Pensacola, Florida
Saturday December 16th 2017

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Straight Outta Options

County Can’t Dodge Jail Costs Any Longer
By Rick Outzen

Inweekly became involved in criminal justice and the Escambia County Jail in 2005 when the late Leroy Boyd of Movement for Change told us about how Robert Boggon died in the Jail while he was awaiting trial.

The man had been stripped naked, thrown in a shower cell, shocked repeatedly, strapped into a restraining chair with a towel wrapped around his head and put in the back of his cell facing the wall for about four hours before being found dead by authorities. (Inweekly, “The Death of Robert Boggon,” 10/13/05)

Over the past 12 years, we have watched changes be made in the jail operations, but the facility has remained overcrowded, and budgets have risen regardless of who managed the county jail. The April 2014 explosion that destroyed the Central Booking and Detention Center, the pending construction of a $129-million new jail, and the proposed detention budget of $40,792,852 for FY 2018 have brought greater public scrutiny on jail operations, but will anything be done?

Last week, the ACLU of Florida issued 14 recommendations on how Escambia County can have a criminal justice system that is more cost effective, operates fairly and keeps the community safe in its report “Smart Jail for Escambia.”

The ACLU analyzed the population detained by Escambia County as of July 31. The report found that Escambia County’s incarceration rate is roughly 80-percent higher than the state average.

Nearly two-thirds of those currently detained by the county are in jail awaiting trial. Approximately half of those are eligible for release but are unable to afford monetary bail, and therefore remain incarcerated simply for being unable to pay, according to the report.

“Escambia County’s over-incarceration problem is a burden on taxpayers, is making the community less safe, and is ruining people’s lives,” said ACLU of Florida staff attorney Benjamin Stevenson.

“Many of the people the county is detaining are in jail simply because they cannot afford cash bail, meaning we have one system of justice for those who can afford to pay to get out jail, and one for those who can’t. These are people who are presumed innocent and have not actually been convicted of a crime.”

The ACLU recommendations fell into three categories:

1)    “Expand and Improve Pretrial Supervision Practices,” involving investing in lower-cost, more effective means of ensuring defendants show up for their trial-date;
2)    “Tailor Monetary Bail to its Purpose,” meaning to use bail as a means to ensure defendants appear in court rather than a means to keep them detained; and
3)    “Streamline the System from Arrest to Resolution,” which involves additional reforms to remove redundancies in the detention process.

Stevenson told Inweekly that the ACLU has wanted to work on bail reform in Florida and felt Escambia County was a good place to start because of the rising budget costs, jail overcrowding and the plans to build a new jail.

“There are jurisdictions throughout the United States that are successfully managing pre-trial populations outside the jail without the use of a monetary bail,” he told Inweekly. “Here in Escambia, if you’re charged with a federal crime, the federal courts in our area do not use monetary bail. You’re either held because you pose too much of a risk or you’re released without any monetary bail.”

He added, “Monetary bail really just goes to the appearance at trial. There are other places that are successfully getting people to show up at their trial without imposing monetary bail.”

The ACLU attorney pointed out that New Jersey instituted bail reform at the beginning of the year and “the sky has not fallen.” Cash bail bonds were nearly eliminated with the support of Governor Chris Christie, the New Jersey Supreme Court Chief Justice, state public defender, attorney general and a coalition of civil rights groups.

“They are essentially monitoring people by telephone calls or by bi-weekly check-ins or other ways to make sure that they’re getting to their court dates and are otherwise engaged in activities that are going to reduce their chance of a convenient crime,” said Stevenson.

The state released a report two weeks ago that showed a 20 percent reduction in the number of people held in New Jersey jails awaiting trial for the first half of 2017.

Escambia County Sheriff David Morgan isn’t convinced the ACLU recommendations would make a difference. He fears that the county commission might rush to enact them in an effort to save money but would hurt public safety instead.

“I have to always think of the unattended consequences,” he told Inweekly. “My mission is the safety of my community. When you’re in jail, I know you’re not raping, robbing or putting my citizens in any danger.”

The sheriff is in a battle with the Board of County Commissioners to get an additional $3.6 million in the FY 2018 budget to raise the salaries of his officers. He has said he would appeal his budget to Gov. Rick Scott unless his office is appropriated the full $59.9 million he has requested.

“The system falls apart unless you put money into it,” Morgan told Inweekly last week. “You can’t do public safety on the cheap.”

Chief Deputy Eric Haines echoed the sheriff’s sentiments. “The ACLU recommendations might relieve overcrowding in the jail for a short time, but it would be like giving a breath of air to someone suffocating. It won’t last.”

Haines believes that money needs to be spent on prevention, law enforcement and detention. Otherwise, nothing will change. Focusing on only one or two of the three won’t work.

Sheriff Morgan said, “The best solution is to keep them out of the criminal justice system. It’s why I spend the LET (Law Enforcement Trust funds) money on Big Brothers Big Sisters, Pace Center for Girls, and just about any community program that will help. I’m the only one spending money on prevention.”

