March 1, 2017

Sheriff Elfo’s Letter to Whatcom County Council for April 14th 2015 Hearing on New Jail

April 9, 2015

Dear Members of the Whatcom County Council:

The purpose of this communication is to provide you with information I wish you to consider in conjunction with the public hearing entitled on the agenda as “comment on the proposal for a new Whatcom County Jail and offer specific ideas for jail diversion programs” scheduled for April 14th, 2015.

I previously testified before Council and provided written information regarding the conditions within the Whatcom County Jail and Sheriff’s Office headquarters. As Sheriff, I am responsible for operating the Jail in a safe, constitutional and humane manner. I am also responsible for our dedicated and professional jail staff that put their lives on the line every day to protect the citizens of Whatcom County; the many contracted service providers who work in the Jail; and those who visit the facility.

We have a desperate need to replace the failing Whatcom County Jail. I join the Whatcom County Public Defender, the Whatcom County Prosecuting Attorney, all four Whatcom County Superior Court Judges, both Whatcom County District Court Judges and the County Executive in emphasizing the critical state we are in and the urgency of moving forward. While it is ultimately the County Council’s responsibility to determine whether or not the Jail will be replaced and the timetable for doing so, the consequences of not moving forward will place Whatcom County and other jurisdictions that use the Jail in a precarious position. I fully understand the complexity of this decision given the costs and the need for concurrence under the plan presented by the County Executive requiring concurrence of seven mayors and city council bodies. However the cost of delaying or ignoring this issue indefinitely will be higher.

Given significant concerns regarding the structural integrity of the building; the constant failure of critical operating systems; reports from the United States Department of Justice National Institute of Corrections and the Bellingham Fire Department that raised the specter of a “catastrophic loss of life,” in the event of fire or other calamity; a report by the Jail Planning Task Force identifying a “critical” need to replace the jail citing “life-safety” issues; and our consistent exceeding of rated jail capacity by substantial margins, I have serious reservations about our ability to continue to maintain legal, safety and health standards. Long before my initial appointment as Sheriff in 2003, published standards for correctional facilities that included physical plant criteria for space, plumbing and infrastructure requirements were suspended because of “overcrowded conditions.” The deviation from these standards has only grown worse.

The extent and nature of the problem are not new and were identified in the 1990s by the “Blue Ribbon Committee on Criminal Justice.” A 2003 Bellingham Herald editorial referenced: “jail overcrowding and its consequences have been apparent for at least six years [1997]…because local law makers have been unable or unwilling to find ways to pay for new facilities.” In 2008, the Whatcom County Law and Justice Council reported on progress on a 2000 Law and Justice Report recommendation that identified a need to build a new jail and stated “[T[he Law and Justice Council puts building a new main jail as soon as possible as its highest priority recommendation.” The report went on to discuss the need to expand secure adult jail facilities and noted that the then new work center was expected to be filled primarily with misdemeanant commitments for jail time due to the lack of jail space and noted that its impact on the main jail and would be minimal. It emphasized the County’s plan to move ahead with a larger expandable facility to meet the county’s need for fifty years and anticipated that the project would take five to eight years.

The Sheriff’s Office established one of the highest standards for the recruitment and selection of Corrections Deputies. We do not experience misconduct issues involving inmate abuse that are described in articles from around the country that were sent to Council. Our Corrections deputies have made huge concessions to keep the facility functioning. However, in part due to conditions within the facility, we are finding it challenging to attract and retain our high-quality personnel. This has resulted in workplace safety issues and deputies constantly being summoned back to work for mandatory overtime. If we are going to maintain the degree of professionalism that now exists, the jail issue needs to be resolved and working conditions improved.

The main Jail facility opened in 1984. Over the years jail population levels were significantly impacted by a variety of factors including legislative mandates relating to sentences for driving under the influence and related offenses; mandatory arrest and incarceration for domestic violence offenses; and a series of changes to sentencing laws that transferred responsibility for convicted felons from the State Department of Corrections to County Jails.

