Seven years ago, a retired judge, former federal prosecutor and defense attorney produced a report, based on volumes of data and lots of citizen input, recommending ways we could improve our criminal justice system.
That report was titled Blueprint for Reform, and it emerged at a very change-oriented, high-hopes moment in Spokane – the post-Otto Zehm era, full of widespread commitment to being smarter, fairer, more accountable, more efficient and more effective. The report was authored by retired Judge James Murphy, former federal prosecutor James McDevitt and defense attorney Phillip Wetzel.
It was full of specific suggestions,including diversion programs, new intake facilities at the jail and changes for defendants with mental illness. It suggested many approaches to handling criminal defendants that could have a big impact on the jail population.
Given how many voices and how much information it reflected, it was basically a community mandate for change.
So, what have we built from that blueprint?
Murphy, McDevitt and Wetzel recently examined our progress in an update on the original report; they found some bright spots, but also many examples where the mandate to change went unfunded, untried, unheeded.
In particular, prosecutors, judges and others continue to lean heavily on detaining more pretrial defendants than necessary – crowding the jail with people who are awaiting trial and have not yet been convicted, imposing release terms and bail amounts that exceed the guidelines of the state court rules, and refusing to adopt or fund alternatives to incarceration that would be cheaper and more just.
In too many instances, the builders are simply ignoring the blueprint.
That was then
We are in a much different era now, with regard to smarter justice, despite the fact that we are in the midst of an extensive, grant-funded examination of ways to bring down the jail population.
The near-consensus that formerly existed around reform – which was focused and intensified by the corruption exposed by the Zehm case – has drifted toward complacency and conflict, and toward the same old calls for the same old solution: a much bigger, much costlier jail. Even with the renewed attention on police training and accountability that followed the nationwide uproar after the George Floyd killing, the systemwide commitment to change is weaker now, or at least less widespread.
And key officials – chiefly our sheriff, prosecutor and county commission – have been at continual odds, sometimes bitterly, with the community members working to produce change. In particular, the report identifies many points where the system relies too heavily on incarceration first and does not take advantage of diversion and alternative-justice approaches.
The report gives credit to Spokane Police Department’s efforts to team up with mental-health professionals and provide critical-incident training to officers to improve the response to people suffering mental health crisis, and urges the county to expand its efforts in the sheriff’s department.
It notes there has been initial progress on the creation of an intake center – a place where those who are arrested on misdemeanor charges could be booked, arraigned and released in one fell swoop, rather than spending a night or two in jail before release. The County Commission used $1 million in federal pandemic-relief funds to begin establishing such a center, but continuing funding will be needed, the report said.
The authors found little to no progress on the report’s call for a precharge diversion program for first-time offenders, and on several recommendations to consolidate hearings for defendants facing multiple charges and to eliminate some hearings.
It also focused attention on a seemingly obscure factor in terms of our crowded jail: the failure of many judges, prosecutors and other court officials to follow the letter and the spirit of Washington State Court Rule 3.2.
Rule 3.2 – in recognizing the fundamental presumption of innocence – calls on judges and officers of the court to apply the least restrictive options, short of endangering the public, when determining whether to release defendants before trial.
Too often, the report says, that’s not happening.
“The proper administration of the rule is the most important issue on jail population and our ability to manage it,” the report says.
Three-quarters, or more, of the jail population on any given day is made up of people awaiting trial – people who have not been convicted and are presumed innocent. Many are held on bails that they cannot remotely afford, which is directly contrary to the intent of setting a bail – essentially turning bail into a form of preconviction sentencing.
The report identifies some judges who are following Rule 3.2, but notes that several others fail to follow “the language and spirit” of the rule, including judges who show a “persistent refusal.”
It also makes a point of calling out law enforcement officers who publicly criticize the courts for making “difficult, legally correct” decisions – and urges them to “accept their responsibility” for failing to alert the courts to flight risks or other threats to community safety in release decisions.
Overall, a lot of people could pay more attention to the rule, the report said.
“For the first few years after the release of the Blueprint, there was simply too much lip service to the rule without a commitment to its spirit,” the report said. “The Courts’ response to the COVID-19 crisis (including an increased use of summons and citations) has demonstrated that more faithful attention to Criminal Rule 3.2 will result in less pretrial confinement, continued community safety and effective appearance rates.”
Over the past year, we have been releasing many more pretrial defendants than normal, because of pandemic precautions. At one point, our jail population was down 40%, largely because most misdemeanor defendants from the lower courts were being released, court officials said.
Meanwhile, all year long, the city’s crime rate has been significantly lower than previous years. Through the end of November, crime reports were down nearly 10% in the city of Spokane – from a total of 14,124 at this point last year to 12,737.
There are significant decreases in most categories of crime, with the exception of commercial and garage burglaries – and with the notable exception of murder, which has jumped from five last year to 17 this year.
The report’s authors noted this general reduction in crime, suggesting that we can apply some of the approaches taken during the pandemic in terms of releasing defendants to normal times.
Sheriff Ozzie Knezovich – who has long argued that we aren’t holding enough people in jail – objected strongly to this characterization, calling it “virulent misinformation” and noting that his department has seen an increase in crime reports.
Through the end of October, there was an overall increase of 6% in total crime reports to the sheriff’s office, rising from 10,178 in 2019 to 10,819 this year. There are significant increases in commercial, residential and garage burglaries, as well as assaults.
He said county crime reports have been falling in previous years, and attributes the change to the pandemic-related releases.
“You can’t tell me there’s not an effect,” he said. “We haven’t seen these kind of increases in the unincorporated area.”
Adding it up
He cites one case where a defendant facing a number of felony charges, including theft and eluding police, was released – “presumably” for pandemic reasons, according to a timeline of the case his department prepared, but also on a bond – and then ran a red light in a stolen car while fleeing deputies, striking another car and killing the passenger.
He also notes that several repeat burglars and property criminals that his special unit has arrested have been released and offended again.
“You can’t continually release hard-core criminals and think you’re not going to see a spike in crime,” he said.
Knezovich has a point that city crime stats are not the whole picture. It’s not at all clear, though, what overall effect pandemic releases – to say nothing of other influences of the pandemic – might be having on crime here.
Many of the repeat offenders whom he highlights as examples of the problem were repeat offenders before the pandemic.
There’s no doubt that a lot of property crimes are committed by a relatively small number of committed offenders; in fact, it is this very revolving door that has caused many to ask whether there is a better way to interrupt the feedback loop between release and arrest.
But broadly speaking, that’s a question that exists outside the issue of pandemic releases and the influence on the crime rate that the Blueprints for Reform authors noted. And, while it’s true that county stats show an increase, if you take city and county figures together, we just have not seen anything like a crime wave here.
Taken together, the city and county crime reports at the end of October showed that 1,230 fewer crimes had been reported to SPD and 641 more crimes had been reported to the SCSO. Knezovich notes there are significant differences between the agencies that make it a “false reading” to add the statistics in that fashion, because the sheriff’s department has fewer officers, among other reasons.
Still, it simply reflects the number of crime reports our two major law enforcement agencies responded to so far this year. And it’s a drop of 2.6%.
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