Kenneth Wayne Reed keeps meticulous records.
He has to. His future absolutely depends on it.
Locked in Maricopa County's Madison Street Jail for the last 18 months on felony charges of aggravated assault and kidnaping, 35-year-old Reed cannot meet the $25,000 bond needed for his release on domestic-violence charges.
Frustrated with the lack of representation by his court-appointed attorney, Reed has become the classic jailhouse lawyer trying to prepare for trial. It's the American way for Reed to be allowed to prepare his defense.
But the Maricopa County Sheriff's Office is doing everything possible to keep Reed from being ready for court.
Under Sheriff Joe Arpaio's watch, jailers are prohibiting Reed from going to the jail's law library. Detention officers are greatly restricting Reed's access to telephones and paralegal assistance. The sheriff even refuses to provide Reed with basic necessities such as pens and paper--despite repeated court orders to deliver the supplies.
But through ingenuity and persistence, Reed is writing concise legal arguments that have won the praise of a Superior Court judge. To keep his case before the court, Reed has turned to barter.
"I've been selling my meals for paper," Reed says.
The sheriff's refusal to follow court orders is nothing new. For 12 years, four different Maricopa County sheriffs have ignored a federal court order to reduce overcrowding and ensure the civil rights of Reed and other prisoners who have not yet gone to trial.
These repressive policies affect a large number of people: more than half of the 4,900 prisoners in the Maricopa County jails who have not yet gone to trial or been sentenced.
"They have all the rights you and I have, except freedom," says Tempe defense attorney Ted Jarvi.
Although prisoners who have not yet been sentenced have more rights than the sentenced population, in Maricopa County, convicts and pretrial prisoners are housed together. They receive the same treatment, and are subject to the same rules. "I say jail should be punishment, period. Once you get those bars slammed on you, you should know you're in jail," Arpaio says. "We take your liberty away from you."
Arpaio's gulag approach to criminal justice appears right at home in a state with a total prison and jail incarceration rate of about 800 persons per 100,000--nearly twice the U.S. average, and more than twice that of South Africa and Russia.
Unfortunately, a repressive approach doesn't appear to reduce crime. Pima County has about the same crime rate as Maricopa County, with half the incarceration rate. Pima County relies heavily on a pretrial program that diverts thousands of nonviolent offenders.
But Sheriff Arpaio is scornful of such softhearted approaches to crime, even though other Maricopa County officials are considering adopting them as part of a wide-ranging plan to reduce jail overcrowding.
Arpaio wants to do just the opposite.
"We don't have jail overcrowding," Arpaio says. "We don't have enough people in jail."
@body:Maricopa County has avoided meeting the requirements of the federal court order for 12 years because no one has consistently held the county's feet to the fire. Violations of federal orders affecting jailed persons who generally are poor don't attract major law firms.
The court order the county has been ignoring dates back to 1977, when Community Legal Services, a nonprofit, farmworker advocacy group, filed a class-action lawsuit in U.S. District Court on behalf of pretrial prisoner Damian Hart against former sheriff Jerry Hill.
Four years later, U.S. District Court Judge Earl Carroll got the county and the plaintiffs to agree to a lengthy consent decree aimed at reducing jail overcrowding and ensuring the constitutional rights of pretrial prisoners.
Carroll also stipulated a series of other conditions, including access to legal assistance and the right to reading and writing materials. Twelve years after the consent decree was signed, the jail system under Arpaio has not only failed to meet key standards, it is stripping away items that had been provided.
Earlier this year, Arpaio began censoring reading materials for pretrial prisoners. Arpaio forbade nude magazines, even though the federal court order clearly states pretrial prisoners are entitled to materials "available to the public at a newsstand" unless "censorship is necessary in order to maintain institutional security."
Arpaio banned the magazines not on security grounds, but for philosophical reasons.
"We took away Playboy, Hustler, all the nude magazines from the jail," he says. "Believe it or not, inmates were able to read nude magazines."
Access to nude magazines is the least of Kenneth Wayne Reed's worries. His case epitomizes the civil rights abuses pretrial prisoners face at the hands of jailers.
After getting the court's permission to represent himself in August 1992, Reed discovered the sheriff's department would not provide adequate legal supplies, even though the court ruled he was an indigent. Between September 1992 and March 1993, Reed managed to get the sheriff's Legal Aid Office to give him a total of 26 sheets of paper, one pencil, one manila envelope and two unstamped legal envelopes. And this was only after repeated court orders, including a warning by Maricopa County Superior Judge Maurice Portley.
