Research Corner

PROGRESS FROM THE 90TH REGULAR SESSION Management of jail and prison overcrowding, public safety and criminal justice and parole reform

On Monday Feb. 9, 2015, Gov. Asa Hutchinson addressed the County Judges Association of Arkansas. He declared the overcrowding of inmates in the local county jails and detention centers to be an urgent problem, and he vowed the state will become a better partner in paying its just debts to counties for county jail reimbursement. The following week, on Feb. 18, 2015, the Governor announced his plan to reform the criminal justice system, enhance public safety and reduce prison overcrowding. The Governor noted that 2,500 state prisoners were in county jails waiting for state prison beds to become available. He noted that the state’s prison population was approximately 18,000 — and growing annually by 17 percent, one of the largest growth rates in the nation. He also explained that the rate of recidivism in Arkansas of 43 percent indicates that about 4,300 parolees are likely to return to the state prisons. The Governor announced a plan seeking a balanced solution: to reduce the rate of repeat offenders, increase public safety and spend criminal justice and correction funds effectively, on evidenced based solutions.

It is well documented that the county jail back up has caused overcrowding at unprecedented high levels for almost two years. The Governor and the General Assembly have formulated a plan, as outlined below, for addressing overcrowding. However, it is now clear that there needs to be additional immediate temporary relief. As of May 27, the number of state inmates backed up in county jails was reported as 2,970. Even with anticipated early release of more than 400 inmates under the emergency powers act, which has been utilized more often than not, and the implementation of the Governor’s plan, over the next six months, there simply are not enough local jail and state prison beds in Arkansas to hold the tens of thousands of local pretrial detainees and postconviction state and local inmates. Absent immediate relief in addition to the Governor’s plan, the levels of overcrowding will stay in excess of 2,500 for yet another year and may likely go over 3,400 in the months ahead. It would be prudent for you and your constituents to continue to seek for the continuing overcrowding crisis to be addressed under a special session. Why should the state and local taxpayer have to wait for the fiscal session in 2016 for this prolong/continuing public safety crisis?

The formation of the Governor’s plan was assisted greatly by the efforts of the General Assembly, State Agencies, Judiciary and Joint Budget Committees, during the interim (prior to the 2015 regular session). Legislators and corrections officials visited neighboring states, toured corrections facilities and examined corrections costs and nationally proven tools for combating recidivism. They also conducted public committee meetings on the tools absent in Arkansas and necessary to construct a comprehensive plan to reform our criminal justice and parole system. This General Assembly avoided the mistakes of the past; it funded these priority public safety needs.

To address overcrowding, the Governor’s plan calls for adding 790 beds at various facilities, including contracting for 288 beds in Bowie County, Texas. In addition, the plan would add 48 beds at the Pine Bluff Work Center; add 178 beds at the Ester Unit in Pine Bluff, formerly known as the Diagnostic Unit; add 28 beds at the Tucker Unit; add 48 beds at the Ouachita River Unit in Malvern; and procure 200 beds that the state would establish by contracting with various counties. These methods of addressing overcrowding were in lieu of spending approximately $100 million — One Hundred Million Dollars — for a new state prison to hold approximately 1,000 inmates.

The plan also includes hiring 52 new probation and parole officers, support staff and substance abuse treatment managers and proposes spending $5.5 million to create the state’s first transitional re-entry centers, where offenders who are within 18 months of release could learn work skills and prepare to reenter society. Five hundred offenders could be transferred to the facilities, easing overcrowding in state prisons. It was fortuitous that the General Assembly in 2013, adopted SB1095 (sponsored by Sen. Joyce Elliott; Rep. Fred Love), Act 1190 of 2013, to direct the establishment of a viable reentry program in Arkansas. HB1264, Act 1075 of 2015, provides for the newly established reentry program that will remove 500 eligible parolees from the state prisons and place them in supervised housing for purposes of equipping them to reenter society and the job market. An innovative pilot program contracts to fulfill a grant from the Arkansas Economic Development Commission of $830,000 to demolish 600 houses creating blight in Pine Bluff. Proper funding for probation and parole officers has been needed for years, and the 90th General Assembly fully funded these necessary systemic reforms.

The Governor’s plan also included an increase of $2 per day for state inmates, and his budget increases the county jail reimbursement funding from $16.4 million to $27.8 million for FY 2016 and FY 2017. HB1316, Act 287, provides a transfer from surplus of $6 million for supplemental appropriation along with $1.1 million from the Governor’s rainy day fund to the Department of Corrections and Community Corrections for payment of sums owed for this state fiscal year (FY2015). The state currently owes counties approximately $6.4 million. The Governor’s recommendation and the appropriations of the General Assembly for the Department of Correction in HB1223, Act 1071, reflects appropriation of $40 million

RESEARCH CORNER

Mark Whitmore AAC Chief Counsel

and funding of approximately $27.8 million for the next two state fiscal years.

