DESPITE SHIFTING POLITICS, JAIL EXPANSION PROPOSAL STILL LOOMS LARGE IN DOUGLAS COUNTY PRIMARIES

Douglas County Commissioner Nancy Thellman took one of the hardest votes of her career in January 2020. Facing pressure from nearly 100 protestors, as well as a jail expansion ballot referendum voters had rejected in 2018, Thellman voted in favor of a $30 million expansion for the Douglas County Correctional Facility in Lawrence.

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She’d seen the need for an expansion since about 2015, motivated by an overcrowded facility and a statutory obligation to keep Douglas County inmates safe and housed humanely. Meanwhile, opposition steadily increased. A Jail-No coalition of community groups against jail expansion insisted that alternatives to incarceration existed to reduce the inmate population.

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But circumstances changed in March 2020. Faced with the fear of COVID-19 spreading through the jail, the local criminal justice system was forced to find new methods to decrease the inmate population. Soon afterward, the Black Lives Matter movement surged nationwide, and new statistics revealed the extent of Douglas County jail’s disproportionate incarceration of Black people.

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So in early June, Thellman changed her stance and came out against the expansion. The rest of the three-person county commission agreed to take another look at the project’s viability, too. The two most significant events of 2020 had converged to put an unexpected pause on the jail expansion.

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“I know there are folks who see it as just a political move just to save my seat,” Thellman says of her shift. “If I was concerned about my political fortune, I would never have supported the jail expansion. … But I think a good leader is also able to be nimble and see where things have changed, and be willing to back away from one direction and move to another direction when circumstances demand it.” 

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Others think that a changed mind is difficult to trust. They point out that methods being used to decrease the jail population during the coronavirus pandemic – such as increasing efficiency throughout the criminal justice system – were on the table long before the commission went forward with an expansion in January 2020. 

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“I really consider that to be knowing, willful complicity in building a bigger jail that won’t address the systemic problems that perpetuate more people winding up in jail,” says Brent Hoffman, co-president of Justice Matters, a lead organization in the Jail-No campaign. The group filed legal action against the county in March in an attempt to force the commission to put the jail expansion to another vote.

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Thellman, who represents the 2nd Commission District, provides one example of a broader shift on the issue of jail expansion, which has been a central topic in four Democratic primary races in the county: sheriff, district attorney and two commission seats. All these jobs share varying degrees of responsibility for the jail’s operations or those within it, and because of a lack of opposition in the general election, three of the races will likely be decided by the Aug. 4 primary. None of the 11 candidates are actively pushing to move forward with an expansion, and a majority say they are opposed.

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Douglas County is home to Lawrence – often characterized as the most liberal city in Kansas – and is one of the first counties in the state to seriously reckon with detailed operations of the county jail. With most candidates shifting towards an anti-jail expansion position, the central question of the race has changed: How have the coronavirus pandemic and the Black Lives Matter movement impacted candidates’ positions on jail expansion, and what does this say about how far they will push to change how criminal justice works in Douglas County if elected? 

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For some, such as Thellman, a pandemic and the nationwide recurrence of Black Lives Matter inspired a rethinking of a jail expansion previously considered necessary. For others, current events have solidified their anti-jail expansion stance, and a final group, while not focusing their campaigns around the issue of expansion, have stated they are opposed. How candidates view jail expansion, through the lens of both the pandemic and Black Lives Matter, may reveal some of the values that will guide their time in office – a willingness to shift one’s perspective based on changed conditions or a belief that long-held opposition to jail expansion is evidence of one’s commitment to the broader cause of criminal justice reform. 

A Change of Heart 

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Douglas County Sheriff Ken McGovern, who is retiring this year, alerted the county commission in 2014 of overcrowding in the county jail, where most inmates are awaiting trial. The average daily population in the jail grew by 12 percent between 2015 and 2019, with the 2019 average daily population at 219 in a 186-bed facility. In the last several years, before the pandemic, this overflow meant between 50 and 80 Douglas County inmates on average had to be housed in other county jails, limiting access to the county’s re-entry programs and complicating regular family and lawyer visits. The overcrowding also made it difficult to classify inmates by security level.

