police seldom break up these drug markets until there’s a shooting or some other violent incident, even though they probably have cause to arrest people there—it’s simply a matter of how MPD chooses to use its resources. “It will be up to MPD to actually enforce these violations in a way that’s not really happening enough right now,” Lewis George says.
“We have had these open air drug markets for a very long time,” says Sulton, who lives in Northeast. “I don’t know if there are more that popped up during the pandemic, which I can imagine there would be, or if it’s just that there are more White people moving near them. But I know the one in my neighborhood has always been there.”
And LL has to wonder: What’s stopping people from walking one block over from the nearest drug-free zone? Will MPD have to declare whole neighborhoods drug-free for this to actually have any effect? Where does it all end?
“This isn’t going to prevent more crime. If anything, it’s going to push people to different parts of the city,” says Melissa Wasser, policy counsel at the ACLU’s D.C. chapter. “And it could wrap in people who are just sitting on their porches, walking down the sidewalk.”
That is where the constitutional concerns start to come into play. Courts have repeatedly held that “anti-loitering laws” banning people from gathering in certain areas are unconstitutional, and that’s come up repeatedly as D.C. has tried to use the policy in the past. The 1989 iteration of the law, backed by Mayor-for-Life Marion Barry, was struck down in court before it was revived in a different form in 1996. The Council (including Bowser herself) then voted to repeal the law in 2014 over fears it could suffer a similar fate in court.
This time around, proponents of drug-free zones say the proposal is tailored to avoid a court challenge. Attorney General Brian Schwalb certified that the law was “legally sufficient” for consideration despite some initial doubts, but Council Chair Phil Mendelson and others have grumbled over the past few months that a lawsuit is still possible. For what it’s worth, Mendelson told reporters Monday that he thinks the Council can be “relatively comfortable” the bill would survive a constitutional challenge, particularly after the latest adjustments to it. (The bill allows MPD to declare these zones for five days at a time. And though it initially contained no limit on how many times in a row Smith could set up a drug-free zone in a certain area, the new version would bar the chief from doing so for more than 15 days consecutively or cumulatively in a yearlong period.)
“We pass legislation that is taken to court all the time, I’m thinking about our gun control legislation,” Mendelson said. “We try to craft it with an eye to whether it could be scanned or judicially challenged. And that’s what Councilmember Pinto is trying to do here.”
Sulton, an experienced attorney herself, suspects that legal action is inevitable once the bill passes and police start putting the policy into practice. She expects it will provide “an additional basis for [officers] to stop people and look for firearms in places that they want to,” particularly as the D.C. Court of Appeals has tried to curtail intrusive searches by MPD officers in recent years. If that starts to happen with regularity, she fully expects to see lawsuits challenging the policy.
“The Constitution is the Constitution,” Sulton says.
But that’s all a problem for later. Right now, councilmembers are facing the heat from nervous voters and a mayor eager to use her bully pulpit to slam the Council for inaction at every opportunity. As LL has written so many times before, Bowser’s singular gift is deflecting blame away from her own government on this subject, and that’s a big deal with elections rapidly approaching.
“We need District agencies to crack down on crime and not just have the executive spout off and talk about crime,” Parker says. LL wishes him luck with that.
The bill has, admittedly, gotten better since it was first introduced—Pinto ultimately decided to strip out almost all of the rollbacks to transparency and accountability measures initially included in the bill, after several lawmakers threatened to propose amendments themselves. And the bill may continue to change ahead of the Council’s second and final vote, likely to come in late February or early March. But Sulton still believes it’s ultimately harmful to pass such a large suite of changes to complicated policies so quickly, all while making big promises about how much safer this will make the District.
“The way that they present legislation like this is giving the public a really false sense of hope about what the impact of it will be,” Sulton says.