Also, the Governor supported and the General Assembly adopted the legislation offered by the Arkansas Sheriffs Association (ASA) and the Association of Counties (AAC) to assure that the state is a better partner. SB329 (sponsored by Sen. Hickey; Rep. Wright), Act 1201, directs the Department of Corrections and Community Corrections to pay reimbursement for county jail back up monthly and has an effective date of Oct. 1, 2015. Under the act, after the proper documentation is verified, county jail back up will be paid monthly (without awaiting the transfer of the inmate to the state or release of the inmate). There was also progress on other operations between corrections and the counties. HB1374 (sponsored by Rep. Wright, Sen. Caldwell), Act 1171, allows the sheriff to transport state inmates to the nearest facility of the Department of Corrections or Community Corrections (under prior law the sheriffs had to transport inmates all over the state to particular facilities as directed by state corrections officials). HB1371 (sponsored by Rep. Wright, Sen. Caldwell), Act 1239, provides for parole revocation hearings to be scheduled in seven days after arrest and conducted within 14 days after arrest. Act 1239 also provides that unless the sheriff agrees to hold parolees without new charges or new convictions in a local jail, such parolees may be ordered to be taken by a parole officer to a facility of the Department of Corrections or Community Corrections for detention (not our local county jails). This reaffirms that local jails are for persons accused awaiting access to the courts or convicted of crimes, ACA 1414-802(a), not for parolees with their parole revoked and to be returned by law to custody of the state. HB1543 (sponsored by Rep. Micah Neal), Act 946, deletes the 30-day gap between conviction of a state inmate and acceptance of responsibility for inmate medical expenses. The Act mandates the state to be obligated for inmate medical expenses for a state inmate upon receipt of a correct sentencing documentation. Throughout the session the sponsors of these bills worked with General Assembly.

SB472, sponsored by Sen. Jeremy Hutchinson, now Act 895 of 2015, is the centerpiece of legislation to reform the criminal justice system, enhance public safety and to reduce prison overcrowding. The Act provides for a litany of reforms, some of which are: residential burglary will be defined as a violent crime for purposes of detaining the inmate longer without parole; the Department of Human Services (DHS) shall allow an inmate to apply for Medicaid online 45 days before being released; incarceration will result in suspension from Medicaid/private option (previously incarceration resulted in revocation of Medicaid); establishes a specialty court program (drug courts, mental health, veteran’s courts; DWI, juvenile drug court; hope court; smart court, etc.); fees from defendants to assist in funding for specialty courts and public defenders; bad behavior/activities time during incarceration will be added to considerations for parole eligibility; parolee/probationer will be subject to warrantless search by parole or law enforcement officers; parolees or

probationers nearing release shall be referred to limited mental health or substance abuse treatment, or both, when part of court order, supervision plan or treatment plan. One feature of the act is to implement “pay for success” grants to judicial districts that will provide payment for intervention services if evidence-based practice shows to reduce recidivism rates. The Governor’s plan invests $2.8 million ($100,000 dollars per judicial district) in grants for drug treatment courts and other alternative sentencing programs for non-violent offenders to be divided equally by statewide by judicial district. Under Act 895 the Parole Board shall be subject to experience requirements. Also, the General Assembly shall review actions and records of the Parole Board, including use of intermediate sanctions to assure the use of the grid (not solely use of revocation of parole) and proper release for nonviolent felons with light sentences under electronic monitoring. Act 895 is a comprehensive approach at reform. The AAC, ASA and CJAA will stay engaged in the implementation of reforms. Each county and judicial district needs to take an active role in the criminal justice system. The notion of legislators throwing money into an ever-growing prison system, at the estimated cost of $100 million for a new state prison every few years, has been determined by the Governor and the General Assembly as inefficient use of tax dollars. Section 14 of Act 895 provides for fairness for counties, the state and the taxpayers. Many hospitals and Act 895 of 2015 is the centerpiece of legislation to reform the criminal justice system, enhance public safety and to reduce prison overcrowding. medical providers in Arkansas and the United States seek reimbursement for inmate medical expenses based upon costs or the established Medicaid rate. However, in the absence of an agreement or a law (such as Section 14 of Act 895 of 2015) some hospitals and medical providers have billed counties or local governments for sums far in excess of the costs for services or the Medicaid rate. Section 14 of Act 895 provides that a local jail or detention facility shall not be charged for the provision of medical services and treatment to an inmate in excess of the Medicaid reimbursement rate for the same or similar charges. Counties can’t afford or budget for exorbitant inmate medical expenses. The Governor and 90th General Assembly tackled a wide range of issues concerning the provision and costs of medical services in Arkansas. The protections under Section 14 of Act 895 from a cap based on costs will assist several counties greatly in budgeting and payment of inmate medical based upon costs or the Medicaid rate. We owe a debt of gratitude to the Governor and 90th General Assembly for addressing this important issue. Also, we would not have this law in Arkansas today if not for Sandy Horton, director of the Kansas Sheriffs Association. He traveled to Arkansas and to various states to assist in passing laws providing for a cap on costs. The ASA and CJAA will address the implementation of these changes in our upcoming conferences. The “Telemedicine Act,” SB133 (sponsored by Sen. Cecile See “REFORM” on Page 18 >>>