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For three candidates, this overcrowding convinced them in January 2020 that a jail expansion was necessary. Thellman, who has occupied her seat since 2008, voted in favor of the expansion. Two candidates on the primary ballot, Karen Willey for the 3rd Commission District and Jay Armbrister, who’s running for sheriff, said they also would have supported the expansion, if reluctantly. 

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Thellman said she voted for the expansion after “reach(ing) a plateau … where all of the partners in the criminal justice system felt like they were doing as much as they could do” to reduce the jail population. Institutions that influence the jail population include the sheriff’s office and local police departments, which make arrests; the district attorney’s office, which charges people with crimes; and the district and municipal court systems, which decide a defendant’s innocence or guilt and punishment. The sheriff also operates the county jail.

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While the County Commission does not have any direct control over who’s incarcerated, it does allocate funding for the jail and alternatives to incarceration programs. Thellman pointed out several programs the county created while she was in office, including a behavioral health court, pretrial release program and house arrest, that limited the jail population. Without them, she said the average daily jail population would be around 300. These efforts are visible in Douglas County’s incarceration rate, one of the lowest in comparatively sized counties in Kansas, with 179 people in jail per 100,000 people in 2019.

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But this rate wasn’t low enough to deal with the coronavirus pandemic, which forced the jail’s functional capacity down to about 150 beds. Meanwhile, most neighboring jails became unwilling or unable to house Douglas County’s inmates. Rapid solutions were needed. In response, District Attorney Charles Branson worked with the district court and defense attorneys on low-level cases to modify jail sentences for those convicted and move forward with plea agreements in pre-trial cases, according to Douglas County’s Criminal Justice Coordinator Mike Brouwer. Those changes reduced the jail population by about 17 inmates. In combination with decreased bookings and the district attorney waiting to file new charges, average daily populations remained at or under 150 from March through June – though Brouwer warns numbers could spike depending on case filings, and if bookings increase as bars and restaurants reopen.

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On June 9, the court system, district attorney’s office and sheriff’s office began working together at the behest of the commission to reduce the jail population. Their short-term solutions focused on increased efficiency in areas such as case processing and court dockets. Thellman said she began to oppose jail expansion after seeing the county’s criminal justice partners undertake changes they had never been willing to make before.

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“The biggest change now is that I’m not willing to fight this fight for the people who run our criminal justice system,” Thellman said. “They have a responsibility to stretch themselves and do the work of reform. I stand willing to fund as much as we can possibly fund that gets us moving in that direction.”

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Statistics the county released in early June, two weeks after George Floyd was killed by a police officer in Minneapolis, Minnesota, also got Thellman’s attention. They showed that Black people are incarcerated at 4.7 times the rate of whites in Douglas County, a disproportion higher than the national average. Black inmates stay an average of 27 days in the jail, while white inmates stay 16. 

“That presentation … was particularly troubling and confirmation that we needed to redouble our efforts to understand where our system is failing our citizens,” Thellman wrote in an emailed response to a follow-up question. “I was deeply moved by Black Lives Matter protests – local, national and global responses to George Floyd’s killing at the hands of police. That reckoning event and resulting deep personal reflection layered on top of the urgent COVID-related shifts in local practices in our criminal justice system … made me hopeful we could avoid expansion.” 

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“I don’t look at this as a temporary change of heart,” Thellman says. “I think this is the direction we have to go.”

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Thellman has labeled her position as firmly anti-jail, and she even indicated that she would vote to rescind the motion she helped pass in January. Meanwhile, Willey, an entrepreneur and Lawrence-Douglas County Planning Commission representative, and Armbrister are both enthusiastic about maintaining the current low jail numbers so that jail expansion can be avoided. But with a growing Douglas County population, each says an expansion may resurface in the long term.

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“I work in the jail every day, so I saw the need for expansion,” said Armbrister, who has worked at the jail on and off since 1999. “But with COVID, we have our numbers down to a very manageable spot. I don’t know that we can keep them there, but if we can, I am all for not expanding the jail.” If this was the case, Armbrister said he would favor directing funds previously slotted for the expansion — which would increase operating costs by $6 million a year — towards social programs like housing.

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Willey and Thellman both said increasing the likelihood that individuals appear at their court date is a key priority to maintain a low jail population. Failure to appear can lead to arrest and jail time, and is the most frequent charge of those booked into the Douglas County jail. In the long term, both said they would prioritize funding housing programs, adding that the county has made progress on providing mental health and addiction resources.  

