The race for a new Whatcom County prosecuting attorney for the first time in nearly half a century has become a referendum on how the criminal justice system will be reformed here. And, while the candidates agree on many of the issues facing the community, their plans on how to address them differ
James Erb, a Democrat, said he would increase the use of jail alternatives and implement recommendations made by the county’s task force on reducing incarceration. Erb is currently a senior assistant attorney in the Bellingham City Attorney’s office.
“The choice in this race is simple, status quo versus change,” Erb said. “I am an outsider with a fresh perspective and a modern approach to criminal justice … and I have a pretty clear vision for how I want to move Whatcom County forward in terms of criminal justice reform.”
Eric Richey, also a Democrat, is currently the chief criminal deputy in the Whatcom County Prosecutor’s office. He said he would reshape specific practices within the prosecutor’s office he has served for 25 years and begin a program that partners with law enforcement to divert people to treatment rather than jail.
“I understand the system, I understand what our community needs, I understand what our community wants and I have lived here in our community a long time. I’ve established myself in the community. I have the relationships with organizations and law enforcement,” Richey said. “They know that I care.”
The prosecuting attorney is elected every four years. The position is partisan because the prosecutor’s duties are established by the state constitution and statutes.
The Whatcom County prosecuting attorney manages a staff of forty-eight, including 23 attorneys assigned to administration, victim-witness, district court, juvenile court, superior court, civil, family support and appellate divisions.
In 2017, the County Council approved a pay raise for the prosecuting attorney to $172,402 for 2019.
Richey won almost 56 percent of the votes in the Aug. 7 primary, out of a total 53,458 votes cast, with Erb taking 42 percent of the votes.
The candidates were interviewed by The Bellingham Herald and a reporter attended several of their political debates in reporting this article.
Both Erb and Richey said they plan to look at bail reform as a way to reduce incarceration rates if elected. Whatcom County incarcerated 38 more people per 100,000 than the state average in 2014, according to the county’s 2018 community health assessment.
The design capacity of the downtown jail is 148, but the maximum capacity that the jail is able to accommodate is 212 people, according to a Bellingham Herald interview with Chief Corrections Deputy Wendy Jones. On any given day, the jail is operating around a dozen people away from maximum capacity, according to jail updates sent by Jones.
Erb said, if elected, he would request a list of every inmate in the jail, their charges and their bail amounts. Those in jail awaiting trials because they couldn’t pay bail for non-violent offenses would be released, he said.
Jones, who oversees the day-to-day operations of the jail, said getting such a list would not be possible at this time. In order to create a report, Jones said the data points would require linking two different computer systems, and the technology people who used to compile those reports have left for other jobs. Currently, the IT department has no one trained to create such reports, Jones said.
Jones said the only way to create such a report at this time would be to compile it by hand, but it would likely be out of date by the time it was finished due to the rapid turnover of the population at the jail.
“I can sympathize with both the candidates and the (task force). It is frustrating to be told that while the data is collected, we cannot get it out in a form that will be useful,” Jones said in an emailed statement.
Erb also said he’s interested in using a new risk assessment tool the incarceration task force is looking into, but wants to be cautious about substituting one bad model for another.
“I want to make sure that recommendations for bail are based on legitimate public safety issues. I’m less concerned with a non-violent offender who may miss a future court date, than I am with a person charged with a serious or violent offense,” Erb said. “These are not creative thinking ideas, these are effective solutions that other communities across our country are using to address the problem of mass incarceration and over incarceration.”
Bail is ultimately up to the discretion of the judges who hear the cases, but both prosecutors and defense attorneys make bail recommendations at a person’s first appearance in court.
Richey is also interested in using the county’s risk assessment tool and working toward reducing bias toward defendants while setting bail, he said. But he is interested in moving toward a system of no -cash bail, similar to the law that passed in California in August. He said he believes that if the system moved away from money, it would be more fair.
“It means holding people when they are dangerous and a true flight risk and releasing them when they’re not,” he said. “So we don’t put bail on them because nobody should be held in jail just because they’re poor and rich people shouldn’t be able to buy their way out of jail just because they’re rich. It’s not fair.”
Moving to a no-cash bail system would require a change to the Washington State Constitution. There is currently a provision that says all people charged with crimes, except for capital offenses, will be allowed bail. Changing the provision would require the state legislature to call a constitutional convention if voters wished, or one of the chambers of the legislature would have to propose an amendment to the constitution, both would have to approve it and then voters would have to approve that, according to information from BallotPedia.
