Part One:  The Illusion of Inclusion

Part One: The Illusion of Inclusion: How County-appointed Councils, Panels, Committees and Task Forces provided: (1) Cover for Executive decisions about crucial criminal justice issues; and (2) plausible deniability for the exclusion of meaningful public participation.

There has been no shortage of Criminal Justice Councils, Panels, Committees and Task Forces (CPCTFs) appointed by Whatcom County Executives and leaders to study and make recommendations about the Whatcom County criminal justice system. There has been little meaningful citizen participation in these CPCTFs, because they are heavily weighted with public officials and government employees. For decades, these CPCTFs have convened, hired consultants, and have issued often conflicting reports. There has been a call for public/citizen inclusion to ensure “buy-in” for all recommendations—especially for those related to the largest capital expenditure project in Whatcom County history—the new proposed jail and sheriff’s headquarters. See October 13, 2013 letter to Michael Russell (Whatcom County Facilities Management) from Lisa McShane included in the November 8, 2013 Final Environmental Impact Statement; and comments made by 300 citizens at the February 2, 2011 public meeting held by Whatcom County.

Current jail construction estimates of $125 to $150 million (payable over 30 years) do not include the interest on the debt or the estimated $1 billion to run the facility over 30 years—IF financial projections are accurate. The price tag is likely to be higher, and this level of debt for increased incarceration capacity is unnecessary and unsustainable in Whatcom County (population ~200,000). On November 7, 2015, Whatcom County voters rejected Proposition 2015-1, which sought the biggest increase yet to the Whatcom County sales tax. The tax increase was promoted by county elected officials to fund construction of a new main jail complex and sheriff’s headquarters on the LaBounty Road property in Ferndale purchased by the county (in spite of citizen objections) in 2013. Voter rejection of the Proposition was a message to county leadership that citizen “buy-in” to the then-proposed jail was crucial to voter acceptance of an increased tax to fund it. That message has been ignored. Instead, the county executive and sheriff moved quickly to push the County Council to enact Resolution No. 2016-179, to put the same ballot initiative before the voters no later than November 2017.

To prepare for this second (identical) ballot initiative, the county formed a Jail Stakeholder’s Workgroup (Resolution No. 2016-179), which has been dominated by the county’s push to get Bellingham and the other county cities on board with a financing plan. All of this work appears to rest on the following two assumptions: (1) That Whatcom County taxpayers will fund the large-scale jail and sheriff’s headquarters project (promoted by county elected officials) on LaBounty Road in Ferndale; and (2) the use of a downtown Bellingham site has been finally and forever rejected. In other words, the voters will not be asked to vote on the jail itself, but only on the tax to fund it. The citizens will have no input into the location, size, or type of facility to be built with these tax funds. This exemplifies the concept of the Illusion of Inclusion, in that the county can completely bypass citizen involvement in the jail planning process, other than to get approval from the citizens for the funding mechanism—presumably only because the county needs citizen approval for the tax to fund the jail.

If true, then the county executive and sheriff (along with the County and City Councils) are also ignoring the County’s Resolution No. 2016-08, unanimously passed by the County Council on March 8, 2016. The resolution included a “Statement of Principles on Incarceration Prevention, Criminal Justice and Jail Planning.” The council called for inclusion of the Lummi Nation, Nooksack Tribe and all the cities of Whatcom County. Specifically with respect to the jail siting, the council said:

We will locate any new jail facility where it can work best for all of our partners, the public, and related businesses (attorneys, bail bonds, etc.). We need to try to obtain consensus on the Ferndale location and whether alternatives, such as a downtown Bellingham option, should be pursued (Resolution No. 2016-008, Statement number 8).

Since passing this Resolution, there is no evidence that there has been any attempt to determine whether a downtown site for the jail (or renovation/expansion of the existing county jail) should be considered. This is county “business as usual,” where decisions regarding site selection and scope of the jail complex were (and continue to be) determined mainly by the county, with disregard for public transparency and citizen inclusion in the process. There is a decades-long history of county-appointed Councils, Panels, Committees, Task Forces and other citizen input regarding the criminal justice system and the jail that preceded the 2015 voter rejection of Proposition 2015-1. Going back as far as 1993, The CPCTFs have been appointed (and largely stacked with elected officials and county insiders), and the outcomes—if any—of the work undertaken by these CPCTFs, have not necessarily reflected the will of the citizens of Whatcom County.

