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What Price Incarceration? 

For a quarter century, the state of Louisiana has paid to put prisoners in local jails. That system is beginning to change, and some sheriffs fear the worst.

One night in April 1980, Orleans Parish Criminal Sheriff Charles Foti left 147 state prisoners in the parking lot of Elayn Hunt Correctional Center and became the symbol for a corrections system gone awry. The incident was prompted, he says, by conflicting court orders: one from a district judge ordering him to reduce the numbers of inmates in his jail and the other from a federal judge saying he had to keep them because the state's prisons were too full.

"We had OK'ed it with the warden and were on our way home when the state trooper stopped us and said the federal court ordered me to come back and pick them up," Foti says. "But by that time we couldn't, our caravan was gone and we had been up 24 hours by that time."

U.S. District Judge Frank Polozola relented and allowed the prisoners to stay at Hunt -- but the incident came to crystallize a concern by many sheriffs facing overcrowded jails full of state inmates and no means to pay for them.

Twenty years later things couldn't be more different. Foti now houses more than 2,600 state inmates in the Orleans Parish Prison (OPP) -- only Louisiana State Penitentiary at Angola holds more. And the more than $22 million the department gets from the state to hold the inmates is a critical part of the department's $70 million budget.

"You can beat your head against the wall and wish things were different but you have to deal with reality and this is the way the world is now," Foti says.

That system is now the institution. As of June, 16,397 state prisoners were being housed in parish and local jails, almost 45 percent of the 36,396 total Louisiana Department of Corrections inmate population. No other state even comes close. In fact, Louisiana accounts for almost one-quarter of the inmates being held in local jails throughout the United States. In addition, Louisiana is the only state where state inmates are regularly kept in local jails for their entire sentence. Typically, prisoners with sentences of less than 20 years will be placed in a parish jail.

It works because of simple math. Each parish or local jail is paid $22.39 by the state each day for every DOC prisoner it holds. Parish prisoners, typically those arrested for misdemeanor crimes or those awaiting trial, only draw the minimum $3.50 per day from the local police jury. Every bed filled with a state inmate goes that much further in keeping the budget in line.

But today, massive expansion of state ails and a stabilizing inmate population has suddenly left many local jails with empty beds and unbalanced budgets. Between 1998 and 2002, the number of available beds at parish and local jails has grown by 7,605. Only 4,169 more prisoners have entered in the state system over that same period of time.

"It is the growth rate that is shrinking -- not the total number of inmates," says Louisiana Department of Corrections Secretary Richard Stalder. "The capacity to hold prisoners has grown more rapidly at the local level than demand, and that has created the current surplus."

In New Orleans, OPP holds a total of 7,174 prisoners; currently 37 percent of those -- 2,684 -- are state prisoners. OPP receives $22.30 for each state inmate and $19.65 from the City of New Orleans for any inmate not paid for by the state, the feds or an out-of-state agency. It costs the department more than $30 per day to house a prisoner, according to OPP.

In other parishes, particularly rural ones with recently expanded jails, the crunch has begun. Already at least three parish facilities have been shuttered and plans to construct part of a third have been brought to a halt. In Avoyelles Parish, Sheriff Bill Belt, facing a $300,000 budget shortfall, was forced to lay off 50 employees, cut back on expenses and close the 200-bed Bordelonville Detention Center. In Plaquemines Parish, Sheriff Jeff Hingle has been forced to cut more than $1.2 million out of the budget by laying off more than 30 employees and curtailing car purchases.

"I will admit, we are in a jam right now," Belt says. "There has been a proliferation of jail beds in the state. Everyone built for capacity when they had the budget and now they can't get the prisoners."

In a 2000 audit of the Louisiana corrections system, State Legislative Auditor Dan Kyle raised serious questions about the oversight that was in place to regulate the state/parish system. For fiscal year 2001-02, the DOC paid almost $145 million to fund the keeping of these prisoners -- a full 23 percent of the total budget and a 58 percent increase over the amount paid five years ago.

It's a staggering amount of money that the state has almost no control over when it leaves the department's coffers. "Although this program is appropriated such a large amount of money from the state general fund, there are no comprehensive performance data which reflect the services the state is receiving for its money," Kyle wrote.

