Billion-Dollar Bad Guys

The county's jails are crammed full. But not with the dangerous felons backers of an initiative to raise money for new jails would have you believe.

"No turning around, ladies," says a beefy detention officer to the seven women slumped in plastic chairs.

Behind them, 30 disheveled, sleepy men file into a bleak chamber hidden in the bowels of Madison Street Jail. They fall into rows of more plastic chairs, then all stand briefly as Commissioner George Bonsall enters the makeshift courtroom.

It's the 3 p.m. session of Initial Appearance court. Three dozen county citizens arrested within the past 24 hours are about to find out if they'll go home or stay in jail until time for their trials. Four times a day, every day, the court processes dozens of prisoners; more than 120,000 get hauled into the county's lockup each year.

Today there is a steady procession of the poor, the venal, the stupid. All but six have been arrested on nonviolent offenses. Some have violated probation orders. Others have failed to pay fines on traffic tickets. Fourteen have been busted for possession of illegal drugs for use or sale. Some, it seems clear, are habitual petty criminals, and have failed to appear on previous charges or have defied court orders repeatedly.

Bonsall sets relatively modest bail amounts for several. Few, however, appear able to pay them.

Robert Franklin, a balding man who looks to be in his 40s, steps up as the commissioner reads the facts of his case.

He's been arrested for failing to appear for his trial on driving with a suspended license. Franklin leans closer. He whips his head back and forth, as if there is something stuck in his ear that he can't get out. Twice, he asks Bonsall to speak up and repeat himself.

Bonsall wants to know why Franklin didn't show up in court when he was supposed to. Franklin leans back and shakes his head in a fluster. "My mind was a blank," he says, sounding as if that is his general condition.

Bonsall sets his bail at $500.
Like Franklin, 27 of the prisoners end up staying in jail; only nine are released by Bonsall on this day. The rest join thousands of other pretrial detainees in crowded cells; 7,000 inmates are now crammed into facilities designed for 5,300. Seventy percent of those have not been convicted of a crime, but are simply awaiting trial.

In November, voters in Maricopa County will be asked to approve nearly $1 billion in new taxes for new jails and other improvements. If they don't, proponents warn, the county will have to release dangerous prisoners.

"It is a straight, uncomplicated issue," Board of Supervisors Chairwoman Jan Brewer said in June. "Do we want these thugs in jail, or do we want them in our neighborhoods?"

In the weeks before the election, the proponents of the tax will promote a frightening image of a system so jammed full with violent offenders, adding a new inmate will require letting another go free. Add a thug, spring a thug.

Thugs like Robert Franklin.
From judges to the board of supervisors to Sheriff Joe Arpaio, the voices of the county's political and justice leaders have united to convince voters that new jails are the best solution to overcrowding. The 1U5-cent increase in the sales tax would raise as much as $900 million over the next nine years. With that money, the county plans to renovate existing jails, make needed changes to the way cases and inmates move through the justice system, and build new jails both downtown and at the Durango complex.

Voters' pamphlets explaining Propositions 400 and 401 contain 14 arguments in favor of the tax. There are none against.

This fall's political campaign is likely to be as one-sided. Citizens for a New Jail will soon have raised more than $200,000 for the upcoming campaign, says co-chairman Tom Irvine.

Tax opponents, however, have yet to organize. They will have to bring together an unlikely coalition of activists who traditionally oppose any tax increase and those who oppose new jails for other, very different reasons.

Normally, convincing Maricopa County voters not to raise their own taxes would not be too difficult. But Arizona State University criminal justice professor Dennis Palumbo knows that the tax proponents have an advantage because most voters have had little contact with, or understanding of, the county's jails. Palumbo opposes the tax and is a leading critic of Arizona's sky-high incarceration rate.

He cites two recent studies that disclosed surprising information about the county jails:

* Short-time, nonviolent offenders make up the vast majority of the jails' population.

* Two-thirds of sentenced inmates, many of whom reside in Tent City, are in jail on misdemeanors, not for violent crimes or even felonies.

* Crowding has resulted from a marked increase in the number of pretrial detainees as well as increases in the length of their stays as courts take more time to sift through cases.