The Law and Justice Council is formed in 1993 and in 2000 recommends renovation of the county jail and hiring a corrections/jail professional to guide the process

In 1993, the State Legislature passed RCW 72.09.300, by which every county was required to form a local law and justice council. Formation of the law and justice council is mandatory. Jail management was among the many issues the state suggested the councils address. To comply with the new state law, the Whatcom County Council voted by resolution to form the Whatcom County Law and Justice Council. The County Council originally appointed the following members to the Whatcom County Law and Justice Council (the “LJC”):

1. The Whatcom County Sheriff (Dale Brandland)
2. The Bellingham Chief of Police (Don Pierce)
3. Representative of the Municipal Police Departments in the County (Jack Foster, Lynden)
4. Whatcom County Prosecuting Attorney (Dave McEachran)
5. Whatcom County Public Defender Director (Jon Ostlund)
6. Representative of Municipal Prosecutors with the County
7. Representative of the Municipal Legislative Authorities with the County
8. Whatcom County Superior Court Administrator/Clerk (N.F. Jackson)
9. Whatcom County District Court Administrator (Linda Gill)
10. Representative of the Municipal Courts within the County
11. Whatcom County Jail Administrator (Ray Gordon)
12. Whatcom County Juvenile Court Administrator (Gerald Wood)
13. Whatcom County District Court Probation Director (Fred Thompson)
14. Secretary of the Washington State Department of Corrections
15. Whatcom County Risk Manager (Gail Kelley)

The original members of the LJC were Whatcom County and city elected officials or high level staff in the criminal justice system. Each member had challenging full-time jobs, and it does not appear that this original council created or presented any official report of its findings or recommendations for at least seven (7) years. This was in part, according to the LJC, because of a lack of needed skilled staff to assist the LJC, which was “comprised of some of the most involved and busy of county executives.”

The County Executive goes around the LJC in 1996 with his hand-picked “Blue Ribbon Panel” formed presumably because the LJC had no work product—and within 6 months the Panel recommends a new jail to be funded by a voter-approved increase in the Whatcom County Sales Tax

In September 1996, Whatcom County Executive Pete Kremen established an “Executive Blue Ribbon Panel on Criminal Justice and Public Safety Needs” with the following members (all appointed by Kremen):

1. Art Anderson, Chair, construction manager—Everson
2. James Wilson, James E. Wilson & Associates, Surveyors and Engineers – Bellingham
3. Ron Polinder, Executive Director of the Rehoboth Christian School (Lynden)
4. Marvin Wolff, Visitors and Convention Bureau
5. Dick Beardsley, Bellingham Herald Managing Editor
6. Egbert Maas, former Mayor of Lynden
7. Cheryl Hershey
8. Pastor Len Ericksen, Host of religious program Anchor on KVOS (Doug Ericksen’s father)
9. Debbie Anderson
10. Fielding Formway, former ARCO Products Co. Vice President and General Manager – Manufacturing Northwest
11. Kathy Harvey, Sumas City Clerk
12. Gordon Dolman, former Principal Blaine School District
13. Ken Roberts, City of Nooksack Mayor

Kremen created, appointed, and instructed his panel to take a “comprehensive look at the entire Whatcom County Criminal Justice system and provide recommendations.” The directive of Kremen’s panel overlapped the role of the LJC, but this “Blue Ribbon Panel” moved far more quickly to a conclusion. The panel appeared to be on a mission to finish its “comprehensive” review of the Whatcom County Criminal Justice System as quickly as possible (despite a questionable and obvious lack of depth in criminal justice experience). Six months after the panel’s formation (on March 20, 1997), it submitted a final report directly to Executive Kremen. A copy of the report is not available on the Whatcom County website.

On May 6, 1997 , Executive Kremen invited his Blue Ribbon Panel to present their findings to the County Council (May 6, 1997 County Council Minutes). Chair Art Anderson, of Everson, stated that the members of the panel met with “many people, including the public, judges, and private providers.” Mr. Anderson then presented the panel’s “consensus” report. He highlighted “one key issue” that was raised, which was “the amount of outstanding warrants.” In addition, the panel made the following key recommendations:

• Implement a 1/10 of 1 percent sales tax for criminal justice
• Build a “bare bones” 750-bed minimum security facility

The panel’s recommendation appears to have arisen from interviews with (unidentified) stakeholders in the criminal justice system, rather than an evidence-based “comprehensive” analysis of the system. The panel did not perform or recommend a Needs Assessment to support its conclusion that the county needed to construct a new large-scale jail facility, and it does not cite any authority for the need of a new jail facility of that size. A valid Needs Assessment is an initial step in a proper evidence-based jail planning process. See National Institute of Corrections, Jail Planning and Expansion (2010).

