By the Justice Matters Jail Alternatives Steering Committee
Note: This part of the Restorative Justice at Home: The case for safe, effective alternatives to jail expansion in Douglas County report is a follow-up to Kaitlin Call's article, "Justice Alternatives at the Local Level." The item below looks at some of the ideas that have been generated locally to address overcrowding at the Douglas County jail. It is not an exhaustive analysis. But it supports the idea that building a bigger jail should not be the first priority when addressing overcrowding. We would encourage readers to read Call's article first as the alternatives listed below relates to the items she describes.
The Douglas County Jail is not a closed, independent agency. It is part of a system made up actors whose policies, practices, and procedures influence the number of people jailed and their length of stay.
Most, if not all, of the actors in the Douglas County criminal justice system are represented and participate in the Criminal Justice Coordinating Committee (CJCC) with the immediate goal of reviewing the proposal to expand the county jail. The CJCC began meeting in April 2016 and currently has a paid, professional fulltime coordinator, and will soon hire a crime analyst. CJCC meetings have been closed to public input, but members of the public can observe. This means that our decision to fully consider alternatives or to simply build a bigger jail is a discussion that has taken place primarily within a relatively small number of individuals largely involved in the present system.
Justice Matters has sent representatives to every CJCC meeting since its inception. Initial CJCC meetings entailed each member presenting their role and observations in our local criminal justice system. On occasion, CJCC members would suggest alternatives that would diminish the necessity to expand our jail. These suggestions are shown alongside the Vera brief where appropriate. This is not an exhaustive analysis. But it does demonstrate that we can address the recent spike in incarceration at the Douglas County Jail through alternatives if our local leaders embrace this as our first and most prudent response.
Entry Point: Arrest in Douglas County
The creation of a 24/7 Mental Health Crisis Care Center (CCC) described in Caitlin Call's article has already been supported by Justice Matters, embraced by the Douglas County Commission, members of the CJCC, and the public. Local law enforcement agencies have been training officers on when/how to use such a facility for some time. It is one of the reasons cited by County officials when decreasing the original scale of the proposed jail expansion.
This is a promising first step toward embracing alternatives but it comes with an important footnote. The Crisis Center will not primarily serve as an instrument of the criminal justice system. Yes, officers will be able to transport individuals to the Crisis Center as an alternative to jail. But the primary purpose for the Crisis Center is to strengthen the local continuum of care for those with mental illness, and the large majority of users are expected to walk in of their own accord. For these reasons, we do not believe the Crisis Center and the Criminal Justice System are inextricably linked. We recommend decoupling the vote on these items, and encourage County Commissioners to build the Crisis Center as soon as possible. We believe the common good is harmed by withholding critical mental health services while we take the important steps to fully explore alternatives to incarceration. For more on this, check out this video from a local mental health advocate and consumer.
That being said, educating police on ways to respond to special populations better served through alternatives does not end with mental illness. Increased capacity for police officers to divert those with addiction toward treatment is an alternative that has been raised at CJCC meetings. A local judge hypothesized aloud that “if we could take care of mental illness and drug addiction in Lawrence, I would have a part-time job handing out traffic fines.” Along with the LEAD example in Seattle, this statement reveals the potential impact of investing in treating the underlying reasons why people end up in jail, rather than simply building a bigger jail.
Pressing Charges in Douglas County
A defense attorney representing the Douglas County Bar Association on the CJCC reported at a recent meeting that many of her peers suggested misdemeanor marijuana possession offenses could be handled with a fine and treated as an infraction. This idea may not exclusively make a major impact on the jail population, but the conversation that followed was revealing. A judge responded by stating that lowering jail sentences would be a violation of state laws. The defense attorney agreed with the judge, but pointed out that the District Attorney could use his discretion to lower charges for nonviolent offenders before presenting the case to the court. This would suggest that a thoughtful, outcome-based assessment would be productive to determine when our District Attorney should/should not use the jail especially for nonviolent, low-level offenders.
The use of restorative justice courts as Caitlin Call describes as being used in San Francisco has never been discussed or raised during a CJCC meeting to our knowledge.
Pretrial Release in Douglas County
Both the use of bonds and addressing people’s failure to appear for court have been repeatedly discussed during CJCC meetings as potential alternatives to jail expansion. At the recent CJCC retreat, a community representative serving on the CJCC inquired, “Do we currently have people in jail who do not pose a risk to anyone and will show up for court, but simply cannot afford to bond out?” Several members of the CJCC indicated ‘yes.’ On another occasion, a report was presented to CJCC members on the use of bonds in neighboring Johnson County. There they average 575 people in their supervised bond program per day, who otherwise may be in jail. They also indicated that Johnson County has had such success with individuals appearing for court while out on bond supervision that they recently expanded the opportunity to all charges.
An initial study of the driving forces behind the rise in the Douglas County jail population highlighted the high number of people in jail for failing to appear for court. Though the report was severely limited in its data collection, it highlighted that approximately 54% of inmates are incarcerated at the Douglas County jail for misdemeanor charges. And the most common charges among those with only misdemeanor charges were failure to appear or failure to comply with conditions of community supervision. The municipal court judge who handles only misdemeanor cases hypothesized that 40% of the average 25 people in jail through his court are incarcerated for failing to appear to court.
Implementing a more robust use of community supervision like the one used in Johnson County, KS and Mesa County, NM, could improve appearance for court and lower the jail population.
Case Processing in Douglas County
Long case processing times was raised briefly at a recent CJCC meeting by a recently retired District Court Judge. He cited changes in state law that provided the courts with longer case processing times, a higher volume of felony cases with a limited number of judges, and budgetary limits set at the state level as reasons that lead to longer case processing. He also mentioned that Douglas County currently funds one of the District Court Judges. This led him to conclude out loud that the County could support additional judges or support staff that would lead to faster case processing. But he quickly dismissed the idea because the state has traditionally funded judges.
The aforementioned local report to identify reasons for the recent spike at our jail looked at a limited number of days to determine possible trends. So it did not conduct a full analysis of inmates awaiting trial vs. those serving time. But on those days when data was collected, between 30.9 - 41.5% of inmates were in jail exclusively on pre-trial status, suggesting that long processing times may be an important factor. This takes on added importance when one considers the bedrocks of the US system: the accused are presumed innocent until proven guilty and are promised a swift, impartial trial.
Sentencing & Post-Conviction in Douglas County
In a promising - yet limited - step in the right direction, Douglas County has begun to pilot a Mental Health Court that will specialize in cases where defendants with a mental illness could be diverted toward treatment. The discussion to go beyond mental health and consider specialty court time for other populations such as those with substance abuse histories was considered but not adopted. It was dismissed in order to not lose focus during the creation of an already new process. We believe the implementation of a broader specialty court to include individuals with addictions should be done now when financial resources are on the table that could prevent the need for growing incarceration.
Analysis in Douglas County
As one can see, the Douglas County CJCC has informally outlined many of the very measures that the Vera Institute points to as effective alternatives to address jail overcrowding. Unfortunately, these ideas have not been compiled into a cohesive, local system-wide plan or compared to national best practices, and they have not been factored into discussions about the size and scope of the proposed jail expansion. Meanwhile, massive amounts of money and energy along with a coordinated messaging campaign has been dedicated to pursuing a bigger jail that will cost us tens of millions of dollars. The County Commission is the authority that will decide what options we will have when this item is placed before the voters. We call on them to demonstrate leadership by putting jail expansion on hold and fully embracing a system-wide analysis and implementation of safe, effective alternatives to incarceration.