Jail overcrowding: Overzealous mentality fuels problem

The criminal justice system in America is an adversary process. Police and prosecutors have a vested interest in gaining confessions, solving crimes, making arrests and putting people in jail. Crime victims, the media, interest groups and voters demand these actions. This results in what Supreme Court Justice Robert Jackson called the "often competitive enterprise of ferreting out crime."

The bar for obtaining an arrest warrant is low. The standard is probable cause and arises from a presentation made without input from the person to be arrested. The most precious right we have as citizens when charged with a crime is a trial by jury. Yet, once a citizen is jailed on a criminal charge without a reasonable bail, he is, for most purposes, already convicted. The presumption of innocence isn't much consolation when wearing an orange jumpsuit day after day.

There are few tools in the prosecutor's toolbox as effective as the bench warrant or the excessively high bond. I call this the "pop-up timer" approach to criminal justice. The criminal defendant sits and sits in jail, just as a turkey roasts in an oven. Like the holiday bird, the defendant can't get out, so he simply roasts.

The prosecutor knows that one day, sooner or later, his pop-up timer will pop, and everyone will know he's "done." By done, I mean he will plead guilty to something or anything to get out of jail. For the prosecution, this avoids the stressful and often difficult burden of proving the charge to a jury beyond a reasonable doubt.

I will be the first to admit that there are crimes so serious or have been repeated so often that public safety demands the jailing of a person until trial. There are also occasions where the connections of the defendant are so slight with this state that there is little chance the person would return for trial if released, however, in my experience, such cases are few and far between.

So how do we decide these matters? The answer is simple, and it's already in place. The answer is judges who are neutral referees in the adversary system. The answer is judges who consider the public interest and individual rights. The answer is judges who, day after day and on a case-by-case basis, balance these two competing interests in order to set a reasonable bond with reasonable conditions.

Is there a problem of jail overcrowding in this county? Well, I, for one, have never seen a "no vacancy" sign at any of our jail locations. I understand that there are administrative and financial pressures, but I have never even suspected that a judge gave consideration to them in setting a bond.

I have done an informal review of some statistics. Before 1994, when this county had only one jail facility, the average daily inmate population for the Spartanburg County jail never exceeded 300 inmates. The new jail on California Avenue was opened in July 1994. Within only one month, inmates had to be transferred back to the two existing older facilities because the capacity of the new facility had already been exceeded. By March 2004, the average daily inmate population was more than 700 inmates.

The increase of more than 100 percent in the average daily inmate population compares with a population increase for the whole county from 1990 to July 2004 of just less than 12 percent.

To what can we attribute such disparate increases in the jail population and the general population? My suggestion is that it's the "lock 'em up and throw away the key" approach to criminal justice and social problems that seems to grow with each well-meaning but entirely clueless session of the General Assembly. Every year, new crimes are created. In the 1990s and 2000s, potential sentences have grown longer, and the portions of those sentences a person has to actually serve have increased radically.

The awesome penalties faced make it difficult for everyone to resolve cases short of trials, which, in turn, clog the court system and pack our jail cells.

So what do we do here in this county about the problem? First, what we don't do is build more jail space. The cost is too great. In addition to the initial capital outlay for construction, there will be increased costs of staffing and utilities. My prediction is that any new space will be filled before it's completed and that our resources are better spent looking for other solutions.

We've always had the option of inmates bonding out of jail. The current bail system is effective in ensuring that defendants return for court. The problem is that the system requires money for bondsmen's fees, or the willingness and ability to pledge substantial tracts of unencumbered real estate for the defendant's return.

Recently a system of house arrest with electronic monitoring has become available in the county. This system also works well for those who can pay for it. To be released under this system, a person must "make" the bond and then pay for the monitoring process. Both of these systems leave those who are poor in jail. In a fair system, culpability and punishment should not be based on either income or lack of family resources.

My proposal is that a Pretrial Services Office be established under the authority of the jail. This office would handle General Sessions level cases. It would function similarly to its federal counterpart, which is supervised under the U.S. Probation Office.

The Pretrial Services Office would monitor the location and status of persons awaiting trial. It would be empowered to administer drug testing and seek warrants for violations of pretrial status. This office could maintain historical information about whether a person is a good candidate for bond and on what terms. Hopefully, the office would be a source of independent and candid information for a judge setting bond.

Such an office would be a significant undertaking in manpower and money, however, it would be far less expensive than building and staffing new jail space.

Andy Johnston is a Spartanburg County defense attorney.