Douglas County voters sent a message in the August primary by selecting candidates for county offices who opposed a $29 million proposal to expand the local jail. But what happens next is less clear and could have implications for the future of criminal justice in counties across Kansas.
Going into this year’s primary election, a $29 million proposal to expand the Douglas County Jail already appeared to be in doubt, with most candidates for county offices stating their opposition to expansion.
But as the ballots were counted, one race stood out, between incumbent Nancy Thellman and challenger Shannon Reid for the Democratic nomination in the 2nd County Commission District. The tallying of returns on election night brought little clarity.
An initial count found Thellman leading by 117 votes, which dropped to six when all mail-in ballots were counted. After counting the remaining provisional ballots, the outcome flipped, with Reid leading by five votes.
Still, the candidates and the county had to wait another day after Thellman requested a recount. The final tally: Reid, 2,348 votes. Thellman, 2,345 votes. Sara Taliaferro, whose policy platform was nearly identical to Reid’s, received 1,544 votes.
Even though the race was close, “my main takeaway is that over 60% of District 2 voters voted for change,” Reid says.
Reid’s victory, and, more notably, the 12-year incumbent’s defeat, seemed to center on one issue: expanding the Douglas County Jail.
Reid and Taliaferro’s candidacies grew out of opposition to jail expansion, with Reid joining the Justice Ticket – a partnership with two other Democratic candidates for county office based largely on their opposition to jail expansion and a desire to instead fund more social services.
Meanwhile, Thellman had been a proponent of expansion since 2015 due to overcrowding at the jail. When commissioners adopted the jail expansion plan in January, she voted yea, despite the fact that voters had rejected the project in 2018. It wasn’t until early June that she had a change of heart and came out against expansion. The commission as a whole decided to pause the jail expansion project then, too.
“Having a record that was closely aligned with trying to have a right-sized jail for the population we serve was a tremendous hit for me in this campaign,” Thellman says.
Thellman’s loss was perhaps the most notable of four Democratic primary races – for sheriff, district attorney and two commission seats – that reshaped much of the Douglas County government and rewarded candidates who expressed support for criminal justice reform.
Incumbent district attorney Charles Branson lost to Suzanne Valdez, who decried Branson’s attempt to prosecute sexual assault survivors. Sheriff candidate Jay Armbrister, a self-described “Democrat in real life,” bested an opponent endorsed by the retiring Republican sheriff. Shannon Portillo, a Justice Ticket member, beat an opponent with mixed feelings on jail expansion for the right to face Republican Pam McDermott, who won the GOP primary for the County Commission’s 3rd District seat.
“All of the turnover throughout the county is indicative that there is a lot of desire for … systemic change,” Reid says.
Barring write-in campaigns, only Portillo will definitely face a campaigning opponent in the general election. Republican Brett LaRue will be on the ballot against Reid, though he has so far not run a campaign and had no comment on whether that will change for the general election. Like their opponents, McDermott and LaRue oppose expansion of the jail.
With primary winners intent on systemic change, and bipartisan opposition to jail expansion, elected officials will soon have the opportunity to fulfill their campaign promises in regard to criminal justice. If not jail expansion, then what?
THE BUBBLE COULD BURST
With inmate numbers at the jail dropping precipitously compared with pre-coronavirus times, overcrowding at the jail appears, at first glance, like a problem solving itself. In 2019, the average daily population was 219 in a 186-bed facility. But when the functional capacity of the jail dropped to about 150 in response to the coronavirus pandemic, the system adjusted. The jail’s population has rarely exceeded 150 since April, even as coronavirus restrictions were rolled back, and bars and restaurants reopened.
But Armbrister and Mike Brouwer, the criminal justice coordinator, both say overcrowding at the jail remains a problem. Despite the decreased numbers, there is a backlog of cases that haven’t been filed by the district attorney, Brouwer says, in addition to an abnormally low number of bookings — 25% of 2019 levels. Plus, Armbrister thinks that the potential for disaster remains high due to the coronavirus pandemic, with four staff members and two inmates having tested positive for COVID-19 as of late September.
“We see this bubble that could burst at any time, and frankly I’m very surprised it hasn’t yet,” Brouwer says.
But jail expansion, for the first time in years, appears to be off the table. After pausing their efforts to expand the jail in June, on Sept. 23, the current County Commission repealed the resolution that authorized the construction of the jail expansion. Incoming commissioner candidates are not intent on reviving the issue; Portillo, Reid and McDermott all say they too would have rescinded the resolution.
Armbrister, whose predecessor first called for a jail expansion, said he wouldn’t be pursuing expansion, either.
“As far as I’m concerned, it is (dead),” Armbrister says. “I’m not pushing for it to die, and I’m not pushing for it to come back.”
However, the $9 million the county has on hand to pay for the jail expansion was not reallocated from “jail improvements” in the 2021 budget.
