Category Archives: Jail

More details on the drone pilot’s 30 day sentence

The Seattle Times recently reported on the pilot of a drone that struck woman at Seattle’s Pride Parade being convicted of Reckless Endangerment, and being sentenced to thirty days of jail. As the defendant’s attorney pointed out in his sentencing memorandum filed with the court, there is no statute or ordinance that specifically prohibits one from flying a drone in public. Instead, the prosecutor chose to charge the defendant with Reckless Endangerment under Seattle Municipal Code 12A.06.050, which mirrors RCW 9a.36.050. The statute and ordinance state, “[a] person is guilty of reckless endangerment when he or she recklessly engages in conduct . . . that creates a substantial risk of death or serious physical injury to another person.” When I try to describe the crime of Reckless Endangerment to my clients, I often describe it as a catch-all crime that prosecutors use when they want to charge someone for doing something stupid, but there is no other specific crime that prohibits the conduct. For instance, if a fan at a Mariners game decides to throw a baseball up in the air for no good reason, and the ball comes down and hits another spectator in the head, what crime has that person committed? An assault would be difficult to prove because for assault, the prosecutor must prove the defendant acted intentionally. Reckless Endangerment may fit because although the act may not have been done intentionally, it certainly was done recklessly.

At sentencing in the drone case, according to the defense’s sentencing memo, the prosecutor was recommending 90 days in jail. The defense was arguing for standard court fines, 80 hours of community service instead of jail, 24 months jurisdiction, and a deferred sentence (which would mean the charge would be dismissed by the court in 24 months if the defendant completed the terms of his sentence). The defense pointed out that in negotiations prior to trial, it appears some form of resolution was reached between defense and the prosecutor but that resolution was vetoed by City Attorney Pete Holmes. The defense contended Mr. Holmes did this for political reasons, and not because the proposed resolution was inappropriate given the facts and circumstances. The defense even pointed out that rather resolve the matter without trial, Mr. Holmes was willing to use tax dollars to fly in an expert witness from out of State.

Ultimately, the court declined to follow the recommendation of both the prosecutor, and the defense, and instead fell in the middle with a sentence of thirty days of jail. Despite the fact that the King County Jail is directly adjacent to Seattle Municipal Court, defendants in Seattle Municipal Court typically serve their jail time at the Snohomish County Jail (in Everett), most likely because it is a cheaper option for the city. Also, as I have previously discussed, jails will typically award one-third off in good time so a thirty day jail sentence is actually a twenty day jail sentence. The court did not agree to allow the defendant to serve the jail on Electronic Home Monitoring or Work Release, but imposed actual jail time. While the court ordered the Defendant to check into the Snohomish County Jail by April 11, 2017, the court also indicated that the jail time and court costs were stayed upon posting of a $10,000 appeal bond. The Defendant has until March 3, 2017 to post this bond. RCW 10.73.040 permits the court to impose an appeal bond where a sentence may be stayed (i.e. postponed) if the defendant posts the bail amount and files a notice of appeal, appealing the conviction to the higher court. Assuming the defendant in this case posts the appeal bond and appeals, he would only have to serve the jail time, and pay the fines, if the higher court upholds the jury’s guilty verdict.

While the court imposed restitution to the victim of the offense in an amount to be determined, the defense’s sentencing memo also notes that the civil matter between the defendant and the victim has not yet been settled. Regardless of the outcome of this criminal case, the victim has the right to sue the defendant for damages in civil court. The amount of damages awarded in a civil case may be more than a criminal case because under RCW 9.94A.750, criminal restitution is limited to “easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages resulting from injury” and “shall not include reimbursement for damages for mental anguish, pain and suffering, or other intangible losses.” Under RCW 4.56.250(1)(b), civil damages can include “noneconomic damages, which include ” subjective, nonmonetary losses, including, but not limited to pain, suffering, inconvenience, mental anguish, disability or disfigurement incurred by the injured party, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation, and destruction of the parent-child relationship.”

Has Tacoma illegally entered into an agreement with the Nisqually Indian Tribe to house jail inmates?

Last week, the Seattle Times had an article about a federal lawsuit being brought against City of Yelm over the death of a 19 year old who was housed in a jail operated by the Nisqually Indian Tribe.  Andrew Westling was arrested in the city of Yelm for allegedly being a minor in possession of alcohol and spitting on a customer at a gas station minimart. After being arrested, Westling was brought to the Nisqually Corrections Center because the City of Yelm had entered into a contract to house their inmates in the tribal jail. The article indicates that after being booked, Westling told a jail officer he had a heart condition and that he felt like his heart was thumping out of his skin, but that no one asked a doctor or nurse to check him, nor did jail officers seek medical attention or call 911. 24 hours after Westling was booked into the jail, he was found dead in his cell.

