Whatcom’s new prosecutor has a plan to reform justice system and ease jail overcrowding

Whatcom County Prosecuting Attorney Eric Richey says he has committed himself to changing the way his office does business, beginning criminal justice system reforms he promised during the 2018 election.

Since taking office on Jan. 1, Richey says he has decreased bail recommendations for those charged with crimes, as well as expanded the county’s therapeutic drug and mental health court programs.

“This is the time to do it. I want to make sure people know that I’m serious about the things I talked about during the campaign and that I’m making the changes that I promised,” Richey told The Bellingham Herald Friday. “We have been working on this for the past several months … to make sure these are the changes we can make. What I’m talking about right now is a vision, it’s not the nuts and bolts as much as an overall picture of what I expect to be doing here as Whatcom County Prosecutor.”

Richey, who won the election after former prosecuting attorney Dave McEachran retired after nearly a half-century in office, plans to talk about the changes at Tuesday’s 7 p.m. County Council meeting, as well as at earlier presentations to the Incarceration, Prevention and Reduction Task Force and others.

Bail reform advocates say the current system disproportionately affects people who are poor or homeless.

“Study after study shows that when people are released from jail, they are more likely to have their charges dismissed, they’re more likely to get favorable results or get partial confinement, they’ll not lose their jobs, not lose their house, not lose their family,” Starck Follis, director of the Whatcom County Public Defender’s office, said in an earlier story in The Herald.

Richey said during the campaign that bail reform is also a way to reduce incarceration rates, which would ease pressure on the aging Whatcom County Jail. The jail is operating around a dozen people away from maximum capacity in the fall, according to a 2018 story in The Herald.

Richey makes bail recommendations

All bail recommendations come from Richey. He reviews each case and then passes them on to the other attorneys in the office for consideration. Richey said he’s recommending lower amounts than his predecessor in the hopes that it will reduce the number of people held in jail while awaiting trial.

Some attorneys with the public defender’s office said they’ve noticed the lower bail recommendations, but others haven’t. Senior Deputy Public Defender Darrin Hall said while things seemed to be trending toward lower bail amounts in general, he said he’s seen lower bail requests and amounts since Richey took office.

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Eric Richey, in Superior Court in 2018, says in the months since he was elected Whatcom County Prosecuting Attorney he has decreased bail recommendations for those charged with crimes, as well as expanded the county’s therapeutic drug and mental health court programs. Staff The Bellingham Herald file

“I do every Monday first appearances, which is the biggest calendar of the week, and I’m still consistently surprised at the low amount of bail comparatively that defendants are getting,” Hall said.

Stephen Jackson, a deputy public defender, said he hasn’t seen any significant changes, but said that those may come once a formalized policy is put into place. Chief Deputy Public Defender Angela Anderson, who did a query of multiple attorneys in the public defender’s office, said some are seeing lower bail requested, but nothing consistent or significant.

Richey said he’s looking forward to using a risk assessment tool being developed by the Incarceration, Prevention and Reduction Task Force, which also serves as the Whatcom County Law and Justice Council. The goal is for the tool to be used by all courts, including Superior Court, to provide information to the judges about who can safely be released on their personal recognizance, or with pretrial monitoring, according to information from the task force’s annual report. Richey said he’s aware similar pretrial assessment tools have bee criticized for disproportionately affecting minorities and people in poverty, but said he knows the task force is working hard to create a tool that’s fair for everyone.

Faster entry to drug court program

Richey said he’s also admitted more people into the county’s therapeutic drug court program, and lessened the wait time to get in. Expanding the program was one of his campaign promises.

Previously, the applications for those wanting to be admitted into drug court, which come from the public defender’s office, would have to go through multiple people at the prosecutor’s office and a decision could take months. Richey said he’s streamlined the process by having the application go through fewer people, which has reduced wait times.

Hall said he’s referred three people to the drug court program since mid-December and had decisions on each within 10 days of submitting the application. Jackson said he’s seen a faster response time as well for the applications he’s submitted this year.

