County Jails: Debate Heats Up

(from Maine Townsman, October 2007)
By Douglas Rooks, Freelance Writer


One of the longest debates of the next legislative session is sure to feature Gov. John Baldacci’s plan to have the state corrections system take over administration of the county jails. Announced Aug. 30 by the governor as the answer to what he called an “inefficient and unsustainable” system, he proposed having the state assume control of the jails. The state would then close four of the oldest and smallest jails, move county employees into the state system, and revamp the way services are provided.

While the governor’s surprise announcement reminded many of his school consolidation initiative – ultimately adopted in June after substantial modifications by the Legislature – there are significant differences in both the plan itself and the impacts it would have.

For starters, while municipal officials were on the front lines of the school consolidation debate, they are largely bystanders to the jail plan.

Ed Barrett, Bangor city manager, was the municipal representative to the Correctional Alternatives Advisory Committee, or CAAC, which met for 18 months to consider overhauling the present system. He said he believes the administration was overtaken by events.

“They saw a capacity crisis building, but they thought they’d have some time to deal with it,” he said. “Instead, it came upon them all at once.” During a six-month period, which happened to coincide with the opening of this year’s legislative session, state prisons and county jails were suddenly bulging at the seams. The Kennebec County jail, licensed for 134 inmates, was hosting well over 200. State facilities saw inmates sleeping in hallways, and guards were understandably nervous about security.

What happened was that the Appropriations Committee provided $7 million in emergency funding to deal with the short-term crowding, but also gave a clear message that the Department of Corrections needed to act swiftly to better align available services with future demands for them.

“The CAAC was doing what we asked them to, but it wasn’t happening fast enough,” said Denise Lord, deputy commissioner of Corrections. “They were studying for the long-term, while there were major short-term demands on the system.” But she also makes it clear that takeover of the county jails was only one alternative being considered by the department. It was in essence Gov. Baldacci’s decision to propose “unifying” the system under state control.

The basic argument for the plan, which is so far only a few pages of talking points and graphs, is simple enough. Baldacci says that county jail operating costs are increasing much faster than state costs – 12 percent vs. 6 percent over the three years from 2004-06 – and that the state can save $10 million immediately and about than $38 million a year within seven years. Both major contentions have come under scrutiny, with county officials among the most skeptical of the savings estimates.

A closer look at the plan, in fact, shows that what the governor is talking about are not really savings, but just a slowing of potentially explosive growth in corrections budgets. For the current year, the counties and state are roughly splitting the $150 million cost of operating the adult corrections system – each has about 2,000 beds, for a total of 4,000 statewide.

Under the DOC projections, without further changes, the cost of operations would more than double, to $330 million, within eight years. Under the takeover plan, that figure would be $291 million – still roughly double current costs.

DOC officials are in fact careful not to talk about “savings,” but simply containing costs. “We’re looking to lower the growth curve some,” Denise Lord said. “We’re not expecting that costs are going to drop .”

Questioning the Numbers

Bob Howe, who is the executive director of both the County Commissioners Association and the County Sheriffs Association said that the DOC’s projections of much higher growth for jails than state facilities doesn’t strike him as accurate.

“They don’t seem to have considered the effects of LD 1, which won’t allow that kind of growth in the future,” he said. Only two counties of 16, he said, have exceeded their most recent LD 1 spending limit. He said most commissioners and budget committees are reluctant to do so, and was surprised by the 2006 figures cited in the state estimates. “I’m not sure their figures are the same as ours,” he said. “That’s one of things we have to find out.”

The state is now embarking on a fact-finding tour, to be completed by early November, to flesh out some of the financial facts about jail operations. State officials will visit all of the 11 jails scheduled to remain open under the Baldacci plan; the Oxford, Franklin, Piscataquis and Waldo jails would be closed.

The financing plan, which Lord admits is “an outline, not a finished product” has also garnered a lot of attention from the counties. In its current version, it would only cap property tax assessments for the jails in each county, not replace property tax financing with state revenues, as contemplated by several earlier proposals.

Waldo County Sheriff Scott Story has been particularly vocal about what he sees as a bad deal for Waldo’s property taxpayers. The state would continue to assess the $2.4 million needed to run the current jail, but the jail would close. And, he estimates, it might cost an additional $800,000 to run it as a short-term holding facility, since the state is not proposing to take over the functions of arrest warrants, or court transportation costs. Howe says the counties see this as “reverse revenue sharing.”