For example, in this Legislative session, 2SHB1884 proposed to convert sentences for several serious crimes from state prison to county jail sentences and once again, did not provide any of the operational or capital funding needed to effectuate this change.

OFFENSE CURRENT 2SHB1885
3rd time Auto Theft 17-22 months state prison Possible 60 days county jail
3rd time Burglary 2nd 12-16 months state prison Possible 30 days county jail
3rd time Identity Theft 12-14 months state prison Possible 30 days County Jail

Local ordinances criminalizing various behaviors often result in arrests for either the crime committed or in arrest warrants for failing to appear in court for the alleged violation of the ordinance. For example, while Bellingham police officers exercise good discretion, they have no choice but to arrest a person wanted on a warrant for failure to appear or when there is a threat or a continual issue of public disorder. Below is a list of 2014 bookings into the Whatcom County Jail on charges of violating various provisions of the Bellingham Municipal Code.

Bellingham Municipal Code Violations Number of Offenses Booked into Whatcom (does not include violations of RCW) County Jail
Person under 21 <40 grams of marijuana 10.08.020A = 2 Unlawful Inhalation 10.080.030 = 2 Shoplifting Less than $50 goods 10.12.020 = 175 Disorderly Conduct/Abusive Language 10.24.010.A = 6 Disorderly Conduct/Disrupt Lawful Assembly 10.24.010D = 1 Disorderly Conduct / Cause/Engage/Provoke Fight 10.24.010D = 19 Disorderly Conduct/Disturbing the Peace = 11 Urinating in Public 10.24.020 = 15 Sitting or Lying on Public Sidewalks 10.24.070 = 15 Obstructing 10.24.100 = 61 Discharging Firearms 10.30.010 = 1 Stun Guns/Tasers 10.30.020 = 4 Animal Cruelty 7.16.010 = 2 Parks Restricted Area 8.04.130 = 4 Garbage Violation 9.12.080 = 19 Rodent Control 9.28.060 = 1 During the 1990s and early 2000s, space designated for storage, education and treatment were converted to hold inmates and additional beds were installed in cells and showers. The bottom line is that the facility, originally designed to hold 148 inmates with mixed security and classification ratings, has held up to 321. As most low-risk sentenced offenders are now housed at the Jail Work Center, the population of the Main Jail consists mostly of higher risk offenders; those who are dangerously mentally ill; and those who may not for a variety of circumstances be diverted. 8 inmates in cell

Eight inmates housed in a cell originally designed as a shower room and converted to hold two inmates

Our County Jail system is the only jail system in Whatcom County and since opening, has booked and detained offenders on charges and sentences generated by all municipalities, tribes, state agencies and the courts. We are also required by law to detain all fugitives from justice wanted in other states. County Executive Louws recent presentation to Council highlighted the division of jail beds and bookings by the responsible entity and presented a plan that includes continuing to provide jail space for the cities and other entities to incarcerate their misdemeanor and gross misdemeanor offenders.

Structural failures have raised grave security concerns. Inmates have been able to push out windows and drop lines to the street below to introduce contraband into the facility; manipulate locks to open cell doors; and gain access to adjoining cells by removing grout between the cinder block walls. Public health and the control of contagious disease within the facility is a major problem given that a large segment of the population does not exercise good hygiene or health practices and are detained closely together in small cells. Our staff has contracted some of these contagious diseases that include Methicillin-resistant Staphylococcus aureus (MRSA).

Aggravating matters further is a constantly failing plumbing system that results in toilets backing up; sewage pipes leaking and a frequent lack of hot water for hand washing, showering and general sanitation. In 2013, the Jail experienced an increase in its water usage by 1 million gallons. This continued into 2014. The County Facilities Department has not definitively determined the reason for this dramatic increase but believes the issue is attributable to an antiquated and overused plumbing system and its manipulation by inmates. The County Facilities staff does its best to address these issues but problems constantly recur and remediation is expensive.

