A Cautionary Tale for Counties Considering Big, Costly New Jails

Wendy Sawyer
Research Director, the Prison Policy Initiative

Costs Data Analysis Jail Costs August 8, 2021

A recent debate in a small Michigan community shows how problematic debates over building new jail space can be.

It is critical that counties ask the right questions before deciding to build a costly new jail, because history has shown that expanded jails are quickly filled with people who would not have been jailed before, with serious personal and community consequences.

But too often these questions are not addressed, and the public and community leaders do not have clear and accurate information to inform decisions. This happened in Otsego County, Michigan, recently, and it should be a cautionary tale for other jurisdictions.

Correctional, law enforcement, and court officials in Otsego County, which has a population of about 25,000, have been pushing to expand their 34-bed jail to a 170-bed, $30 million facility for 15 years. They have solicited at least three studies to evaluate local correctional systems and recommend solutions to reduce jail overcrowding, and a close look at the local debate showcases confusing data, misleading statements, and misdirection from public officials in favor of jail expansion.

The Worst Jail Assessment We Have Ever Seen

A recent feasibility study produced for the county included a perplexing data analytics section. The data analytics section of the report was perplexing. In one graph, the scale appeared to change for no apparent reason. In 2019, the population of 24,985 appeared lower, not higher, than the 2018 population of 24,665. But the chart also showed the county’s population at 10-year intervals except for 2018 and 2019. It was unclear what people were supposed to take away from it.

Other numeric projections were strange. One meant to tie the need for a 253% increase in jail space to the county’s current 0.11% annual population growth rate. A summary of annual court caseloads from 2008-2018 also showed a trend of decreasing caseloads over time. A summary of jail bookings, average daily populations, and average length of stay from 2009-2012 and 2014-2018, showed that the jail typically operated at between 100-115% capacity before 2013, but has operated at 70-88% capacity for four out of five years since. The most perplexing sentence in the architects’ report called the jail population data “unreliable,” even though that data made up most of the report’s analytics section.

We asked David Bennett, one of the authors of the National Institute of Corrections’ Jail Capacity Planning Guide, to review Otsego County’s recent feasibility study, and he, too, concluded that it fell far short of a comprehensive assessment. He suggested that the county develop a criminal justice system master plan instead.

Resisting Best Practice Alternatives to Incarceration

Law enforcement and judicial officials complained to the consultants that, with the jail often near maximum capacity, they “have one hand tied behind their back,” and have been forced to come up with alternative sanctions instead of jailing people for the offenses they would like to. Ironically, many of the alternatives that officials complained about being “forced” to use are widely considered best practices today, including:

The Jurisdiction Hasn’t Answered Community Questions Well

Community members have received mixed messages from local officials in response to their concerns that the new jail will immediately be filled once police have a place to book more people and judges have a place to detain and incarcerate them. In a local newspaper series about the need for a new jail, the county jail administrator said that is “not necessarily true”: “We have great judges and I do not see them being overzealous and automatically going to the jail commitment.” But in the same article, one of those local judges commented:

“What it comes down to is it hampers my ability to do my job, which is to protect our community by creating this deterrent effect and this punishment. If I’ve got to give this person work camp or probation, I’m not accomplishing that goal because it doesn’t have the same effect as sitting in jail for 30 or 60 days.”

It is true that sitting in jail has a different effect than sentences that allow people to remain in the community, such as probation – but the evidence is clear that the costs of locking people up are much greater than the negligible, if any, deterrent effect of incarceration.

Multiple studies show incarceration does not reduce the likelihood of future violent crimes after release, and that incarceration increases the odds of re-incarceration. Meanwhile, even a short stint in jail can seriously destabilize individuals and families, and even short sentences to incarceration lead to long-term employment problems.

Conclusion

From a jail administrator’s or law enforcement official’s perspective, a bigger jail may be an attractive solution to overcrowding, but most Americans do not stand to benefit from bigger jails or the increase in arrests and detention that are certain to come with them. Yet they are the people expected to pay for these multimillion-dollar projects and the hundreds of thousands of dollars in additional annual operational costs.

We recommend that any county considering a new jail should first engage the community in conversation about their public safety priorities. Then, to reduce unnecessary jail usage, it should expand the jail alternatives the county has already implemented to keep people out of jail. It should change pretrial policies and practices that result in unnecessary jail detention. It might also implement new programs to minimize missed court appearances and the resulting bench warrants. We also recommend consulting a criminal justice system expert who will evaluate the jail as part of the larger local criminal justice system.

The National Institute of Corrections, part of the U.S. Department of Justice, has a Jails Division for the express purpose of offering technical assistance, information resources, networks, and training to local jail systems. Its services include help with jail and justice system assessment and planning.

Unfortunately, Otsego County’s “jail first” approach looked at the jail population alone as evidence of whether the jail is “big enough.” But a community should get a chance to understand how all the different parts of the criminal justice system are contributing to the jail situation before taking the huge and irreversible step of sinking tens of millions of taxpayer dollars into a bigger jail that will lock up more of their own.

