The coronavirus is creating a real-time experiment in Spokane jail reform.

Since social-distancing measures were implemented, the Spokane County Jail population has shrunk by about 400 people, plummeting to levels we haven’t seen in a quarter-century. Judges, prosecutors and defense attorneys have worked through our three court systems to send many fewer people to jail, releasing them if they’ve been found not to pose a public-safety risk.

The average jail population during the past several years has ranged from 900 to above 1,000. It’s been falling steadily and late this past week it was 552 – below the average jail population of 1995.

Some law enforcement officials and others have raised warnings that this would result in a crime wave, but city crime statistics in recent weeks show no dramatic changes. Sheriff Ozzie Knezovich said there has been an increase in county crime stats and that crime rates in Spokane Valley have been up since last year, as the system deals with crowding.

Even so, an overall crime wave associated with those 400 people simply has not occurred thus far.

In other words, we have released the very people that Smart Justice reformers have long been saying we should release – mostly pre-trial defendants charged with nonviolent crimes who have failed to show up for a previous court appearance – and the sky has not fallen.

It’s early, of course. Maybe a crime wave is still coming. Probably the effects of the coronavirus are affecting law enforcement in ways that influence the stats as well, prompting them to focus only on the most serious crimes while knowing that fewer defendants are staying in jail.

But we should pay close attention to what the evidence suggests – cautiously and with an eye on future developments – because it’s in line with what research shows: pre-trial incarceration of people facing nonviolent charges, many of whom remain in jail only because they can’t make bail, is expensive, unfair and ineffective, and it can be replaced in many cases with community supervision without endangering the public.

We’ll be voting on whether to build a new jail at some point, perhaps later this year. That vote comes on the heels of years of research and recommendations from two inter-related efforts to study the system. Both have focused on reducing the jail population through an expansion of community supervision programs for low-level, pre-trial offenders.

These processes have run into opposition from key law enforcement officials, who support a bigger jail. Knezovich has long supported not just a bigger jail, but a much bigger one – he says we have not been putting enough people in jail since he joined the department in 1996.

As the County Commission prepares to put a jail measure on the ballot, Commission Chairman Al French has frequently said he wants to rely less on incarceration – which is very expensive – and more on programs, diversion and community supervision when possible.

But people’s notions of the possible vary. The current moment might well influence them, said City Council President Breean Beggs, who has long been advocating for less incarceration in the justice system.

“These 400 they’ve let out – they are mainly people who are not dangerous, who are not prolific. They just aren’t that good at coming back to court,” Beggs said.

The increase in releases, coupled with the lack of a spike in crime stats, “tells us you’re not going to automatically be less safe if you right-size the jail population,” he said.

Widespread releases

Jails and prisons are the ultimate in forced togetherness, which is fertile ground for viral transmission. A staffer at the Airway Heights prison recently tested positive for coronavirus.

So far, there has not been a case of the virus at the Spokane County Jail, and as of the first week of April there were no inmates in the special isolated cell for those showing symptoms, said Jared Webley, county spokesman.

The jail has tried to separate people as much as possible, though they still share cells and are closer to each other than ideal. Jail staffers are also cleaning and sanitizing everything as much as possible, Webley said.

The jail population has been trickling downward since Gov. Jay Inslee’s initial stay-home order on Feb. 29. About 50 low-level offenders were released in mid-March to help ease crowding, and since then, courts have been sending far fewer defendants to jail.

Courts have been working to keep more people out of jail, if there isn’t an obvious risk to public safety, court administrators said recently. In Superior Court, it’s happening on a case-by-case basis, in terms of reviewing past cases and adjudicating current ones, said court administrator Ashley Callan. Superior Court is focusing on pre-trial defendants with health issues and bonds of $2,500 or lower, as well as those serving sentences who can no longer access work release.

In Municipal Court, which deals chiefly with misdemeanors, defendants have typically been detained if they present a public danger or have a history of failure-to-appear charges, among other considerations, said Howard Delaney, court administrator. Right now, defendants with FTA histories who are not considered a safety risk are being released.

The result: Hundreds of people are now living among us who would have, just a few months ago, been put into jail.

It’s the exact population that jail reformers have long been arguing shouldn’t be jailed in the first place. We are deep into a multiyear process funded by the John D. and Catherine T. MacArthur Foundation Safety and Justice Challenge, meant to study the system and find ways to reduce the jail population. The county has hired the JFA Institute to study the population and produce projections and recommendations.

Both efforts suggest that we could drop the jail population by hundreds, rely more on community supervision and supportive services, at much less cost than jailing people.

Over the past month, weekly crime stats for the Spokane Police Department have shown modest increases – 4% to 5% – over last year at this time, a trend that was in place in February, before the releases.

The statistics also show decreases in reports when compared to 28 days earlier, which does not suggest a sharp increase primarily associated with the releases.

The most recent figures, released April 6, showed an increase of 1.4% in crime reports compared to this time last year. Compared to a month ago, however, reports are down more than 10%.

Crime stats fluctuate a lot, and any short-term assumptions should be held in check; these numbers are suggestive, but by no means definitive.

Knezovich said the Sheriff’s Department has seen a larger increase in reports recently, but we were not able to connect in recent days to delve into more specific figures.

Bail and fairness

The reduced jail population has put another question into sharp relief: If we are keeping some people out of jail to avoid the risk of contracting or spreading the virus, by what standard do we keep others in, potentially exposing them?

And if our standard is based in part on cash bail, how is it just to expose Inmate A to that environment because he can’t make bail, while Inmate B is released because he can?

This question recently came home to George Critchlow, a professor emeritus at the Gonzaga University School of Law and a veteran of legal services for the poor in Spokane, when he received a letter from the Spokane County Jail.

The letter, from a man facing Class C felony charges and a $10,000 bail, posed a question: Why was he still in jail on nonviolent charges, while the misdemeanor defendant with a bond a few thousand dollars lower, also for nonviolent charges, is being released right now, due to coronavirus concerns?

“Upon our arrest, we are told, we are ‘innocent until proven guilty,’ ” the man wrote to Critchlow. “At what point does it become completely negligent to keep us in here, when I am nonviolent and clearly being held against my will. If and when the COVID-19 virus hits Geiger or the jail, it’s going to spread like wildfire.”

This goes to the heart of the problem with cash bail, which essentially dispenses justice for pre-trial defendants based on their wealth, he said.

To Critchlow, the coronavirus shows that, when it comes to cash bail, the emperor is simply buck naked. There is no public safety rationale behind letting someone go if they can come up with $2,000 or $5,000 or $10,000 or even $50,000 – and keeping someone locked up only because they can’t.

“That is fundamentally unfair in general, but particularly in today’s situation when being in jail could put you at risk for a disease that could potentially kill you,” he said.