* The county's pretrial services division, which is supposed to oversee nonviolent offenders so they won't take up jail space, is woefully understaffed.

Five years ago, Arpaio, who was a new sheriff with a new Tent City, scoffed at notions that prisoners should be diverted from jail. "We don't have jail overcrowding," he told New Times. "We don't have enough people in jail."

Maricopa County's jails are bursting. Rather than reconsider housing so many nonviolent, victimless offenders, however, the county will attempt to convince voters that it needs state-of-the-art, maximum-security jails at up to $90,000 per bed.

But if Arpaio promotes an image of himself as warden for a sort of county penitentiary filled with violent offenders, the recent jail studies reveal instead that his jails are revolving doors for the hapless and indigent caught in a vicious cycle of fines, fees and failures to appear.

Says attorney Bruce Feder, who has defended indigent clients in city court, many of whom could not pay the smallest bond amounts, "We have to decide if we really need to pay $40 a day to house someone because they can't pay a $30 bond on a $20 original ticket."

You wouldn't know it from the numbers of people being prosecuted in Maricopa County, but for several years crime has fallen at a growing rate in the United States.

Violent crime tumbled 5 percent in 1997, according to preliminary statistics released in May by the FBI. Murders in particular are dropping dramatically, down 9 percent for the second year in a row. Some experts cite the aging of the nation for the downturn, others point to community policing and other law enforcement changes.

Crime in the western United States fell at a slower rate, 3 percent, but murders dropped even more precipitously, at 11 percent.

In Phoenix, meanwhile, despite a 3 percent increase in population, all four categories of violent crime--murder, rape, robbery and aggravated assault--fell by 1 percent in 1997.

Jail tax proponents, however, continually cite the increase in Maricopa County's population to explain why jails are woefully overcrowded.

More people means more criminals, goes the logic. When new residents move in, government has to expand. Like new schools needed for the growing number of children, more jail beds are necessary for the multiplying number of lawbreakers.

However, county records suggest that the jail's population boom may have little to do with the numbers of people moving to the Valley.

For the past five years--since Joe Arpaio became sheriff in 1993--the jail population has increased at more than twice the county's growth rate. While the county's population rose 3 to 4 percent each year, the jail population has grown at about 10 percent per year. The year before Arpaio took office, the jail population actually went down.

No one, however, blames Arpaio for that increase.
Judges, defense attorneys, prosecutors and even Arpaio's own office point out that the sheriff has little to do with how many people are sent to jail and for how long. Credit instead should go to the large increase in uniformed police officers that has put about 1,000 more cops on the street in the past five years, says presiding Superior Court Judge Robert Myers.

Myers also says court dockets are jammed because of a marked increase in the number of felony filings coming out of County Attorney Rick Romley's office. In 1995, Romley submitted 16,000 felony charges. This year, he's on a pace to file 24,000--a 50 percent hike in only three years.

"We consider each and every case individually," says Romley spokesman Bill FitzGerald. "If we think there's a danger to the community or risk of flight, we ask for an appropriate bond."

Myers thinks the increase is because of a combination of factors. Each new police officer, he notes, makes about 11 new felony cases a year. And most of the new cases represent an upswell of drug arrests.

"The increase in police officers, the increase in population, the transient nature of our population, the easy accessibility to handguns in Maricopa County, the easy access to drugs in Arizona, I think all contribute," he says.

Despite the overall fall in violent crime, more officers means more arrests--and a greater number of petty offenders as well as serious offenders going to jail.

A year ago, the county hired a team of consultants to research jail crowding and come up with recommendations for the future.

The $458,000 study, headed by RNL Design, found that two major factors are crowding the jails: a sharp increase in the number of pretrial detainees--people put in jail to await trial--as well as a steady increase in the length of time inmates spend in jail.

The study also found that the majority of inmates are held for nonviolent crimes, and that most stay in jail only a day or two.

In June 1997, the study found, the single largest category of prisoners leaving the jail were pretrial detainees charged with misdemeanors; nearly all of them had served a day or less.

In all categories--pretrial and sentenced, misdemeanors and felonies--86 percent of inmates released that month had served two weeks or less. The average stay for all inmates is 20.9 days.

Although Arpaio says he needs the new jails for violent offenders, it's the short-time, nonviolent offenders who are taking the most space in his jails.