Westling’s parents are suing City of Yelm (but not the Tribe because of tribal immunity) and have hired former Attorney General Rob McKenna, who says the contract between the City and Tribe is illegal because Washington law allows for contracts only between cities and counties for jail services — not with Indian tribes or reservations.

City of Yelm is not the only city to use the Nisqually Corrections Center as a cheap place to house inmates. City of Tacoma also has a contract with the Tribe, where Tacoma agrees to pay the Nisqually Indian Reservation $67.50 a day for each inmate the City sends to the Tribe. The contract references RCW 70.48 and RCW 39.34 for the legality of the arrangement. However, RCW 70.48.090(1) says “[c]ontracts for jail services may be made between a county and a city, and among counties and cities.”

So has Tacoma entered into an illegal contract, just as City of Yelm? The statue says “may” rather than “shall” so is there some wiggle room for the City? Related issues include whether tribes can enter into contracts with cities and counties to house their inmates in city and county jails? Can Department of Corrections (DOC) enter into an arrangement with a county to house DOC inmates in the county jail (for, say, a probation violation)? Some of these issues may be flushed out by the federal lawsuit involving Westling’s death.

Why jail booking photos in Washington State cannot be found on the internet

There are some entertaining celebrity booking photos available on the internet. For instance, here’s Nick Nolte after his 2002 DUI arrest in California:

Nick Nolte mugshot

These celebrity booking photos are posted on the internet because in some States, booking photos are considered a public record. There are several unsavory internet businesses that capitalize on this law threatening to publish a person’s booking photo online unless the person pays them a fee. If the person gives in to the extortion demands, there will inevitably be another web site that threatens to do the same thing. In other words, once posted, it is essentially impossible to remove the person’s booking photo from the internet.

Fortunately, Washington State does not consider booking photos to be public records. Specifically, RCW 70.48.100 states that “the records of a person confined in jail shall be held in confidence.” The statute lays out several exceptions, such as a court order directing the release of the record. Since the booking photo is taken within the jail and is used for correctional purposes, it is considered confidential under this law. So unlike citizens in other states, those arrested for a crime in Washington state do not have to worry about their booking photo appearing on the internet. Keep in mind that while a booking photo is not available to the public, the record of arrest, conviction, and the police reports are available to the public and can be posted on the internet.

If you do find a Washington State booking photo on the internet, please contact me. I am not convinced that every jail in Washington honors RCW 70.48.100 and some may be unlawfully releasing booking photos to the public.

 

Work release, and why it works

Let’s say Defendant Donny pleads to DUI in King County District Court and gets a sentence of six months. We’ve already talked about how Donny will likely get good time off, so the six month sentence is actually only four months. The next question is whether Donny can serve those six months as work release? In King County, the prosecutors and judges almost always let a defendant screen for work release on misdemeanor offenses. Defendants who qualify will serve their sentence in the work release portion of the jail, and be allowed to leave the jail to attend work and chemical dependency treatment. The defendant will have to pay for the cost of work release. The specific costs vary depending on the jail but it is typically a sliding scale fee based on the defendant’s income. To give you a ball park idea of the costs, Snohomish County informs me that they charge twice a defendant’s hourly wage per day. So if Donny makes $20 an hour, his work release cost is $40 a day (twice his hourly wage), plus set up costs and other various fees. In the past, Donny could qualify for work release even if he didn’t have a job, because the King County work release facility would let him out of jail every day to look for work. However, based on budget cuts, I have been told that a person actually needs a job before being approved for work release. The work release facility will verify whether the person actually has a job. So those who are self-employed often run into problems. If a defendant is court ordered to do treatment, the defendant can continue with treatment while in the work release program. The work release facility imposes random urine screenings to ensure a defendant is clean and sober when entering the facility. Every work release facility has a minimum sentence length before a defendant can screen for work release. In most cases, a defendant’s sentence must be ten days or more in length (so if the sentence is nine days, the defendant will have to serve straight time. If the sentence is ten days, the defendant can screen for work release).

Bottom line, work release is always more desirable than a straight jail sentence. Unfortunately, not all jurisdictions have a work release facility available. The more progressive jurisdictions, such as King and Snohomish County, have work release programs because they believe an inmate leaving their facility employed is an excellent way to reduce recidivism.