Kerr County Sheriff defends jail bond vote; Grits responds

After Grits critiqued the numbers behind the proposed Kerr County jail bond vote in May, Sheriff Rusty Hierholzer sent around an email attempting to justify the proposed new debt and accompanying higher taxes. His direction "please forward to all" meant it eventually found its way to me, so thanks to the thoughtful reader who passed it along. Find his letter below the jump, followed by Grits' reactions.

Kerr County voters to consider 75% jail capacity expansion in May

For a while, Texas' jail building spree seemed to recede, though there are still a few projects active. After all, as of Nov. 1, 2014 Texas jails had a roughly 42 percent vacancy rate, with 67,157 out of 95,309 beds filled statewide. So it's worth mentioning that Kerr County in May will hold the first significant Texas jail bond vote in several election cycles in order to expand local jail capacity by 75 percent. Reported Zeke MacCormack at the Express-News (Jan. 12):

Kerr County Commissioners signaled their intent Monday to seek voter approval in May for a $15 million bond issue to expand the county’s 192-bed jail, where periodic overcrowding has long been a problem.

Plans call for a 144-bed wing to be built on the current jail’s west side, in addition to expanding existing kitchen and laundry facilities, adding restrooms in the sheriff’s office lobby and creating a larger area for its communications staff.

The cost estimate of $14.8 million includes $12.5 million for construction, $990,000 in professional fees, $750,000 for contingencies and $400,000 for equipment and furniture.

If voters approve the project, Wayne Gondeck of DRG Architects said, its actual cost won’t be known until bids are sought next fall. The new jail could open in 2018.

The bonds would "add about 1.75 cents per $100 to the county’s property tax rate" for twenty years assuming property values rise as much as projected over time, MacCormack reported, though one wonders how they can predict that if the jail's "actual cost won't be known until bids are sought." Regardless, as of December 1, the county reported to the Commission on Jail Standards that 129 of the county's 192 beds were filled, down from 160 on July 1, 2014.

Kerr County's incarceration rate is higher than the statewide average in an era of declining crime. It seems highly likely new jail construction could be avoided or at least delayed if local officials better used tools available to them, from judges issuing more personal bonds to prosecutors facilitating pretrial diversion to police officers and deputies issuing citations, as authorized under law, for certain low-level Class B misdemeanors.

Kerr County had a population of just more than 40,000 in 1995 and a little less than 50,000 in 2013, according to the census, growing by roughly a quarter over those two decades. By comparison, the Kerr County jail population more than doubled between August 1995 (69) and August 2015 (157). So jail population growth isn't a function of the county's population growth, it's caused by decisions mainly by local prosecutors and judges to use the jail more aggressively than in the past for pretrial detention. In 1995, upward pressure on the jail population came more from detaining convicted felons awaiting transfer to TDCJ than felons awaiting trial; by 2015 that dynamic had flipped. Pretrial detainees went from 25 to 69 percent of a twice-as-large jail population.

Jail construction, at its root, is rarely a conservative or liberal issue. Consider: Is expanded pretrial detention liberal or conservative? While people think of conservatives as "tough on crime," in a sense there's nothing more "Big Government" than a jail, which is an institution designed to exercise total control over people's lives. Meanwhile, expanded pretrial detention empowers the government in plea bargains. And unnecessary jail expansion is frequently a major driver of local tax hikes, as voters in McLennan County could well attest.

Once a jail is built, it can be expensive to staff the extra space, creating ongoing budget burdens beyond just paying back the debt. For that reason, jails can become controversial among taxpayers, even if every Sheriff seems to want to leave behind their name on a new wing when they go. One recalls in Tyler voters rejected four different jail bond proposals on three different ballots, with competing "Tea Party" groups taking different sides, before county officials received the nod for radically scaled back plans.

Who knows if that kind of opposition will arise in smaller Kerr County? At a minimum, Grits hopes locals subject the proposal to close scrutiny and reject any entrepreneurial scheme that assumes future contract revenues (no hint of that from the press coverage). But more than that, Kerr County voters should take the opportunity to insist that county commissioners and the sheriff, as well as local prosecutors and the judiciary, do all they can to reduce unnecessary jail use, supporting staff and programming for community supervision as ardently as brick and mortar jail cells. Arguably, as in Smith and Harris counties, perhaps the best way voters can convey that message is to reject jail bonds and demand more emphasis on diversion programming before approving new construction debt.