Reed persisted with his case, and kept track of every request for supplies, access to paralegal assistance and telephone calls in a detailed log. He filed repeated motions for delay of his criminal trial, because he lacked the proper tools to prepare his defense.
Reed's battle for paper and proper legal assistance has now reached the Arizona Supreme Court. Ironically, when Reed filed his case, the Sheriff's Office was required to make nine copies--which used 5,000 sheets of paper.
"The jail was willing to spend ten reams of paper in support of my petition before the Supreme Court, but it wasn't willing to cough up $15 worth of office supplies, which is why we are in court to begin with," Reed says.
Getting pens and paper is only half of Reed's battle. His more daunting task has been trying to get access to law books, journals and indexes.
Pima County allows direct access to the jail's law library, but Reed and other pretrial prisoners in Maricopa County jails have to make specific requests--including the legal citation--for any document they wish to review. They are forced to do this without any reference materials. The request is given to an inmate, who then gets copies made in the law library.
"I call it the 'poke and hope' method of law. You try it and see if it works, and hope you learn something," says Reed.
@body:But prisoners such as Reed have problems other than office supplies. After the consent decree was signed in 1981, the jail population exploded. With the declaration of war on drugs, the number of prisoners nearly doubled in 1986.
Little legal pressure was placed on the county to reduce overcrowding. The jail population continued to rise at a pace greater than construction of new jails. Finally, in June 1992, Tempe attorney Ted Jarvi asked U.S. District Court Judge Earl Carroll to hold the county in contempt for failing to abide by the consent agreement. Carroll instead ordered Maricopa County supervisors to tour the jail, and directed the county to develop a plan to reduce overcrowding.
The county is slowly developing, and, in some cases, has instituted, reforms aimed at easing overcrowding in the jails. But Maricopa County continues to drag its feet in funding basic programs, such as expanded pretrial services, that have proven to be very effective in reducing jail overcrowding elsewhere, notably in Pima County.
Unlike former sheriff Tom Agnos, who at least acknowledged the jails were in violation of the federal court order, Sheriff Joe Arpaio is making the situation worse. Arpaio's jail-packing proposals will be costly and, critics say, ineffective. Jarvi and others say thousands of nonviolent pretrial detainees could be released and placed in lower-cost programs without endangering the public.
Approximately 300 of the 2,500 pretrial prisoners are considered mentally ill, and should be in other facilities. Hundreds more, in on minor offenses, are simply too poor to pay the bond. Another 10 percent is in on nonviolent offenses and could be released without jeopardizing the safety of the community, prison-reform advocates say.
Removing just 1,000 people from jail until their court dates could slice $10 million annually from the system's $50 million operating budget. It also could make more room for violent offenders.
"The county jail is full of people who are clearly not dangerous, and people who are not threats to society," says Donna Hamm of the prisoner advocacy group Middle Ground.
@body:Sheriff Joe Arpaio gazes wistfully toward the undeveloped desert extending beyond the barbed-wire fence encircling the Estrella Jail complex in west Phoenix, and shares his law enforcement vision for Maricopa County.
"If we had more people in jail," he says, "we would not have the violence, the gangs, the drugs, the auto thefts and the burglaries. I want more people in jail. But I have to make room to put those people in jail."
Arpaio, who likes to revel in his Drug Enforcement Agency exploits, which included putting traffickers in filthy Turkish prisons, is not worried about the lack of jail space. Arpaio believes there is a cheap way to hold the tens of thousands of criminals still walking the streets and dusty back roads of Maricopa County.
Arpaio's solution is to put inmates--20 to 40 at a time--in surplus Army tents. He says he can put 1,000 inmates in his tent jails for only $100,000.
Arpaio's law enforcement utopia is not only inexpensive, it's already here, at least on a small scale.
There are already 800 minimum-security inmates living in tents at the county's Estrella Jail facility, which Arpaio calls the largest tent jail in the history of the country. And it is just the beginning of Arpaio's plan.
Arpaio wants to extend the tent program to include medium-security inmates and a shock-incarceration boot camp. Soon, there could be thousands of county inmates in tents stretching across the desert.
Although Arpaio sold the tent program as a temporary measure to the state fire marshal and county health officials, he now envisions the tents staying forever.
"These tents are going to stay, and it's going to get bigger," he says. How much bigger? "It's up to the police to lock people up, and the judge to put people in jail. I can't control that," he says.
But Arpaio does oversee 492 deputies who have 40,000 unserved criminal warrants sitting in file cabinets, just waiting to be pulled. Given enough tent cities, Arpaio's deputies and his steadily expanding posse (soon to number 2,600) could round up thousands of residents who have outstanding warrants ranging from failure to pay a traffic fine to murder.
