by Judge Debra Lev and Commissioner Pete Smiley
Thinking Outside the Box
I take full responsibility and I’m sorry for what I did, but if I could serve my sentence outside of jail then I can keep my job, take care of my family and be able to pay the victim back sooner, (paraphrasing a defendant’s statement at sentencing for a theft conviction).
The Whatcom County jail is an outdated, overcrowded correctional facility that serves not only Whatcom County but also the Lummi Nation and all of the cities in Whatcom County, including Bellingham. In November 2015, Whatcom County notified Bellingham that it must remove inmates charged solely with crimes in the Bellingham Municipal Court from the jail after their first court appearance.
While Bellingham has a long history of using alternatives to incarceration for misdemeanors and gross misdemeanors, the jail crisis forced the Bellingham Municipal Court to innovate even further to develop programs that reduced the need for incarceration while preserving public safety and ensuring accountability for criminal behavior. The Bellingham Reduce Incarceration Challenge, or BRIC, utilized both existing and new programs to reduce the city’s jail use.
Many of the approximately 2,700 criminal cases filed in the Bellingham Municipal Court each year are resolved without incarceration or even jail alternatives. For minor offenses, such as driving with a suspended license in the third degree or urinating in public, prosecutors often reduce crimes to infractions, punishable only by fines. Many first offenders facing criminal charges, such as minor in possession of alcohol, are resolved in a diversion program operated by the Bellingham city attorney’s office whereby the charge is dismissed after completing certain requirements including community service and alcohol/drug prevention education.
Lesser property crimes, such as hit and run or shoplifting, can often be resolved using a state law that permits a “compromise of a misdemeanor,” essentially a settlement between the offender and the victim, resulting in dismissal if the victim is satisfied after payment of restitution.
Community service in lieu of jail or fines is common. These BRIC programs existed before the jail crisis, but continue to play an important role in reducing the city’s need for traditional jails.
While the above crimes do not usually require incarceration, many other crimes heard in Bellingham Municipal Court raise serious concerns for public safety. The crime posing the greatest risk to the lives of Bellingham’s citizens, statistically, is driving under the influence of alcohol and/or drugs.
Further, domestic violence abusers commit crimes including assault, malicious mischief, stalking, violating court orders and other behaviors to control, intimidate and harm spouses, romantic partners, children and family members. Sex offenders threaten the community through crimes such as indecent exposure and contribute to human trafficking by patronizing prostitutes.
It is a challenge to balance the need for public safety with an individual’s presumption of innocence while charges are pending. However, the Bellingham Municipal Court uses a variety of tools to reduce the potential danger in cases where pretrial release is appropriate. One method used is to order defendants to be on pretrial supervision by the Whatcom County District Court Probation Department, which contracts with the city to provide services. Pretrial supervision may include drug or alcohol testing, surrender of weapons or vehicles, the use of ignition interlock devices, monitoring good behavior, and other release conditions.
One recent BRIC program created by the court and the Whatcom County Health Department, is the Whatcom County Mental Health Court Program. Defendants suffering from a “serious and persistent mental illness” are screened and, if accepted, enter into an intensive treatment program that lasts up to two years.
Program members earn rewards for positive behaviors while being held accountable for negative conduct. Participants receive services including case management, medications, housing referrals, probation supervision, and other care. After completing the program, criminal charges pending in mental health court are dismissed.
A review of the mental health court program, which commenced in January of 2015 in Bellingham Municipal Court and the Whatcom County District Court, has shown dramatic preliminary results. Bellingham’s mental health court graduates demonstrated a 91 percent reduction in criminal charges in the two years after entering the program. Not only does this BRIC program reduce crime, it also reduces the need for incarceration while helping these individuals become constructive members of the community.
If a defendant is convicted of a crime, and the crime is serious enough to require incarceration, the court, where appropriate, uses a variety of alternatives to jail in conjunction with probation supervision. Probation requirements typically include supervised treatment for chemical dependency, domestic violence, anger management, and/or mental health issues.
For over a decade, Bellingham Municipal Court has conducted a weekly specialized calendar known as Domestic Violence (“DV”) Court to ensure accountability for DV offenders. DV court is an interdisciplinary approach incorporating the input of specialized probation officers, prosecutors, defense attorneys, crime victims/advocates and others. An essential element in this specialty DV court is regular, frequent compliance reviews with early court intervention to keep the offender on the right path to successfully complying with sentence, probation and treatment requirements.
The court sometimes releases offenders to in-patient substance abuse treatment and gives them jail credit for successfully completing the programs. The court also uses traditional jail alternative programs operated by the Whatcom County jail, such as work crews, work release and electronic home detention.
Due to the jail crisis, the city of Bellingham recently created BRIC programs to supplement the many existing alternatives to traditional incarceration. These programs are operated under contract with the city by a non-profit organization called Friendship Diversion Services (FDS).
FDS currently provides two services to the Bellingham Municipal Court: Global Positioning System (GPS) and Secure Continuous Remote Alcohol Monitor (SCRAM) supervision. These services are provided without cost to the defendant pre-trial and on a sliding scale for those who are convicted of crimes, often at a much lesser cost than traditional monitoring and/or jail.
GPS technology allows the court to sentence individuals, who have been pre-screened for safety purposes, to house arrest instead of jail. Individuals wear bracelets that alert FDS if they leave home without permission or enter into protected areas such as their victim’s residence or workplace.
One major advantage of this program is that the court permits offenders serving their sentences on FDS to work, attend school, obtain medical care, go to treatment and probation appointments, and remain with their families during the sentence. By reducing the disruption in services and work caused by jail, GPS allows offenders to maintain employment and address the underlying issues that contributed to their criminal behavior while earning money to support their families and pay restitution to crime victims.
SCRAM technology gives the court an additional tool to reduce the dangers posed by the most dangerous DUI and DV offenders. An ankle bracelet detects alcohol consumption through the skin, alerting FDS to the unlawful consumption, which triggers court review and possible arrest warrants. With this increased monitoring and rapid reporting, the court can release certain people with these added precautionary measures, instead of keeping them incarcerated.
Other less restrictive tools can be implemented to avoid incarceration yet keep our community safe. These may include in-home monitoring systems that randomly test for alcohol consumption six times per day or monitored Antabuse, a prescribed drug that requires a medical doctor’s approval, which negatively reacts with alcohol consumption.
Bellingham Municipal Court plans to expand alternative programs that may include theft awareness classes, community court, driving safety courses and other strategies to avoid incarceration and recidivism. A text reminder program in development alerting defendants to upcoming court dates is showing great promise in promoting required court attendance, reducing failures to appear and the need for arrest warrants and incarceration.
A jail will always serve a critical function for those offenders that are too dangerous to serve their sentences alternatively. However, for the vast majority of defendants, Bellingham Municipal Court intends to continue innovating and seeking to serve justice using other programs to rehabilitate, educate and help turn offenders into productive members of society, giving back to their victims and the community at large in a positive way.
Judge Debra Lev became Bellingham’s first elected Municipal Court judge in January 2002. She previously served as the court’s commissioner for four years. Judge Lev has also managed a private law firm and served as a deputy district attorney. She has lived and practiced law in the Bellingham area since 1990. Judge Lev received a degree in communications from the University of Michigan at Ann Arbor and graduated from Stetson University’s College of Law.
Commissioner Pete Smiley was appointed by Judge Lev in January, 2003. Commissioner Smiley previously served as an assistant city attorney, deputy prosecuting attorney and assistant attorney general for the State of Washington. He was raised in Bellingham and graduated from Sehome High School. Commissioner Smiley received a degree in government from Cornell University and graduated from Cornell Law School.