Whatcom County has been wrangling about a new jail – including a failed proposition for a sales tax increase to fund. I thought it might be a good time to share a few thoughts from a criminal defense attorney’s perspective.

First, on the larger issue of the need for a new jail, there’s no question in my mind that we do. The current jail is old and pretty rundown. The staff there does a great job in a substandard facility that clearly needs to be replaced. That said, I don’t think Whatcom County needs the $100 million, 521 bed monstrosity being proposed by the Sheriff and county executive. Bigger jails mean more inmates to fill those beds. Or as the disembodied voice in “Field of Dreams” puts it, “If you build it they will come.” At a time when our nation seems to be re-examining how we do crime and punishment, we need more mental health and drug treatment facilities, not more jail cells.
Second, many of Whatcom Counties overcrowding problems are, to a certain extent, self-inflicted in that they are caused by corrections policies and judicial and prosecutorial attitudes that contribute to that overcrowding. Here are three examples;

1. Mandatory Booking on DUIs

In Whatcom County EVERY person arrested for DUI, including first offenses with low blood alcohol levels (BACs) are booked into the jail. While not alone among counties in this practice, we are definitely in the minority. Specifically, neither King, Skagit or Snohomish Counties have mandatory booking on garden variety first offense DUIs.

This policy stems from an unfortunate incident a few years back where a woman was arrested for DUI and released whereupon she went back to her car, drove and was involved in an accident that resulted in serious permanent injuries to Hailey French. Tragic as that case was, the danger of this unfortunate scenario happening again has been greatly diminished by the enactment of RCW 46.55.360, more commonly known as “Hailey’s Law.” That statute mandates the seizure and 12-hour impoundment of the vehicle driven by a person arrested for DUI or an equivalent offense. Regardless of whether there is a sober driver available to take charge of it. By keeping the vehicle out of reach of the potentially impaired person for at last 12 hours, (probably longer given the paperwork needed to release the vehicle) that law pretty much ensures it will not be driven by a driver still under the influence following arrest and eliminating Whatcom County’s rationale for mandatory arrest.

2. Good Time

Earned Early Release, more commonly known as “good time”, is a formula for sentence reduction for good behavior. It is a tool employed by nearly every adult correctional facility in the country to encourage good behavior. However, while most counties and the state Department of Corrections (for most charges) give 1/3 off of the offender’s sentence, Whatcom is among a minority of Washington Counties that only gives a smaller percentage off. In Whatcom County its just 15% or roughly 1/6 off (except for trustees who get 1/3). Needless to say, longer jail sentences lead to more inmates, more overcrowding and more expense to the tax payer.

3. High Bail

Whatcom County is notorious for extremely high bail. I have had clients held on bail for Robbery and Assault 2nd on the same bail as defendants charged with Conspiracy to Murder in Skagit County. Bail for felonies in Washington is governed by Superior Court Criminal Rule (CrR) 3.2. Release of Accused. This rule establishes a “presumption of release in noncapital cases”. That means release on “personal recognizance (PR)” unless the court finds the imposition of bail is necessary to “reasonably assure the accused’s appearance, when required,” or to protect the public from likely danger or prevent the intimidation of witnesses. While high bail may help assure appearance in court, it’s never made sense to me that it somehow protects the public. If the person is truly a danger to others than perhaps they shouldn’t be released at all. And perhaps that’s the real reason behind high bail. In any event, the imposition of routinely high bail keeps the jail population high and has a tendency to induce guilty pleas when there is simply no other way for a defendant of limited means to get out of custody.

It should be noted that the entire concept of bail is being reexamined across the country. The ACLU of Washington has initiated a campaign for bail reform. And the other Washington, Washington DC, has all but eliminated bail with surprising results. While the truly dangerous are held, about 90% of the people arrested are released without bail with a low rate of re-offending and a high rate of appearance in court.  Here are links to a radio piece and newspaper article that discuss how DC does bail:

So, yes, we do need a new jail. But let’s get it right by addressing some of the reasons for jail overcrowding and get a facility that’s the right size for Whatcom County and includes both mental health and substance abuse treatment units.