Spokane County stands to lose thousands in MacArthur funding over stalled criminal justice reform program

A national foundation that has invested millions to reform the Spokane County criminal justice system is warning officials that it may demand some of its money back because of the county’s lack of progress.

In a July 7 email, the MacArthur Foundation said it’s disappointed by the stalled progress on supported release, a program that could reduce jail crowding by giving judges the option of releasing nonviolent defendants while awaiting trial and connecting them with community resources rather than holding them on a low bond. The foundation has given the county more than $400,000 to try supported release in District Court.

MacArthur Foundation Senior Program Officer Patrick Griffin told former Spokane Regional Law and Justice Administrator Maggie Yates that time is running out.

“If you should determine that you cannot use our funds to launch a Supported Release program, we would have to discuss, at minimum, the return of the $281,297 that is unspent under the old grant,” Griffin wrote in July.

Like most of the county’s criminal justice reform debates, the back-and-forth over supported release has featured lots of frustrated people talking past each other.

The Spokane County commissioners on Sept. 13 held a well-attended Zoom meeting to discuss supported release.

The Spokane County Prosecutor’s Office stood on one side of the philosophical aisle during the debate, making a case for why supported release would be ineffective, expensive and dangerous.

“We’re asking for accountability pretrial,” Deputy Prosecutor Stephanie Richards said. “These are individuals that do tend to commit crimes at a higher rate than average.”

On the other side stood county judges and the public defender, arguing supported release would be an invaluable criminal justice reform with the potential to reduce the jail population, save taxpayer money and improve public safety.

“Some of the people that we’re talking about here are the drug addicts, the mentally ill, the homeless – the people that we step over on the streets downtown, the people that have their hands out for money. They are the unemployed; they are the disabled,” Superior Court Judge Maryann Moreno said. “I’m not sure why we’re talking about accountability. They’re innocent until proven guilty.”

Today, the county commissioners say they’re still in favor of supported release and moving ahead with a compromise that addresses concerns by running the program with county staff as opposed to through a community-based organization.

On top of the MacArthur Foundation’s concerns, Yates’ resignation last month has some reform advocates worried. Yates had been leading the county’s criminal justice reform efforts for the last 3½ years, drawing widespread praise from reform advocates.

In the September meeting, Moreno said she was disappointed by County Prosecutor Larry Haskell’s resistance to supported release. The program could turn lives around, she said. It could help people address addiction and mental health issues. It could help some of the county’s most disadvantaged residents find transportation, housing and food. It should be a no-brainer, she said.

“Fifteen years into our reforms, six years into MacArthur and we’re still hearing the same mantra,” Moreno said. “The mantra that I’m hearing, although it’s not spoken, it’s unspoken – and I’ll be very blunt, which I usually am – is that these people don’t deserve this.

“We’ve got to change the way we’re doing business.”

The idea

Spokane NAACP Vice President Kurtis Robinson has been in jail.

“In a 3½-year period, I spent three years of it in the revolving door of justice,” Robinson said, “not because I was committing more crimes but because I was drug addicted, and I was drug addicted because I had a lifetime of trauma.”

Then he found his way into a supported release program.

“That changed the whole trajectory of my life,” Robinson said. “I’m an avid believer in supported release. In fact, I’m living proof that it works.”

Robinson estimated 75% of the services that helped him turn his life around in Southern California don’t exist in Spokane. The 25% that do exist have been implemented in the past three years thanks largely to Yates, Robinson said.

If the goal is to help nonviolent offenders stop committing crimes, locking them up isn’t the answer, Robinson said.

“They are people that have a history of trauma,” he said. “They have a history of poverty. They have a history of abuse in their lives and what we have found is those situations are exacerbated by the criminal justice system, not alleviated.”

Not all of the arguments for supported release are based in ethics, though. There could be practical benefits, too.

District Court Judge Aimee Maurer said in the Sept. 13 meeting that supported release would help reduce the number of times a defendant fails to show up for court.

When people fail to appear in court, it bogs down the criminal justice system and costs money. Maurer said giving people support will increase the likelihood they make it to court, which is what judges want.

“We just care that they’re law abiding when we let them out and they come back to court when they answer their charge,” Moreno said. “I’m baffled there’s pushback on this.”