While the electronic control system was recently replaced through a retrofit, failures posing security risks continue. I recently gave a tour of the facility to a group of citizens when a cell door opened without any prompting from staff. Many of these deficiencies in the physical structure and operating systems are likely the result of decades of use far beyond their designed purpose.

Questions arose about diverting offenders from jail and the issue of bail for those housed within the jail. Law enforcement only has the discretion to book a person into jail for up to 24 hours on either probable cause to believe a crime has been committed or in their execution of an arrest warrant commanding them to take a named person into custody. Within 24 hours, the incarcerated person will generally appear before a judge who will render a decision on release conditions. While I do not purport to speak for the ten separate courts that adjudicate issues related to inmates within our jail, these decisions are made on the basis of existing law and court rules. Many offenders are released on their own recognizance after first appearance.

Specific questions were raised about the appropriateness of bail as a condition of release. Rules for setting bail are promulgated by the Washington State Supreme Court and contained in Criminal Court Rules (Superior Court) and the Criminal Rules for Courts of Limited Jurisdiction (District and Municipal Court). The Rules state that there is a presumption in the law that a person charged with a non-capital crime shall be entitled to release pending trial on their personal recognizance. The court may impose a number of conditions of release, including bail, if it makes a finding that such recognizance will not assure the accused’s appearance; there is a likely danger that the accuse will commit a violent crime; or that the accused will seek to intimidate witnesses or unlawfully interfere with the administration of justice. The court may require bail only if no less restrictive condition or combination of conditions would reasonable assure the safety of the community; prevent witness intimidation or the administration of justice. In setting a bond, the court is required to consider the accused’s financial resources. During 2014, 58% of the people who are booked into the Whatcom County Jail are released within 3 days and 64.6% are released within 7 days.

The court is also responsible for sentencing and consistent with the requirements of the law, determine if and for how long a person will remain incarcerated in the jail.

As Sheriff, I formerly had the authority to release sentenced inmates when the jail reached critical peaks. The courts ordered a halt to this practice and the Sheriff does not have the authority to unilaterally release sentenced offenders as a mechanism to control the jail population. While judges are attuned to the problem and are very cooperative in helping control the jail population crisis, they must follow the law in making their release decisions.

Sheriff’s deputies and most other law enforcement officers make extensive use of field citations as an alternative to booking misdemeanor and gross misdemeanor offenders who are charged with relatively minor crimes not involving an imminent threat to public safety. In 2014, Whatcom County deputy sheriffs alone cited and released 566 misdemeanor/gross misdemeanor offenders without booking them into jail. Jail staff also has the ability to “book and release” misdemeanor/gross misdemeanor offenders with a field citation to help free up jail space and move appropriate offenders out of custody. Law enforcement may not unilaterally release a suspect if there is an outstanding arrest warrant. Most domestic violence and order violations and cases involving Driving Under the Influence (DUI) also mandate booking. In many instances law enforcement officers refer cases (felony and misdemeanor) directly to the appropriate prosecutor’s office for a decision as to whether charges will be filed. In these cases, offenders are often issued a summons to appear in court rather than physically arrested and booked into jail.
Many offenders are diverted from Jail due to the efforts of Whatcom County District Court Probation which supervises over 2,000 pre-trial and convicted misdemeanor and gross misdemeanor offenders.

I previously provided Council with an extensive review and information on the Sheriff’s Office internal jail alternative programs that provide appropriately classified offenders alternatives to incarceration in the main jail. Whatcom County Sheriff’s Office operates one of the most robust jail alternative programs in Washington State maximizing the use of electronic home monitoring; electronic home detention; and out of custody and in-custody work crews to the extent these programs are consistent with public safety and the advice we receive from the Prosecuting Attorney’s Office regarding the law and liability. These programs often enable offenders to maintain employment and continue their education while serving their sentence. For others, the programs help instill the habits and skills needed to gain employment. In essence, every sentenced offender who meets appropriate security classifications is eligible to participate.

