Justice for none

Aug. 18, 2006

By Jacob Quinn Sanders
Portland Tribune

The justice system in Multnomah County used to, at every level, look case by case at the criminals who came through and ask how best to house, treat, supervise and rehabilitate them.

No more.

Changes in policies, legal opinions, ballot measures, state and federal laws, and cutbacks in state and local funding — some recent and others going back a decade — have altered the criminal justice system on a fundamental level.

Judges, cops, prosecutors, and corrections, parole and probation officials all say they have been forced to change the most basic question they ask. “How can we help?” has become “How can we most minimize risk?”

“We’ve all been whacked pretty considerably,” said Steve Liday, assistant director for adult services in the county’s Department of Community Justice.

“Frankly, the word that comes to mind is ‘disaster.’ ”

In recent weeks, Liday’s department has stopped supervising inmates released early because of jail overcrowding and criminals on parole or probation on misdemeanor charges — one because of a county legal opinion that said it was an unnecessary liability, the other because of funding.

The sheriff’s office has stopped early releases of sentenced inmates — as opposed to those awaiting trial — in response to an opinion from the Oregon attorney general’s office. Without post-release supervision, according to the opinion, the practice amounted to commuting sentences, which is outside the sheriff’s legal authority.

A recent cut in funding to jail health programs means that mentally ill inmates go without treatment longer and stay in jail longer, keeping the limited beds occupied. And money the sheriff’s office would ordinarily spend on jail beds and other programs is tied up maintaining the infrastructure of its Multnomah County Detention Center downtown, which holds 200 more inmates than the 476 it was designed for, stressing the elevators, kitchen equipment, and water and sewer lines.

In addition, the county detention center is operated similar to a super-maximum-security prison, with inmates in their cells 23 hours a day because scheduling their exercise and free time is so onerous. At the county’s other open jail, Inverness, only inmates being punished follow such a schedule.

All the while, a 525-bed jail — the infamous Wapato — sits empty just north of St. Johns.

Officials throw up hands

“I don’t think people understand what a dire situation this has become,” District Attorney Michael Schrunk said. “There is so much we can’t do now, and so I think a lot of people are trying to make sure they don’t expose themselves or their agencies to legal liabilities because of the decisions they make. We can’t really think of the offender’s best interests anymore, or the community’s best interests, and we’re not really equipped to deal with that.”

Dan Noelle, sheriff from 1995 to 2002, said he was “astounded” and “flabbergasted” at the recent decisions to stop supervision of early-released inmates solely for liability concerns.

“It’s like saying we might as well not put them in jail because they might sue,” he said. “Everything about this is absurd.”

County Commissioner Lisa Naito, a former state legislator and a former Multnomah County prosecutor, said the Board of Commissioners had given all it could financially, leaving lobbying the state Legislature for more money as perhaps the best remaining option.

“That might be our best hope for the future,” she said. “It’s clear we have to do something, but we really don’t have any choices that are available to us right now. This has gotten too far out of hand.”

The executive director of the independent Citizens Crime Commission, Maggie Miller, said so much had changed that it was useless to try to assign blame.

“What we have to watch instead is any public official who tries to put their own priorities or agency politics ahead of the goal of fixing this system,” she said. “There’s no time for that, and the public shouldn’t stand for it.”

Unfunded mandates hurt

In 1987, the practice began of releasing county inmates for no other reason than overcrowding when people deemed more dangerous were booked. Federal District Judge James Redden wrote the first criteria for what became known as “matrixing.” In a questionnaire published in a National Institute of Corrections report the same year, then-Sheriff Bob Skipper noted that some jail facilities were too small, and “the staff needed to be convinced of its own safety.”

But is was not until the mid-1990s that the system itself began to change.

Fewer prosecutors. Months-long waiting lists for substance-abuse treatment. The chronic underfunding of state Senate Bill 1145, passed in 1995, under which the state pays counties to incarcerate inmates serving less than 12 months and supervise felons on probation and parole. The sheriff’s office giving up the national accreditation of county jails in 1996, which allowed the agency to pack more bodies into the downtown county detention center.

