After reading Chapter 3 of the Mosher textbook, ‘An Arresting Experiment: Domestic Violence Victim and Perceptions’ by Miller, and ‘Controlling a Jail Population by Partially Cl

386

Controlling a Jail Population by Partially Closing the Front Door

An Evaluation of a “Summons in Lieu of Arrest” Policy

Terry L. Baumer Indiana University Purdue University, Indianapolis Kenneth Adams University of Central Florida, Orlando

This study reports on an evaluation of a strategy designed to reduce crowd- ing of a county jail. The local judiciary sought to reduce the jail population by ordering local police agencies to issue a summons rather than arrest indi- viduals accused of seven misdemeanor offenses. The study compares all cases booked during the first 8 months of the policy with all cases booked during the same months in the previous year. The results indicate that the policy was implemented, that it did reduce the intake population, and that there were minimal side effects; however, the potential impact was considerably overes- timated in the planning stage.

Keywords: jails; overcrowding; summons; alternatives to arrest

During the past two and one half decades, correctional populations in the United States have experienced exceptional growth. Between 1980

and 2004, the total number of people under correctional supervision increased by 280% (Bureau of Justice Statistics, 2005). Although all forms of corrections experienced increases, the largest changes occurred in the most restrictive and costly dispositions: prisons and jails. During this same

The Prison Journal Volume 86 Number 3

September 2006 386-402 © 2006 Sage Publications

10.1177/0032885506291036 http://tpj.sagepub.com

hosted at http://online.sagepub.com

Authors’ Note: This research was supported by a grant from the Indiana Criminal Justice Institute. Points of view or opinions are those of the authors and do not necessarily represent those of the supporting agency. This is a revised version of a paper presented at the annual meeting of the American Society of Criminology, November 2003.

time frame, prison populations increased 345% and jail populations increased 288% (Bureau of Justice Statistics, 2005).

These dramatic increases have resulted in crowded conditions for both prisons and jails. At the end of 2004, state prisons were operating at 99% of their highest capacity and 115% of their lowest capacity estimates (Harrison & Beck, 2005b). When the lowest capacity estimate for each state is used, all but five states exceeded the 90% guideline established by the American Correctional Association. The situation is similar in local jails. At midyear 2004, 94% of jail capacity was occupied (Harrison & Beck, 2005a). The 50 largest jails in the United States hold approximately 31% of the jail population. At midyear 2004, 20 (40%) of these exceeded their capacity, whereas 33 (66%) were more than 90% full (Harrison & Beck, 2005a).

At its broadest level, the dynamics of prison and jail populations are the same. At any given time, the population is a direct function of the number of admissions and the length of stay (see Cushman, 2002; Pretrial Services Resource Center, 2000). Although the effect of the former is immediate and the effect of the latter delayed by the current length of stay, the final result is the same: Any change to either will result in a corresponding change in the overall population. In this sense, the sources of the dramatic increases in prison and jail populations are conceptually the same. A number of authors have identified policy changes that affected one or both of these factors for prison populations (Blumstein, 1995; Tonry, 1990).

The factors that drive admissions and length of stay, however, are quite different for prisons and jails. Much of the prison population is legislatively driven. In any given jurisdiction the type of sentences (determinate– indeterminate), type of release (discretionary–mandatory), length of sentence, extent of credit time, mandatory minimums, sentence enhancements (three strikes), and a host of other factors are largely controlled by the relevant sentencing statutes. As a result, significant reductions in prison populations must rely on statutory changes (or administrative sleight of hand), which are difficult to come by.

Jail populations, on the other hand, are potentially much more amenable to change. Nationally, slightly more than 60% of jail inmates are pretrial detainees (Harrison & Beck, 2005a) who either have been denied bail or do not have the resources to obtain release through bail. Most, but not all, of those individuals serving sentences in jail were convicted of misdemeanor or minor felony offenses. Arrest policies and bail standards are generally estab- lished at the local level by police agencies and the county courts. Similarly, misdemeanor sentences seldom suffer the constraints and mandates of their

Baumer, Adams / Summons in Lieu of Arrest 387

felony counterparts. This leaves the nature of the disposition potentially much more open to negotiations among the interested parties. As a result, local officials can manipulate both the number of admissions and the length of stay through changes in local policies (see Cunniff, 2002; Cushman, 2002; Pretrial Services Resource Center, 2000).