In fact, there is no way for the legislature to track the almost $145 million paid by the DOC to sheriffs for housing inmates. Local jails neither track nor report expenses relating to housing state prisoners.

Kyle's concerns about oversight go much further than just finances. Sheriffs are required to house prisoners following the state's Basic Jail Guidelines that set housing and care requirements. Monitoring consists of a committee review every three years. For the most part, the state fire marshal sets the total population allowed in a given facility.

Those guidelines are simply inadequate to meet the needs of the prisoners being held in the system, Kyle found. Among his concerns:

· Screening services to identify the rehabilitative, medical and mental health needs of prisoners were being entirely omitted.

· Rehabilitation services at local jails were either minimal or nonexistent.

· Security at local jails is not as stringent as at state prisons.

· Almost no oversight exists for the DOC to regulate the housing, care and rehabilitation of the prisoners.

But Stalder argues that the Basic Jail Guidelines more than ensure the parish jails are held to as high a standard as possible. "The guidelines clearly define the conditions that the jails have to meet," he says. "And they absolutely have teeth."

Kyle recommended that the state seek a contract with the sheriffs that outlines the specifics of housing state inmates. That contract should stipulate the service a jail would provide, the conditions under which the inmates would be kept, and the manner of payment by the state to the local authority. No action was ever taken.

The story of Louisiana's unique system of incarceration begins in 1971, when inmates at the Louisiana State Penitentiary at Angola filed a lawsuit alleging the conditions in the state's prison was deplorable and inhumane. This led to the entire Louisiana Prison System coming under control of a federal court several years later.

Angola, which at times had housed more than 4,000 prisoners, was restricted to a population of 2,640 with no new prisoners admitted until the number of inmates was reduced. Within a year, local jails were forced to house more than 1,200 extra prisoners the state prison was barred from accepting.

By the early 1980s, new prisons had increased the system's total capacity by more than 4,500 -- but that did little more than keep up with a growing incarceration rate. Between 1975 and 1981, the DOC budget jumped from $25 million to more than $100 million. Its prison population surged from 5,000 to more than 8,000.

While the opening of each new prison cleared thousands of beds in parish jails where state inmates were being held, the cycle inevitably filled jails again within a few years. The relationship between increasingly frustrated sheriffs and the DOC was tense. Foti's leaving of the 147 inmates in the parking lot became a symbol of this standoff.

"It was an evolutionary process in lots of ways," Foti says. "It was very rocky for a number of years. There were lots and lot of fights but the process kept going forward and improving."

For parish jails, the problem was one of funding. In the 1970s, they received $4.50 per day for each state prisoner -- a losing proposition for the sheriffs. By the late 1980s, that number had risen to $18.25 and the sheriff's position on the matter changed dramatically.

"In the beginning they had fought it tooth and nail but at some point the sheriffs were being paid enough to make housing these prisoners worth their while and they started using the lawsuit to their advantage," says Burke Foster, an associate professor of criminal justice at the University of Louisiana at Lafayette. "They began to lobby the legislature to raise the per diem even higher, arguing it was cheaper than building another facility."

The growing number of state inmates in parish jails forced U.S. District Judge Frank Polozola to take control of local jails in 1982 -- an order that essentially formalized the system as policy. "By this time, it had become an alternate universe," Foster says. "What had begun as a stopgap measure had become an institution."

Today, the savings to the state keeps the system alive. Providing $22.39 every day for each state prisoner is cheaper than the $31 per day it costs to keep an inmate in a state institution -- and that's not counting additional expenses needed for day-to-day operations.

But the numbers are dropping. The number of state prisoners held in OPP since 2000 has dropped 5 percent to 2,684. The almost 300 fewer prisoners represents a loss of more than $6,500 per day in state revenue. "If you were in the stock market you would call this a slow-growth period," Foti says. "We are seeing the difference but it's part of the cycle we deal with."

But for many other state jails, housing state prisoners is a way to break even. For sheriff's departments, getting voter approval on a millage to fund a jail is always an iffy proposition. To balance the budget, most rely on a mix of taxes, police jury funding and state inmate proceeds. "A lot of them can't make it on the $22.39 but they have no where else to go to find the funds," says Louisiana Sheriffs' Association Executive Director Bucky Rives.