He has his doubts the county would ever spend the money to make the Pretrial Services more effective. He and Haines talked about how the county rejected its consultant’s report on the Pretrial Services four years ago.

Pretrial Services Misfire
In 2008, the county commission hired Justice Concepts Incorporated (JCI) to study the criminal justice system, including the Pretrial Services and the Escambia County Jail. After 10 site visits, JCI recommended restructuring of Pretrial Services and new policies and procedures for better mental evaluation of defendants prior to their appearance before the judge.

To help reduce overcrowding the county jail, JCI recommended that Pretrial Services do the following:

•    Use an objective, quantifiable instrument to measure risk to the community, as well as risk to appear at future court hearings,

• Make forensic mental health screeners be available for immediate referral and assessment as defendants are being booked,

•    Re-interview detainees who are not released at first appearance, or released under bonds, and

•    Have an office at the Jail for ready access to defendants.

When the county began to enact the recommendations, the local bail bondsmen protested in 2009 and asked Escambia County Taxpayers’ Association to investigate the county’s Pretrial Release (PTR) program alleging it was failing the court and the taxpayer. (Inweekly, “Fortunate Felons,” 5/14/09)

Escambia County Taxpayers’ Association said it found no evidence that PTR staff had investigated the backgrounds of the accused defendants. Their research discovered that 62 percent of the defendants accepted into the program at first appearance were either charged with a dangerous crime as defined by statutes or had a record of a previous failure to appear. Also, 55 percent of the defendants accepted into the program at first appearance either had known felony backgrounds or had completely unknown criminal histories.

The watchdog group determined PTR was a needless county program that may have operated in violation of many laws to perpetuate its existence and asked the county whether the PTR is indeed meeting its designated purpose.

The county’s emphasis on Pretrial Services quietly faded. In fact, the county refused to pay JCI’s final invoice over a dispute regarding the section of the report dealing with Pretrial Services.

Also in 2009, newly-elected Sheriff Morgan met with Judge Kim Skievaski about the possibility of creating a mental health court to find another alternative for mentally-ill people caught up in the criminal justice. He asked that the Board of County Commission approve an Edward Byrne Memorial Justice Assistance Grant to launch the program. (Inweekly, “How to Mend a Broken Mind,” 2/12/09)

Sheriff Morgan told the commissioners the proposed court would remove 200 mentally ill people from jail and save $1 million a year in expenditures.

“It’s not a sheriff’s office initiative,” he said in April 2009. “It’s an Escambia County initiative.”

The board didn’t agree and divided the $834,000 federal grant between the sheriff’s office ($387,169), drug court ($150,000), Pensacola State College ($135,039) and State Attorney’s Office ($157,792).

Sheriff Morgan told Inweekly that he believed Pretrial Services could make a difference, but the county has never been willing to allocate the funds to make it work effectively.

“I have no confidence that the county will spend the money to make that happen,” he said.

Chief Deputy Haines added, “Justice Concepts Incorporated did an analysis of the correction department, looked at pre-trial probation, all those different programs. And the county never accepted the pretrial issues that were out there, the recommendations that needed to be done. Never spent the money on it.”

To prove his point about the lack of proper supervision in Pretrial Services, Sheriff Morgan brought up Justin Princes Taylor, Jr.

In August 2013, Taylor was on work release and killed Adnan Glelati, owner of Seven Stars Auto and his former employer. He had a lengthy criminal history including grand theft, burglary, fraud and violation of probation charges. Nine days before the murder, Taylor was accused of burglary and grand theft after he allegedly entered an unoccupied, unlocked residence and stole a Nintendo Wii that he subsequently sold for $17 to Trade N Save Video Games. Somehow, he remained in the work release program. He was convicted in 2015 of first-degree murder. (Inweekly, “Get Out of Jail Free,” 9/5/13)

“Incidents like that don’t give me a lot of confidence in Pretrial Services,” said Morgan. “The only outcome of these feel-good programs will be to save the county some money while wreaking further havoc on the poor.”

Smart Justice
The non-partisan government watchdog Florida TaxWatch believes criminal justice can be better managed. Over the past three years, they have advocated for smarter justice.

The Sunshine State is among the very toughest when it comes to crime, with an incarceration rate more than 30 percent above the national average. Since 1970, the number of Floridians in prison has grown more than four times as quickly as the state’s population overall.

In July 2016, Florida TaxWatch published “Locked Up, Then Locked Out,” a report that proposed several recommendations for the state lawmakers to reduce the criminal justice system’s financial burden on taxpayers, ensure public safety and provide guidelines to stop recidivism and help released ex-offenders safely return to the workforce and into society. (Inweekly, “Smart Florida Justice,” 7/28/16)

“Common sense, research, and anecdotal evidence all show that if these released offenders do not secure stable employment, they are more likely to re-offend and return to prison. To decrease recidivism and increase the return on state investment in corrections, ex-offenders need to be able to find jobs and keep them,” said Dominic M. Calabro, President and CEO of Florida TaxWatch.