The more those prisoners can be diverted to alternatives other than jail, and the more rapidly the cases of those prisoners can be adjudicated, the more space will be left for violent offenders, the consultants told the county.

The consultants delivered 11 recommendations to solve overcrowding. Only the 11th mentioned building new jails. The other 10 suggested ways to reform the system to streamline and speed up cases.

Maricopa County is far behind other counties when it comes to pretrial services--a program that identifies and monitors low-risk defendants before their trials rather than locking them up.

The consultants lauded Pima County as a success in diverting defendants from jail. Only 6 percent of the defendants screened by the department were arrested on new charges before their trials, which Kim Holloway, the county's pretrial services executive director, characterizes as a very good number. The county's consultants agree.

Maricopa County, three times Pima's size, also has a pretrial services department, but with only 44 employees, fewer than the 48 employees in Pima County's program. Counties the size of Maricopa, the consultants pointed out, typically have pretrial services departments with 100 or more employees. They recommmended that 32 new people be hired as soon as possible.

Similarly, the consultants' other suggestions were aimed at reducing the jail population by making the jails and courts more efficient. They suggested:

* That the county create an integrated criminal justice information system that would allow various branches of the courts and jails complex to share data. Cost: $20 million to $25 million.

* That 23 Justice Courts in 19 locations be consolidated in four regional centers, and the southeast county criminal divisions be moved downtown, to reduce the cost of transporting inmates. Cost: $5.4 million.

* That the courts eliminate unnecessary proceedings and create more efficient ways to differentiate and manage cases.

* That pretrial services begin electronic monitoring of some inmates. Cost: $783,400.

* That the bail matrix, which courts use to determine bail amounts, be updated. Cost: $150,000.

* That the county provide more programs for substance abusers and modify its drug court, making it available to more defendants.

Together, these steps would cost the county $33 million, but, the consultants wrote, would result in far larger savings.

But it's the 11th recommendation that the November election is really about. New jails will eventually be needed, the consultants concluded, because of the rapid population growth in Maricopa County.

They proposed that the county build 5,507 new beds over the next 15 years, at a cost of $1.4 billion. But the Legislature capped the sales tax at $900 million, so the county will instead build 3,000 adult beds and 388 juvenile beds if voters approve the initiative. Most of the money--about 72 percent--will be required to operate the jails once they have been built.

Tom Irvine, chairman of a citizens advisory committee that reviewed the consultants' report, says he is determined that new jails won't be built without the other improvements. "It was the programs I was interested in," he says. "The programs, they're the most important part."

Irvine insists that the combination of new jails and new programs will make the sales-tax hike a good bargain.

On November 18, 1997, the citizens committee adopted nearly all of the consultants' suggestions and forwarded them to the board of supervisors. This summer, the Legislature allowed the county to put the tax on the November ballot.

If it passes, construction on a new downtown jail near the present Madison Street Jail could begin in about a year.

Not everyone, however, shares Irvine's optimism.
Barbara Cerepanya was also on the citizens committee, which, she believes, was not as independent as it should have been.

Cerepanya, an attorney appointed by Supervisor Mary Rose Wilcox to the committee, has served on other citizens advisory boards. She complains that the county employees were assigned to serve the advisory committee, suggesting that the committee was working for the county, not separately from it.

Irvine himself was an odd choice for chairman of an independent citizens committee, Cerepanya says, pointing out that as an attorney who works for the county's stadium district, Irvine seemed to have a conflict of interest.

Irvine says he made it clear at the committee's meeting that he had the dual role, and that no one raised an objection.

"It was clear to me that we were supposed to come to one conclusion, and that was that the county needed a new jail," Cerepanya charges.

Arpaio in particular made this overt, she says. At an early meeting, Cerepanya remembers the sheriff telling the committee that its job was a simple one: to figure out how big the new jail should be and then how to pay for it. His comments are recorded in the committee's minutes.

Cerepanya says the county's interest in the jail became even more evident after a peculiar incident--the strange case of the canceled meeting.

The committee was supposed to meet with the consultants. But county staffers canceled the meeting and gave no reason.

