News

‘Throw Away the Box’

County explores alternatives to incarceration

Attend

What: Jail Diversions: The World of the Possible

When: 9 am Sat., Apr. 15

Where: Heiner Theater, Whatcom Community College

Cost: Free

Info: League of Women Voters of Bellingham/Whatcom County, 
www.lwvbellinghamwhatcom.org/

Wednesday, April 5, 2017

Jail is a poor and costly social worker.

While contemplating a larger, safer jail, Whatcom County Council policymakers have become increasingly aware that substantial numbers of people in jail don’t rightly belong there—folks with mental health or substance abuse issues; others without stable housing or income; and—at a rate of roughly one in every three inmates currently in jail—still others who have been found guilty of no crime but who cannot afford bail and are simply awaiting their trial, in essence a debtors prison. That’s why, as they prepared an initiative for the construction of a new jail for the ballot in 2015, Council also set in motion a parallel track—a review committee of judges, prosecutors, defense attorneys, mental health and social service professionals and citizens to explore methods and programs to reduce the numbers of people being housed inappropriately in the county jail.

The Incarceration Prevention and Reduction Task Force does what it says on the tin, chartered to develop behavioral health facilities and programs designed to achieve a reduction of the number of mentally ill and chemically dependent people using costly interventions like jail, emergency rooms and hospitals; a reduction of the number of people who recycle through the jail, returning repeatedly as a result of their mental illness or chemical dependency; and a diversion of mentally ill and chemically dependent youth and adults from initial or further involvement in a costly criminal justice routine.

The task force is in the third phase of its work, to develop specific operational plans and budgets for appropriate crisis intervention, triage services and incarceration prevention and reduction programs. Their draft Phase 3 report is expected to reach County Council by midsummer.

The task force has 24 members, representing the enormous scope and array of opinion and expertise necessary to move Whatcom County into a new justice paradigm. The task force is chaired by two citizens, Jack Hovenier and retired defense attorney Jill Bernstein.

Cascadia Weekly: Give me an example of a disincentive or an unintended consequence that is currently constricting the capacity of our jail that might be addressed by new policy or procedure.

Jill Bernstein: The law and justice subcommittee of the task force is currently working on a series of recommendations focused on the population of the jail that is there pretrial.

On any given day, we’re looking at one-third of the population in the jail as being pretrial. The court rules in the state of Washington tell us that if you are arrested but not convicted, the presumption is that you should be released without bail.

There are only two reasons to set bail: One is inadequate connections with the community or a poor history of returning to court in a responsible way to answer to charges, bail can be set to encourage you to be responsible. The other reason to set bail is if a person is dangerous, to try to encourage lawful behavior pending trial.

But really, what is happening is we are setting out people who have money from those who do not have money. If you and I are equally dangerous—we’ve both done the same crime—but I’ve got the bail money and you don’t, I have not miraculously become less dangerous. I have a capacity to avoid jail time that you do not have.

CW: And there are studies that suggest people will actually plead guilty to crimes just to reduce the amount of time they must spend in jail awaiting their trial.

JB: Yes, we’ve seen that suggested in studies from other communities.

In District Court, the judges are using the probation department to help with pretrial release, reducing the number of people who are being held in custody. They’re using probation services to help ensure people are behaving lawfully, they are reminded of their court dates and requirements.

Superior Court does not have a probation department.

So if we’re looking at models that are being used around the country, they are creating something called a pretrial supervision, which helps provide reminder calls, electronic home monitoring with GPS, scram bracelets that can test whether you have been using alcohol or drugs, and a whole range of human resources and hardware and new technology.

That is an opportunity that Whatcom County could really benefit from. The numbers of people who are in custody pretrial will not be reduced to zero, but their numbers could be dramatically reduced.

Yakima, we learned, went from $89 per day to hold someone in custody to $9 per day to supervise them while they are out of custody awaiting trial.

In tandem with a pretrial supervision unit, we’re looking at having our Superior Court judges develop a tool that is an evidence-based risk-assessment tool that can assist them in making a determination of who should be released without bail, who should be released with bail, who should be released with supervision, and who should be held in custody.