Arpaio is clearly excited about the possibility of a grand police sweep. But even he sees there are limits.
"We have good deputies, but they can't lock up everybody," he says.
Whether Arpaio's tent jails pass constitutional muster for prison housing remains to be seen. No case has been filed challenging the system and, so far, the only people placed in the tents are prisoners who have been convicted and sentenced.
@body:Most of the inmates living in the tents are allowed to work jobs during the day, but return to jail at night. Inmates say conditions in the tents can be poor, although some add that living in them beats the heck out of living in one room with 100 other men.
The military tents arrived at the Estrella Jail riddled with holes. But several weeks of patching plugged up the biggest, inmates say.
The 35 tents are erected over six-inch concrete slabs. Two rows of double bunk beds line the walls. Fluorescent lights hang overhead. An evaporative cooler is mounted at one end. Heat is provided by a small electric heater inmates say is worthless.
Outside, eight portable toilets stand ready for use. Inmates have access to a dorm across the rock-lined courtyard, where eight more toilets and showers are available. The dorm also has a television set, tables and chairs.
"This isn't so bad," Arpaio says during a recent tour. "I've even thought about staying here."
He probably wouldn't have enjoyed the recent heavy rains. Inmates say many of the tents leaked, and that water drained down the sides onto the concrete floors.
Inmates also complain of respiratory illness, blaming the cold at night, the lack of heavy blankets and inadequate heating.
Tent inmates are also caught in a Catch-22 when it comes to medical care. The rules and regulations all inmates must sign before entering the tent jail state no health care will be provided. Rich Marshall, the director of Correction Health Services, says inmates are not entitled to health care at the jail's clinic unless they suffer a serious injury at the jail. Marshall says inmates are expected to receive routine medical treatment from their private physicians.
But inmates say detention officers sometimes refuse to allow them to see outside doctors.
Take the case of Frank, an inmate who sought permission to obtain health care from AHCCCS, the state's health plan for the poor. Jailers rejected his request, saying the jail already provides his health care.
"Frank is an inmate of a correctional facility on work release or work furlough whose health care is to be provided by the correctional facility," detention officer R. Duncan wrote on a form denying Frank's access to outside health care.
@body:While Arpaio plans to expand his "In-Tents Jail" program, a mounting body of evidence shows that the massive increase in the nation's prison and jail population has had little impact on crime.
Arizona State University criminal justice professor Dennis Palumbo says Arpaio's call for more jail cells is a political ploy to increase jail funding, which already costs county taxpayers $50 million per year. Palumbo says more jails will have no impact on reducing violent crime.
"The incarceration rate in Arizona has gone up almost 260 percent over the past 12 years, while the crime rate has remained about stable," he says. "Putting all of those people in prison doesn't seem to have done a damn thing."
Maricopa County incarcerates one in 400 persons, while only one in 800 Pima County residents is in the county jail on any given night. Yet Phoenix ranked 39th and Tucson 43rd in the nation in rankings of violent crime, according to an ASU report presented earlier this month at the Arizona Town Hall.
Arpaio's response to Palumbo's criticism is to deflect the question.
"Ask the victims of violent crime if there is enough jail space," Arpaio says.
Arpaio is also quick to dismiss Judge Carroll's concerns about jail population. During a recent tour of the tent jail, Arpaio said the county is in compliance with the consent decree.
"We don't have jail overcrowding now," Arpaio insisted. "We relieved 800 to 1,000 people in jail that were double-bunking by putting them here."
But the sheriff's own numbers show the county remains out of compliance with the federal court order. As of November 5, the county was in violation of the court order by 592 persons at the Madison Street Jail, by 21 at the Towers facility and by 83 at the First Avenue facility.
The county's failure to comply with the consent decree is likely to lead to another showdown. Attorney Ted Jarvi says the lack of progress in reducing overcrowding is forcing the issue back to court.
But Arpaio doesn't appear concerned about constitutional questions that arise from his jail-packing proposals and his flagrant disregard for the rights of pretrial prisoners. In fact, he flaunts his disdain for court orders.
Last spring, after five sentenced prisoners escaped from the recreation yard of the First Avenue Jail, Arpaio closed the recreation area in spite of a court order saying such facilities are required.
"I closed that recreation center right off the bat," he says. "Even though the judge says you have to have it, it's gone."
