The sheriff and corrections officers working at the Whatcom County Jail have described intolerable working conditions and inhumane housing for inmates. Based on first-hand accounts of former inmates, the jail is an accelerator of human misery, and people who stay for any length of time are released in worse condition than when they entered. The November 2017 rejection of the Jail Sales Tax—just as in 2015—was a public mandate to find a better solution to Whatcom County’s jail proposal as well as to promote data and evidence-based justice reforms that reduce incarceration and clarify what our community wants and needs in a jail.

Who exactly is accountable for the Whatcom County jail? Whatcom County citizens take pride in our parks and recreation, Western Washington University, our businesses and quality of life. The Whatcom County jail is a public institution—we own this, too. As citizens, we need to be a part of conversations about what to do with the jail and how to impact the justice system to make it more humane and reduce the drivers of incarceration into the jail.

The Incarceration Prevention and Reduction Task Force has not undertaken an assessment of the jail. The Task Force is continuing to develop a plan for a new Crisis Triage Center on Division Street to stabilize those suffering from mental illness and substance abuse disorders (16 beds each). The Task Force has also recommended development of evidence-based actuarial risk assessment tools and pre-trial services for both District Court, which currently has a pre-trial services unit, and Superior Court, which handles felonies. Unfortunately, Superior Court has no formal risk assessment tools to inform pre-trial bail and release decisions. Nor do they have a pre-trial services unit that could help with assessments as well as assist in keeping those released pre-trial on track, which would reduce failures to appear and other technical violations.

To date, county officials and administrators have owned leadership of the jail and its planning process. For years, the county has promoted construction of an expensive and unaffordable new jail to be built in Ferndale. This plan is based on outdated incarceration models that isolate inmates and make them inaccessible to families, attorneys, courts, healthcare providers, other justice-related services, the public and their communities. It also dramatically increases transport costs. All stakeholders—including citizens—should ask: Does this work or is there another way?

It’s not just about the jail; it’s about a justice system that drives incarceration

There are three main issues to consider; the first two were addressed in the November 2017 Vera Institute of Justice Report to Whatcom County Stakeholders on Jail Reduction Strategies. The first consideration is, what are the drivers of incarceration in the jail? Second, who is in the jail, what is their status, and should they be there? In other words, can we meaningfully reduce the jail population using data and evidence-based tools? And third, where should the jail be located and how should it be designed or renovated?

These questions should be considered and debated publicly, with meaningful citizen engagement. National trends favor a community-based approach, where the jail is near the courthouse and accessible to all stakeholders, including the inmates’ families. See, A More Just New York City, the final report of the Independent Commission on New York City Criminal Justice and Incarceration Reform (2017).

But our jail is just one piece of the puzzle. It is part of a large and too-complex justice system that is—in part—a pipeline to the jail. The entire Whatcom County justice system needs to be examined, understood and thoughtfully reformed, using data and evidence-based methods that have been successfully used in other jurisdictions.

We could start with a revival of the bedrock notion that all those who enter the justice system are presumed innocent.

Detaining the poor: local jails are modern-day debtors’ prisons

On an average day in 2016, of the 324 people in the Whatcom County Jail, 59 percent were being held pretrial. The majority of those held pretrial were there simply because they had not paid bail. See Vera Report, p. 13. People held pretrial are legally presumed innocent and are awaiting resolution of their cases. But there is a tendency to view those in jail as guilty—as criminals. Yet all those who are incarcerated pre-trial, simply because they cannot pay bail, are guilty only of being poor. An identically situated inmate with money can buy their liberty, while the poor—lacking the cash to buy their freedom—are forced to remain in the filthy, dangerous conditions described by the sheriff, staff and inmates.

The bail system is broken

The original purpose of bail was to ensure that a defendant would appear for trial. Yet a person’s inability to post bail leads to pre-judging their guilt and level of danger to society before they can defend themselves. Even a brief stay in jail can result in job loss, family disruption, poverty, homelessness and more crime. The city has taken steps to reduce incarceration, but there are still too many people who are in our jail pre-trial, simply because they cannot pay bail.

It is harder for inmates to defend themselves while incarcerated and they rarely see their public defenders. A guilty plea becomes a faster route to freedom than waiting months in jail to be exonerated. This is the reason 90-percent of defendants held pre-trial plead guilty – even if innocent. Bail now has little to do with whether the accused will appear for trial; it has become a tool of coercion. See August 16, 2015 New York Times Magazine article “The Bail Trap.”