SHORT-TERM AND IMMEDIATE ACTIONS
Most of the candidates have several ideas for how to decrease the jail population: speed up case processing, expand the pretrial release program, reduce the number of people who fail to appear at their court dates. The list goes on, but community opponents of jail expansion say it’s difficult to conclude that any particular proposal would be the most impactful for decreasing the jail’s population.
The challenge is complex and adaptive, defies an easy technical solution, and requires understanding of the interplay between different groups with a stake and impact on the jail. The Douglas County Sheriff’s Office and the police departments in Lawrence, Eudora and Baldwin City, as well as the district attorney’s office and the district and municipal court systems all act to influence the size of the jail’s population.
“There’s like six decision makers that are a part of this system that all utilize this jail,” says Brent Hoffman, co-president of Justice Matters, the lead organization in the campaign against jail expansion.
“To identify one stand-alone solution to the question of overcrowding our jail, it’s sort of like talking about one element of a conveyor belt that goes through a series of decision-making points. … All of them need to become aligned with when and how do we utilize our jail in the most just and perfect way.”
To address this, Hoffman has pushed the county since 2015 to work with the Vera Institute of Justice, a national nonprofit that studies the criminal justice system, on a comprehensive analysis of the drivers of Douglas County’s jail population. Hoffman believes the study would bring a data driven approach to understanding how different criminal justice partners – like the court system and district attorney’s office – are working individually and together to impact the jail population, drawing broader conclusions about which points in the system need to be reformed. In recent years, the Vera Institute has even offered to undertake the study for free.
However, the Criminal Justice Coordinating Council, created by the commission to foster collaboration between criminal justice system officials and stakeholders, has not undertaken the study. Thellman pointed out that the county hired its own criminal justice data analyst and conducted other research on the jail’s population.
Even before the Nov. 3 vote, it’s already clear that there are different perspectives about the value of the Vera Institute’s involvement and other policy changes that the new officeholders will have to work through.
Portillo, Reid and McDermott all indicated that they would direct the coordinating council to collaborate with the institute. Armbrister, too, says that he wants the Vera Institute’s study to take place. Though the sheriff’s processing system makes it difficult to share the necessary data, Armbrister said the office is looking for solutions.
Though the sheriff’s processing system makes it difficult to share the necessary data, Armbrister said the office is looking for solutions.
Valdez, the presumptive district attorney, said she would consider the study, but she foresees the coordinating council’s reports playing a central role in her decision-making.
“I’ll give the data to anybody, to Justice Matters or Vera Institute, to anybody,” Valdez says. “… (But) the idea that the Vera Institute needs to drive this, I don’t think is necessarily the case.”
With regard to other major changes, Reid and Portillo, if elected in November, plan to start a conversation with Valdez about recommending own recognizance bonds instead of cash bail to judges in the majority of cases. These bonds allow defendants to go free on a promise to appear in court, as opposed to cash bail, which Reid and Portillo say tends to keep poor defendants in jail while awaiting disposition of their cases. Valdez plans to enter office with a policy of requesting cash bail for violent crimes only, a similar policy to the current district attorney.
“I would like our new DA to consider ending cash bail, as much as she can,” says Portillo, a University of Kansas administrator and associate professor who has studied criminal justice. “We know that that needs to change at the state level, but she can quit requesting bail for folks who are charged in the community.”
Some reform advocates also hope to implement a county public defender’s office, a topic first seriously considered this June as the coordinating council investigated ways to decrease the jail’s population. Defendants in the county are currently represented by private attorneys who voluntarily take cases and are paid by the Kansas State Board of Indigents’ Defense Service.
Having a public defender’s office can speed up case processing, because it creates one entity to oversee all ongoing cases, Brouwer said. He cited the district attorney’s office and court systems reviewing cases weekly as an important method to ensure cases proceed in a timely manner, but said it’s difficult without a criminal defense administrator.
“There’s not a chief public defender that can make decisions across the board,” Brouwer says. “If the district attorney was going to review 10 cases, that might require 10 different defense attorneys.”
But Valdez has said she doesn’t support a public defender’s office, because the current system effectively represents defendants in Douglas County.
However, the final decision to establish an office would lie with the agency currently charged with representing poor defendants. Even if that approval were obtained, funding would have to come from the state, a difficult task in years without a pandemic.
Heather Cessna, executive director of the Board of Indigents’ Defense Service, has told the coordinating council that any such change would not be an immediate solution for the jail’s population. “Even if we were asked today to look into a question of a public defender in Douglas County, we wouldn’t even be able to get to that process and make a request of the Legislature for funding until this time next year.”
In addition to scaling back use of the county jail, most incoming officials believe that investing in mental health and addiction support as well as housing services can act as a long-term solution to decreasing the jail population. But there are differences of opinion over where the money should come from and whether any of it should come at the expense of law enforcement, now a point of debate nationally. Douglas County officials will have to work across those differences, just as jurisdictions elsewhere might.
The current commission has made progress on funding mental health and addiction services, adding about $7 million to those categories since 2016, Thellman says. Additionally, construction is underway on a behavioral health campus, which will provide services and housing for individuals with serious mental illness and substance use disorders.