In addition, Richey has expanded the types of offenses that are allowed into the program. Previously, if someone was charged with delivering a controlled substance, they were automatically disqualified from the program. Now, those, along with other previously disqualified offenses, are being reviewed on a case-by-case basis for admittance to the program, Richey said. Richey said he’s hoping more treatment beds will become available in the community so that the program can expand.

Shoshana Paige, a senior deputy public defender who handles drug court cases, said she’s seen more people who had previous convictions or current charges that would have disqualified them in the past be admitted to the program since Richey took office. She also said the decisions seem to be coming on a rolling timeline, rather than for multiple people all at once. With faster decisions, people both in and out of jail get into treatment faster, she said.

“Getting someone in as soon as possible from the time they’re charged is correlated in their research for having better outcomes through drug court,” Paige said.

Paige said she’d still like to see finalized, clear criteria come from the prosecutor’s office on who will and won’t be admitted to drug court, but was happy with the changes so far.

“I’m pleased so far with the progress that’s been made in having decisions come faster and expanding the criteria for people who they’ve been admitting. I hope it will continue to move in that direction,” Paige said.

Mental health court changes coming

Similarly, Richey’s office will be taking a case-by-case look at those who may be eligible for mental health court. In some cases, certain felony offenses may become eligible.

Richey’s office recently admitted a man who is accused of stabbing another man with a knife because there was a clear mental-health component to the case. If the man doesn’t complete mental health court treatment, then the felony second-degree assault charge will be reinstated and the case will proceed, according to Richey and court records. The man’s case is the first of that level of serious offense to be admitted to the program, according to Richey.

While the process to apply is similar to how drug court works, mental health court’s capacity is tied to resources, such as housing, available in the community at the time, according to a previous story in The Herald.

Drug and theft charge changes planned

In several weeks, Richey also said he plans to send out a staff-wide memo to those in his office outlining further changes on how low-level drug offenses and certain thefts and burglaries will be charged and handled.

For simple drug possession cases, they will now be handled as misdemeanors instead of felonies, Richey said. There will also be treatment and probation attached, he said. People who are new to the criminal justice system who have low-level drug amounts will have their cases handled this way, he said, but not every drug crime will be dealt with in this manner.

For crimes known as shoplift burglaries, or the property crimes and thefts that occur when people steal food and alcohol and other items from local businesses, those charges will also be handled as misdemeanors rather than felonies, Richey said. For some people, these are crimes of poverty, and they’re stealing simply because they’re hungry, or because they have a mental illness or addiction, he said. Others are stealing as a form of business and will grab items and then resell them on various sites, Richey said. His office is working on a policy to differentiate between subsistence stealing and stealing as a form of business, and those that are stealing for subsistence will have their cases handled as misdemeanors, he said.

“We’re looking at how to do that in ways that protect the community, the shopkeepers, but yet also understanding that these are simple thefts for the most part, and that people doing these kinds of things should not be sent to prison if they are doing this as a crime of poverty — in other words, stealing food, subsistence level things or things for addictions,” Richey said.

In the same memo, Richey will ask his attorneys to further embrace sentencing alternatives that are already included in the state statutes and sentencing guidelines.

Treatment options rather than jail

Richey has set a one-year timeline to start a LEAD, or Law Enforcement Assisted Diversion, program. King County created its program in 2011 and expanded it last year to other cities within the area. The program allows law enforcement officials to connect people with treatment options rather than take them to jail when they’re arrested for certain drug crimes or other charges. Richey said he’s meeting with the people who developed King County’s program in the next month or so.

Richey said he’ll also be looking at evaluating his office’s practices to make sure they’re fair to everyone, and ongoing training will include topics like implicit bias, diversity and equity and trauma-informed practices. The prosecutor’s office will also be getting a new data system in the future, which will allow the public better access, Richey said. He intends to provide information updates on the county’s website, as well as create a new Facebook page for the prosecutor’s office.

Richey also said he intends to hold roundtables to meet with the public and will continue warrant quash day.

Reporter Denver Pratt joined The Bellingham Herald in 2017 and covers courts and criminal and social justice. She has worked in Montana, Florida and Virginia.