Jail overcrowding: Committee makes proposals for remedy

Jails and prisons are overcrowded but for different reasons.

Prisons are post-adjudicative, meaning you go there after a conviction to serve your sentence. And prisons are overcrowded because new prison construction -- which is a state obligation -- did not keep pace with the public's outrage at repeat offenders, parole eligible sentences and what was widely viewed as a turnstile corrections system.

Legislatures passed tougher sentences for violent crimes, passed mandatory minimum sentences for drug offenses and reduced parole eligibility. The result was a marked and consistent decrease in the crime rate because, in what can only be called logic, the people committing criminal offenses were now in prison.

But those same legislatures were loath to spend tax dollars on new prison construction. Consequently, the number of people serving sentences in state prisons outpaced the bed space, and overcrowding ensued.

Jail overcrowding is a different animal altogether. Jails are locally controlled entities which (1) house defendants awaiting trial, (2) house inmates serving short prison sentences (fewer than 90 days in South Carolina) and (3) house inmates serving sentences for violating local, as opposed to state, laws.

Jails are paid for and run by local governments using local funds, whereas prisons are paid for and run by state funds. One way of looking at our local jail is to acknowledge that someone awaiting trial for capital murder is housed at the same facility, under the same conditions, as someone awaiting trial for writing a worthless check.

Recently, Spartanburg County Council asked me to look into overcrowding at our local jail. And, along with an eclectic group of fellow citizens, we spent four months studying ways to avoid spending more local taxpayer monies on new jail construction.

The results were surprising. In short, the committee found additional construction is unavoidable because the number of people out of jail awaiting trial is eight times higher than the number of people in jail awaiting trial. Many of the people out of jail, on bond, pose significant threats to societal safety.

Having said that, the committee was equally convinced that we need a paradigm shift in how we deal with the criminal justice system. Lastly, the committee made both general and specific recommendations, keeping public safety and fiscal responsibility as its twin objectives.

Before suggesting solutions, we have to be certain we understand the problem, and that means evaluating who is in the local jail and why. Essentially, there are eight categories of people housed in Spartanburg County's jail:

(1) Persons awaiting trial on General Sessions offenses;

(2) Persons held on bench warrants for failure to show for court;

(3) Persons awaiting trial on Magistrate Court offenses;

(4) Persons awaiting General Sessions Court on probation violations;

(5) Federal inmates awaiting trial in Federal Court;

(6) Persons serving sentences related to Family Court;

(7) Persons serving General Sessions sentences of fewer than 90 days;

(8) Persons serving Magistrate Court or Municipal Court sentences.

The next step in the process is to see whether any of these categories can effectively be dealt with in a less restrictive environment. The answer is yes. So we then move to the process by which we evaluate who can be housed in a less restrictive environment.

The committee recommended a "threat assessment," which is a review of the charge or sentence, a review of the criminal history of the person, consideration of whether weapons were involved or whether the person likely has access to weapons, employment and family support, among other factors. Predicting who is going to re-offend and how is -- at best -- an inexact science. And local government cannot abandon the process because of an aberration.

The jail overcrowding committee made the following recommendations:

(1) Locate or construct lower security housing for inmates or defendants who do not pose a threat to public safety. Imagine an abandoned hotel and a passkey system where defendants have to report at night but work or attend school during the day. Electronic monitoring can guarantee they are where they purport to be, and voice identification can ensure they do not get surrogates to check in for them. All of this technology is already available.

(2) Expanded use of electronic monitoring and Global Positioning Surveillance (GPS) wherein authorities can either actively or passively monitor both pre-trial defendants and those actually serving their local jail sentence. GPS allows authorities to tell historically where a person has been that day and in some instances where they are currently.

(3) Expanded use of Drug Court and Mental Health Court. Drug abuse or drug trafficking accounts for nearly 80 percent of the crime in Spartanburg. We spend billions of dollars a year nationally trying to reduce the supply and a fraction of that trying to reduce the demand. Having prosecuted drug cases in both state and federal courts for a decade, I remain firmly convinced that we will never effectively reduce the supply. The profit margins are too high, the risks too acceptable and the demand too prevalent. While society has not and is not likely to embrace the decriminalization of drugs (nor has it proven to work in countries that practice it), getting users off of drugs does work. In fact, it is really the only long-term solution for crime that I can envision.

These are but three of the more than 20 recommendations made with respect to our local jail. It is important to remember, however, that for every person who can safely be released via one of the three recommendations referenced here, there is a person out on bond currently who needs to be in jail awaiting trial.

Recently the attorney general asked the 7th Circuit to prosecute a case from Lexington County, where the defendant had been housed in a local jail for more than 10 years awaiting trial. We do not have that problem in Spartanburg or Cherokee counties, but the way to ensure that we never approach that problem is to continue to support the case management system (CMS).

The CMS aspires to move criminal cases within 180 days. The system is new, having just begun in 2005, but it is the best way to eliminate long-term jail stays for inmates awaiting trial. If judges are to be expected to deny bonds or set higher bonds for defendants charged with crimes, prosecutors and defense attorneys have to be committed to getting those cases to trial quicker. The longer an inmate sits in jail awaiting trial, the more likely a judge is to revisit the bond and lower it.

While it's healthy and productive to examine parts of our local system, eventually we will need to re-evaluate our national penal system and ask whether a system based on modified isolation can ever be fully effective. Penal systems are classified in four general theories: retribution, rehabilitation, restitution and isolation.

America's system of "isolation" does not really isolate inmates at all, and it's questionable whether the system involves any meaningful, constructive punishment. Prisoners spend as much time socializing with comrades in crime as they do reflecting, alone, on the misdeeds that brought them there. Prisons allow for visits from the outside, including conjugal visits, as well as the pleasant diversions of television, telephone and sports.

If we're to have a system built on isolation, it should be true isolation. True isolation, as described by philosopher Michael Foucault, is a defendant "alone in his cell ... handed over to himself, in the silence of his passions and of the world that surrounds him, he descends into his conscience, he questions it and feels awakening within him the moral feeling that never entirely perishes in the heart of man." Perhaps the public could accept shorter periods of incarceration for some crimes in exchange for a prison system that truly isolates inmates.

On the issue of retribution, modern society believes itself too sophisticated for the gallows and wheels that defined punishment in previous centuries. My grandmother not only physically switched me but in addition -- in a practice that would most assuredly be found "cruel and unusual" by our U.S. Supreme Court -- made me go select the accoutrement of torture myself and carry the switch back to her before she used it against me. But her way worked, much as touching a hot stove or skateboarding down a flight of stairs works to modify behavior. Punishment could well take the form of rigorous physical labor, which is good for the offender and society.

The real, overarching reason prisons are overcrowded is a moral one. How can you possibly teach people what is legal when you cannot make reference to what is right or moral or good. Prisons and jails are overcrowded because too many people commit crimes, and the social stigma once attached to criminal activity is vanishing.

While we should search for alternatives to building new, expensive prisons and jails to house offenders, we should never forget that the best alternative to prison is to live an ordered, lawful life, which will only occur when people practice personal responsibility and accountability.

Trey Gowdy of Spartanburg is solicitor for the 7th Judicial Circuit, which comprises Spartanburg and Cherokee counties.