Among the recommendations by Florida TaxWatch were:

• Expand the use of forensic mental health diversion programs;
• Reduce penalties for and divert “driving while license suspended” offenders;
• Restore judicial discretion for specific mandatory minimum cases;
• Develop risk/needs assessments and cost-analysis tools to be used at the time of sentencing;
• Increase the amount of usable gain time for nonviolent inmates;
• Lengthen the period of eligibility for and expand transitional work-release programs; and
• Promote strategies that improve released offenders’ employment opportunities.

“We’re not getting a return on our investment,” said Joe Follick, the institute’s communications director at the time.

“We can’t afford that,” he told Inweekly. “We can’t let ‘tough on crime’ hide what’s prudent for taxpayers, and that is to make sure they have the tools and the ability to return to the workforce where they can make money and contribute to the economy, rather than return to prison where they cost taxpayers tens of thousands of dollars a year.”

Follick pointed out that crime statistics had been dropping in Florida, but the inmate population continues to grow. He said, “I think we are on the edge of making smart justice a reality, making changes that keep us safe. They don’t reduce public safety, but they do reduce the cost we’re paying for it.”

At the first of this year, the Escambia County Commission discussed how to improve its criminal justice system. The commissioners sought support from the Florida Legislature to consider Escambia County as a pilot program for the Florida TaxWatch reforms. State Sen. Doug Broxson and Reps. Clay Ingram and Frank White said they would support the effort. Unfortunately, it never came up during the legislative session.

What’s Next
Commissioners Lumon May and Jeff Bergosh appeared in an ACLU video supporting the recommendations.

“I look at the over-crowdedness as a systemic public health problem,” said May. “It has to be a collaborative effort among the law enforcement, government system, elected officials, and community. Keeping these people incarcerated becomes a greater burden or liability on the backs of the taxpayers.”

Commissioner Bergosh said, “My position has been tempered since I’ve seen the jail first hand. Many cells that were designed for one person have three. It was an eye opener for me.”

He expounded on his views to Inweekly, “I’ve learned a lot more. There are some people, yes, they need to be in jail. There are others; I think there are a lot of them that have mental issues. They need help. There are a lot of them that have substance abuse issues. They’re in jail, but really they could benefit from being in a treatment facility. It is intricate.”

Sheriff Morgan and Chief Deputy Haines remain skeptical that any recommendations would be properly funded and managed.

“Our job is to catch people who are breaking crimes,” said Haines. He said the sheriff’s office has made gains in reducing the county’s crime rate. “But now they’re saying, ‘Well, we need to get people out of jail quicker.’”

Keeping people out of jail is a societal issue, according to Haines. He said, “What are you doing to make sure people don’t get put in there in the first place? Let’s spend some money on that, and let the Sheriff make the arrest, and the judges make the decision on bonds for the people that are in there. And let the other agencies do their part, which is have good services, good programs, things like that, to keep people out of there in the first place.”

ACLU attorney Benjamin Stevenson hopes his recommendations will launch a discussion among all the stakeholders about how to improve the county’s criminal justice system.

He said, “Hopefully with the judges and the prosecutors, the public defender’s office, law enforcement, and the county can work together to ensure that we’re only detaining the people we absolutely must detain and can’t otherwise manage outside the jail.”

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ACLU Recommendations
A. Expand and Improve Pretrial Supervision Practices
1) Actuarial Risk Assessment: Update risk assessment to a validated, evidence-based tool upon which judges can confidently rely.
2) Court Date Notification: Implement calling/texting service to notify defendants of upcoming court dates.
3) Pretrial Services: Rely on the County’s Pretrial Services in lieu of monetary bail.
4) GPS Monitoring: Limit electronic monitoring to high-risk defendants and only as an alternative to pretrial detention—at public expense.
5) Drug Testing: Significantly limit or eliminate drug testing as a condition of pretrial release.

B. Tailor any Monetary Bail to its Purpose
6) Signature Bonds: Permit unsecured appearance bonds.
7) Single Charge Bail: Impose monetary bail only on most serious charge.
8) Unaffordable Bail: Require state to justify need for unaffordable bail and find that no alternative measures or additional conditions of pretrial release.
9) Consideration of Dangerousness: Manage dangerous defendants through the established procedure for pretrial detention, not by imposing high monetary bail.

C. Streamline the System—From Arrest to Resolution
10) Notice to Appear: Law enforcement use notice to appear in lieu of arrest.
11) VOP & FTA No Bonds: Issue summons for violation of probation and failure to appear.
12) Bail Hearings: Promptly hear motions to modify bail
.
13) Waive Court Appearance: Reduce failures to appear by eliminating the need to appear.
14) Plea Offers: Timely provide charge assessment and plea offers (score sheets).