At present, there are approximately 300 offenders who are required to serve court-imposed jail sentences (e.g. DUI) that the Sheriff’s Office has not been able to accept into the facility due to the lack of space. These offenders make arrangements to commence serving their sentences to move on with their lives. However upon reporting to Jail, we all too often have to turn them away as the jail population has swelled and there is no space available.

There have been questions about mental illness, addiction and the use of jail space. America is experiencing a disturbing and increasing trend in the number of offenders housed in its county jails that suffer from severe, persistent and often dangerous forms of mental illness and addiction disorders. The Whatcom County Jail is no exception. While most people with mental illness do not commit crime, certain types of mental illness and addictions ultimately lead to crime and incarceration. The severity of crimes varies greatly, but range from offenses against public order and property to those involving extremely serious and violent offenses such as rape, arson and murder.

Over the past 60 years, there has been a 95% reduction in the supply of inpatient psychiatric beds in the United States. Correspondingly, alternative treatment models never materialized so as to fully meet needs. As a result, there is less access to long-term care options. This population includes those assessed as lacking insight, chronically unable to care for themselves, and potentially dangerous to themselves and the public. The lack of available treatment and housing for those suffering from dangerous forms of mental illness and addictions has unfortunately resulted in jails becoming the largest mental health care providers in America. The United States Department of Justice Bureau of Justice Assistance reported that over 64% of people in jails suffer from mental health problems (24% reported as “serious mental illness) and 68% have a substance abuse disorder. The Whatcom County Jail population approximates these same proportions and many offenders have co-occurring mental health and addiction issues.

Over the past decade, reductions in state and federal funding for community-based mental health and substance abuse treatment in Washington State have resulted in a crisis in terms of available treatment and housing. The Associated Press reported: “A report by Mental Health America that ranked states based on whether mentally ill people had access to care placed Washington 48th.” The presentation by Mr. Valentine of the North Sound Regional Service Network on the State’s expanded Medicaid program at the March and the potential funding of crisis centers at the March 31st Council Finance Committee meeting does offer some potential opportunities for improvement.

Research further indicates that even when treatment is available; it is often episodic and lacks the continuity needed to stabilize symptoms. Many patients become homeless, which may increases the likelihood of crime and arrest. Family members of people with mental illness who attempt to intervene and seek involuntary treatment are often frustrated by the lack of services and the high threshold criteria for involuntary commitments. Psychiatric in-patient care providers frequently refuse to admit patients because they are ill; have co-occurring addiction issues; or are violently out of control. In some cases, hospitals and other health care providers refer patients for arrest because they are unmanageable and assault staff and other patients.

Several years ago, following recommendations from the Law and Justice Council, leaders in the Sheriff’s Office Law Enforcement and Corrections Bureaus; the Health Department; the Prosecuting Attorney’s Office; local police representatives and the mental health community were tasked with forming a working group to study the need for a fully functional mental health triage center. A plan was developed to provide a fully functional center that would allow law enforcement to divert minor offenders with mental health issues from the criminal justice system to treatment. While in 2007 a 14-bed behavioral health triage center opened to divert offenders whose main issues were mental health, alcohol or substance abuse, the facility was not fully funded for its intended and recommended purpose. It currently does little to directly divert offenders from jail.

Law enforcement has the ability to involuntarily take people who as a result of mental illness are gravely disabled or present a likelihood of serious harm. The local process involves taking them to the emergency room for an evaluation by a mental health professional. A frequently occurring theme is for the person to be quickly released from custody. For example, in February deputies responded to a 9-1-1 call from a man who indicated that he had armed himself with a knife and wanted deputies to kill him. Deputies arrived to find the man standing in the middle of the road waiving a knife and hammer. He took off his clothes. Our crisis negotiators spent over an hour convincing him to surrender. He was taken for a mental health evaluation and within 24 hours, was released from the hospital and was on the Sheriff’s Office Facebook page wanting to know how to get his knife back. He continued to make implied threats against law enforcement the following week. This example is not an aberration but rather a common theme officers encountered by officers on a recurring basis.

