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Black Robes Matter

Superior Court’s role in justice reform

Wednesday, October 14, 2020

Judicial races are rarely highly charged political contests. But, as in so many dimensions, 2020 is different. The topic of criminal justice reform has been in ferment in Whatcom County for several election cycles, and that interest has percolated into the elections for Superior Court. And a contentious, divisive race for the county prosecutor’s office in 2018 continues to divide voters. Forces that aligned around incarceration reduction and jail alternatives have reasserted themselves around an open seat on Whatcom County Superior Court.

It’s ironic coloring, because both Evan Jones and James Erb stress the importance of an independent and unbiased judiciary.

“Being a judge is a tricky thing because it is often easier to take the position of ‘I shouldn’t be involved. I should be a bystander to issues because the idea of being neutral is so important,’” Jones explained. “I’ve seen judges go very strongly in that direction, so worried about what they might say that they don’t say anything. I’d like to be different from that. I envision a Superior Court here that could be more active in the community, more vocal. I think that role looks like education,” the assistant county prosecutor said.

“I’m excited about the opportunity to be out front, not hide behind the robe. The court needs to be more transparent, and more vocal in the community,” Jones said.

“I think what we’re seeing at the federal level also trickles down to local,” Erb reflected. The calls for police reform, and the contentious selection of a new U.S. Supreme Court Justice have underscored the importance of the judiciary, the senior city attorney for the City of Bellingham believes.

“After Justice Ruth Bader Ginsburg passed away, and the debates in the Other Washington began about when and how to fill that position, I think that highlights for a lot of people the importance of judges. And I also think it shines a spotlight on the importance of independent judges,” Erb said. “People understand that judges should be independent from politics.”

Jones also had his start in Bellingham City Attorney’s Office, where he assisted with civil litigation and later criminal prosecution. He then moved to the county court system, where he has worked in the District, Juvenile, and Superior courts. He also teaches constitutional law at Whatcom County Community College.

Erb believes his wider experience in many jurisdictions gives him the edge in experience on the bench.

“Superior Court judges are generalists, and I have a broad base of civil experience to go along with my criminal experience and courtroom experience,” Erb said. “I have appeared in front of more than 100 judicial officers in the course of my career. The three main types of cases that are heard—civil, family and criminal—I have dealt with all three.”

“I have the insight from being in the court every day, here,” Jones said. “I know all the people and I know where improvements can be made. I have those relationships where I can start moving on those improvements.”

Erb ran unsuccessfully for county prosecutor in 2018 as an articulate advocate for criminal justice reform, a passion that appears to have earned him some enmity with that office.

“Judges are meant to be impartial and welcoming to all ideas,” Whatcom County Prosecutor Eric Richey declared in a letter in support of Jones, who works for his office. “Erb has clearly and repeatedly defined himself as a partisan politician. To someone who practices law daily in Whatcom County Superior Court and cares deeply about the integrity of the courtroom, I believe that Erb is too partisan and political to be a good judge,” Richey wrote.

Yet the reality is both Erb and Jones sought and received endorsements in this race. And both political parties are raising funds for their candidates.

“It is disingenuous for Jones to imply that Erb is being ‘political’ simply because he is transparent about his support from Democrats while Jones has excluded his Whatcom County Republican Party endorsement from his website and social media,” Whatcom Democrats said in a statement.

Erb is endorsed by three Washington Supreme Court justices, including Raquel Montoya-Lewis, and he is endorsed by two retired Whatcom County Superior Court judges, including Deborra Garrett, whose position he seeks. Jones is endorsed by two current District Court judges, David Grant and Matt Elich. Jones is also supported by a number of law enforcement officers and police guilds. Both candidates have extensive experience in criminal, civil and family law.

“For whatever reason, Prosecutor Richey appears to be a sore winner,” Erb shrugged, reflecting on their 2018 campaigns for that office. “He wants to paint me as ‘overly partisan’—which I think is a projection of his own beliefs. I have been very clear in my public statements that I am independent of the law enforcement community, and that includes the prosecutor’s office. My opponent is not. He is openly and publicly supported by the prosecutor, by the Sheriff, multiple police unions. I think that raises real concerns about judicial independence.”