Another contentious question in the state plan is how to pay employees’ salaries. County workers would become state employees, and generally state employee are paid considerably more – about one-third more, it was estimated back in 1989. That was when the first serious attempt for the state to take over the jail foundered. As state revenues started to slip, there wasn’t enough money to pay the additional guard costs.

Now, the pay differential may have shrunk – Cumberland and York have had to raise pay rates to attract enough corrections officers – though it still exists. The state has supposedly factored higher pay into its plan, though others question whether it can actually save money without significant layoffs.

Alternative Financing

Some other ways of financing county jails – and county operations as a whole – have been considered before. Then-State Planning Director Evan Richert led an intergovernmental task force that produced, in 1996, recommendations to replace the county assessment on the property tax with expanded revenue sharing. But despite a unanimous task force recommendation, the plan faced strong criticism, and Gov. Angus King never submitted it to the Legislature.

More recently, a swap proposal surfaced a couple of years ago during the legislative debate over eliminating the personal property tax. In general terms, that proposal involved a triangular revenue swap where the state would have picked up the cost of running the county jails, while municipalities would forgo the nearly equivalent revenue from the personal property tax (business equipment) revenue and revenue sharing would have been adjusted for the difference. Instead, the state retains an extraordinarily complicated reimbursement system for the personal property tax that has been repealed, prospectively.

Whether either of those schemes – or a new one – could become part of the corrections reorganization plan is unknown, but for now the operational elements are getting more attention.

Juvenile Justice

Denise Lord says the state does have a precedent for assuming control of the adult correctional system – it actually did so a decade earlier for juveniles. The state built a new juvenile facility in Charleston and replaced the notorious Maine Youth Center in South Portland with the current Long Creek center. Counties no longer hold juveniles accused of crimes. The new facilities are not only accredited, but have won several national awards, Lord said. “The same thing we now hear about substance abuse and mental illness among county inmates are the same kinds of things we used to hear about juveniles,” she said. “We were able to solve that problem”

The counties believe that they have different corrections functions than the state, and that their expertise will not be quickly replaced. “The inmates in the state system have been cleaned up, have settled in, and are a more orderly population,” Bob Howe said. “The counties are constantly dealing with short-term populations, people who have just come in off the street.”

He sees the closure of the four county jails as one of the least viable parts of the plan. “I know they’re counting on the savings from doing that, but we haven’t heard a realistic plan for replacing those county functions,” he said.

Behind the alarming cost projections is a more basic question: In a state with one of the nation’s lowest crime rates, where those in the crime-prone years ages 18-40 are a declining part of the population, why are we locking up so many people?

End of the Pipeline

Ed Barrett said that, in essence, the corrections problem is really the end result of a lot of other decisions in the judicial system that need at least as much attention as the state prisons and county jails. “They’re at the end of the pipeline, and that’s where we see the results,” he said. “But that’s not where it starts.

On the CAAC, there was actually a surprising amount of agreement about what some of the inmate-drivers really are, why there are unexpected surges in the numbers of inmates, and why the numbers of incarcerated Mainers is running well ahead of population growth.

Changing those factors, state and county corrections officials seem to agree, will take judges and courts, prosecutors and defense attorneys – plus investments in ways to assess risk and monitor those on probation.

Maine’s bail system, there’s broad agreement, is antiquated and unsuited to its basic function – which is ensuring that those accused of crimes show up for their trials.

“There’s almost no way for judges to assess risk,” Lord said. “They often don’t know much more about the person that what someone at the courthouse might have heard.”

The probation system, she said, also fails in some of its basic functions. The CAAC looked at split sentences (those involving some time in jail or prison, followed by probation) vs. straight probation, where there is monitoring but not incarceration.

The CAAC found that there was a dramatic difference in the likelihood of those convicted to re-offend and be sent to jail – and it was much higher for split sentences. “That was counter-intuitive,” said Bob Howe. “You’d think that serving time in prison would convince you it was a good idea not to go back.” In fact, the loss of community ties, difficulty in finding a job after prison, and lack of family support often cause probationers to violate their release conditions – although using drugs and alcohol, the most common violations, often wouldn’t merit a jail sentence themselves.

Up to 50 percent of all county inmates are now probation violators, a huge increase that is likely responsible for much of the recent overcrowding, Lord said.

