If Bellingham has its way, some nonviolent people could be held in their homes rather than Whatcom County Jail while they wait to go to trial or be sentenced for their crimes.
That would be a departure for Whatcom County, which has long opted not to put people on electronic ankle bracelets until after they have been sentenced, in part due to liability concerns.
The county started decreasing the population of the downtown jail after voters in November rejected a sales tax increase to pay for a new facility.
The county is responsible for holding all inmates accused of a felony, regardless of who books them, in addition to misdemeanor arrests made by the Whatcom County Sheriff’s Office. Everyone else can be released, though Whatcom County Sheriff Bill Elfo said community safety remains the priority.
Bellingham, which does not have a current contract with the jail, had moved eight of its eligible inmates to Yakima County Jail as of Feb. 1.
As part of an effort to use or create programs that could keep city inmates closer to home, Bellingham staff asked if the county could expand its existing electronic home detention program.
“We’re aiming to achieve a better, more refined way that we use the jail,” said Peter Ruffatto, city attorney.
The city wanted the county to allow electronic detention for people with sentences of less than the current threshold of five days and offer it and other programs such as work release to those who haven’t yet been sentenced. Those talks were unsuccessful.
“The process for setting people up and screening them was such that the county would not do it for short sentences,” Ruffatto said.
The city is now considering an electronic home monitoring contract with Friendship Diversion Services, a nonprofit organization that has helped divert offenders from jail to serve alternative sentences since the 1960s.
County officials maintain that they offer other alternative sentences that may be better suited and less risky for many offenders, such as work release and in- and out-of-custody work crew.
“The city has determined that using a private contractor works best for their community for supervising people,” Elfo said. “But we have consistently received legal advice in the strongest language that we should not use electronic home detention to supervise pretrial defendants, due to the associated liabilities and due to the lack of immunities in the statutes.”
The concern is that someone could commit a new crime while being monitored by an ankle bracelet, and the county or city could be sued for not monitoring that person closely enough, said Whatcom County Prosecutor Dave McEachran.
“Let’s say someone is in for a theft, and they break into someone’s house and attack them,” McEachran said. “We will have liability, because we should have been supervising that person.”
That liability is not just theoretical for Whatcom County.
On April 10, 2002, then-16-year-old Ryan Alexander pleaded guilty to two counts of theft and was sentenced to home detention, supervised by juvenile probation. He had two previous convictions for reckless burning and one for burglary.
On April 18, 2002, Alexander bound, choked, cut and murdered his 8-year-old neighbor, Michael Busby, with a massive and fatal injection of insulin.
Busby’s family sued the county and settled in 2007 for $500,000.
The county admitted no wrongdoing in the settlement, and avoided arguing the case to a jury.
“It was just a horrendous crime,” McEachran said. “The county was sued and had to pay a huge amount of money. It’s an example of the liability you incur when you supervise people.”
There’s going to be liability no matter when you do it.
Whatcom County Prosecutor Dave McEachran
Of course, a city or county potentially could be held liable for someone who commits a new crime while under home detention regardless of what stage their case is in, McEachran confirmed.
The difference, he said, is that taking someone through the trial process allows staff to get a better idea of who the individual is and look at their background.
“There’s going to be liability no matter when you do it,” McEachran said.
The county tried home monitoring with six pretrial offenders roughly a decade ago, said Senior Program Deputy Randy Adrian, who has worked with the county’s electronic monitoring program since 1992.
Five failed out of the program by breaking the rules or destroying their devices, he said.
People who have not had a trial yet may not have a lot of incentive to stay away from drugs or alcohol or follow the program, said Lt. Caleb Erickson, who oversees the county’s alternative programs at the minimum security center on Division Street.
“If we just wanted to not have people in a jail cell, we could do a lot of things, including ignore them,” Erickson said.
“But we want them to succeed and move on with their lives,” Adrian followed.
Comparatively, roughly 90 to 94 percent of people successfully complete post-sentencing electronic home detention through the county, Adrian said.