It is our strong belief that through programs and procedures like these, we can help reduce the numbers of people who are being held in Whatcom County.

CW: Let’s step back and look at the larger role of the task force, what it is and is not chartered to do.

JB: The community is thinking hard about the issue of jail. But not all issues fall under the work of the incarceration task force.

Three sets of questions are being asked in the community right now.

The first has to do with jail funding. The County Executive, I believe, is committed to putting the question of funding back on the ballot at the first possible opportunity, to ask the public to fund a new jail. And there is a jail stakeholders working group that is trying to answer the question of what that ballot measure that goes to voters should look like.

There’s a second set of questions that most people in the community, I think, want answered, which is where should the jail be located and what should its size be. That’s a set of questions that the executive has told me should be answered by the County Council.

The questions that are being asked by the task force are separate from those administrative concerns, which is what can we do systemically to reduce and prevent incarceration? We’re not answering the question of how big a jail should be, or if there should be a new jail. We’re looking at who should be in the jail and what alternatives the community can develop to reduce and prevent a population from ever landing there.

The task force itself is broken into three subcommittees. One is called the triage committee, and that is because when the County Council formed our task force thought the triage facility is the first and most important detail we should be answering to get it up and going. We have a group within the task force focused on that.

The second subcommittee is working on issues of behavioral health. The third subcommittee has to do with law and justice.

CW: What do you mean by “triage?”

JB: One part has to do with people who are in mental health crisis. The other has to do with people who are in crisis because of the use of alcohol or drugs. These are folks who don’t need to be hospitalized or in the jail, but need help with whatever crisis they’re in. The purpose of the triage center is to provide short-term crisis intervention. And then, a continuum of care can be put in place where they can receive longer term assistance.

A larger triage facility is being proposed. We’re optimistic that in 2018 we’ll have a new and improved triage option.

CW: Two things seem to be true about this task force. One is the public is surprised to learn it exists and is at work. The second is surprise at how much has been done, or how long that progress has taken.

JB: When the County Council formed the task force, they created a timetable for deliverables. Reports were generated as a result of our first and second deadlines, phases one and two. The phase three report that is coming is meant to answer specific questions that the County Council asked, such as budget and design questions for the triage facility.

CW: These meetings are very large, with many committee members representing a wide range of criminal and social justice concerns. Has that inclusiveness, that complexity, played a role in moving forward with jail alternatives?

JB: One of the challenges and the opportunities of the task force is we are 24 individuals that come at this from very different points of view. There are those whose backgrounds are in criminal justice. Others have background in behavioral health. Others are elected officials who care about these problems in our community. There are citizens, who have an interest in helping solve these problems.

We had to, first of all, teach each other new vocabularies. We had to go back to basics to make sure we are speaking a language that is universally understood at the table.

Then we have weave all of these backgrounds together into a common vision that can help solve problems. It’s hard work.

CW: The failure of the jail measure in 2015 produced an immediate constriction on jail bookings that hit Bellingham, in particular, hard. The city in response immediately set to work developing alternatives to incarceration. Have their lessons, what they’ve learned, been incorporated into the task force;s knowledge base?

JB: What the city was able to do, in a very short amount of time, is fabulous. It is hard to overstate what good work has been done by the City of Bellingham.

You could say in this case that necessity was the mother of invention. When the Sheriff felt that he had to stop taking bookings from the municipalities, the city got very serious about creating diversion alternatives for the population that comes through the Bellingham Municipal Court.

They decided to not just think outside the box, but to throw away the box.

The first piece of what they did was to send inmates to Yakima, which is a very difficult decision for the municipality and a hard one for the inmates and their families and employers. So Bellingham began to look instead at what they could do in the community, both pretrial and post-conviction. They developed a robust menu of alternatives that appear to be working very well for the city, in terms of saving money, and for the offenders, in terms of putting people on a healthier alternative track to incarceration, and to the jail, in terms of helping to reduce the population there.

They’ve done great work, and are hopefully are a model for what the larger community might do in the future.

CW: Are the programs the city created transferable to the county? The justice models are a little different.

JB: Well, the county also has a robust program of jail alternatives in place. I feel as though those alternatives do a very good job.

