Reformers have targeted a long list of players in the justice system as critical for reducing incarcerated populations, ranging from prosecutors and police, to judges and correctional chiefs.
But what about jailers?
A forthcoming paper argues that the potential of sheriffs and county commissioners for changing the dynamics of mass incarceration has often been overlooked.
The author of the paper, Aaron Littman, a Binder Clinical Teaching Fellow at UCLA School of Law, says that the administrators of the country’s estimated 3,000 jail systems have “tremendous but unrecognized” power in determining both “supply and demand” in the criminal justice system—but only a relatively small number have exercised it in the interests of reducing incarcerated populations.
“Obscuring the role (sheriffs and local jail authorities) play in weighing the costs and benefits of incarceration allows them to focus on their own institutional and political priorities and avoid responsibility for the harms their jails cause,” wrote Littman, who previously served as a staff attorney in the impact litigation unit of the Southern Center for Human Rights.
The most productive way to engage jailers in justice reform is to treat and regulate modern jail administration as a “public enterprise,” he argued.
His recommendations come at a time when jails house roughly a quarter of the 2.3 million U.S. incarcerated population, including those awaiting trial or who have been convicted of minor offenses.
Jails have been called the “next frontier” of justice reform—and perhaps the most complicated. Jail populations have tripled since the 1970s, with much of the growth coming in rural jails—leading to a crisis of overcrowding.
One of the largest drivers of jail growth has been the opioid epidemic, since in the absence of sufficient local providers, jails often are the only facilities providing mental health or substance-abuse treatment.
There are roughly 745,000 people housed at any given time in the nation’s jails, the majority of them operated by county governments, under the supervision of a local sheriff.
Littman, drawing on existing research that includes evidence of jail expansion plans around the country, suggested that jail populations are driven as much by local politics and economics as crime rates—and that jail administrators’ control over “supply and demand” is a crucial but often unrecognized factor in reform.
On the demand side, “as the supervisors of patrol deputies, [jailers] can deprioritize high-volume, low-level crimes, and order the use of the citations in lieu of arrest in many cases,” Littman wrote.
On the supply side, jailers can stop proposing to build new jails, and instead work to decrease the current jail population by reevaluating nonviolent offenders’ situations.
Moreover, as trusted colleagues of police chiefs, DAs and judges, “they can push for shifts to reduce the number of people entering their jails and the duration of their stays,” Littman wrote.
Some sheriffs and jail administrators, however, underplay their influence.
Littman cited the example of a jail commissioner at a hearing called to discuss expanding a local jail who refused to answer a resident’s question about reducing the number of detained individuals, responding instead that the best he could do would be to “pray that the beds wouldn’t fill” in the new, larger jail.
This is not how officers of the law should be handling incarceration, Littman argued.
In contrast, he pointed to examples of sheriffs who were actively engaged in reducing jail numbers.
In Canyon County, Idaho, for instance, staff at the overcrowded jail “work daily with prosecutors, defenders, and judiciary to identify inmates who can be released early due to overcrowding.”
In Sangamon County, Ill., the sheriff assembled a council comprising judges, states attorneys, and sheriff’s office staff to address jail overcrowding. The council’s aim is agree on which pretrial detainees can be safely released on their own recognizance.
Littman found other examples of reform-minded sheriffs in Sebastian County, Ark.; Fremont County, Wyoming; and in Houston and San Antonio, Tx.
Sheriffs are often the most powerful figures in local communities. Most are re-elected multiple times, for lack of opposition, thereby amassing huge local influence even as they are “insulated from accountability.”
The average tenure of a sheriff in the U.S. is 11 years, but some stay in office for as long as half a century. They enjoy an “incumbency advantage” that exceeds other locally elected officials and even members of Congress, and “they are also almost always white,” Littman wrote.
As the examples above show, sheriffs, along with county commissioners, can play a much larger role in justice reform if they are willing to, Littman claimed.
“Despite their disclaimers of responsibility, sheriffs and county commissioners are policymakers – not functionaries – with the power to increase and decrease the number of people behind bars,” he wrote.
“Jailing has become a public enterprise, its growth driven at least as much by political economy as it is by public safety, and should be regulated as such. “
The paper can be accessed here.
Andrea Cipriano is a staff writer for TCR.