DA convicted of misusing asset forfeiture funds

State Sen. John Whitmire's asset forfeiture reform legislation died last session during the infamous Voter ID meltdown in Texas' House of Representatives, but the conviction of a District Attorney out of Kerrville for misuse of forfeiture funds should put the topic back on the Legislature's radar screen. Reports the SA Express News ("Former District Attorney sentenced in Kerrville," May 22):

Former District Attorney Ron Sutton on Friday said state officials eager to tighten statutory controls over forfeited funds orchestrated his prosecution to cast him as evidence of a problem.

A defiant Sutton made the claim minutes after being sentenced to two years deferred adjudication on two counts of misapplication of fiduciary property worth $20,000 to $100,000, and being ordered to pay $20,000 restitution.

Not so, said special prosecutor Bill Turner and Jerry Strickland of the attorney general's staff, which investigated Sutton, who was the lead prosecutor in the five-county Hill Country judicial district for 33 years until his retirement in late 2008.

“Nobody at the state level has tried to influence me in the investigation and prosecution of this matter,” Turner said.

This outcome is almost as surprising as the fact that charges were brought in the first place. It's not as though Sutton is the only prosecutor who has violated asset forfeiture laws. DAs for years have treated asset forfeiture income as their own personal fiefdom but there's historically been nobody out there grading their papers. In this case the central issue was a high-profile trip to Hawaii and the lack of auditing and required approvals for expenditures.

“The law specifically requires that seized funds be audited, maintained in the county depository, and requires commissioner court approval for expenditures for employee expenses,” Turner said. “These safeguards were not in place for funds forfeited in the 198th Judicial District Attorney's Office.”

That lack of accountability paved the way for misuse of the money, he said, noting, “This was a case of bad judgment, as opposed to greed.”

Turner said the six-day Hawaiian stays for bar conferences weren't valid expenditures because work was only conducted on three days, and because Sutton covered the travel costs of workers' spouses.

He also said the state constitution prohibits staff bonuses like those Sutton paid of $500 and $1,000 to 11 subordinates between 2002 and 2008.

No charges are expected against the prosecutors, secretaries, probation officers or spouses who benefited from the improper expenditures.

“The gatekeeper is responsible for the expenditure,” Turner said. “The recipients are not.”

Sutton said he didn't fight the charges because he couldn't afford a trial — which could have cost as much as $50,000 — nor risk being convicted.

Sutton complains that he couldn't afford to take the case to trial so he pled guilty even though he (says he) believes he is innocent. Well, cry me a river! How many defendants in the identical position has Sutton coerced into plea deals, likely patting himself on the back afterward for being such an effective prosecutor? What's good for the goose will do just fine for the gander, thank you very much. Prosecuting over the trip to Hawaii alone might have seemed a little chickenshit, but the bonuses to staff were flat out illegal if they weren't approved by the commissioners court. And he's not the only DA doing that, either.

The best way to solve these problems would be to assign asset forfeiture income to non-law enforcement purposes - in Indiana all seized money goes to schools - so there's no temptation to pad the budget by pursuing forfeitures. Counties want to keep the money saying "we found it," but they also "found" prisoners sent to TDCJ and the state pays all those costs. Why should counties keep income resulting from prosecution but the state pay all the costs of punishment?

Chairman Whitmire's bill didn't go that far, proposing to strengthen controls over the money but leaving it in the hands of law enforcement. Since his legislation came so close to passage in 2009, expect Whitmire to take another crack at forfeiture reform next session, at which time I suspect his committee will be revisiting the details of Mr. Sutton's conviction.

See related Grits posts:

• Tenaha post child for asset forfeiture abuses
  
• Reining in asset forfeiture abuses
  
• DA's overreliance on asset forfeiture violates the law
• Take the profit motive out of asset forfeiture
• Senate committee: Asset forfeiture too often a profit-making venture
• Outgoing Sheriff went on forfeiture-backed spending spree
  
• Asset forfeiture dependent Sheriff views Hwy 77 as 'piggy bank'
• Asset forfeiture funds may get more accountability, money diverted to drug courts
• Levin: Assets seized from criminals shouldn't become political slush fund
• What's the difference between a pirate and a privateer?