This article reports on one approach by a county to control its local jail pop- ulation. This jurisdiction focused on a “front door” strategy (Blumstein, 1995) designed to reduce admissions to the county jail system. The executive com- mittee of the local judiciary ordered police agencies to issue a summons to appear rather than arrest individuals accused of seven misdemeanor offenses. At initiation of the policy, it was estimated that this change might reduce admissions to the county jail system by approximately 20% to 25%. If suc- cessful, this would have a substantial effect on the local jail population.

Background

Like many others around the United States, the county under study had a long history of litigation concerning the county jail. In 1972, inmates filed suit in federal court seeking relief from the overcrowded condition in the jail. Three years later, in 1975, the judge assigned to the case imposed a cap on the jail population. The county added capacity to the jail on at least three separate occasions, but by 1999 the crowding had backed up to include the county lockup facility. In that year, the population in the county lockup was added to the existing litigation, and later that year the federal court imposed a population cap of 213 on the lockup facility. Two years later, with the mutual assent of the county and the plaintiffs, the cap was raised to 297.

The litigation continued with regular reviews and hearings by the federal court, but the county was doing little to abate the chronic crowding in the facility. In April 2002, the federal judge handling the case held county offi- cials in contempt for their failure to comply with the agreed-on cap of 297 and indicated that financial penalties, and potentially contempt citations, would be imposed for violations of the cap after May 1. The county was now on notice that something must be done to control the population of the county lockup or they would pay the price.

In response to the federal judge’s action, the executive committee of the county court system, noting “its obligation to assist the Sheriff and other county officials in complying with the Federal Court Order and to maintain public safety within our community,” issued a court order on April 18, 2002, designed to help control the population of the county lockup facility.

388 The Prison Journal

This order noted the need to comply with the population cap and, pursuant to that goal, established a “summons in lieu of arrest” policy for seven non- violent, misdemeanor offenses: possession of marijuana, possession of paraphernalia, driving with a suspended license, operating a vehicle never having received a license, prostitution, patronizing a prostitute, and conver- sion (generally shoplifting). The order did not apply to individuals charged with the felony versions of these offenses.

This order contained two substantive provisions. The first ordered the sheriff to advise all law enforcement agencies operating within the county to issue a summons (a ticket) in lieu of arrest for these offenses. This applied to any combination of these seven offenses and any nonarrestable infraction or ordinance violations that might be included in the same inci- dent. If the individuals had any other criminal charges or an outstanding warrant (even for one of the eligible offenses), the sheriff could still accept and book them into the lockup just like any other criminal offense.

Because the above order was contrary to long-standing policies within the county and many of its constituent police departments, the executive committee anticipated a potential for noncompliance: Simply telling the police agencies within the county to stop arresting individuals for these offenses probably was not going to be very effective. To ensure compliance with the new policy, the second provision ordered the sheriff to stop accepting, at the lockup facility, individuals charged only with the above offenses. Thus, if a particular department or individual officer arrested an individual for one of the eligible charges, the sheriff’s department was instructed to turn them away by refusing to book them into the lockup facility. The court ordered the sheriff to advise all agencies within the county of this policy.

Although no formal analysis was conducted prior to issuance of the order, it appears that a substantial impact on the lockup population was anticipated. The order noted, “During an average week, the lock-up receives between 180-250 individuals charged with [the above] non-violent misdemeanor offenses.” No indication was given as to whether the policy was expected to apply to all of these individuals or some subset of them. Assuming the former, the anticipated impact on the intake population would have been a reduction of between 26 and 36 individuals per day. Given that the county booked approximately 142 people per day (slightly fewer than 1,000 per week), the policy offered the potential to reduce the intake population by 18% to 25%.

