Wednesday, August 05, 2020

Texas Commission on Jail Standards: Sunset considerations

Sunset Commission staff asked to visit with your correspondent with regards to their review of the Texas Commission on Jail Standards (TCJS), so Grits prepared a few talking points for our visit. Find them below. (See also Grits' writeup of the agency's self evaluation from last fall.)

Hamstrung Oversight. This is another oversight agency, like the Texas Commission on Law Enforcement, which plays an important role but has been hamstrung by legislative limitations on their budget and authority. Grits generally views the agency's leadership as competent and well-intended, but also as timid, and perhaps a bit too resigned to its own impotence. Here are several aspects of the agency which are ripe for improvement.

Black Hole of Info Surrounding City Jails. First, it's high time city jails should be brought under the agency's regulation and sufficient inspectors added to their roster to cover them. City jails are unregulated backwaters where people supposedly are only held for Class C misdemeanors for short periods of time. But we have no data nor information about who goes in and out, much less inspection reports or compliance dicta, the way we get for county jails. The difference in transparency between regulated and unregulated facilities is like night and day. Some reports from arrested protesters about city jails were problematic. Let's get some inspectors in there!

Lack of expertise prevents confronting problems. Like the Texas Commission on Law Enforcement, TCJS would benefit from building out internal expertise to a) develop standards and b) provide technical assistance to counties struggling with regulation compliance.  But TCJS doesn't necessarily have issue-area experts on staff to develop and administer appropriate training (which anyway, is formally overseen by equally understaffed TCOLE), much less advise counties on particular jail problems. TCJS has three "mental health trainers" for some 250 jails statewide.

The agency's self-evaluation essentially punted on the question of whether it's possible for them to intervene more profoundly in mental-health issues, saying any solution would either be "difficult or unpopular." To me, that's not a good enough reason not to try. Such a comment does not absolve the agency from offering solutions, it just acknowledges why doing so requires courage. Or, viewed more generously, one could argue that their fatalism expressed underscores why the agency needs greater in-house issue-area expertise.

Either way,  Grits believes someone in state government must take leadership on the competency restoration questions which have left thousands of mentally ill Texans stranded in jail. It may as well be TCJS as anyone else. If the agency had experts on staff, perhaps it could develop protocols and regulation for outpatient competency restoration programs to reduce the number of mentally ill people incarcerated. 

More broadly, the agency needs in-house experts to be able to evaluate provision of medical care at jails of all types, including pharmacy. This is too important a function of jails not to regulate, but to regulate it requires having staff qualified to pass judgment on medical decisions. TCJS doesn't have that now.

One-size-fits-all a poor fit for jails. TCJS takes a one-size-fits-all approach, inspecting jails in Houston and Dalhart each once per year. But the Harris County Jail is larger than 20 state prison systems! Larger and also non-compliant jails need more attention than do small or mid-sized facilities, particularly those which are already meeting requirements. Grits recommends boosting inspection capacity to allow for greater interaction with larger facilities and those that are persistently non-compliant, as well as adding the city jails mentioned above.

Agency needs more independence from counties, better sanctions options. The agency's universally acknowledged, fundamental problem is that its board is politically too close to the county-level interests being regulated. This makes the board reticent to use their enforcement powers. While the agency technically could order a non-compliant jails closed and their inmates moved, taking such a step requires expending vast political capital and is probably impossible, both practically and politically, in the case of larger counties. TCJS needs more options for intermediate sanctions short of closure to press counties for compliance.

There have been times when inspectors identified shortcomings and jails lollygagged when it came to fixing problems, encouraging a somewhat common perception that the board would never really do anything punitive besides publish the names of non-compliant counties. An expanded assortment of intermediate sanctions, possibly including daily fines, might spur more energetic compliance.

Notably, the 86th Legislature required facilities run by private contractors to come into compliance more quickly than publicly run ones, according to the TCJS self evaluation. County-run units have a year to come into compliance when an inspection dings them. Privately operated facilities now must come before the TCJS board demonstrating compliance at its next meeting (it meets quarterly). This requirement for quicker resolution should be extended to county-run units. It would help both substantively and with public perception.

Data presentation needs upgrade. On data, TCJS deserves credit for significant and willing transparency. But I do have a few running data complaints I took the opportunity to raise: 1) Their reports on their website are all in pdfs instead of a searchable database, making it cumbersome to analyze data over time. 2) their new monthly jail population report no longer automatically migrates to the historical reports section of their website. So if you don't download it while it's up, once it's taken down  researchers can't access it without an open records request. Starting a couple of years back, historical reports are available; it's only the recent ones that are missing. Finally, 3) few TCJS reports include demographic breakouts, making it impossible to analyze racial disparities.

Ask an expert! Finally, Grits emphasized that I'm no expert on these questions, and most of my interactions with the agency have now been quite a few years ago. I encouraged them to talk to people who deal with TCJS more regularly: in particular Michele Deitch of UT's LBJ School, who is an actual issue-area expert on correctional oversight, and Diana Claitor at the Texas Jail Project, whose group helps jail inmates file grievances. Both have likely forgotten more than I know about TCJS. By comparison, Grits' observations amount to mere impressions from a distance.

Missing analysis on COVID. The one area I'm sure Sunset will address but which I did not involves the agency's role in documenting and coordinating jails' COVID response, challenges posed to the legacy system by the pandemic, and the implications for jail oversight and on long-term jail operations. It's not that there isn't considerable rethinking to do on these questions, I just haven't done any of it. But with COVID "pummeling" county jails across Texas, the implications for jail regulation necessarily must be addressed in the Sunset review.

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