Richey acknowledged that would slow down his goals, but said he believes this is where the state is headed.
Starck Follis, director of the Whatcom County Public Defender’s office, said in an interview with The Herald that bail reform is expected due to work being done by the county’s incarceration task force, regardless of what the candidates advocate.
Follis said the current system disproportionately affects people who are often poor or homeless. People released from jail before trial are more likely to have positive outcomes, he said, and he hopes that reform would help the clients who go through his office.
“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,” Follis said. “Bail reform is absolutely necessary, it’s absolutely coming and it’s overdue.”
Erb and Richey have taken strong stances during their campaigns on pivoting from punishment to treatment for those who have mental health or substance abuse issues and are accused of crimes.
Erb said he would choose to no longer prosecute drug residue cases, while Richey said he would reduce charges for drug offenses and recommend sentencing people to treatment rather than jail time.
Currently, when someone is arrested with drug paraphernalia and there are small amounts of drug residue that can be tested and get a positive result, those people are then charged with additional felony drug offenses.
Both Richey and Erb also said they would like to expand Whatcom County Superior Court’s therapeutic drug court.
There are 37 people currently in drug court, but the program has the ability to accommodate up to 80 clients, said Christine Furman, the court’s coordinator, in an interview with The Herald. Furman said the only thing holding back expansion is the number of referrals the court receives.
“There’s no reason why we couldn’t serve that many or more. I’m certain the need is there,” Furman said.
In order for someone to get into drug court, a public defender makes a referral to the prosecutor’s office, and the prosecutor’s office then determines whether to refer them to the drug court program, Furman said. If they are referred, they’ll be screened for substance use disorder and the likelihood the person will be able to participate.
Furman said the program receives a handful of referrals a month, and out of the 35 people who participated last year, 25 graduated.
Richey said he would look at the eligibility requirements for the types of people allowed into the drug court program, and consider increasing it to include special programs for young adults or veterans.
“We should be treating these folks issues as health issues instead of criminal justice issues. They are having addiction problems and I don’t think it’s right that we incarcerate them for those things. We can use our discretion to treat them the way we believe is the best use of justice,” Richey said. “Our primary goal is to protect the public and lots of times that means a lighter touch than any incarceration.”
Erb said he would like to streamline the process to get people into the program more quickly and also expand eligibility requirements.
“We incarcerate people because they’re poor. We incarcerate people because we treat substance use disorder as a criminal justice problem and not a health problem and we incarcerate people because we don’t treat mental illness in our community,” Erb said. “So we need to address those fundamental issues in a better way and stop just warehousing people in the jail.”
Follis, with the public defender’s office, said his office refers clients at least weekly for drug court, and the majority don’t get in. Oftentimes those who are in jail on simple possession charges want to get into the program immediately, but end up waiting weeks or months to find out if they’ve been accepted, Follis said. The prosecutor’s office recently started pre-approving some offenders for drug court, which has helped with the lag time, he said.
“When you’re dealing with somebody in custody you’re always on a really tight, pressured clock. Getting anybody to do anything in their best interest is hard when they’re sitting in jail, it’s not a pleasant place,” Follis said.
More of his office’s clients could be allowed to participate in the program if the types of offenses allowed in were expanded, he said. For example, Follis said, if someone is charged with delivering a controlled substance, they’re automatically disqualified from being screened for the program. Follis acknowledged that some eligibility restrictions would still be needed.
Richey and Erb also have advocated for expanding Whatcom District Court’s mental health court.
Erb said the program has shown early signs of success and wants to make sure there are enough people getting access to the program for the county and community to get the best benefit.
Richey said in order for the program to expand, there needs to be more support systems and treatment options within the community for those going through mental health court.
Linda Grant, who manages the mental health court program, said in an interview that county health officials and others are working towards addressing some of the resource gaps that stop the program from serving more people, such as housings needs and 24/7 supervised treatment options.
Sometimes there’s not “the right resource for the right person at the right time,” which is important because one thing doesn’t always work for everybody’s needs, Grant said, and that hinders the program’s ability to serve that person.
The admission process to mental health court is similar to drug court, and the program’s capacity depends on what resources are available within the community at that time, said Melissa Morin, spokesperson for the county health department, in an emailed statement sent to The Herald.
Diversion, alternatives and addressing bias
In a push to reduce incarceration, Erb said he wants to increase the use of electronic home monitoring for pre-trial offenders, mirroring the recent expansion of the program by Bellingham Municipal Court, as well as several smaller city courts. With home detention, people would stay connected to their jobs, schooling, families, housing and would get better outcomes, he said.