While some options exist under existing federal law for the use of crisis stabilization units and triage centers as an alternative to incarceration, the Legislature enacted a series of statutes (RCW 10.31-110-10.31.120) that will allow law enforcement to divert an “individual who committed acts constituting a non-felony crime that is not a serious offense as identified in RCW 10.77.092 and the individual is known by history or consultation with the regional support network to suffer from a mental disorder” to several alternatives that include triage and crisis stabilization units. The law takes effect on April 1, 2016 and requires concurrence with the Prosecutor.

Compounding the problem are Washington State laws governing competency determinations and treatment to restore the competency and stability to offenders with acute symptoms of mental illness. While the law requires that evaluations and involuntary treatment be performed at Western State Hospital, the Legislature in recent years reduced the programs that provide these services. The result is very violent offenders accused of the most dangerous of crimes remain confined in the County Jail for months while they await the treatment needed to restore competency and stability. The backlog of those awaiting competency determinations and treatment within jails exacerbates existing safety and offender management issues.

One only has to do a Google search of news articles to find that Western State Hospital is the highest risk place to work in Washington State. Workers are assaulted by violence the job 60 times more than the average worker in the State. These offenders are now housed for longer periods in our jail which has little room to manage them. This has exposed staff and contracted workers to increased risk.

The Whatcom County Jail is the de facto largest behavioral health institution in our community. However, it operates at nearly twice its designed capacity and lacks sufficient space to safely house, manage or optimally treat those with serious forms of mental illness and addiction issues.
Offenders requiring close monitoring are housed in a busy booking area that operates 24-hours a day. As little space exists for mental health and chemical dependency professionals to communicate with offenders, evaluation, treatment and counseling normally occur through a hatch in the steel door that separates inmates from staff. These physical limitations and the lack of privacy hamper the effectiveness of treatment and efforts to restore stability. The lack of staffing and space also preclude frequent visitation and the maintenance of family connections that are often vital to post-release success. An absence of appropriate housing for those with dangerous forms of mental illness creates enormous safety issues for staff and other inmates. Persistently overcrowded conditions often aggravate existing mental health symptoms.

Close Observation cell used for housing offenders with significant and threatening mental health issues is located in the noisy and busy booking areaclose observation

Mental health services are often delivered by “whispering” through a food tray hatch in the cell doormental health services

While jails may not be the optimal first default for minor offenders with behavioral disorders who do not pose a threat to public safety, the law requires and will likely continue to require that jails hold some people who suffer from mental illness or addiction issues who have committed crimes. While these offenders are committed to our custody, we have a moral, ethical and legal obligation to hold them in a safe and humane manner and not aggravate or compound existing disorders.

While there are no simple or immediate solutions to this problem, the Sheriff’s Office worked within the parameters of existing limitations to ensure that the offenders with serious mental health and addiction problems are to the extent possible, evaluated and treated while in jail. However, our experience with recidivism demonstrated many offenders upon being released from jail, either lacked access to or had an unwillingness to follow through with referrals for community-based treatment and soon re-offended. Without appropriate treatment and medication, disabling symptoms often generate the same behaviors that send them back to jail as a direct result of their untreated disorders. Nationally, studies report that offenders with serious mental illness are 2 to 3 times more likely that those without mental illness to be re-incarcerated.

One major obstacle to the availability of community-based mental health services for released offenders is their inability to pay. Most mentally ill offenders are uninsured. Even when eligible for health care subsidies, most have not enrolled. While many are eligible for Medicaid that would otherwise help pay costs, federal and state regulations suspend Medicaid eligibility once offenders are incarcerated in jail. Re-enrollment in Medicaid and application for other federal insurance benefits is an onerous process. Mentally ill and chronically addicted offenders often need help to access these benefits. Without these benefits and the connection to treatment, their untreated symptoms may quickly return them to jail.