Still, several incoming elected officials say gaps remain in services the community needs.
Reid says she eventually wants to expand the capacity of the behavioral health campus from about 50 beds. Valdez, Portillo and McDermott all have spoken of the need to expand the county’s specialty courts, such as the drug court and behavioral health court. These can serve as alternatives to incarceration for nonviolent drug offenders and those who suffer from serious mental illness. But the drug court, which began in January 2020, has not yet graduated anyone, and the behavioral health court, begun in January 2017, has graduated 25.
Valdez says she wants to make drug court less punitive, so that if people relapse, they will not be convicted. Right now, a drug court participant must enter a plea of guilty and be convicted to enter the program. If they graduate from the drug court, the plea of guilty is withdrawn; if they exit the drug court, sentencing proceeds.
“We may have people who relapse and do stupid things, and as long as it’s nothing that’s going to affect public safety, we’re going to give those people a break,” Valdez says.
In terms of housing support, Reid and Portillo back “fully funding Douglas County social services working to end homelessness,” according to their shared website. Reid sees transitional housing – shelter for those moving out of emergency shelters or local treatment systems – as a key need. McDermott also has identified increasing affordable housing as a priority.
Armbrister added that a long-term goal of his is a community-supported housing option outside the jail that would allow work release inmates, who currently leave jail to go to jobs, to live there. This would also free up a 40-bed dormitory-style space in jail allocated for work release.
“If someone’s been good enough and can go out on work release, they can move into this facility and work in and out of there,” Armbrister says “I just don’t want to see them in the jail anymore.”
But how can the county pay for new investments like these? Incoming elected officials disagree. Reid says she is considering reallocating funds from the Sheriff’s Office and District Attorney’s Office to social services, the concept behind the “defund the police” slogan.
Portillo wasn’t ready to say the county needs to take money from any particular office, though she thinks there should be a conversation about the budget for the Sheriff’s Office. McDermott says she has “no thought that defunding the police is something that should be on the table in any way at this time.” Meanwhile, Valdez and Armbrister are onboard with unloading some responsibilities from law enforcement by increasing social services, but don’t believe that the funding should come from either of their departments.
“The problem is that 87% of my budget is going to be personnel,” Armbrister says.
Reid’s response? “Ultimately if the amount of people in the jail is driven down, then the amount of personnel for that facility is driven down as well,” she says.
IS DOUGLAS COUNTY LEADING THE WAY ON CRIMINAL JUSTICE?
Douglas County is not alone in its search for a solution to jail overcrowding. B. Cole Presley, president of the Kansas Sheriffs’ Association and the sheriff of Graham County, says that most sheriffs in the state feel pressure regarding their jails’ populations. For larger counties, it’s a space issue, and for rural counties, many jails are growing older and need infrastructure updates, he says.
“Statewide, sheriffs are always having a conversation about the capabilities their jails have, and it will almost always feel like we’re behind,” Presley says.
But Presley says that some of Douglas County’s efforts – from releasing inmates when the pandemic began to funding a county behavioral health center – were some of the first he’d heard of a county taking such serious steps to reduce its jail’s population. He says that mental health is a pressing issue sheriffs contend with across the state, but many see jail expansion as a solution to be implemented side by side with substance abuse and mental health resources. Douglas County, with its decision to pause jail expansion and focus on alternatives to incarceration instead, is unique, Presley added.
“I am not aware of any other counties moving in this direction,” Presley wrote in an emailed response to a follow-up question. “I’m pretty sure that they are the first to attempt it.”
At least one other county, though, is prioritizing treatment of substance abuse and mental health issues over jail expansion: Sedgwick County, according to Sheriff Jeff Easter, who also acts as the Kansas Sheriffs’ Association’s legislative liaison. But they’re a few steps behind Douglas County in implementing some of the same ideas. For example, each county toured the same mental wellness and homeless shelter campus in San Antonio as an inspiration for their own behavioral health campuses; however, Douglas County toured in 2015, while Sedgwick toured in 2018.
“They’re doing the same stuff we’re doing down here, so they’re being a leader in this change,” Easter says. “It’s a change from ‘Arrest everybody and throw them in jail,’ to ‘We got a bunch of other options.’”
But for some in Douglas County, the years-long battle they fought against jail expansion is proof enough that the county is not moving fast enough.
“It’s hard to agree that these are leaders in the criminal justice system,” Hoffman says. “Douglas County planned to break ground on their jail expansion project in early May 2020. I firmly believe that the project would have gone ahead without interruption had it not been for a citizens lawsuit, a pandemic, and the George Floyd tragedy. I don’t think that’s leadership.”
A version of this article appears in the Fall 2020 issue of The Journal, a publication of the Kansas Leadership Center. To learn more about KLC, visit http://kansasleadershipcenter.org. Order your copy of the magazine at the KLC Store or subscribe to the print edition.
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