Shawn Vestal: Pretrial services get to the heart of how seriously we take the presumption of innocence

One of the persistently baffling elements of our criminal justice discourse is the large number of people, including public officials, who seem lightly committed to the presumption of innocence.

Most of the people in our jails are, in theory, presumed innocent. In the Spokane County jail, as in Washington’s other large counties, more than three-quarters of the people incarcerated are awaiting trial, charged but not convicted, mostly for nonviolent offenses.

Some are held on high bail for good reasons of public safety. Many, though, are held because they can’t afford bail. Sitting in jail only because you can’t afford bail means you’re being incarcerated for poverty, pure and simple.

Presumed innocent, in theory.

In practice, the presumption operates on a sliding income scale.

There are many good reasons to think that, in the case of the some nonviolent crimes, the period between an arrest and trial is a good opportunity to divert some people into treatment for various underlying problems that landed them in trouble to begin with, to replace incarceration with home monitoring, and take steps to prevent them from sinking deeper into trouble by avoiding problems like missed court dates.

There are also many good reasons to think that – for the kinds of repeat offenders who often drive property crime – trying to break cycles of recidivism with the same punishments over and over hasn’t been effective.

These are, to put it mildly, not universally accepted ideas. Some think we can just lock people up forever, but no amount of wishing or tough talk will make that so without significant changes to the foundations of our system.

Washington’s laws and court rules are based on the presumption of innocence and constitutional rights, and they operate on the assumption that “a person charged with a noncapital offense will be released on their personal recognizance pending trial,” according to a 2019 report by a state task force on pretrial reforms.

“Accordingly, courts can only impose pretrial conditions or detention when the risk of failing to appear, committing a violent crime, or obstructing the administration of justice outweighs an individual’s liberty interest.”

The task force consensus was that, so long as it did not affect public safety or the likelihood of a defendant returning to court, “the widest variety of pretrial services should be available to courts in order to maximize the number of people eligible for release from pretrial detention and to minimize or eliminate the costs imposed on these individuals.”

Which is far from what’s happening in Washington.

There are many individual examples of pretrial programs – in New York, in Colorado, in Illinois, in Spokane – that suggest that alternatives to incarceration, done right and targeted to the right defendants, offer hope for moving people out of the cycles of recidivism and helping reduce the reliance on expensive jail cells.

But, as a recent report by Wilson Criscione of Investigate West illustrated, such programs are not even close to widely available in Washington. Some jurisdictions offer them; some don’t. Some jurisdictions pay for them – just as they pay for the jail cells – and some charge defendants for them.

If you’re arrested for a DUI in the city of Spokane, you might qualify for home monitoring. Such programs can be effective and efficient – costing taxpayers around $14 dollars a day instead of more than $130 for a jail bed. If that same driver is arrested outside city limits, but inside Spokane County, that same home monitoring would cost the defendant as much as $500 in a month.

That example was highlighted by Criscione, who found that the availability of pretrial services is erratic and inconsistent across Washington. Twenty-one counties offer no such services, including many rural counties in Eastern Washington.

Others offer some pretrial programs, but place the costs on the defendants themselves – which obviously puts a disproportionate burden on poor defendants and keeps some of them in jail for reasons of poverty.

Not all criminal defendants are suited for pretrial release programs. Witness the new city initiative to deploy more police officers to target violent offenders and work harder to persuade judges not to release them. People committing violent crimes with guns are not the ones these programs are for.

They also are not, according to repeated reviews of our jail population, the largest part of that population.

Wrestling over the jail and justice has been a long pastime in Spokane. Reformers have fallen to a low ebb of influence while the defenders of the status quo are all but certain to renew their calls for a massive, expensive new jail before long.

Pretrial services – what kind, how many and how ambitious they are – will be a central part of that debate, whatever shape it takes, because the question is wrapped up in how seriously we take the presumption of innocence.