'Not everyone has to come to jail': COVID-19 changes could lead to sweeping transformation
"If we can help people change their behavior in the community versus in a jail or prison setting, that's the goal"
By Emily Hamer
The Wisconsin State Journal
MADISON, Wis. — James Morgan was watching his wife open a present on Christmas Eve last year when they heard a knock at the front door.
A police officer had come to arrest him for allegedly failing to charge his GPS tracking device, causing his location to drop for about 30 minutes. Morgan, who was out on parole for a sexual assault conviction from 1983, said he had charged it and that the device must have malfunctioned, a well-documented problem with Wisconsin's GPS monitoring program.
But because of orders from the Department of Corrections, the officer said he had no choice but to bring Morgan to jail, where he spent four days over the Christmas holiday.
"The impact was — wow, how do I describe that? Saying it was traumatic was not enough," Morgan said. "It didn't just impact me. It impacted my wife, my daughter, my grandkids, people in my agency, my employer. It impacted a lot of people."
It was also a bit of an exception. To prevent the spread of COVID-19, Dane County dramatically reduced its jail population last year. Arrests dropped, fewer people sat in jail because they couldn't afford bail and the Wisconsin Department of Corrections sent fewer people to jail for breaking a probation or parole rule.
Although prompted by a public health crisis, the relaxed rules on who got sent to jail for what looked like many of the changes advocates for the incarcerated have long been seeking.
"What we saw at the beginning of the pandemic was this amount of collaboration and innovation within the criminal justice system that we had never seen before," Dane County Board Chair Analiese Eicher said.
Linda Ketcham, executive director of local social justice nonprofit JustDane, was skeptical the innovations would stick.
"I would lean toward thinking that we'll just see the (jail) population go back up," Ketcham said. "The actions that were taken weren't necessarily taken as reforms. They were taken because of the pandemic, and they weren't really driven by any real, sincere vision of reform."
Dane County Sheriff Kalvin Barrett acknowledged that some of the transformations "may not be sustainable moving forward."
Some changes, such as the closing of the Dane County Courthouse during much of the pandemic, cannot be continued. But others, including new practices in corrections and policing, could prevent the jail population from surging back into the 800s and 900s.
The population remained relatively low on Thursday at 632. But now that the courts have reopened, more people are being sentenced to jail. Over the next few months, the criminal justice system will face some big questions: Will the pandemic-era changes be enough to offset that influx? And will policymakers remain committed to change or will the opportunity for a long-term jail reduction slip away?
"I'm a public defender, so I'm an optimist," said Catherine Dorl, Dane County attorney manager in the state Public Defender's Office. "I do believe that we can sustain this change."
Four main groups make up the jail population on any given day: those being held on cash bail, people suspected of breaking a condition of their probation or parole, those serving a sentence locally, and people waiting to be sent to a state or federal prison to serve out a sentence.
From March 16 to April 1, 2020, at the start of the pandemic, the group that accounted for the largest drop in the jail population was those being held on bail as they awaited trial. As judges reduced bail amounts or released people, that group dropped from 209 to 117 — a 44% reduction.
Over the same period, two other groups also shrunk: Those with probation or parole holds dropped 35%, while the number of locally sentenced inmates fell 16%.
In just over two weeks, the total jail population dropped by 239 inmates, from 827 to 588.
Later in the pandemic, as inmates finished serving their sentences and fewer cases were getting resolved, the primary driver of the decreased jail population became the stalled courts.
"The jail population, it's kind of like a rain barrel. There's a flow coming in, and there's a flow going out," Dane County Clerk of Courts Carlo Esqueda said. During the pandemic, he said, the flow going in "all but stopped."
From April 1, 2020, to Dec. 2, the locally sentenced population fell more than half, from 220 to 104.
At the same time, the pretrial population and inmates being held on probation and parole holds ticked back up, but not quite to pre-pandemic levels. The number of people held on bail increased 24%, and the number with holds rose 12%.
That has some criminal justice officials worried.
"There's going to be an overabundance of people coming to jail because ... there are hundreds of felony criminal trials coming," former Dane County Sheriff Dave Mahoney said in March. "My greatest fear is we're going to have a jail overpopulation."
After being suspended since March 2020 along with other in-person proceedings, jury trials resumed in Dane County on June 1.
Only about 2% of cases go to trial in a normal year, Esqueda said, but having one on the calendar pushes prosecutors and the defense to make a plea deal. Otherwise, "there's no incentive to come to those negotiations," he said.
The number of criminal cases disposed dropped dramatically last year, from 6,651 in 2019 to 4,390 in 2020, Esqueda said.
Now that cases are progressing, Dane County Circuit Court Judge Nicholas McNamara predicted the jail population will rise, but slowly. Judges have to take the most urgent cases — the serious, violent felonies — first, so trials for low-level misdemeanors probably won't happen for many months, he said.
Even then, McNamara wondered whether the population will reach pre-pandemic levels. Jail time might not make sense for nonviolent offenders who have been out in the community for more than a year waiting for their case to be resolved, he said.
"Let's imagine a guy that's been out of jail on bond for 18 months or more, and he says, 'OK, find me guilty,'" McNamara said. "Do we say, 'OK, do another 18 months of probation,' when that's essentially what he's been doing? When (he's) been living in the community for 18 months with no problem?"