Maurer also emphasized that supported release won’t make the community any less safe. Judges aren’t going to release anyone they think is dangerous – those individuals stay in jail and receive high bonds, she said.

Supported release is for defendants who would be facing small bond amounts, often as little as $500 to $1,000. When the bond’s that low, Maurer said, the judge has usually imposed it out of fear the defendant won’t show up to court.

Some defendants can come up with $500 and head back into the community. But some people can’t afford the $500 and sit in jail because of it. It’s those misdemeanor defendants who can’t afford a low bond who would benefit from supported release, Maurer said.

“It’s not soft on crime,” she said. “The only thing keeping that person in jail is money.”

Spokane City Council President Breean Beggs, who has more than 20 years of experience as a lawyer, said he’s an advocate for supported release. The program would benefit people who struggle to show up for court, whether it’s due to transportation, homelessness or other factors.

The program would save the county a lot of money by freeing up jail beds, shrinking court case backlogs and reducing the likelihood of people committing new crimes, he said.

The Prosecutor’s Office doesn’t like the idea of supported release, however, at least not without supervision. Haskell did not respond to a request for comment.

Travis Phelps, a supervising attorney with the Prosecutor’s Office, said during the Sept. 13 meeting that he doesn’t think supported release can work without more requirements.

For instance, if a supported release case manager schedules a mental health appointment for a defendant, there have to be repercussions if the defendant doesn’t show up, Phelps said. It can’t be voluntary, he said.

“There’s no accountability,” Phelps said. “It’s not supervised, they’re not required to use any of the services that would be provided, it’s a lot of money – granted, it doesn’t come out of our budget now, but it will when MacArthur asks the Board of County Commissioners to fund it.”

Supported release proponents say punishing defendants for missing appointments is antithetical to the whole idea of the program, because it targets people who struggle to keep appointments.

Phelps also said the same services supported release would offer already exist in the county for people who want to access them. He said a new program that merely gives people the option of accessing services wouldn’t be effective.

Richards, a deputy prosecutor, said she disagreed with the assertion that defendants who get out of jail on supported release aren’t dangerous.

“They continue to go out in the community and commit crimes, have law enforcement encounters that result in their arrest,” she said.

Spokane County Sheriff Ozzie Knezovich didn’t attend any of the commissioners’ supported release meetings this fall and said he hadn’t even heard of the program before learning about it from The Spokesman-Review.

He said he’s not opposed to connecting people to services – and argued he and the county commissioners have been doing that for years – but generally disagrees with the idea of releasing more people because judges have a history of putting too many dangerous people back on the streets.

“These are people that have to be held accountable,” Knezovich said.

Warning signs?

Robinson and other reform advocates are worried Yates’ resignation doesn’t bode well for Spokane County.

Yates has declined to comment on why she resigned. In a resignation email sent Jan. 13, she noted the county has a long way to go with its criminal justice reform efforts. She specifically highlighted that 60% of people entering the Spokane County Jail have behavioral health disorders and 20% of people leaving the jail are homeless.

“We lament these figures, along with repeated arrests and persistent racial disparities, yet we fail to adequately invest in infrastructure that can better treat, house and heal people,” she wrote.

Regardless of why Yates resigned, the timing of her departure seems significant.

It coincides with the Prosecutor’s Office’s attempts to block implementation of supported release, and it happened just three weeks after the county posted a new job description on Dec. 28.

The county hasn’t hired anyone for the new senior director of law and justice job, but the new employee would have become Yates’ supervisor. The job description states the person hired will oversee the county’s justice operations, including the jail, public defender, pre-trial services, medical examiner and regional law and justice administrator.

Spokane County Commissioner Josh Kerns said the new job won’t cost the county any more money, because the county has consolidated and shuffled a few executive management roles. The position comes with an expected salary between $126,000 and $155,000.

Kerns said the county will fill the senior director of law and justice job, possibly through an internal hire – the position hasn’t been advertised to outside candidates .

It’s not yet certain whether the county will be replacing Yates, Kerns said.

The county could replace her or shift her responsibilities to the new justice director and the Spokane Regional Law and Justice Council.

