The Gristle

The Justiciability of Jail
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THE JUSTICIABILITY OF JAIL: More than 150 people packed the Whatcom County Council chambers last week to learn more about a sales tax initiative that would finance the construction of a $122.5 million jail and Sheriff’s complex near Ferndale. More than 50 people commented in a lengthy special evening session Council had called exclusively to gather additional information about public support for the proposal and for alternatives that could reduce the cost and frequency of incarceration.

Comments ran the spectrum from full-throated support for a new jail (voiced, curiously enough, by a cohort otherwise notorious for their skepticism about the size, scale, imposition and taxing overreach of government) to—at the further end—calls for an immediate halt and do-over of jail planning activities. The majority of comments urged a more cautious, circumspect approach to criminal justice, one that would build programmatic alternatives to jail in tandem with the jail itself.

Council listened quietly, commented rarely, and in the end appeared just as baffled and uncomfortable as they were in the beginning with a request by the administration to place this on a ballot in 2015. To make the August ballot as requested by the administration, Council must decide to act before May 8. Their approval of an early ballot measure is unlikely in the extreme. A later measure would be encumbered on a ballot thick with candidates and issues, larded by perhaps a dozen proposed amendments to the County Charter the majority of which (perhaps all) will be struck down by overwhelmed and peevish voters.

Foremost in the minds of Council members hardest at work to understand the administration’s request is whether it may be possible to bond at a higher rate in a more comprehensive, programmatic response to criminal justice, funding not just the jail but the mental health and chemical dependency diversions that might reduce the cost and scale of incarceration in the future.

A brief glance at the county budget tells the story, with law and justice expenditures gnawing away 61.7 percent of the county’s undedicated General Fund in 2015-16, roughly two-thirds of the total and dwarfing any other expenditure. Only Public Works approaches the size and scale of criminal justice, paid for primarily (although not exclusively) through the county’s dedicated road fund. County law and justice expenditures have stabilized at around $44.5 million annually, but they’re basically the only part of county government that continues to grow.

Under Washington law, counties and their cities may levy a public safety sales tax of up to .3 percent devoted to criminal justice programs, including funding of additional police officers and the relief of congested court systems and overcrowded correctional facilities, subject to approval by voters. In aggregate, counties and their cities may levy no more than this amount. If the county is the authority offering the levy, the county is able to retain 60 percent of the receipts. The remaining 40 percent is apportioned back to the cities on a per-capita basis. Currently, the county has applied .1 percent of this capacity to criminal justice programs.

Under the proposed jail initiative, the cities would agree to turn their full 40 percent back to the county for the purposes of constructing and maintaining the jail. The county had originally proposed the term of the full .3 percent levy would be permanent.

A quiet but substantial and important shift in the proposal occurred last week when the administration agreed to a term on the levy that would sunset when the construction and associated cost obligations were met. That helped satisfy a concern of the City of Bellingham, in particular, that the city may one day be able to claw back its sales tax capacity for other municipal public safety concerns.

There’s another way to construct the public safety sales tax, and that is for the cities to place a smaller sales tax measure before voters alongside a smaller countywide ask. In that event, cities retain 85 percent of their sales tax and apportion 15 percent back to the county. The alternative holds charm for COB, which would retain more revenue capacity for city programs in out-years.

Frankly, Bellingham and Whatcom County alone probably have sufficient steam to construct the jail by interlocal agreement and independent of the other cities, which can consider their own mechanisms to freight their costs. (For the smaller cities, concerns revolve primarily around whether they will be charged a flat rate for jail services based per capita, or by the jail services their criminal populations actually consume—another area where the county administration has shown flexibility and accommodation.) So one way to construct this measure would be for each entity to present their own sales tax proposal to voters, yielding Bellingham much finer control (and braking power) over how its enormous sales tax contribution is distributed in county and city justice programs. The wisdom and potential of that is currently being discussed by city administrators and Bellingham City Council.

Meanwhile, County Council has pledged to roll up their sleeves and sharpen their pencils to develop a more comprehensive approach to criminal justice alternatives, a requirement a majority feel is essential before placing the issue in front of voters for approval. The one cannot succeed without the other, they are bonded.

In Law there is the concept of justiciability, which includes whether a matter is actually ripe for review by the courts, a complicated idea that in part attempts to gauge if other avenues have been exhausted. While jail capacity has become an emergent crisis, the discussion of the jail’s replacement is curiously unripe, unready for the judgement of voters. It needs a little more sunshine.

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Past Columns

April 14, 2015


All political power is inherent in the people, and governments derive their just powers from the consent of the governed.
—Washington State Constitution Article One, Section… more »

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NO GET OUT OF JAIL FREE CARD: Whatcom County Council appears uneager to rush a $104 million sales tax initiative in support of a $122.5 million jail and Sheriff’s complex… more »

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