Research Corner

Exploring the adverse impact of unfunded mandates for jails

We are currently under several unprecedented unfunded mandates. Our jails are holding unprecedented levels of state and local inmates, and there is no end at sight. Our state mental health system ranks 50th among the states. These major failures of the state to provide for these state priorities are adversely impacting public safety and the ability of county governments to perform the priority duties assigned to counties by law.

Recently, the Association of Arkansas Counties’ Board of Directors respectfully requested the various county officials and justices of the peace to join them, the County Judges Association of Arkansas (CJAA) and the Arkansas Sheriffs Association (ASA) by adopting a resolution to express the adverse impact of the jail overcrowding crisis to their community and to provide a copy to their members of the General Assembly and local press. Approximately 2,528 state inmates are currently being held in county jails. Until the past couple of years, the previous record of inmate backup in the county jails was approximately 1,850.

The sheriffs of Arkansas have determined that our county jails statewide can hold collectively 1,600 inmates and a cap should be set and respected by the state in order to secure public safety. The prolonged unprecedented overcrowding and long-term detention of convicted felons in our local jails creates an unnecessary danger to the public, prison staff and inmates. Many of our county officials, law enforcement officers, prosecutors, district judges and circuit judges see first-hand the revolving door of misdemeanor violators and deterioration of law and order in our communities that has been caused by the unprecedented prolonged back up of state prisoners in our county jails. Protecting Arkansas communities is at issue, and the safety of our citizens should be a funding priority for our state officials.

However, the General Assembly appropriated and funded only about $9 million dollars under category “A” for payment of county jail reimbursement (which at $28 per day for 365 days would pay for only 880 state inmates for the current state fiscal year, FY 2015). Reasonable estimates of the total jail reimbursement necessary for payment to counties for 2,300 state inmates held in county jails for fiscal year FY 2015 would exceed $23 million dollars (July 1, 2014 to June 30, 2015; at $28 per day for 365 days). County jail reimbursement for FY 2015 will far exceed the $9 million dollars appropriated and funded under category “A,” and the state of Arkansas currently owes counties in excess of $6.8 million for county jail reimbursement. This unpaid government debt is increasing by approximately $1.3 million dollars per month.

The continued delay in payment of jail reimbursement until calendar year 2015 creates an unnecessary and severe economic hardship on county governments and local taxpayers. It is well documented that counties are reimbursed only $28 per day for state inmates, which is, on average statewide, $20 per day per prisoner shy of what it actually costs. The most recent average daily cost from Legislative Audit is $49.35 per day. The failure of the state to pay actual costs (even at a $45 a day rate) has inflicted a state-created UNFUNDED MANDATE upon county governments and local taxpayers in excess of $18 million dollars for holding state prisoners. It is vital that the state of Arkansas take responsibility for its inmates and discharge the paramount duty under the Arkansas Constitution and laws of Arkansas to protect the public and provide for the detention of convicted felons.

There is no single tool to address the overcrowding crisis. Some evidence-based tools were initially provided under Act 570 of 2011 in the form of $2.2 million dollars in “performance incentive” grants. These grants to counties were for programs of the county’s choice to reduce recidivism such as: smart sentencing, specialty courts (such as drug court, swift courts, mental health courts or veteran’s courts) or crisis intervention teams, etc. Meetings were held and follow up meetings scheduled but thereafter canceled in fall 2012. However, the money was spent on community correction agency needs. So in the midst of the worst prison and jail-overcrowding crisis in history, the nationally accepted means for reducing prison recidivism enacted by the General Assembly had funding pulled.

Prior to the end of the 2014 fiscal session, state agency officials proposed that the counties should use some of their underfunded county jail reimbursement to contract with out-of-state independent contractors to hold state inmates. Attorney General Opinion No. 2013-058 explains that the state of Arkansas may contract with out-of-state contractors to hold state inmates, but that counties generally do not have that legal authority. We then suggested that the state of Arkansas amend its budget to provide funds for contracting for the detention of state inmates. It’s definitely part of the solution, especially considering that it may take the state of Arkansas three years to build a 1,000-bed prison. We continue to make that plea.

Also, please note that independent contractors can build 1,000bed prisons in a fraction of the three years projected by the state and at a fraction of the $100 million sot projected by the state. These independent contractors hold state prisoners for other states at a fraction of the actual costs per inmate of the Arkansas Department of Corrections, which exceeds $65 dollars a day. It seemed like a good idea for agency officials to suggest to counties a few months ago. Needless to say there is now bureaucratic resistance by state agency officials to use of independent contractors.