The impact on the total lockup population would depend on the length of stay for these individuals. For example, if prior to implementation of the new policy, the individuals charged with these minor offenses were booked

Baumer, Adams / Summons in Lieu of Arrest 389

out within 24 hours, the impact would be between 26 and 36 people. This would be a reduction of approximately 10% (10% of 297 = 29.7). However, if prior to implementation of the policy these individuals stayed 2 days, the lockup population would be reduced by between 52 and 72 people (20%). Under any of these scenarios, the projected impact of the court order would be substantial.

The following analysis will focus on three areas related to the policy. First, implementation of the policy will be reviewed. An initial analysis will assess the actual size of the target population as defined by the court order and interpreted by the sheriff’s department employees at the lockup. These estimates will form the outer boundaries of potential for the outcome analy- sis. This will be followed by an analysis of the extent of implementation for the policy.

Next, the primary impact of the policy on the county lockup facility will be assessed. Given that the policy was explicitly designed to divert individu- als charged with the seven misdemeanor offenses from lockup, the reduction in number of lockup bookings will be investigated. As noted above, the effect of the policy on the overall lockup population depended on both the extent of implementation and the length of stay for the target population. The impact of the policy on length of stay and total “bed days” will be assessed.

Finally, secondary outcomes of the new policy will be reviewed. Although the court order issued by the county executive committee did not address pos- sible secondary outcomes for the new policy, a number of plausible hypothe- ses are possible. For example, it would be reasonable to anticipate an increase in the failure to appear (FTA) rate for the target cases. In addition, it might be hypothesized that the new policy would affect case disposition in a number of ways. The analysis will look at the number of cases without a disposition at least 10 months later and the nature of the disposition.

Method

The county stored information for all criminal cases on a mainframe case management system. The researchers worked with a county program- mer to generate cases from the first 8 months of the new policy period and a comparison group selected from the same period of the preceding year.

The time frame was dictated by a policy revision made by the county. From the time of implementation on April 19, 2002, criminal justice offi- cials were under some pressure to rescind the order. In particular, some neighborhood groups objected strenuously to the issuance of citations for

390 The Prison Journal

prostitution. They argued that issuing tickets for prostitution did nothing to reduce prostitution in their areas of the city. During the summer and fall of 2002, the policy became one of the issues in the election for county sheriff, with the eventually winner calling the county a “laughingstock” for issuing citations for misdemeanor prostitution. The judges revised the order by removing prostitution from the list of eligible offenses on December 20, 2002—almost exactly 8 months after the original order. The present study focused on cases originating during the initial 8-month period when all seven offenses were included.

Selection of cases was the same for both 2002 and the comparison group from the previous year. For the primary analytic files, all cases that included at least 1 of the 7 charges and that fell between April 19 and December 20 were selected. The files included information on all charges associated with this case (level, type), date of booking, date of disposition, nature of dispo- sition for all charges, and basic characteristics of the individual charged in the case (race, sex, date of birth). Because case was the unit of analysis, individuals might be included multiple times. This generated 6,110 cases from the target year and 6,221 for the comparison year. Because all cases occurring in the county during the sampling frame were included and it cannot be inferred that these cases represent a random sample of cases in other jurisdictions, no statistical tests of significance are reported.

Results

Eligible Cases and Level of Implementation

The general parameters of the target population are presented in Table 1. The number of cases with any of the seven misdemeanor offenses declined slightly from 6,221 for the comparable period of the previous year to 6,110 during the 8-month study period. However, cases covered by the summons in lieu of arrest order increased from 58.6% to 65.8% of all cases with one or more of the seven charges. This amounted to an increase of 379 cases in which individuals were charged with one, or more, of the misdemeanor target offenses and no other criminal offenses. Overall, 4,022 cases were potentially eligible for a citation only during the first 8 months of the policy, whereas 3,643 would have been eligible during the same 8 months in the prior year.

