Managing jail population

By Colin Jorgensen
RMF Litigation Counsel

Greetings, sheriffs and jail administrators, deputies, and jailers. The pandemic has presented unique challenges to jails (and all correctional institutions), specifically regarding jail populations. Many jails and prisons in Arkansas and nationwide have taken steps to reduce jail populations in response to the pandemic, to protect the health and lives of detainees and correctional staff. In this article, I will summarize a sheriff’s powers under Arkansas law, and options for county jails, to manage the population of a jail.

This article explains the tools and authority available to Arkansas sheriffs under Arkansas law —as the law was before the pandemic and will likely remain. Policies and actions that help reduce/manage a jail population are always useful and important — especially during a pandemic, but not only during a pandemic. The article outlines four policy suggestions for Arkansas jails.

First, do not accept arrestees into the jail if the jail is at capacity. Although the sheriff has a general duty under Arkansas law to accept lawfully arrested prisoners into the jail, the law specifically allows a sheriff to decline arrestees “as necessary to limit prisoner population.” According to the Eighth Circuit Court of Appeals, the jail is full — for constitutional purposes — when the addition of another jail detainee would reduce the available living space in the jail, per detainee, to less than 43.3 square feet. We recommend that every jail have and follow a policy that the jail will not accept detainees into the jail if the jail is at capacity.

Second, do not accept a detainee into the jail if the detainee needs immediate medical care. This includes a detainee who is bleeding or has an obvious physical injury, but it also includes a detainee who is in mental health crisis, and a detainee who is severely intoxicated by drugs or alcohol and may be at risk of overdose or withdrawal. A detainee in need of immediate medical care has a constitutional right to receive necessary medical care from the detaining agency. The duty to provide that medical care belongs to the arresting officer/agency unless and until custody of the detainee is transferred by acceptance into the county jail. If hospitalization is needed, the arresting officer should transport the detainee to the emergency room rather than to the jail. We recommend that as a matter of intake/booking policy and custom, when an arrestee needs immediate medical care upon arrival at the jail, jail staff should decline to accept the arrestee into the jail and instruct the arresting officer to transport the detainee to a hospital or other appropriate facility.

Third, have and follow a citation-and-release policy for eligible arrestees/detainees. Under Arkansas law, a sheriff has authority to “issue a citation in lieu of continued custody” for a detainee arrested for any misdemeanor. The citation is simply a written order requiring the arrestee to appear in court or at the jail at a specified date and time — like a traffic ticket typically does. We recommend citation-and-release of misdemeanor arrestees as a matter of policy, with exception (detention) only if there are special circumstances that make you believe a detainee is a threat to flee or to cause harm to himself or others upon release. Arkansas law also allows citation-and-release of felony arrestees/detainees, but only “upon the recommendation of a prosecuting attorney.” You can and should work with your prosecutor and seek a recommendation of citation-and-release for any categories of felony arrestee that the prosecutor might authorize categorically, such as nonviolent felonies. With a prosecutor’s citation-and-release “recommendation” with respect to any individual felony detainee or category of felony detainees, cite-and-release some felony arrestees — with the same exceptions for flight risk or risk of harm to the arrestee or others.

Fourth, have and follow an alternative commitments policy for convicted detainees. Inmates who have been convicted and are serving a sentence in the jail are eligible for alternative commitment at the sheriff’s discretion. Alternative commitment includes electronic monitoring (home confinement), weekends, community service (8 hours/day of sentence), or “any other lawful alternative to continual detention in the county jail that rehabilitates the convicted person or benefits the county when this does not conflict with any court orders.” Arkansas law allows the sheriff or his designee to enter into an agreement with a convicted detainee to serve the sentence by alternative commitment. If the convicted person fails to follow the conditions of alternative commitment, the sheriff/designee may cancel the agreement and return the convicted person to county jail. I have a sample alternative commitment agreement available for your consideration if you need it.

As I said at the beginning, we strongly recommend that you implement policies to manage your jail population using the tools and legal authority available to sheriffs under Arkansas law — always. And especially during a pandemic.

If you have any questions about the issues discussed above, please feel free to contact me at (501) 372-7947 or cjorgensen@arcounties.org. Thank you for your service, as always.