Wapato’s construction bonds made the 1996 ballot without an accompanying levy for money to operate it once it was built. Ballot Measures 47 and 50 in 1996 and 1997, designed to decrease spending by local governments by limiting revenue, joined Wapato as potential future liabilities.

Unlike now, the economy was strong. State and county officials noted that outside grants helped buttress key links in the chain of county services. And, the officials said, Noelle was able to increase the number of available jail beds, reaching 2,073 compared with 1,690 now, which hid some of the growing cracks in the justice system and temporarily ended the need to matrix inmates.

“For a while it worked pretty well,” Multnomah County Circuit Judge Michael McShane said. “We had that continuum of services that prevented the kind of jail-to-the-streets situation we have now.”

Then some services started disappearing. The Multnomah County Restitution Center, which allowed the county a work-release option for some offenders, closed twice, in September 2002 until it reopened in January 2004, then again in July 2005 when the Board of Commissioners cut its funding.

What was different about changes like that was their immediacy. A ballot measure takes time to pass and implement, and an unfunded but unbuilt jail does not change existing options. But when the county restitution center closed the last time, its impact was swift. Similarly, policies changed or abandoned in recent weeks — whether for funding or legal reasons — were in force until the moment officials decided to change them.

“We are really the stewards of a system that has collapsed on us,” McShane said.

Judges find hands tied

Like many judges, McShane is frustrated at his lack of options for those who come before him for sentencing. He often feels, he said, as though he cannot do what is best for the offender or for the community at large because of how the justice system has been forced to change.

He might consider probation and drug treatment over jail, for example, but now the offender might not get supervised on probation and might have to wait six months or more to make it into a treatment program. So, instead, that person goes to jail — and then the jail won’t have enough space.

McShane has other concerns as well.

With the county Department of Community Justice losing funding for the tracking of misdemeanor probationers, cases came back to judges who must supervise the cases by interviewing the offenders in court and doing little beyond that.

“But all we got were the names,” McShane said. “I don’t know if they’re in treatment, I don’t know if they’re allowed to have contact with their spouses, I don’t know anything about them.”

He said he assumed at first it was going to be car prowlers, low-level drug addicts and other nonviolent criminals whose cases came back.


“I have a sex offender right now who was in treatment and was staying with a spouse, but the funding for the treatment came from the county — that’s gone now — and there were issues in his release about where he could live, so he’s now a homeless sex offender out of treatment,” McShane said. “The system is hurting this guy more than it’s helping at this point.”

‘We can’t go on like that’

As a former public defender and former parole and probation officer who also has some prosecutorial experience, McShane is familiar with many facets of the justice system.

He said judges joke with some frequency that a judge should jail Sheriff Bernie Giusto or county commissioners for “indirect contempt of court” for every time a judge ordered that an offender remain jailed until trial and instead was set free.

Aside from the logistical problem of getting the district attorney’s office to file such charges, “we’d only be adding to the overburdening of the system at that point, and that’s what we’re trying to avoid,” he said. “But that’s how frustrating it can be.”

Circuit court Presiding Judge Dale Koch said that even with matrixing reduced after the Board of Commissioners made 114 jail beds available in December, people get released from jail before they’ve even seen a judge with tremendous frequency.

“We can’t put conditions on their release, we can’t order their incarceration pending trial, we can’t do anything in those circumstances,” he said. “It is our duty to implement the things we know to work in terms of reducing recidivism and the possibility of rehabilitation and, many times, those options are gone.”

Judges, usually nearly silent in public on issues such as jail funding and offender supervision, have begun meeting in groups to outline strategies to get public attention.

Giusto, too, lamented his lack of latitude. He wants to keep the right people in jail and supervise others, he said. But he can’t. Something — the law, his budget — often gets in the way.

“The way this looks right now is that we just release somebody and say, ‘OK, good luck, hope I don’t see you again soon,’ ” he said. “We can’t go on like that.”


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