The above findings indicate that the potential impact of the change in policy was considerably lower than suggested in the court order. The original order noted that the target cases accounted for between 180 and 250 cases per

Baumer, Adams / Summons in Lieu of Arrest 391

392 The Prison Journal

week. When translated to the 8-month study period (243 days), this estimate would be between 6,245 and 8,675 cases. The total number of cases with at least one of these charges (6,110) was fairly close to the lesser of the two esti- mates. Because the total number of cases is similar for each period, the sug- gestion is that the lower estimate of 180 per week was actually the more accurate of the two. However, when cases with other criminal charges are excluded, the number of eligible cases (4,022) was only 65.8% of this esti- mate during the study period and only 58.6% in the comparable period the preceding year. This overestimate of the target population limited the poten- tial impact of the policy change to less than two thirds the original estimate.

Although the target population was smaller than anticipated, with full implementation the summons in lieu of arrest policy could still substan- tially reduce the number of people booked into the county lockup. Four types of booking were possible for the eligible cases: (a) An “outright” booking occurred when the officer made an arrest and the defendant was brought to lockup, (b) a “summons” booking occurred when the officer issued a citation and the defendant was booked when he or she appeared in court, (c) a “warrant” booking occurred when the defendant was arrested on a warrant for one of the targeted offenses, and (d) “no booking” occurred when the defendant was cited by the officer but failed to appear and was never arrested on the subsequent warrant. Cases subject to the summons in lieu of arrest policy could be any of the latter three types, although it explic- itly sought to eliminate outright bookings for the targeted offenses.

Table 2 presents the type of booking for eligible cases. This table shows that under the summons in lieu of arrest policy, only 20.2% of the eligible cases experienced outright bookings, whereas for the comparison period, 59.5% were outright bookings.

These numbers have double implications for policy implementation. First, these figures could be interpreted as an indication of 80% compliance

Table 1 Target Charges and Eligible Cases

Prior to Policy During Policy

n % n %

Eligible cases 3,643 58.6 4,022 65.8 Not eligible cases 2,578 41.4 2,088 34.2 Total 6,221 100.0 6,110 100.0

Baumer, Adams / Summons in Lieu of Arrest 393

with the court order not to arrest these individuals. Consultation with sheriff’s department personnel who worked in the lockup during this time indicates that an outright booking for an apparently eligible case could occur in several ways. If an officer stopped an individual for an eligible offense and discovered an outstanding warrant for that individual from another case, the officer was obliged to make an arrest. This resulted in both a warrant book- ing for the old case and an outright booking for the new offense. Without the old warrant, the person may have received a citation only. Another sit- uation occurred when an officer arrested an individual for an offense eligi- ble for a citation and brought him or her to lockup for booking, and the booking officers entered the information into the case management system before noticing that the individual should not have been arrested. Another, less common situation occurred as above, but the arresting officer had left the lockup before the processing officers noticed that the case should not be processed as an outright arrest. A fourth exception occurred when the pro- cessing officers noted that the police officer had arrested a summons in lieu of arrest case, but the arresting officer refused to take the defendant back and issue a citation. In these cases, rather than fight about the correct pro- cessing of the case, the processing officers tended to go ahead and book it as an outright case. Thus, the figures in Table 2 clearly indicate substantial compliance with the court order.

However, Table 2 indicates a second, more serious, complication for the potential impact of the new policy. A substantial number of cases were han- dled in a way consistent with the summons in lieu of arrest policy even before its implementation. During the comparison period, a full year before implementation, only 59.5% of the eligible cases involved an arrest and outright booking, whereas 25.4% involved a summons booking. Thus, the

Table 2 Type of Booking for Eligible Cases

Prior to Policy During Policy

Type of Booking n % n %

Outright arrest 2,166 59.5 814 20.2 Warrant 338 9.3 727 18.1 Summons 926 25.4 1,942 48.3 Never booked 213 5.8 539 13.4 Total 3,643 100.0 4,022 100.0

394 The Prison Journal

target population, of people actually arrested for one of the target offenses, was only about 60% the size of the original estimate. Thus, in addition to the overestimate of the number of eligible cases noted earlier, the announced policy represented only an incremental change in existing practices. The result was that the potential for the policy was about 40% that estimated in the court order (.658 × .595 = .392). Rather than having the potential of reducing the intake population by 180 to 250 people per week, the more realistic figure was 71 per week (about 10 per day).