Even if reform advocates weren’t worried about the loss of Yates, who implemented reform programs at a rapid pace, the county’s standing with the MacArthur Foundation could be cause for alarm.

Failure to implement a supported release program could jeopardize the county’s ability to get more grant money from the foundation in the future.

“It’s very unusual for us to withdraw grant funding,” Griffin said in an email. “We have not made any decision on whether to do so in this case. However, after having made an initial payment on the 2020 grant, we are withholding additional payments for now in view of this implementation delay.”

It’s the commissioners’ call

The commissioners’ attorney, Chief Civil Deputy Mark McClain, has said in public meetings that supported release would be a serious liability for the county.

McClain, who is part of the Prosecutor’s Office and was appointed by Haskell to serve as the commissioners’ legal counsel, said the county could get sued if an individual commits a crime while out on supported release.

If the county wants to move forward with supported release but mitigate liabilities, the program will have to change, McClain said.

Instead of running supported release through a community-based organization – likely a nonprofit – the county should run it in-house through Pretrial Services. The county’s application for MacArthur Funding had stated the program would be run through a community-based organization, mimicking New York City’s well-documented supervised release program.

Operating supported release through the county might not sound like a big change, but Yates said in the Sept. 13 meeting that it could reduce the program’s odds of success. Defendants are more likely to trust a community-based organization than a county entity, she said.

Griffin said he’s unsure if the MacArthur Foundation would fund supported release if it’s run through Pretrial Services because the foundation hasn’t received a detailed proposal outlining how that would work.

In an interview, Maurer said District Court judges still want the option of supported release even if it’s run through Pretrial Services because it’s “better than nothing,” but she questioned McClain’s argument. The county’s contract with the third-party organization would ensure the risk gets passed to the organization, she said.

“If every time businesses entered into an agreement they said, ‘Well, there’s some liability here and that should stop us from doing this,’ little to no business would be transacted,” Maurer said during the Sept. 13 meeting. “That’s why there are lawyers.”

Beggs said the odds of the county getting sued are minuscule, because the people being released haven’t been convicted of anything.

“If someone is in what’s called pretrial status, the bar to prove that somehow the county would be liable is very high,” Beggs said.

Plus, Beggs said, the county stands to save far more money with supported release than it could lose. For instance, lawsuits against the jail for suicides and other health issues can be incredibly expensive. Freeing up jail beds could save thousands, too, he said.

Before the commissioners opted to move supported release to Pretrial Services, they pushed back against the Prosecutor’s Office and McClain, expressing their support for the original supported release proposal.

Spokane County Commissioner Mary Kuney pressed McClain on his liability argument, which he declined to expand on in a public meeting.

“Internal versus external, there’s risk no matter what, even if it’s an internal employee doing it,” Kuney said. “I trust that the judges are going to make the right decisions to keep our community safe.”

McClain said if the county runs supported release in-house, it can manage the employees running it.

Commissioner Al French, who did not respond to a request for comment, asked McClain how the county would have any liability if a third-party entity was running the program.

“When they exceed their bond, or exceed their amount, the risks in those scenarios are significant,” McClain said. “The lawsuits that come from these are very large lawsuits.”

During an Oct. 25 commissioners’ meeting, Pretrial Services Manager Cheryl Tofsrud said it wouldn’t be easy for her department to run supported release, especially given the county only has until the end of 2022 to implement it. Pretrial Services would have to hire staff in order to operate the District Court pilot program.

“I just don’t know that the program would get the proper attention and if we could do a quick turnaround like that,” she said.

On the surface, the potential of losing less than $300,000 in MacArthur Foundation funds might not seem significant. The District Court pilot program itself doesn’t necessarily have massive implications on its own. Per the Prosecutor’s Office’s estimation, the pilot would only have led to five supported release clients a month out of 30 people eligible.

But the program has the potential to expand to Superior Court and become a more transformative criminal justice reform effort.

Moreno reiterated that the program could change the community for the better.

“If we can do something to create an atmosphere where these folks have someplace to live, someplace to go, some money in their pocket, something to eat, a way to get out of their drug abuse cycle and their mental illness, chances are we’re not going to see them again (in court),” Moreno said. “We’re not going to see their kids again, and we’re not going to see their grandkids again.”