Then, Cerepanya says, she received a phone call from one of the consultants who told her the meeting was still on, but that Irvine, the committee chairman, was the only member still going.

Cerepanya and fellow committee members Jim Stapley, William Holohan and Meyer Turken surprised county employees by showing up at the supposedly canceled meeting.

"You should have seen the look on [county employee] Trina Belanger's face, like a heart attack. We just sat down and acted like we were supposed to be there and asked for copies of things. And they acted like it was no big deal and that they hadn't tried to fuck us," Cerepanya says.

Cerepanya suspects that county employees wanted to meet with consultants to make sure the county's desires would be reflected in plans before they were put forward to the committee. Unlike Cerepanya, other members were wholeheartedly behind the new jails. But none of them, she says, liked to think they were being duped by the county.

Member Meyer Turken, while he was unhappy that the county had pulled a "power play," downplays the incident's importance. "That's little bitty stuff," he says.

"There was no secret meeting," Irvine says, adding that the original meeting had been canceled by the consultants themselves because they weren't ready to present their findings to the committee members. He says all but Cerepanya considered it a "tempest in a teapot."

But consultant Karen Chinn disagrees with Irvine and backs up Cerepanya's version. The county had canceled the meeting so its staffers could convene with the consultants and get a preview of what they would tell the committee, she says.

Later, all but one committee member signed a memo written by Cerepanya and addressed to chairman Irvine complaining about their treatment.

No mention of the memo was made in the committee's final report to the county.

And a dissenting, minority report submitted by Cerepanya also is not included in the materials the county hands out as the official work of the committee.

Cerepanya prepared her minority report with the help of ASU professor Peg Bortner, who testified to the committee that its recommendations for new juvenile detention facilities, in particular, were misguided.

"Four poorly advertised and poorly attended meetings were the token gesture of public input. At every turn, however, the powers that be within the system were permitted unlimited access to the committee. They used this access to attempt to manipulate the committee's opinion in order to protect and expand existing turf," Cerepanya wrote. "We were told repeatedly that there would never be the political will to fund treatment alternatives for children, so the only option was to build the cells. The citizens committee voted to build 500 juvenile beds because they believed there was no other choice."

The consultants recommended that the county develop 350 new beds to meet the need of an increasing juvenile-offender population. An additional 150 juveniles, the consultants reasoned, could be diverted to alternative programs, such as residential treatment centers. Several private providers said at the committee's meetings that they could provide space for those juveniles, and at a much lower cost than building new county juvenile beds.

The citizens committee, however, decided that building 500 beds was a better idea. They were swayed, Irvine says, by a convincing presentation by Judge John Foreman, who at that time was presiding judge of the county's juvenile courts.

Foreman tells New Timesthat, with the current 277 beds at two detention centers filled to overcapacity, the county courts can't pursue creative programs to rehabilitate salvageable kids.

"And the court is good at it, dammit. I am so frustrated that we can do such a good job if we just have the resources," he says.

Unlike adult jails, the juvenile detention beds could be used in a less rigid manner. "In the juvenile courts, you need to move very, very quickly," Foreman says. The additional 388 beds the new tax could bring, he says, could give judges creative alternatives to probation or the state juvenile corrections system. A quick 48 hours in a detention center, for example, could make the difference in the life of a juvenile on a bad path.

ASU's Bortner objects to the judge's plan to hold a juvenile in a locked facility as a form of treatment. She notes that the county's consultants had proposed building beds for detention, meaning a repository for offenders awaiting disposition of their cases. That disposition, in most cases, has meant probation, community-based treatments, or assignment to the state's juvenile corrections division. (Violent or chronic juveniles, since the passage of Proposition 102 in 1996, are automatically transferred to adult court.)

"It sounds like he's talking about creating their own prison--talking about using them for whatever they want--which is a tremendous expansion," says ASU's Bortner. "So now we're saying that the norm will be treatment delivered in a locked facility [as opposed to in-community group homes or other facilities]. The only way to get treatment is to be locked up."

Foreman stresses, however, that juvenile detention beds are not like adult jails. "Detention is not jail. It does take away freedom. But it is a taking away of freedom with positive purposes."

Not everyone in detention is an offender, he points out. The new beds will also give the county more room for the littlest children who are held to keep them away from abusive parents.