This is an issue of humanity—these are real people with real lives who enter jail. They are our family, friends, employees and neighbors. Daniel (not his real name) was a 21-year old inmate in the Whatcom County jail for the better part of 2017. When he was arrested, he had a job and had just finished his required training. He was unable to scrape together enough money to make his bail. Instead, he lost his job and resigned himself to being held in jail pre-trial until the resolution of his case. Daniel refused to plea bargain because he insisted he was innocent.

His case was relatively simple, with few witnesses and minimal evidence. Daniel asked to review the police report. His public defender advised him that he was not legally entitled to read the police report—even though it contained the facts on which the prosecutor charged him. His public defender and prosecutor agreed to multiple continuances, even when Daniel refused to agree to or sign any continuances.

After months of incarceration, Daniel requested a hearing to get his bail reduced or be released on electronic monitoring or some other less restrictive means. He also wanted the court to consider his inability to pay bail. Washington State Court Criminal Rule 3.2 provides for non-financial conditions of release. These options are underutilized in Whatcom County (See the Vera Report, p. 40). The court denied Daniel’s request and sent him back to jail.

Because Daniel was indigent, the jail supplied him toothbrushes, hygiene kits and a few pieces of paper to write letters. He didn’t know the jail charged him for these basic necessities and kept a running tab that would be due upon his release. A well-meaning friend deposited $50 into his commissary account, but neither Daniel nor his friend knew the money would automatically be applied to reduce his outstanding balance, with nothing left over for a commissary purchase.

Daniel was trapped for nearly a year. He endured violence and solitary confinement. He endured filthy conditions and inhumane treatment at the hands of other inmates as well as corrections officers. He endured deliberate contamination of his “meals,” with no meaningful way to complain about any of it.

Daniel, as one of many who cannot afford to pay their bail, did not belong in jail. The mentally ill do not belong in jail. Those with substance abuse disorders do not belong there. The County has a legal obligation to make sure everyone is safe in jail, but there has to be leadership to get that done. Then, we all need to address the threshold issues of who is in jail. Why are the mentally ill there? Why are people with severe substance abuse disorders there? Why are people there because they can’t afford to pay their bail? Why is it taking the Whatcom County justice system so long to get people to trial, or to a court hearing, or to dismissal, instead of holding people until the only way out is a guilty plea?

This is not a jail problem. The correction officers are not responsible for the condition of the jail. They want a safe jail. No doubt the county can fix the jail, provide more training for its officers and work to make the facility safe for staff and inmates. However, there is a more basic issue at the root of the problem: it is a system that is putting and keeping too many innocent people in jail. This produces a culture of violence and dehumanization, confirmed by decades of studies. See the Stanford Prison Experiment. Is this the model we should be using?

The Whatcom County Jail is the embodiment of what is wrong with the Whatcom County justice system. The root problem is the pipeline into the jail and the lack of alternatives for many people who should not be there. Fixing or building the jail will not solve any problems if the justice system remains flawed.

Those unable to afford bail do not belong in jail. The inequitable bail system contributes to both increased incarceration and increased crime. Nationwide, nonviolent defendants jailed before trial are four times more likely to receive prison sentences and three times more likely to receive longer prison sentences than those who are free pretrial. (2013 study of pretrial practices, by the Laura and John Arnold Foundation).

The broken bail system also costs taxpayers. It costs $40,000 per year to keep one inmate in the Whatcom County Jail, according to 2017 county budget numbers and using the Vera Report’s 364-inmate headcount. Most of those inmates, supported by taxpayers, have not been convicted of any crime.

Keeping Daniel in the bail trap finally forced him into a guilty plea. He served his remaining sentence in jail and was released with nothing but a criminal record. When arrested, he had a job and was a productive citizen. He is now jobless and homeless in Bellingham. When first released, he found and joined a small tent encampment dedicated to clean and sober living, and maintaining a clean environment. They wanted to show that being homeless didn’t mean they couldn’t keep their campsite clean and live with dignity. It didn’t matter. The city posted a notice to vacate. Daniel now carries everything he owns on his back and walks all day to avoid citations for loitering. He walks to places where meals are served to the homeless. At night, he sleeps where he can, in the rain and cold.