Many other states during times of crisis have had to increase

Research Corner

Mark Whitmore AAC Chief Counsel

double bunking and increase their capacities outside preferred or accredited levels. The Bureau of Justice reported that as of December 2013, Arkansas prisons were at 103 percent capacity and other states’ prisons are significantly above their capacity. Yet corrections officials resist taking in more state prisoners into the state prison system — even knowing the adverse impacts on your communities and that they like other states can take in more state prisoners.

Additionally, our county jails are holding approximately 200 parolees awaiting a preliminary hearing or revocation hearing by the board or their designee (that are not covered under the $28 a day jail reimbursement). Over the past year, thousands of parolees without new charges filled our county jails and the time lapse before scheduling and conducting parole hearings has taken months. Under Arkansas law, local jails are to be used for “the custody of persons accused or convicted of crimes.” See: ACA 14-14-802(a). Sheriffs, prosecutors and the courts should not be diverted from their priority duties under the law in order to assist the state in its administrative hearings processes over parolees not arrested under new charges. ACA 16-93-705(a) authorizes a parolee to be detained at a “suitable detention facility” pending an administrative preliminary parole revocation hearing by the board or their designee. ACA 16-93-705(b) explicitly provides if the hearing of“The sheriffs of Arkansas have determined that our county jails statewide can hold colficer finds there is reasonable cause that he has violated a lectively 1,600 inmates and a cap should be set and recondition of parole then the hearing examiner may order the parolee returned to the custody of the Department of spected by the state in order to secure public safety.” Corrections for a revocation hearing before the board. Under a proper action the circuit court in a judicial district may find that absent new charges, the law does not require detaining parolees in the county jail. Also, the court may find a nearby detention facility of the state is a “suitable dentition facility” for state parolees and for remanding a parolee into the custody of the Department of Correction. A county jail at 140 percent capacity is not a suitable detention facility for holding parolees absent new charges.

Finally, Arkansas Constitution, Article 19, §19 mandates: “It shall be the duty of the General Assembly to provide by law for the treatment of the insane.” However, the mental health system in the state of Arkansas ranks 50th among the states, according to National Alliance on Mental Illness (NAMI) in the 2006 and 2009 “Report of America’s Health Care System for Serious Mental Illness.” NAMI determined that Arkansas urgently needed evidence-based practices, crisis services, crisis stabilization units, crisis intervention teams and diversion services like those available in other states. Recently, the General Assembly cut funding for Community Mental Health Centers (CMHC): cuts of $1.9 million as of January 1, 2014 and additional cuts of $7 million as of July 1, 2014. This topic was covered more fully in the article: “How Caring for the ‘Least Among Us’ Is a Matter of Public Safety” in the County Lines, Winter 2014 edition. This is despite the federal cases of Terry v. Hill, 232 F. Supp. 2d 934 (US Dist. E.D. Ark. 2002); and Winters v. Ark. Dept. of Health and Human Services and John Selig, et al., 491 F. 3rd 933 (8th Cir. 2007). In Terry the court found mentally ill pretrial detainees’ due process rights had been violated by the Arkansas Department of Human Services (DHS) and that delay in transfer to the pretrial detainees to the Arkansas State Hospital for evaluation and treatment along with the prolonged wait in confinement violated the U.S. Constitution. The Court attributed the violations to the entire state and to the executive and legislative branches. In Winters the court noted that “no party suggests that jail is an appropriate treatment facility for a mentally ill person” and said “jails should not become our mental hospitals by default.” AAC, ASA and the CJAA have been working with DHS for years now seeking tangible improvement. Cutting funding by almost $9 million in 2014 is clearly not progress. DHS officials initially indicated that the proposed cuts in services would not affect the services to the mentally ill in Arkansas due to the funding and services to be established by Medicaid expansion and the private option. However, Andy Allison, the DHS Medicaid Director at the time, acknowledged in a public meeting earlier this year that it may take years for the funding to establish the necessary services lacking in Arkansas (that they would not be established overnight). Yet, the proposed cuts to CMHCs statewide went forward. DHS officials are scheduled to engage members of the General Assembly in upcoming budget hearings to their plan to provide treatment for the mentally ill. It is imperative that the plan is immediately implemented by the State of Arkansas to fulfill the obligation under Arkansas Constitution, Article 19, §19, “to provide by law for the treatment of the insane.” All persons in the industry should know well that we have an urgent need for services such as inpatient treatment, outpatient treatment, crisis services, crisis stabilization units, crisis intervention teams, diversion and in-jail services (like those available in other states). Please contact your legislators. Help convey the need for them to urgently provide for these priority state services and to prevent further improper use of local facilities and resources paid for by local taxes for state functions.