“Being a judge is quite a different role than being a prosecutor,” Jones admitted. “I plan on being very serious on issues of autonomy and neutrality, and not dragging along positions I’ve had as a prosecutor into the role of judge.”

Erb said the outsized role the prosecutor has taken in this judicial race has created friction in this campaign.

“It is my belief, and it is the belief of a lot of community members I have talked to over the course of this campaign, that it is inappropriate if not unethical for the County Prosecutor to be trying to put his thumb on the scale in a judge’s race,” Erb commented. “We have a situation where the prosecutor, who is responsible for bringing more than 2,000 felony cases a year into the Superior Court, is trying to pick who is going to hear a substantial number of those cases.”

“All my endorsements come from people I have worked with,” Jones said. “I think of them more as job references more than endorsements, which are often more politically motivated. They are people that know me and have been around this sort of work, and they endorsed me because of that experience—with me.”

Questions about political bias and an independent judiciary underscore deeper questions about the role of the courts in criminal justice reform.

“I am passionate about justice—about equal justice, particularly, and meaningful reforms to our justice system so that it can be a little more fair for everyone,” Erb said. “If I am elected to this important office, in addition to the day-to-day job of being judge—which is is very important, making decisions in cases that affect all of our friends and neighbors, important civil and criminal matters, as well as family law matters—I want to also work with other stakeholders to make the important changes to our justice system that are sorely needed.”

“As a prosecutor, our entire office has taken seriously our obligation to reduce incarceration where we can do so safely,” Jones said. “Every time I encounter the idea this person needs to be incarcerated, I need to have rational reasons in mind to support that—reasons that are based on the court rules, based on real concerns for community safety. And never, never just because that’s how we’ve always done it.”

“For the full year that offers data, there were 5,000 people booked into Whatcom County Jail,” Erb noted. “We talk about having a mental health court in Whatcom County as an alternative to jail. That same year, that mental health court served 12 people. You basically have to win a lottery to get into the mental health court.

“Now I am not suggesting that all 5,000 people booked into jail should have instead been in a mental health court, but I am convinced we are not using those resources and alternatives to the extent we need to to help the people in our community that could benefit from that approach rather than arrest, incarceration and release. I feel similarly about our therapeutic drug court, that it is underutilized considering the number of people in our community who suffer from a substance abuse disorder.”

“The pandemic really changed our conversations quite a bit, where we were analyzing release with a different metric—just trying to get people out of custody,” Jones admitted. “And I think we’ve learned from that, too. I’ve been able to see how that affected the community when we changed the calculation on release. With some exceptions, it has definitely been OK that more people are released.

“The sky has not fallen, which is a good lesson.”

“I believe there is a role for Superior Court,” Erb stresses, in conversations about justice reform. “I disagree strongly with the idea that advancing equal justice is not a place or a role for a judiciary to be a participant.

“You see this kind of parlor game all the time, discussion of what corner should take the lead on these important issues—‘you need to stay over there in your corner, and we’ll stay over here in ours, and then when a problem comes up we’ll say that’s your responsibility to solve, not ours. You stay in your lane, we’ll stay in ours.’ We need everyone working together to address these problems,” Erb said. “We need everyone around the table.

“A quote that has resonated with me is ‘Don’t tell me what your values are. Show me your budget and I will tell you what your values are,’” he said. “The county’s budget devotes about 26 percent to public safety. It devotes 1 percent to mental health. So if you want to talk about what we are valuing in this community, what we are focused upon, this makes it clear. And you can talk to any law enforcement officer, they’ll tell you they need help dealing with people with mental health issues. But if we’re not putting any money into that basket, how do you expect to get that help?

“It is not a judge’s role to write the budget,” Erb admitted, “but I would say we need to move some money around if we want to have an appreciable change in outcomes. If we want to help people with mental health, if we recognize that mental health issues often bring people into contact with the criminal justice system, we have to pay for it. And that recognition actually helps the law enforcement community. If people are getting the help they need without having to call 911 because they are in crisis, that helps everybody.”

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