The bottom line is that we hope more counties will avoid wasting taxpayers’ money on extensive spin campaigns like this one. There are best practices out there to follow so that everyone is kept safe without building costly and unnecessary new jails.

What Can We Learn from the Misdemeanor Diversion Program in Durham County, North Carolina?

Kelly Andrews
Diversion Coordinator, Durham County at the Criminal Justice Resource Center

Diversion Incarceration Trends Pretrial Services August 3, 2021

A successful misdemeanor diversion program at a Safety and Justice Challenge site in Durham County, North Carolina, can serve as inspiration for jurisdictions across the country as they seek to reduce jail populations and preserve public safety.

The diversion program shows collaboration between law enforcement and community groups in Durham County, and is the subject of an initial process evaluation by the Urban Institute, which you can download here.

The Urban Institute has not yet completed an accompanying outcome evaluation to see how the perceived impacts reported by relevant stakeholders align with measurable impacts available through local metrics —it is forthcoming in fall of 2021. But the county has been tracking its own numbers and it estimates that just under 800 people have gone through the program since 2014, with 99 percent of participants completing it. Of those, about 95 percent remain out of trouble after a year. Again, the Urban Institute—which is renowned for its rigorous, independent research—has yet to verify those numbers as an independent evaluator of the program. But in the meantime, the county is displaying them on its public-facing website as early evidence of the program’s success.

The Misdemeanor Diversion Program (MDP) began in 2014 to keep children out of the criminal justice system, because North Carolina had such antiquated laws related to minors. Until the ‘Raise the Age’ legislation passed in December, 2019, the state was automatically charging 16 and 17-year-olds as adults in the justice system and giving them adult criminal records.

The program allows law enforcement officers in Durham County to redirect people accused of committing their first misdemeanor crime(s) to community-based services in lieu of citation or arrest. What is unique about the program is that it occurs prearrest and pre-charge, meaning someone law enforcement officers may believe has committed a crime is not arrested or charged and does not formally enter the justice system in any way.

The program expanded to benefit adults up to 26, with older adults at law enforcement discretion. And other jurisdictions have replicated it across the state. It was based on a simple foundational principle: The need to avoid involvement in the justice system, where possible. It aimed to be as unrestrictive as possible while providing participants with the support necessary to move forward positively.

In the first week, the program got just two referrals. But a key element of the program’s success came in 2016 when the Durham Police Chief at the time created an executive order, taking discretion away from Durham Police officers and making referral of eligible individuals to the program mandatory for the Department.

The need for a program like the MDP in Durham County was well articulated by county stakeholders and participants who participated in the process evaluation. All stakeholders feel that people—youth in particular—do not need to be arrested and deserve “a second chance,” as some put it, if they do not pose a threat to public safety. Members of local law enforcement also believe the program has been useful and impactful. However, many local stakeholders believe that the community still needs more prearrest diversion opportunities whenever possible.

The program is cost effective and began with a grant, but it is now part of the county’s regular budget, demonstrating that it is replicable in other jurisdictions, with the right support and buy-in from local authorities.

Racial equity was also discussed during the conception of the program—given the disproportionate numbers of Black people in the county’s jail. Around three quarters of participants in the diversion program have been people of color.

Through interviews, we found that community stakeholders and program participants believe the MDP is impactful, particularly in that it diverts people from being charged with a crime and entering the justice system. Interviewees also generally believe the program was deeply needed in Durham County because too many people were being unnecessarily arrested and incarcerated.

Our process evaluation yielded four key takeaways for jurisdictions interested in replicating the MDP. First, buy-in from law enforcement is critical because it is needed to start the diversion process. Second, support from local leaders, such as elected officials, will help develop local law enforcement buy-in and support. Third, qualified program staff with deep community connections are essential. And fourth, a philosophy of keeping people out of the justice system altogether will lead to increased participant satisfaction and reduce collateral consequences associated with any justice involvement.

None of the interviewed stakeholders expressed resistance to the program, but several noted that when it was being developed, there was notable resistance from law enforcement agencies and law enforcement associations. Most of that resistance involved concern among local law enforcement officers that the program could take away their ability to determine whether an arrest could be made in certain situations, an ongoing concern during the early years of program implementation. In addition, numerous officers believed this type of program would infringe on their ability to perform their duty and would override their power to use discretion. Over time—through trainings, interactions with the program staff and participants, and changes in law enforcement leadership—law enforcement agencies generally became more supportive of the program.

Several stakeholders strongly support the program but believe it does not “do enough” (in the words of one interviewee) to reduce countywide arrests and incarceration. They want it to expand eligibility requirements to include more offenses, including additional misdemeanor charges and some felony charges. Simply put, many stakeholders feel the program has positively impacted participants but that too few people have been able to participate, leaving more people involved in the local justice system than necessary.

Some stakeholders criticized the program for making eligibility requirements too restrictive and not allowing enough access the program, which they consider essential to diverting people from the criminal justice system pre-charge. Many interviewees believe other communities would benefit from implementing similar programs to divert people from the justice system.

We encourage people to read the full process evaluation and to develop their own diversion programs based on what has been learned in North Carolina.