Erb also said he would look at funding re-entry programs, and implementing other ideas outlined by the incarceration task force. Erb said he believes it would cost less to fund diversion programs and alternatives and would do more to reduce incarceration than to continue spending money on jailing people as a way to lower crime.
“I want to spend less on incarceration and more on treatment … more on rehabilitation … more on re-entry programs. Basically, I want to advocate for a budget that reflects the priorities of our community, which include both public safety (because there are some people that must be incarcerated for public safety) and wellness,” Erb said in an emailed statement. “We need to provide criminal defendants with resources to help them re-enter our communities after they have paid their debt for the crimes committed.”
Currently, it costs $129 a day to house someone in jail for more than 8 hours, while electronic home monitoring costs the city that booked the person $73 a day. The inmate will also pay up to $20 a day if they can afford it for home monitoring, Jones, who oversees the jail, said. The money the inmate pays goes back to the city to help offset costs, she said.
Richey said he would like to create a law enforcement assisted diversion, or LEAD, program in Whatcom County. King County created its program in 2011 and recently expanded it 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 it catches people at the right time to divert them to treatment, and the program allows for law enforcement to monitor the person to make sure they comply.
“The cool thing about it is that it gets people engaged in treatment without ever getting involved in the criminal justice system,” Richey said. “We’ve seen some successes of it spreading across the county and I think Whatcom County is ready for it, too.”
Whatcom County Sheriff Bill Elfo said in an interview many people his deputies come into contact with suffer from mental illness and/or substance abuse disorders, and for some, treatment has proven to be more effective than incarceration. Elfo said the sheriff’s office would be interested in a LEAD program if one was started in Whatcom County, but said the program would need to be county-wide to be effective.
“Law enforcement already has the responsibility to arrest and take people to jail, and the legislature has given us another option in appropriate cases to use diversion. I think it’s efficient and it isn’t clogging up the jail with people who don’t really need to be there,” Elfo said.
Bellingham Police Chief David Doll declined to comment about whether the department would participate in a LEAD program until after the election.
Richey also plans to have attorneys within the prosecutor’s office participate in training to recognize and address biases while charging people and prosecuting cases.
Erb, who has expressed similar interest in bias training and a LEAD program, said he wants to restructure the prosecutor’s office to include an intake division — a group of attorneys who would receive and review cases and make recommendations for charging decisions in an attempt to create consistency and fairness.
Money, supporters and backgrounds
Richey has raised more than $101,000, according to the Public Disclosure Commission. He is supported by Bellingham and Ferndale Police Guilds, Local 106 for Bellingham/Whatcom County Firefighters, Whatcom County Deputy Sheriff’s Guild, Whatcom County Corrections Deputies, Lynden Police Officers Association, Riveters Collective, Sheriff Bill Elfo, Whatcom Prosecuting Attorney Dave McEachran, County Treasurer Steve Oliver, prosecuting attorneys for King, Island, Skagit, San Juan and Snohomish counties, as well as the mayors of Lynden, Nooksack, Everson and Ferndale and various members of the Bellingham School Board and Whatcom County Council.
While in law school Richey interned in three counties in Oregon. He’s lived in Bellingham for 30 years, represents the Washington Association of Prosecuting Attorneys on a statewide board regarding sexual assault at colleges, and runs a weekly special assault meeting for law enforcement and community members.
Erb has raised more than $90,000 in contributions, according to the state Public Disclosure Commission. He has received the endorsements of Equal Rights Washington, the Alliance for Gun Responsibility, the 40th and 42nd Legislative District Democrats, the Northwest Central Labor Council, Whatcom County Democrats, Young Democrats of Western Washington University, Bellingham Mayor Kelli Linville, former Bellingham Mayor Tim Douglas, Port of Bellingham Commissioner Michael Shepard, as well as various current and former members of the Whatcom County Council and Bellingham City Council, and tribal council members.
Erb has worked in the city attorney’s civil division for the last eight years, after initially being hired to work in the criminal division. Before that, he worked as a Nooksack tribal prosecutor and Indian Child Welfare attorney for roughly two years. Before moving to Whatcom County in 2007, Erb was one of three attorneys assigned to a special division for prosecuting sexually motivated crimes against children in a judicial circuit in Florida. He said he was approached last year to run as head prosecutor for Whatcom County.