While Bellingham is figuring out its own policies for electronic monitoring, the county’s Incarceration Prevention and Reduction Task Force is gearing up to present its initial recommendations to Whatcom County Council.
It is likely the task force will recommend that the county expand the use of electronic home monitoring.
“While there are statutory limits on which types of offenses will qualify a person for release with electronic monitoring, the prohibition on the use of these devices pretrial is a matter of policy that should be reviewed,” a draft of the report reads.
Under Washington state law, no person may be put on electronic monitoring who has committed any violent offense, sex offense, reckless burning in the first or second degree, third-degree assault, third-degree assault of a child, unlawful imprisonment or harassment.
Additionally, the sheriff’s office has a list of criteria that exclude someone from electronic detention, including: a maximum security classification, a history of multiple failures on jail programs, a judge not approving that type of sentence, any finding of sexual motivation, or not having a phone.
State law allows electronic detention only for people who have jobs, are attending school, need to care for children, or have serious medical conditions that would better be taken care of outside of jail, with a few other exceptions.
Aside from liability, one of the major limitations of expanding a program is staffing, McEachran said.
“If we endeavor to engage in a new program, as this would be, then we’ve got to make sure that we have people who are hired to monitor it,” McEachran said.
Radio or GPS
The county currently uses ankle bracelets that ping off a base unit via radio frequency. Those units are obtained through the Washington Association of Sheriffs and Police Chiefs.
30 to 50 Number of people typically in Whatcom County’s electronic home detention program
The base is connected to a landline or cellphone, so the offender’s location information can be sent to the county. The county receives radio location data even if the line cuts out for some reason, say in a storm, Deputy Adrian said.
People on the program work with Adrian to set up a schedule. Depending on the person, they may have a set amount of time they are allowed to be away from a base unit, which allows them to go grocery shopping, get to work where they may have another unit, go to treatment programs or do other tasks as allowed.
Adrian and his partners get verification when offenders are away from their units, and may require certain people to check in regularly by phone.
The units can remotely submit a signal that they have been tampered with and include heat sensors to ensure they have remained close to the person’s body.
Bellingham is looking at using GPS-based units via Friendship Diversion Services.
To know where (offenders) are just seems so much more accountable.
Bellingham Mayor Kelli Linville, on GPS monitoring
Friendship started offering electronic home monitoring a decade ago when Clallam County asked them to provide that service, executive director Barbara Miller told Bellingham City Council Jan. 26.
The ReliAlert devices they use track people via GPS, enable supervisors to speak to the offender through a speaker and microphone, and include a 95-decibel alarm that can be remotely triggered if someone is violating their boundaries, Miller said.
Both the county and Friendship have the option to use alcohol-level monitoring devices, and administer urinalysis tests as needed.
In the past, Bellingham’s municipal court has not allowed private company electronic monitoring, said Ryan Anderson, city prosecutor.
“I can speak for myself, as somewhat of a skeptic, I think the presentation of the type of things that (Friendship) can do with their devices and the technology they have could turn a skeptic into a believer,” Anderson said.
The city hopes electronic monitoring could help ensure more people show up for their court dates, as “failure to appear” warrants that land people in jail are commonplace.
“A lot of people prioritize court low. They have family, jobs, other things, so they prioritize court low, so they don’t show up,” Anderson said. “This is really a good way for them to still maintain those other obligations.”
Bellingham Mayor Kelli Linville said she thinks the active monitoring of GPS location-based bracelets is better than passive monitoring such as the county’s system, which doesn’t track where someone has gone if they go out of range of their base unit.
“I really like the monitoring aspect, where you can let people know they are out of their area,” Linville said. “To know where they are just seems so much more accountable.”
Deputy Adrian said that GPS may sound better in theory, but in practice could have issues, such as poor cell reception.
They also require a lot of user compliance as the batteries need to be charged daily, meaning the person needs to sit near the charger for an hour or so. The radio frequency units the county uses have a battery life that lasts months to more than a year.
“Technology can be good, but it can also give a false sense of security,” Adrian said. “We stick with (radio) technology. It’s tried, it’s true and it’s low maintenance.”