In 2008, the County Council enacted Chapter 3.37 “Sales and Use Tax for Chemical Dependency or Mental Health Treatment Services and Therapeutic Court Programs” for the purpose of “providing new or expanded chemical dependency or mental health treatment services and for the operation of new or expanded therapeutic court programs, and as otherwise authorized by the laws of the state of Washington…” Revenues collected pursuant to that sales and use tax have funded programs that have made significant improvements to the delivery of mental health services within the jail and to offenders who re-entering the community. Ms. Deacon of the Health Department and her staff provided you a summary of these programs at the March 31st Council meeting.

In 2013, the Sheriff’s Office partnered with the County Health Department to enhance the delivery of mental health and addiction services within the jail through the “Jail Behavioral Health Program.” Relying on sales tax funding, the goal of this program is to stabilize behavioral health symptoms for those incarcerated in the jail and ensure effective connections to community-based services upon their release. A local psychiatric clinic places professionals within the jail to diagnose and treat acute symptoms. This process includes screening, triage, assessment, treatment planning, medications, counseling, coordination of civil commitment and evaluations. Behavioral health staff develop release plans that include solid connections and follow up with community-based treatment; assistance with health care enrollment or re-enrollment; and if needed, assisting with “co-pays” and housing. Ms. Deacon and her staff provided you with the most recent program evaluation and report on these jail-based programs at the March 31st Council meeting.

As law enforcement is often the first and the only 24/7 first responders available to address emergencies involving mental health crisis, the Sheriff’s Office has trained all deputies to address issues involving those in mental health crisis. It also established a specialized team of highly-trained professionals to peaceably resolve the most dangerous and challenging of cases.

As highlighted by Ms. Deacon and her staff, the sales tax has supported a number of prevention and treatment programs external to the Sheriff’s Office that helps prevent persons from entering the criminal justice system.

Juvenile Detention Alternative Initiative: an evidence-based program that dramatically dropped the number of incarcerated children in the Whatcom County Juvenile Detention Center and resulted in a decrease in the number of children who go on to commit crime as adults;

School Based Behavioral Health Specialist Program: at least one behavioral health specialist is assigned to every school district in Whatcom County to address issues of addiction and manifestations of mental illness;

Behavioral Health Triage Center: provides mental health crisis and substance abuse treatment; while originally envisioned as a potential means for law enforcement to divert those in crisis from the criminal justice to the mental health system, changes in funding streams prevented the facility from fully serving this purpose; however, it provides an alternative for those seeking professional assistance before committing crimes. Recent developments related to the expansion of the state Medicaid program may fund future expanded capabilities and capacity;

Mental Health Courts: Whatcom County funded the recently established Mental Health Courts within the Whatcom County District Court and the Bellingham Municipal Court. These courts are modeled under evidence-based research and success in other jurisdictions and follow a model requiring treatment and compliance;

Drug Court: Whatcom County completely funds the Whatcom Superior Court Drug Court that offers treatment alternatives for selected offenders whose crimes can be attributed to addictions;
Special Intensive District Court Probation: This program provides intensive pre-trial and post-conviction supervision and treatment of those with addiction issues and has helped reduce jail population through community-based supervision and successful no-return rates for habitual offenders.
I appreciate the support of the Council in working with the Legislature to establish a fourth Superior Court Judge position in and for Whatcom County. This may help the courts more rapidly resolve felony cases and ultimately, help control the jail population.

As Sheriff I fully supported treatment and diversion programs and have worked in close partnership with the Health Department and the Executive’s Office to make these programs successful. While opportunities may exist to reduce or control jail needs, the current jail needs to be replaced as quickly as possible. The proposed new jail will provide space for mental health and substance abuse programs for those that must be incarcerated while providing safe and humane conditions for visitors, staff and offenders.

Please be assured of my continued coordination and cooperation as treatment and diversion programs external to the Sheriff’s Office are expanded or pursued.
Sincerely,
Bill Elfo, Sheriff

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