Of note, panel member Marvin Wolff was later appointed to the Washington State Jail Industries Board, whose mission, in part, is “to establish, develop, and maintain jail industries…” He has since become one of the most vocal proponents of the proposed increase in the Jail and Use Sales Tax for construction of a large scale jail and sheriff’s headquarters on LaBounty Road, and he now works inside the Sheriff’s Department. The composition of the panel and the rapidity with which it reached its conclusions begs the question of whether the panel or its processes could have resulted in any “comprehensive” analysis of a system as complicated as the Whatcom County Criminal Justice System.

Nonetheless, the County Council quickly moved on the panel’s recommendation to implement an increased sales tax with Resolution No. 97-040 (approved July 29, 1997), by which the county authorized “the One Tenth of Once Percent Local Sales Tax for Corrections, as provided for in RCW 82.14.350, to a vote of the County Electorate for the purpose of determining the public will for the enhancement of incarceration and corrections options.” The measure was placed on the ballot during the November 4, 1997 general election and was approved. This first jail tax has been ignored in the current debate, and there has been no accounting of how these funds were collected and spent (or not) on the Whatcom County jail.

Also in 1997, the County Council approved payment to the Northwest Regional Council (the NRC) to help prepare and draft the Law and Justice Council’s first official report of its assessments and findings with respect to the justice system. Upon approval of the NRC contract, there followed at least two years of meetings with the members of the LJC to develop the report of its findings. Three years later, on June 4, 2000, the LJC presented its Whatcom County Law & Justice Plan – Final Phase II Report (the LJC 2000 Plan, or the Plan. Phase 1 of the Plan included only NRC’s conclusions).

The Law and Justice Council 2000 Plan recommends remodeling the county jail with citizen inclusion and guidance from a professional jail planner for strategic criminal justice reform—and stands for the proposition that the citizens of Whatcom County deserve more than the status quo.

The LJC observed in the plan that Whatcom County had a “justice system that is lagging behind other similar systems in adopting effective national strategies in areas such as offender case management, the use of balanced and restorative justice principles, and collaboration of offender treatment systems with the justice system.” To summarize, the LJC recommended (among other things):

• To reject the status quo and support the LJC “to act as the catalyst for collaborative and systemic change in the justice system,” because “[w]ithout the LJC the justice system could revert to its tradition of internecine parochialism.” [See Executive Summary, p. vii.]
• A “systemic approach” to reform the criminal justice system, “involving justice agencies along with community participation.” [the Plan; p. 1];
• The involvement of the cities within the county to ensure a true system of justice;
• To include community-based stakeholders in the strategic planning for a new justice system “not only to ensure the best possible plan but also to ensure buy-in by all involved.” [the Plan, p. 2].
• Hire a full-time Justice Planner/Coordinator (an expert in justice administration), to work under the LJC (although the County wanted the Justice Planner/Coordinator to work directly for and report to the County Executive). [the Plan; page 11];
• Complete the “Justice and Data Integration Project” to “make the multiple systems resident in the County agencies appear to be a single, united justice information system instead of a patchwork of various files;
• Include external user agencies, such as municipalities, state, federal and tribal justice agencies in the integration project. [the Plan, p.20].
• Remodel the Existing County Jail in conjunction with construction of a new minimum-security facility. [the Plan, p. 27-35].

The LJC Plan observed that “[c]urrent overuse levels of the main jail in Bellingham are shortening the life span of “this very expensive, well-designed, maximum-security facility.” [the Plan, p. 27]. The LJC concluded that:

It is possible to accommodate all of the maximum security offender population in Whatcom County in the existing jail if (a) a supervised pretrial release program is implemented, (b) the existing facility is remodeled to include a central intake unit, (c) an inter- and intra-facility objective classification system is implemented, (d) additional medium/minimum security beds are made available elsewhere, (e) the integrated information system project is implemented, (f) community-based options are expanded, and (g) all informal historical population controls in use in the jail currently are revised and, where appropriate, institutionalized.

The LJC Plan called for an immediate focus on: (1) budget; and (2) funding for a jail remodel. It was also critical of the Whatcom County criminal justice system, and called for rejection of the status quo.

Coming next: Part Two