Another improvement in the probation system would be a risk assessment system, similar to one now in use in Connecticut, that alerts probation officers when probationers are starting to get into trouble. “It usually starts with small things, but with a caseload of 100 or more, it’s easy to miss,” she said. While such risk assessment would cost money to implement, if it avoids more prison stays it would quickly pay for itself, she said.

This risk-based system is different from what Maine tried in its “intensive probation” system during the Brennan administration, later axed to cut the budget. “That was based more on whether someone felt it was a good idea for a particular inmate,” she said. “It wasn’t based on facts.”

How Many Beds?

Much of the cost avoidance envisioned in the administration plan come from avoiding construction of new prison beds – more than 650 on top of the existing 4,000, according to DOC figures. The state claims that four counties are now considering major construction efforts; Howe says that isn’t so. Cumberland County will ask voters in November whether it should expand its overcrowded medical treatment facility, while Kennebec County is weighing a pre-trial diversion facility to stem the influx into its jail. Waldo County voters have turned down a new jail plan, and Howe doesn’t see that issue returning anytime soon. “I would question the assumption that counties are about to go on a building binge,” he said. “I don’t see it.”

That leaves Somerset County, where a new $30 million jail now under construction has emerged as a major bone of contention between the state and at least one county. The Somerset project, which was approved by just 12 votes in a referendum, requiring a recount, illustrates the ways state and regional policy can quickly diverge.

The new Somerset jail will have 225 beds, even though the county now needs only 80, a figure projected to rise to 105 within 15 years. The rest of the space would be available for lease – to the federal government, possibly, or to the state and other counties. Since the state has not promised to assume any debt incurred by counties, Somerset commissioners feared the takeover could bankrupt the county, even though they ultimately decided to continue construction. A tense meeting between Baldacci and the commissioners followed the Aug. 30 announcement.

The idea of making money from bed space rental does not sit well with many Maine officials. The reason why – as Baldacci points out – some counties have overcrowded jails while others have empty beds is largely economic: Counties have sharply differing daily boarding rates, from $45 a day to more than $105. Getting the system to work better would seem to require leveling those rates, so counties and the state can avoid what Bob Howe calls “bed shopping.

“If it were up to me, we’d have one rate. That way we’d be using the capacity of the system in an equitable way,” he said. But he emphasized that this is his own opinion, and does not represent a policy initiative by the counties.

Could a combination of bail system overhaul, probation reform, bed sharing and more considered sentencing actually solve Maine’s corrections crisis? Both Howe and Lord think it could, though Lord says there’s a great deal of pressure on to solve things quickly – and central oversight might be the fastest way to achieve that.

County Conundrum

Ultimately, the fate of the jail plan may rest on what Maine wants to do with its counties. Jails have become a much bigger expense as compared to the other traditional county functions of rural patrols, probate, registry, deeds, district attorneys and courts. Lord said that, on average, jail costs have risen from 11 percent of county budgets to more than 50 percent in just 15 years. Thus the prospect of losing the jails looms larger than it did during the previous state takeover attempt 18 years ago.

“County government has really been a stepchild,” said Bangor’s Ed Barrett. “Up to now we haven’t been willing to do much about changing it.” While he says that county expenses, even now, aren’t a major factor for most municipalities – “It’s about $1 on our tax rate” – few doubt that a more efficient, coordinated system could save money and improve services.

His experience with the CAAC, he said, convinced him that “the system does need more coordination, and changes to bring it up to date. These goals are widely shared.” He and most other municipal officials he’s talked to are reserving judgment, however, about the administration plan. “Until it’s fleshed out, we really don’t know what we’re looking at,” he said.

Still, there not much doubt that the Criminal Justice Committee, and the Legislature as a whole, will be taking significant action in the 2008 session. “If this was a first session, it’s a bill that would be carried over,” Howe said. “But the committee will definitely feel pressure to act.”

A follow-up, more conciliatory letter from Gov. Baldacci to Somerset County’s commissioners was, Howe said, “a good step,” though he objected to a reference in it to discussing the governor’s plan with the legislative committee.

The counties will be presenting their own plan to the Legislature, he said, based on the work of several consultants who have already studied the bottlenecks in the Maine system. “We aren’t opposed to change, and we share most of the administration’s goals,” he said. “We just think there are different ways to get there.