Primary Outcomes

Lockup bookings. The summons in lieu of arrest policy was intended to directly reduce the number of bookings at the county lockup. Specifically, it was directed at a reduction in the number of outright bookings at the facil- ity. Individuals who were cited for the target offenses would still be booked when they appeared in court, but this was accomplished on the nonsecure side of the lockup, which was not part of the federal court order. However, warrant bookings were processed through the lockup facility just as out- right bookings. To the extent that the new policy reduced outright bookings but increased warrant bookings, its impact would be limited. Multiple bookings for specific cases, usually created by multiple arrests on warrants, could also limit the policy impact.

Both the number and percentage of outright bookings decreased during the study period (Table 3). During the comparison period, cases with one or more of the target offenses accounted for 4,589 outright bookings, or 73.8% of the cases. During the study period, however, these numbers dropped to 2,634 out- right bookings (43.1%). The difference between the two periods was 1,955

Table 3 Type of Booking for All Cases With One or More Target Charge

Prior to Policy During Policy

Type of Booking n % n %

Outright 4,589 73.8 2,634 43.1 Warrant 427 6.9 900 14.7 Summons 976 15.7 2,002 32.8 No booking 229 3.7 574 9.4 Total 6,221 100.1 6,110 100.0

Baumer, Adams / Summons in Lieu of Arrest 395

fewer outright bookings. This impact was moderated considerably, however, by an increase in the number of warrant bookings, which more than doubled from 427 to 900. The result was that the number of eligible cases booked through the county lockup (outright and warrant) dropped 29.6%, from 5,016 during the comparison period to 3,534 during the study period. The difference of 1,482 amounted to an average of 6.1 fewer cases booked per day (1,482 ÷ 243 = 6.1). This is considerably lower than the 26 to 36 per day projected by the court order and closer to the two-fifths figure (39.2%) identified above.

Another potential impact of the new policy might be through the total number of outright or warrant bookings for each case. Because of FTA and other violations of court orders, it is possible that the individual charged in a single case might have multiple arrests and bookings for that case. For the present study, the researchers captured the type of booking for up to four bookings for each case. Table 4 presents the number of lockup bookings (outright or warrant) for the two study periods. The total number of lockup bookings for all cases with any of the target offenses dropped from 7,720 during the comparison period to 5,443 during the study period. This decrease of 2,277 fewer lockup bookings for these cases amounted to 9.4 bookings (2,277 ÷ 243) per day.

Not all of the reduction in lockup bookings, however, can be attributed to the new policy. If the number of bookings for eligible and noneligible cases is compared, the reduction for policy-eligible cases was reduced by only about 1,219 bookings (3,616 – 2,397) between the two periods. This amounts to only

Table 4 Number of Outright and Warrant Bookings by Eligible Case

Prior to Policy During Policy

Not Eligible Eligible Not Eligible EligibleLockup Bookings Per Case n % n % n % n %

None 60 —a 1,031 — 80 — 2,256 — One 1,521 37.1 1,908 52.8 1,305 42.8 1,285 53.6 Two 1,160 28.3 946 26.2 912 29.9 718 29.9 Three 735 17.9 486 13.4 477 15.7 282 11.8 Four 688 16.8 276 7.6 352 11.7 112 4.7 Total 4,104 100.1 3,616 100.0 3,046 100.0 2,397 100.0

Note: For this table, the unit is booking (cases multiplied by the number of lockup bookings). a. No bookings counts as 0.

396 The Prison Journal

about one half (53.5%) of the total reduction noted above. The remainder (1,058 lockup bookings) can be attributed to a drop of 25.8% in the number of bookings for noneligible cases with one or more of the eligible offenses.