Bortner is not convinced. She says locking up nonviolent juveniles should be a last resort. But the county has opted for "the most expensive [up to $150,000 per bed], the most restrictive, the most punitive, the most stigmatizing facilities."

"You can't build your way out of a crowding crisis," says Larry Mays, a New Mexico State University professor who studies the country's jails.

"We can control the population coming in or control the population going out. And hopefully, the thing we could do best is reduce recidivism," he says. "So many of these people keep coming back, time after time, doing life on the installment plan." Building new jails, he adds, doesn't cut down that flow of inmates into the system, which should be the real goal of government.

Arpaio had claimed that his plan to pack the jails and make them places of punishment--rather than simply detention centers for people awaiting trial--would do just that. Arpaio would make the jails so miserable, inmates wouldn't want to come back, so they'd stop committing crime.

Arpaio was confident that his policies--rotten food, no cigarettes, pink underwear for men--were having a measurable effect on inmate recidivism. So last year he hired ASU professors John Hepburn and Marie Griffin to study the return rate.

In March, Hepburn and Griffin released their report. Arpaio's stringent programs had no measurable effect on inmate recidivism. Inmates were coming back with the same frequency as prisoners who had served in years before Arpaio's tenure.

"We concluded that the additional hardships don't really register any additional deterrent effect," Hepburn says. "For most prisoners, their concerns are the same we find elsewhere, that is for privacy and simply being incarcerated."

After a brief splash of publicity, however, the county has done nothing with the Hepburn-Griffin report.

That's too bad, because the document also provided a detailed look at the population of sentenced inmates in the jail, who make up about 30 percent of all prisoners. About two thirds of them are serving sentences for misdemeanors.

The Hepburn-Griffin study reported startling data about how many prisoners return to jail time and again. "More than 85 percent of these offenders had at least one arrest prior to the arrest that resulted in their sentence to the Maricopa County jail," the professors wrote.

"A lot of people expect to be back," Hepburn tells New Times. "They're driving on a suspended license. They choose to do that rather than get another job or take a bus. Or they haven't paid a fee and they say they won't be able to pay it when they get out."

So the jails stay crowded, filled with people caught in a pathetic cycle of fines and misdemeanors.

ASU professor Dennis Palumbo questions whether it's worth a billion dollars to spread that net wider.

"Arizona is the sixth highest in the nation in its incarceration rate. . . . It's the rate that's the problem," he says. At more than 800 people incarcerated per 100,000, Arizona's incarceration rate is almost twice the national average and more than twice the rate of South Africa and Russia.

"What a number of people have said about this billion-dollar bill the taxpayers will be stuck with--if they're dumb enough to vote for it--is that if you build it, they will come," Palumbo says. "No sooner will those jails be built than they'll be filled up and we're going to need more.

"It's a never-ending escalator, and you'd hope that one of these days taxpayers would get wise. Unfortunately, voters simply do not understand what is going on. They assume that most of the people in the jail and prison are violent, nasty, sexual and other kinds of predators who are out there to get you and kill you, when that is not the situation."

Neither of the studies into the nature of his jails has apparently persuaded Arpaio to change his policies. Despite the Hepburn-Griffin study's conclusions that his hardships have had no measurable effect on recidivism, Arpaio has not done away with any of them. In fact, seeming to forget that he had commissioned and paid for the study, Arpaio dismissed it as a nuisance when it didn't produce the results he wanted.

Arpaio shows similar disregard for the conclusions drawn by the county's paid consultants, who stressed that before any new jails are built, the county should hire 139 new detention officers.

"No new beds should be added to the jail system in the future without the . . . allocation of staff to properly supervise the increased inmate capacity," they reported.

Grossly understaffed jails add to county liability, the consultants noted, singling out the chain gangs as a particularly bad waste of personnel: "Eight detention officers are assigned to the chain gangs to supervise a total of 60 inmates. Considering that one detention officer supervises between 100 and 132 inmates in dormitories at Estrella, it is clear that the chain gangs are not the best utilization of staff. . . . It is recommended that this program be suspended until there is adequate staffing inside the jails."

Arpaio's office, however, says that, for sure, is one suggestion he'll ignore.

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