Guest Commentaries

Take a broader look at the need for a bigger jail

'Diversion alone will not curb incarceration'
April 14, 2023 at 5:00 a.m.
Around a dozen inmates sleep and live in a windowless room that was once the indoor recreation space at the Whatcom County Jail.
Around a dozen inmates sleep and live in a windowless room that was once the indoor recreation space at the Whatcom County Jail. (Hailey Hoffman/Cascadia Daily News)

By Andrew Reding, Guest Writer

I’ve been on two tours of the Whatcom County Jail. No question about it: Conditions are crowded, dark and inhumane for both inmates and employees alike. We must do better.

But it’s not just the jail itself that is inhumane. So is the Whatcom County criminal legal system. 

Combining Whatcom’s current jail count with persons in state prison from Whatcom County, plus the federal component yields an incarceration rate of 303 per 100,000 residents. 

That’s higher than autocratic Russia, Iran, Saudi Arabia and Myanmar, and many times above the democratic norm. 

British Columbia, a mere 20 miles north of our county seat, jails or imprisons at only a fifth the rate Whatcom County does. There’s nothing magical about that border. Human nature is the same on either side. 

Moreover, Whatcom County's rate is 55% above King County, 71% above Vermont, and 88% above Rhode Island. This points to shortcomings in our local criminal legal system.

photo  Handcuffs and belts hang from a rack in the booking office at Whatcom County Jail. (Hailey Hoffman/Cascadia Daily News)  

It wasn’t always this way. Whatcom County's incarceration rate tripled since 1980, when the wars on crime and drugs led to mass incarceration. Now, with only 5% of the world’s population, the U.S. has more than 20% of the world’s prisoners.

Nationwide, a third of those prisoners are in jails. Here it’s almost half. That’s in part due to abandoning the presumption of innocence until proven guilty. Only about 4% of cases now go to juries. Almost all are plea bargained. 

Until the 1980s, the norm was pretrial release. Now the norm is cash bail, leading to wealth-based detention. The well-off purchase their freedom while those without cash remain in jail. 

Six years ago, a report by the Vera Institute commissioned by the Whatcom County Council identified pretrial jailing and specifically cash bail as the primary reason jail numbers were so high in the county. Back then, 59% of inmates were pretrial. 

The report urged our judges to use Washington Court Rule 3.2 allowing use of unsecured bonds. These allow cash-free release subject to being liable for the full amount for failure to appear in court. That has not happened.

Now a staggering 98% of inmates are pretrial. In other words, they are being punished for alleged crimes they have not been convicted of. This does further harm:

•    More than a third have lost their jobs and almost half have lost their housing because of being jailed pretrial. That means the jail is now a major generator of homelessness.

•    Almost half were unhoused prior to being jailed, and a majority say a stable home would have kept them out of jail. In effect, the jail has become an extraordinarily expensive homeless shelter.

•    Pretrial detention often leads innocent persons to accept a plea bargain, often for time served in detention, in exchange for release. The National Bureau of Economic Research found that being released pretrial reduces the odds of conviction or plea bargain by 27%. 

•    Whatcom County is jailing Black and Native American persons at six times the rate of white people.

Our sheriff, prosecutor and judges are all elected. The incentives favor looking “tough on crime,” not releasing the accused pretrial. There’s even a courtroom inside the jail where unconvicted detainees appear in jail garb. 

That’s why Whatcom Democrats voted near-unanimously (97%) to denounce these practices and ask state legislators to ban the use of cash bail, as in New Jersey and Illinois. 

New Jersey virtually eliminated money bail in 2017. There was no increase in pretrial re-arrest for serious offenses. Overall, violent crime dropped 5.5% while rising 4.7% nationwide. 

Dangerous persons should not be released no matter how much money they have. The norm for everyone else should be pretrial release, as in other democracies. 

A recent study of felony charges in Louisiana found that pretrial release does not increase the odds of committing another crime. Nor does it increase the likelihood of failure to appear in court, but drug tests — a common condition attached to release — do increase the chances of failure to appear. Drug tests should not be a condition of release.

In 2015, the county council created the Incarceration Prevention and Reduction Task Force. County and city officials have since launched diversion programs, including GRACE and LEAD. Last year, those two programs alone removed 367 persons from the jail stream. That’s a great outcome. 

Yet jail populations so far this year reflect levels the same as in 2016 — an average count of 320 per day, even though reported crime increased by only 3% and arrests declined by 21%.

That suggests jail numbers will always expand to capacity. According to the Vera Institute, “If You Build it, They Will Come”:

•    A bigger jail in Orange County, Florida, led to a jump in incarceration unrelated to arrest rates, filling beds with minor law violators, including individuals who failed drug tests. 

•    Following the 2017 opening of Skagit County’s bigger jail, incarceration rose by more than a third while arrests remained steady (Washington Association of Sheriffs & Police Chiefs). 

That means diversion alone will not reduce incarceration. It must be paired with limits on capacity. The county executive wants a much larger new jail, starting with 521 beds (Phase 1) and eventually 649 (Phase 2). That’s more than double the present capacity.

Those beds would rapidly fill with persons charged with low-level crimes, which would shoot Whatcom County's incarceration rate 50% above Russia’s!

That’s insane. With 98% of inmates pretrial, bail reform is essential and will free up a lot of beds. 

Moreover, jails are extraordinarily expensive to build and operate. A modern, more humane jail/work center closer to the current capacity of 300 should be plenty with bail reform. It will also cost a lot less to taxpayers than the mega-jail proposed in the 2017 ballot measure — and being revived this year — that voters rejected by a 17% margin.

Andrew Reding, Chair of Whatcom Democrats, is a public policy professional who served in an appointive capacity in the U.S. departments of Justice and Homeland Security for 20 years.

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