Lockup population. All things being equal, fewer lockup bookings should translate into some relief for the lockup population. The following analysis looks at the median length of stay and total bed days occupied by this population. Because no time of day was recorded in the data system for when an individual was booked into the lockup or when they were released, the analysis will use the less precise measure of day. Thus, if a person is booked in and booked out on the same day, as would be the case under the summons in lieu of arrest policy, their length of stay should be zero. To make the comparisons meaningful, a cutoff date of October 27 of the fol- lowing year was enforced for both groups. Cases with no jail start date and/or no jail end date were excluded.

Cases originating during the summons in lieu of arrest period were more likely to be booked and released on the same day than were cases during the comparison period (Table 5). For cases eligible for the summons in lieu of arrest policy, the percentage booked out on the same day jumped from 49.8% to 67.4%. However, the people charged in these cases tended not to stay very long either before or during the policy period. The mean length of stay for eligible cases was only 1.8 days before the policy was implemented and 1.5 days during the policy period. The longer stays were reserved for other cases, as reflected in the mean stays of 8.4 and 7.3 days for all cases with one of the target offenses.

Table 5 Length of Stay and Bed Days Consumed

Prior to Policy During Policy

One or More One or More Target Offenses Eligible Target Offenses Eligible

Booked and released same day n 2,372 1,693 2,844 2,342 % 39.9 49.8 51.5 67.4

Stay in days Mdn 1 1 0 0 M 8.4 1.8 7.3 1.5 Total bed days 49,796 6,024 40,168 5,061

Baumer, Adams / Summons in Lieu of Arrest 397

Total bed days in jail were calculated for both groups. For all cases with one or more of the target offenses, the total number of bed days occupied changed from 49,796 for the cases originating during the comparison period to 40,168 for cases originating during the summons in lieu of arrest period. This amounted to 9,628 fewer bed days. As a percentage of possi- ble bed days, using the population cap of 297 and the exposure period of 544 days, these cases accounted for about a 6.0% reduction in total bed days during the study periods.

Unfortunately, the above reduction was largely the result of factors other than the summons in lieu of arrest policy. The eligible population consumed 6,024 bed days in the comparison period compared with 5,061 during the summons in lieu of arrest period. A difference of 963 bed days is attribut- able to the cases potentially eligible for the new policy. This is about 10% of the difference noted above and amounts to 0.6% of total bed days during the study periods. As Table 5 shows, the eligible cases tended to be booked in and out fairly quickly before the new policy, making a significant impact on the lockup population difficult to achieve (cf. Cunniff, 2002).

Secondary Outcomes

FTA. Two potential secondary outcomes of the summons in lieu of arrest policy were reviewed: FTA and case disposition. Large differentials in either of these could affect the viability of the policy independent of the effect on the lockup population.

FTA was measured by counting the number of FTA entries in the court record for each case. The number of FTAs for all cases with a target offense is presented in Table 6. The percentage of cases with no FTA decreased from 52.4% in the comparison year to 46.7% following implementation of

Table 6 Failure to Appear (FTA) for All Cases

With One or More Target Offenses

Prior to Policy During Policy

Number of FTAs n % n %

No FTAs 3,258 52.4 2,854 46.7 One FTA 1,977 31.8 2,280 37.3 Two or more FTAs 986 15.8 976 16.0 Total 6,221 100.0 6,110 100.0

398 The Prison Journal

the policy. A corresponding increase from 31.8% to 37.3% was recorded in the percentage of cases with one FTA. However, the percentage of cases with two or more FTAs was nearly identical: 15.8% versus 16.0%. Overall, this amounted to a net increase of 293 cases with one or more FTAs.

The target cases for the summons in lieu of arrest policy had a higher rate of FTA in both the comparison and treatment periods. Table 7 indicates that the percentage of target cases with one or more FTAs increased from 51.5% to 60.7% when the policy went into effect. The corresponding figures for cases with one of the seven offenses but also another criminal offense, which made them ineligible for a simple citation, actually dropped from 42.2% to 39.0% wit

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