When I practiced law, I was always impressed with the staff that worked under the Sheriff at the jail alternatives facility. In my mind, they always tried hard to get to “yes” on questions of whether people qualified for work release, electronic home monitoring, or other programs outside of the main jail.

But Bellingham is working with a company, Friendship Diversion Services, which has been supplying these services all around the country, which allowed them to implement the program fairly rapidly. They were also able to put people on home monitoring for very short periods of time, so an offender that receives a sentence of two days can begin to serve their sentence on the bracelet very quickly and get this done. The city did not have to create the program from scratch.

The Sheriff has been open to discussions about what might be the barriers to offenders using the program that the county has in place, and how those barriers could be addressed. He has been operating under a mandate to make all such programs self-supporting, which raised the costs of the electronic home monitoring program and put it outside of the reach of offenders with less money, fewer financial resources. The Sheriff had a longer sentencing minimum that he wanted to work with of ten days on the bracelet to make that option cost-effective.

So the task force made a recommendation to the Council to lift that mandate to allow the Sheriff to more easily reduce or subsidize the costs of jail alternatives for indigent offenders.

I think the two efforts, parallel efforts by Bellingham and the county, are helping each other.

What’s good coming out of this, though, is the Sheriff was initially committed to using only hardware that was recommended by the Association of Sheriffs and Police Chiefs, but there is actually a much broader range of monitoring technology that is available that reports in real-time, test for drugs and alcohol, and can warn people with protection or no-contact orders against them that they are in proximity to things they should stay away from.

CW: What I’ve found remarkable about task force meetings I’ve attended is the participation of the judges. Judges, for reasons of separation of powers, have traditionally stepped back from hands-on issues of developing therapeutic courts and sentencing alternatives.

JB: Well, all of the different members of the task force have an important role to play and a different perspective on the issue of incarceration alternatives. The prosecutor’s office may have the most decisive role of all, as they recommend alternatives to sentencing.

Ultimately, much of this requires the final buy-in of policymakers, the County Council, and they have been very receptive to the work we’re doing. And they have adopted proposals we have put forward for their consideration.

CW: There’s a sense in the community that these issues have been facing us for a very long time, long before the jail initiative failed at the polls, and there is a dismay at how long it is taking to move to a new paradigm. What’s your response?

JB: I would answer that differently. This is a conversation that is happening around the country. We are as a country—communities from east coast to west coast and places inbetween—are looking at things we can do differently, or better, than just putting people in cages.

From where I sit, I would love to see everything better happen immediately, but it really can’t. Not if you’re going to listen carefully to the whole range of ideas and experiences, and take advantage of all of the talents arrayed to help solve this concern.

It necessarily has to be a careful conversation that takes time.

CW: There is additionally some frustration in the community that the work you’re doing on this task force should inform the two other parallel conversations you mentioned—the size and location of a new jail, and the cost of that facility. Shouldn’t the programs created to reduce jail populations factor into the size of the jail we’ll need? And yet, those parallel conversations never seem to meet up down the road. What’s your response?

JB: There are many things that will inform the size of a jail for our community. One of them, for example, was recently reported by our Prosecutor, that there has been a 90 percent reduction in juvenile court filings in Whatcom County.

I think everyone should just sit up and applaud that.

Not only is that great for youthful offenders—people who used to be prosecuted in our community, instead we’re doing something better for them. Some of it has to do with the sorts of programs we’ve been offering as a community for some time; some of it is probably related to a changing demographic, where crimes are down across all ages and sectors, and in that demographic perhaps most dramatically of all.

What that means is they’re not entering our criminal justice system, and that means they won’t be graduating into that system as adults. They’re instead going to be having productive and positive social lives.

We also know that demographically we are an aging population in Whatcom County, and that must surely factor into the ultimate size of a future jail.

And the work we’re doing as a task force, what we have done and will continue to do, will help influence the size of that jail. We have a liaison that sits with the group who is doing planning around the funding of the jail to make sure they’re aware of our work and we know what they’re doing. But their questions, as a budgetary working group, are really quite different from ours.

Now, there are people who know how to do all of this math and can inform this decision. And hopefully the County Council will ask them for their assistance as they go about making this decision.

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