McNamara said he and other judges likely will give defendants credit for good behavior, which could lead to more lenient sentences and less jail time, although he said he won't "pre-decide" cases.
Generally, those in jail because of a suspected probation or parole violation have to stay while the DOC investigates. After that's complete, probation or parole agents can release people, connect them with programming, impose up to 90 days of jail time or send them back to prison.
During the pandemic, agents sent fewer people to jail when they were facing a minor violation, released more people while the investigation was pending and investigated more quickly because of new guidance, said Lance Wiersma, administrator for DOC's Division of Community Corrections.
Morgan, for instance, was released when the DOC's offices opened back up the Monday after Christmas and given a new ankle monitor Jan. 11. The department maintains that Morgan failed to charge the device and said the replacement was a routine update.
John Givens, 74, a support coordinator at JustDane, said it's encouraging that agents were "more lax" and released people within days or weeks instead of months.
"Knowing that there could be a high likelihood of a transmission of the coronavirus in a jail setting, we really wanted to do whatever we could to help reduce populations across the state," Wiersma said.
Marking a major shift for the DOC, the department formalized the new policies in January. For those who break a rule or commit nonviolent misdemeanors, agents are to focus on addressing violations in "the least responsive" way, such as an intervention program instead of jail, Wiersma said. That's a change that will continue.
"If we can help people change their behavior in the community versus in a jail or prison setting, that's the goal," Wiersma said. "As long as we can do that safely."
Throughout the pandemic, Madison Assistant Police Chief John Patterson said officers have been directed to consider issuing citations in situations that may have previously resulted in an arrest, such as disorderly conduct, theft, battery or property damage.
"That certainly can continue." Patterson said.
Other changes included focusing traffic enforcement on hazardous driving, taking resident complaints by phone to limit police contacts, and not responding to graffiti complaints.
Morgan, who is also a member of JustDane's inmate reentry team, noted there were also fewer opportunities to commit crimes during the spring when businesses were shut down and people weren't out in public because of stay-at-home orders.
From April to December 2020, Madison police made 4,446 arrests, a 32% decrease from the 6,557 made over the same period in 2019.
That undoubtedly helped decrease the jail's pretrial population, but it's unclear by how much.
"It's a little premature for us to know for certain which thing had the greatest impact," Dane County District Attorney Ismael Ozanne said.
Holding court sessions online could have also cut the pretrial population by making it easier for people to appear and reducing warrants for their arrest, Ozanne said.
Bail's effect unclear
Although less concrete, a heightened focus on cash bail also likely cut the number of people in jail awaiting trial.
Free the 350 Bail Fund, which bailed out many local inmates during the pandemic, said in May 2020 "the only acceptable response" to COVID-19 was releasing people. The group called for the release of everyone held on bail, as well as all Black people and those over age 50.
Starting in mid-March 2020, Mahoney said, Sheriff's Office staff and court commissioners reviewed everyone on cash bail to find defendants who could be released without posing a significant public safety risk.
Dorl said she and other public defenders were "relentless in filing bail motions" to get cash bail lowered or get people released without cash.
"I think we were trying to do everything we could to minimize the jail population, even more than normal," said Dane County Court Commissioner Jason Hanson, who makes bail decisions.
But Hanson said he wanted to "push back a little" on the idea that he and other court commissioners changed how they make decisions.
Hanson said a court commissioner's job is to look at the totality of circumstances. He said the pandemic was a factor in his rulings — he considered the health risks of going to jail and that cases were stuck — but COVID-19 was never the "sole reason" for a bail decision.
"It would be difficult for me to say there's something we would continue post-pandemic because I don't think the system has changed dramatically," Hanson said.
That may be why the pretrial population dropped significantly from March to April 2020 but then crept back up: Bail was reviewed at the start of the pandemic, but no policy change was made.
Whatever happens to the jail population will likely have a major impact on the direction of the $148 million jail project, which could be redesigned due to rising costs.
Patterson and Ozanne said they're not sure whether the lowered jail population is connected to a local increase in violent crime.
Police data show crime overall has not increased significantly in Madison in recent years. But the city has seen alarming increases in gunfire, car thefts and related crimes.
In 2020, reports of shots fired in Madison increased 73.6% compared with 2019, according to police. There were 10 homicides, more than 2018 and 2019 combined. Burglaries were up 21% and car thefts were up 47% compared with 2019. Robberies decreased 21% compared with Madison's five-year average.
It's not known how many of those who were released went on to commit more serious crimes, but Mahoney said he heard of some cases. Still, he said, he believes the pandemic showed "not everyone has to come to jail."
Ozanne noted there has been an increase in gun violence and violent crime across the nation.
"This isn't something that is just isolated here," he said.
Eicher said the fact that "folks are struggling" with job loss, mental health, poverty, trauma and despair likely has more to do with the violent crime increase — an assessment Madison officials and activists agree with.
Morgan said he hopes initiatives in Dane County — such as plans to create a Community Justice Center, a less intimidating place for court services, and a team of mental health first responders — will help keep people out of jail while preventing crime.
"If we can get people out of the jail, get them functioning, get them employed, get them engaged, again, we all benefit," Morgan said. "People won't be walking around fearful. At least that's the hope."
(c)2021 The Wisconsin State Journal (Madison, Wis.)