According to Kyle's 2000 review, the price per day of housing an inmate in local jails ranged between $20 to $35 for most facilities. Many sheriffs, including Foti, say a single figure is unrealistic, citing differences in programs and costs.

In fact, the Sheriff's Association claims the state's per diem is too small. Last year, as the state's economy began to sag, legislators approved reducing the amount paid for each state prisoner from $23 per day to $22.39. (Further reductions are not out of the picture, some legislators say.) That 61-cent decrease hit parish and local jails hard especially when looked at in context, Rives says. The national average per diem is $27.50. In addition, the state pays private prisons almost $43 per day when you add up all the funding sources, Rives says.

In April 1997, better funding and assistance meant conditions at state prisons and jails had improved to the point that Judge Polozola released almost all of the state corrections system -- including local jails -- from federal control. But rather than curtail the practice of keeping state inmates in parish jails, the elimination of court oversight accelerated it.

Without federal limits on how many inmates a parish could house, many sheriffs began increasing the number of beds in their jails, expanding existing facilities and initiating new building projects. Between 1998 and 2002, the total number of beds in parish jails and local facilities surged 30 percent to 35,570. While many of these projects were undertaken to allow housing federal inmates and limit parish prisoner overcrowding, many others were undertaken with the understanding they would be financed by putting state prisoners in the new beds.

Although the DOC noticed the changing trends and altered their contracts with state jails accordingly, many parishes continued jail construction. "It is not now nor ever has it been my business to say a local jail needs to be built or not built," Stalder says.

For parish governments, one major concern is that if the state stops filling the beds, they could end up paying for something they never wanted to buy, says Marvin Lyons, the legislative coordinator for the Police Jury Association of Louisiana. "If the source of revenue is declining, they are going to look for some place to find that money," he says. "If they force the issue and come to us, our options are slim and none."

Typically, law enforcement is financed by local taxes, usually property taxes. With the onset of the state inmate system, many sheriffs began funding their jails with state funds and bonds instead. Now, sheriffs who need to fill beds could at any time begin acting on warrants for minor offenses and fill a jail to capacity. The parish is then obligated to pay for those prisoners. Since the $3.50 per diem is a minimum amount, the sheriff can eventually insist the rate be raised so he can keep the facility running.

Paying for the keeping of local inmates is a mandated expense, so the parishes could be stuck with the tab. "It will be a gigantic problem for us," Lyons says.

It now seems less and less likely the number of prisoners will increase at the rate of years past. In 1998, after years of lagging behind Texas, Louisiana gained the dubious distinction of having the highest incarceration rate in the country. It maintains this lead. Currently there are eight prisoners behind bars for every 1,000 people living in the state. Critics say that the large number of inmates behind bars has done little to offset the state's high crime rate. "At some point we had to ask what is our goal? Is it to maximize incarceration or maximize public safety?" Stalder asks. "Clearly it is to maximize public safety."

A gamut of new sentencing guidelines aimed at limiting the number of people behind bars went into effect last January. The state legislature approved the repeal of mandatory sentencing for many nonviolent crimes, allowed a review of some drug possession cases, and created a new sentence-review mechanism to aid some prisoners seeking probation or parole. In June, the U.S. Supreme Court ruled that illegal aliens couldn't be held indefinitely. Almost a third of the foreign nationals being held by the Immigration and Naturalization Service were released -- including many in Louisiana. The federal government pays almost double the state rate for housing INS prisoners.

The effect of those decisions is being accelerated by a third factor: the total number of beds in local jails has been steadily increasing. By 2006, current construction projects should put the total number of beds available at 39,100. For a system strapped to the limit, that could be a breaking point, experts say.

Several parishes have begun building work-release facilities in an effort to ensure state prisoners will be housed in their jails. But for local sheriffs, work release is only a stopgap measure. Plus, some rural parishes don't have many companies that are able to hire inmates.

Despite the problems, Avoyelles' Sheriff Belt remains optimistic. "It is a cycle," Belt says. "The trick is surviving long enough for it all to come back around."

click to enlarge CHERYL GERBER
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