County Jail Legislative Update for Indiana
The county jail problems in Indiana do not seem to diminish. The state legislature continues to pass statutes that effect aspects of existing and proposed facilities. The following information will attempt to shed light on the more recent laws enacted, or about to enact by June 30, 2019. I will try to show the connection of the statute and its relevance to you as county commissioners or sheriffs.
We certainly have now seen the effect of HB1006 that passed five years ago and changed the nomenclature from “Class” to “Level” and allowed pretrial diversion for persons charged with a Level 5 or Level 6. At the time I wondered where this was ultimately headed. Well, we all know now when the state no longer took the Level 6 offenders and left them at the county jail.
In some cases the impact was negligible. One larger county I work for had an additional 140 new and unexpected inmates. Well, in a system of county jails that were in most cases crowded/over crowded it pushed the jails, over the top. Then, the state jail inspectors started writing non-compliance letters last year to the counties with an expectation that these would cause forward movement to resolve the issues. It allowed the sheriff, if this did not take place, to file a complaint against the commissioners! Interesting!
As counties tried to resolve the “new crowding” jail funding – HB 1263 situation, which takes additional money, they started to ask for “Special Purpose Tax” legislation specific to their respective counties. This was done, because they would otherwise have to share a significant amount of the income tax, as much as 60%, with the other shareholders. During this period perhaps a dozen or more counties asked for and got this special tax. More correctly, got permission for the county councils to pass an ordinance for the tax. This keeps the political problem at home.
The legislature saw that most counties could not really afford the process of sharing that much of the income to build their jails. And not wanting to keep passing “Special Purpose Taxes”, they enacted HB1263. The bill allowed the counties through ordinance to activate an income tax no larger than 0.20% (as long it’s within the allowed 2.5%) and the monies need not be shared. But it really is not enough in many counties. HB1102-2019 was to take the rate to 0.4% but failed to pass. It also required a feasibility study be done. The study had to address potential alternatives to construction or renovation, see if they could house inmates in other counties, hold a public hearing, see if a regional jail is feasible, projections of future jail needs, an estimate of the number and characteristics of future inmates, estimates of costs, tax rates, and debt service for each alternate considered. Of course the public meeting allows the public to testify etc. Since HB 1263 became law in July of 2018, the requirements are still on a shakedown cruise even for the bond council attorneys. Any studies done after, June 30, 2018 must comply with HB1263.
Current legislation of consequence is HB1078 where Level 6 offenders may be committed to DOC if 1) they are a violent offender 2) they have two prior unrelated felony convictions.
It’s very doubtful that this will have any consequential effect on jail populations. Much more significant is HB1427 which allows the retirement of bonds to go from 20 to 22 years, and very significant, is the provision that when the 0.20% is used, no more than 20% of that annual income can be used for operations/staffing for the jail project. However, if the project requires more income tax to be levied than the non-shared 0.20%, say you need 0.5% overall; this additional 0.3% is shared obviously but also does not have the restrictions of the 20%.
HB 1065 The DOC’s existing facilities that offer mental health and substance abuse treatment etc., the county jails in certain circumstances may transfer eligible inmates to the facility. This is another statute that will need some shaking out to determine its value to counties.
And finally, HB 1214 allows CMc, construction managers as constructors to work on public libraries and health and hospital corporations and removes the time line on the statute. This CMc alternative is being sold as providing that a firm takes all the risk off the county and guarantees a cost. Once a commissioner realizes that these promises are not what they appear, its appeal is not warranted. The option of using a Construction Manager as a constructor (CMc) flies in the face of what a construction manager should be to a county, unbiased owner’s representative. This is hard to do if you’re vested in the construction itself.
One county is going to go outside of what would be the typical resolution of their overcrowding. They are going to build a “technical violators” facility. According to the DOC inspectors it would not be considered a “jail” and therefore not fall under their inspection requirements. If it is not considered a jail then the ACA and Indiana design statutes would not apply as well.
The problem of overcrowding, non compliance letters and the recognition of dealing with mental health and addiction, dozens of counties are pursuing new or renovations of their jails. As a result, there are now dozens of firms vying both architectural and construction management who are doing their best to be recognized as jail experienced firms.
After all these years of overseeing the design and construction of jails, we have a tendency to take a lot of things for granted. Any commissioners or sheriffs who have a question on any aspect of the process please feel free to call or email us. We are happy to help in any way we can.