While Arpaio is moving toward military-style incarceration facilities unseen since World War II Japanese internment camps, the rest of Maricopa County's law enforcement agencies are trying to reduce jail populations by creating a number of programs designed to keep nonviolent arrestees out of jail.
The county's Jail Population Management Group wants to implement programs similar to Pima County's.
@body:The centerpiece of Pima County's jail-reduction program is the Pre-Trial Services Agency. The program, which evolved over 20 years in the face of steady resistance from traditional law enforcement supporters, is now widely considered to be a vital part of the county's criminal-justice system--and receives wide support from jailers and beat cops.
The program represents an approach that makes Sheriff Joe Arpaio cringe. Pre-Trial Services supervisor Kelly Keith's job is to keep people out of jail.
Keith seems to enjoy rattling off a series of questions to Jose Antonio Gallego Jr. on a cool November night, while Tucson police officer Armando Abrams stands nearby.
"Where do you live?"
"Where do you work?"
"Do you have family in town?"
Keith, a tall, attractive woman with a bit of a Texas drawl, quickly puts Gallego at ease. A few minutes earlier, Gallego had been arrested for the first time in his life after fighting with his mother's boyfriend. Instead of going straight to booking and jail on the misdemeanor assault charge, the 18-year-old construction worker is being interviewed by a smiling civilian dressed in jeans and a white sweat shirt. She's trying to learn about his ties to the community.
Keith's job is to determine whether Gallego is a threat to community safety and whether he's likely to show up for his court date. She runs a state and national computer check to see if the young man has any outstanding warrants.
Nothing spits out. Keith and Officer Abrams discuss the details of the arrest. Abrams says Gallego is a "good kid." Keith decides to release Gallego without his posting bail.
"He's a pretty good release risk," Keith says.
But instead of going completely free, Gallego is assigned to the Pima County Pre-Trial Services program. If he misses his court appearance, the program will contact him and urge him to voluntarily go to court. If Gallego ignores the warning, the next time he's arrested, he will automatically go to jail.
"Make sure you follow the release agreement," Keith warns Gallego as he prepares to leave. "I don't want to see you back in here again."
Armed with computers, and ready 24 hours a day to call whomever is necessary to verify information given by the arrested person, the 50 Pre-Trial Services workers exercise authority to release arrestees charged with misdemeanors.
"We have proven you can release a lot of people and not pose a danger to the community and get them back to court," says Kim Holloway, executive director of the Pima County Pre-Trial Services program.
The program is credited with helping keep Pima County's jail population at 1,000. The $1.5 million spent annually on the program repays itself quickly, says Captain John Alese of the Pima County Jail. He points out that the jail population would double in six months if the Pre-Trial Services program were eliminated. With the cost of housing a prisoner averaging $18,250 per year, the county would face an additional $18 million outlay to incarcerate another 1,000 inmates in a secured jail--plus the cost of building such a jail, which averages about $40,000 per cell.
"The Pre-Trial Services program is highly effective and efficient, and does a tremendous service to the community," Alese says.
@body:Things aren't so rosy here.
Maricopa County also has a pretrial services program, but it is only a fraction of the size of Pima County's. Pima County has 16 full-time workers monitoring its supervised-release program; Maricopa County has only three.
"We are grossly understaffed," says Perry Mitchell, who heads up Maricopa County's pretrial services program.
Mitchell is being generous in his assessment. Of the three workers assigned to his agency, two are disabled and cannot physically do the field work necessary to establish a pretrial-supervision program.
Mitchell's requests to hire six additional employees have gone nowhere since they were filed with the County Manager's Office last April. The additional employees would provide intensive supervision of arrestees prior to their trials, and track down defendants who fail to appear in court. The two programs could reduce the jail population by more than 1,500 over a year.
Superior Court Judge Michael Reinstein says a strong pretrial services agency would have a big impact in reducing the number of pretrial prisoners in the county jail.
"But a judge doesn't want to take the risk of putting them in the program, because there isn't any supervision," Reinstein says.
The tug of war between Arpaio's Archie Bunker philosophy of "lock em all up" and Pima County's approach to diverting nonviolent offenders is likely to continue for some time. The turning point likely will come with a new federal court order, perhaps holding Maricopa County in contempt of the 1981 consent decree.
In the meantime, Maricopa County taxpayers continue to pay to incarcerate at least 1,000 nonviolent prisoners at a cost of about $10 million per year. But don't expect Sheriff Arpaio to support any jail-reform program that doesn't include more prisoners.
"I'm in charge of the jail," he says when asked whether he supports efforts to reduce the number of county prisoners. "Jails come under the sheriff.
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