Jail Expansion Raises Issue: What is Justice?

County Judge Sam Biscoe finds himself in an awkward position. A decade of mismanagement by the Travis County Commissioners Court now ties his hands, he reports, and he hopes to ask a citizens "advisory commission" for permission to ask voters for $70 - $100 million in bonds. His comments came in response to a Grits post calling for alternatives to incarceration instead of jail expansion.

You can read the slightly garbled transcript of the recent commissioners court meeting on the subject here.

Pressure on the county to solve the overcrowding issue is real enough, particularly with regard to the threat of losing "variance beds," and I don't want to deny the county's conundrum. I do think, though, that room for improvement exists without a new jail. Let's look at the issues separately.

First, to the 575 variance beds. According to the October 1, 2004 Jail Population Report (pdf, p. 7) from the Texas Commission on Jail Standards Travis County presently houses 316 pre-trial defendants for misdemeanors, and 261 pre-trial defendants charged with state jail felonies. Most misdemeanor defendants are non-violent, and all but a handful of defendants charged with state jail felonies have been busted for low-level drug possession -- less than a gram of powder, which is less volume than the contents of a Sweet-n-Low packet.

To the extent these inmates are mere drug users, two solutions present themselves. First, Travis County law enforcement agencies (they'd need APD's cooperation) could shift their enforcement priorities away from busting low-level drug possession cases. Second, judges could set low bail for drug cases, say, $50, to free up needed bed space for more dangerous people.

Doing so wouldn't harm the interests of justice. Testifying to the Commissioners Court in 2002, Katy Broderick, formerly a staffer in the county's justice and public safety area, had this to say about the folks we're incarcerating:

"I was just amazed. That really gets down to, as Ronnie Earle likes to bring to us, what is justice? What I was looking at that morning [in the courtroom] was technically justice according to what the law is, but I don't get any feeling that there was any kind of -- kind of justice according to how taxpayers would think about the huge sums of money that were spent related to somebody getting arrested, processed, throwing an attorney at them, spending time in our system and it comes down to 10 days in jail because they decided to do something that was really not ... [of the] level that you would spend that kind of money on and throw the book at. I don't know. I was amazed that morning. Not really a question, just an observation. I think people should be shocked to see the kinds of cases ... I was amazed at the petty stuff that there was no lesson learned. There was no restitution to the community. Somebody got to stay in our facilities and have a, three squares and food, clothing, medicine. That wasn't justice." (ed. note: small, obvious transcription errors corrected)

She's absolutely right. So why are we doing it? Quit arresting these people. Quit prosecuting them. They'll quit filling the jails.

A little more than a third of the jail population are felony defendants awaiting trial. Defendants charged with possessing relatively small amounts -- e.g., 1-4 grams -- could also benefit from a low bail policy. The fact the jail is overcrowded means by definition bails are too high.

Judge Biscoe points out that the jail population has actually declined recently, and I want to acknowledge his leadership in insisting that de-incarceration is on the table -- i.e., lowering the number of inmates instead of only building more jails.

Unfortunately, to date the county has utilized only the most conservative tools to lower the inmate population -- expediting pending cases faster and diverting C misdemeanor arrests directly to a magistrate have been the greatest contributors to jail population decline. But obviously it hasn't been enough. The Commissioners Court needs to do more, with the understanding that real solutions require working out details with DA, local judges, and Austin PD.

Lowering the jail population any more will require courageous, hard decisions -- it won't be as simple or as clean as creating a "rocket docket" to make the system work faster. But that's the kind of leadership necessary to resolve the jailing crisis in a wise and responsible way.

Why not limit the length of probation for non-violent offenders to a maximum of one year for misdemeanors? That way, the number of new jail entries would decline by the number that would otherwise have been incarcerated in that second year for technical or other violations.

Why not get the Travis County Sheriff and Austin Police Department to ban both consent searches and all arrests for Class C misdemeanors, under any circumstances? Those two measures would not only lessen the jail intake but free up officers' time and decrease the amount of discrimination against minority citizens.

If we can't afford to lock people up, why not lower the frequency of drug testing for probationers, or stop it altogether for all but violent offenders? Drug use should not in and of itself justify incarceration, and when the jail is full, space should be reserved for offenders that pose a risk to the public.

Judge Biscoe proposes creating a citizens advisory committee to hash out the issue, but that strikes me as passing the buck. The commissioners court understands the issues -- they're just looking for political cover. An advisory panel won't give it to them. Building more jail cells is really the easy way out. That's why politicians prefer that approach to setting smarter polcies.

Before it can justify issuing bonds for jail expansion, the county needs to take more dramatic steps to limit jail intake like those described above. Then, when it's time to raise our taxes to pay for all this debt, they can tell the voters there really was no other choice.