REFORM

Bledsoe and Rep. Deborah Ferguson), Act 887, adopted major changes in Arkansas on the conveyance of medicine to rural constituents. Telemedicine is an efficient tool for addressing shortages of doctors and specialists in rural areas. Act 887 establishes the proper professional use of telemedicine and professional standards, provides for reimbursement for telemedicine by Medicaid and for doctors by insurance, encourages use in Arkansas hospitals and defines the location of telemedicine. The advent of telemedicine in Arkansas should enhance access of rural Arkansans to physician specialists, psychiatrists and behavioral health professionals. Clearly, telemedicine will play a major role in the efforts to improve health care and treatment for mental illness in rural Arkansas.

County government, non-profits and other stakeholders also are finding ways to improve their communities and public safety. For example, in Fort Smith, the Old Fort Homeless coalition is creating a homeless campus shelter to assist the homeless to return to the mainstream of society. The shelter will offer consolidation of an array of services from Mercy Hospital, Western Arkansas Counseling and Guidance Center and the Crisis Intervention Center, etc. The services will include medical, dental, behavioral and counseling health care, job training, education, food and shelter. This will be made possible by grants and private donations along with collaboration by non-profit nongovernmental organizations and public/governmental entities. The homeless population is comprised by a large percentage of veterans, victims of domestic abuse and the severely mentally ill.

A group known as Judicial Equality for Mental Illness (JEMI), which is comprised of county judges, law enforcement, prosecutors and medical providers, was formed in Benton and Washington counties. JEMI worked with legislators for SB148 (sponsored by Sen. Jon Woods, Sen. Uvalde Lindsey and Rep. David Whitaker), which was folded into SB472 and made part of Act 895 (summarized above), and provides for a new drug court fee that should help provide some funding for new treatment centers that some drug offenders or the mentally ill may qualify for rather than jail. The goal is to assist these folks to be productive members of society. The publication by the National Association of Counties (NACo), “Crisis Care Services for Counties: Preventing Individuals with Mental Illness from Entering Local Corrections Systems,” provides a study of 16 community solutions, numerous publications and studies showing the positive impact and cost efficiency of these efforts. As noted above, Act 895 also authorized assignment to drug or behavioral treatment as a condition of parole or probation.

The Governor and General Assembly adopted SB96 (sponsored by Sen. Jim Hendren and Rep. Joe Farrer), Act 46, “The Arkansas Health Care Reform Act of 2015,” to establish a legislative task force and to transform the Arkansas Medicaid Program with innovative and cost effective solutions for provision of health care services. We need to be sure the conveyance of health care, and behavioral health in Arkansas does not forsake those with mental illness. We should not and can no longer afford to use our criminal justice, jail and prison system for warehousing the mentally ill in Arkansas. We desperately need regional crisis stabilization units and diversion of those with drug abuse or mental illness into treatment. We will continue to work with DHS, state corrections and parole officials, the General Assembly and the Governor to address the ranking of Arkansas as the 50th among states in treatment of the mentally ill. By addressing health care, behavioral health, criminal justice and parole issues in a comprehensive manner, we have a potential to build on the progress made from the 90th Regular Session of the General Assembly.

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On the Web:

Look for NACo’s “Crisis Care Services for Counties: Preventing Individuals with Mental Illness from Entering Local Corrections Systems” publication online at www.arcounties.org

Search “Crisis Care.”

FOIA

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the records from seeking judicial review of the custodian’s decision or the decision of the Attorney General.”

Alternative Procedure Available for Litigation: The redaction process is a lot of work. If the person making the FOIA request is an attorney and the request is made as a part of a pending lawsuit, an alternative procedure would be to use a confidentiality agreement between legal counsel (which can be an oral agreement) whereby the requesting attorney would be permitted to look at the entire (unredacted) file and identify what he or she wants a copy of, agreeing that he or she would not release any information until there was an agreement with respect to the information he wanted to copy. Then, if a “privacy” dispute arose, it could be brought before the judge before any information was released to third parties or used by the requesting attorney in any way.

AACRMF Counties: This is complicated. If your county is a member of the AAC’s Risk Management Fund, just call for help. For AACRMF members, there is NO COST for employment advice before the matter becomes a contested proceeding (county grievance hearing, EEOC charge or lawsuit). The AACRMF will help you through the process of answering an FOIA Request for personnel records.

Mike Rainwater, a regular contributor to County Lines and lead attorney for AAC Risk Management, is principal shareholder of Rainwater, Holt, and Sexton, P.A., a state-wide personal injury and disability law firm. Mr. Rainwater has been a lawyer for over 30 years, is a former deputy prosecuting attorney, and has defended city and county officials for over 25 years.