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Some against the jail expansion from the beginning

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But for five candidates, the convergence of the coronavirus pandemic and Black Lives Matter has changed little about their campaigns, which were initially built around an anti-jail expansion platform. On each of their websites, their position against jail expansion is available and clear. Several of the candidates participated in the Jail-No campaign.

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“I thought that the county should’ve voted against jail expansion in January, (and) we should’ve listened to the voters when they made it clear that they didn’t want to expand the jail in 2018,” says Shannon Portillo, who is running in the 3rd Commission District. As a University of Kansas administrator and associate professor, she recently coauthored a study of the programs available for individuals before, during and after incarceration in Douglas County, which ultimately recommended the county re-think jail expansion. “We need to focus our criminal justice activity on community-based programming and focus on rehabilitation in the community,” she says.

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Three candidates – Portillo; Shannon Reid, who’s running in the 2nd Commission District; and Cooper Overstreet, a district attorney contender – formed a partnership called the Justice Ticket, based in large part on their opposition to the jail expansion and the investment of money into social services such as support for those with addiction and mental health problems, housing assistance, and creation of a public defender’s office.

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Recent events have furthered and highlighted arguments that the Justice Ticket candidates and Sara Taliaferro, who is running for the 2nd Commission District seat, made throughout their candidacies. These include a deep-rooted concern that the jail expansion would disproportionately impact people of color and an insistence that more can be done to reduce the jail population.

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Dale Flory, who has worked in the sheriff’s office for more than 20 years, though never in the current jail, is the only candidate for sheriff who says opposing the jail expansion was a key part of his platform when he entered the race in January. He noted the difficulty of staffing the expansion, which would require 60 more officers. Flory also said he would consider reallocating money from the sheriff’s department to social services, though he did not say where that money might come from.

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Two staunchly Jail-No candidates, Taliaferro and Reid, are running against each other, and Thellman, for the 2nd District seat. Though both are focused on increasing investment in mental health and housing services instead of a jail expansion, they differentiate themselves through their work in the community. Reid, the director of the Court Advocacy Program at the Willow Domestic Violence Center, described herself as coming from a “people-oriented, advocacy perspective” that would allow her to focus on the needs of the most vulnerable community members. Taliaferro, a natural science illustrator and Justice Matters member, said that her strength comes from a “deep connectedness throughout the community, listening to a lot of disparate voices. All of my process starts with listening to others.”

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Nuanced differences in district attorney’s race

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All three candidates for district attorney – Overstreet, who has worked as a defense attorney for six years, incumbent Charles Branson, first elected in 2004, and Suzanne Valdez, a law professor at the University of Kansas with 24 years of legal experience – oppose the present plan for jail expansion.

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But the issue figures more prominently in Overstreet’s campaign. In a district attorney forum, he said opposing the jail expansion would be his number one priority in office. A member of the Justice Ticket, Overstreet indicates on the trio’s website that “Douglas County doesn’t need a bigger jail, it needs bigger ideas.”

Branson emphasizes his 16 years of experience in the position and the alternative to incarceration programs he’s helped create, while Valdez was provoked to run after one of her students was charged by Branson’s office with making a false rape accusation. The charge was ultimately dismissed. 

“That was it; that was finally it,” Valdez says, adding that she plans to bring more sensitivity and training to prosecuting sexual assault and domestic violence. 

Branson and Valdez say their opposition to jail expansion precedes the convergence of the pandemic and Black Lives Matter. For Valdez, the jail issue was one of many things that inspired her to run, and she noted that an expanded jail would exacerbate racism in the criminal justice system. Branson said he opposed the expansion in January 2020. He published a proposal in May 2019 exploring incarceration alternatives in lieu of a jail expansion.

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But Valdez contends that Branson hasn’t been vocal enough about the topic.

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“I feel like the district attorney should have been more of a leader in that space,” Valdez says. “COVID-19 is a test. We don’t need jails, we don’t need more space, what we need is mental health and prevention programs, and keeping people out of the criminal justice system.”

Overstreet says that the policies the current district attorney’s office put in place when the pandemic hit – such as reviewing low-level cases to see who could leave jail – wouldn’t have even been necessary had he been running the office. 

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“Those are folks who would have never been in the jail if I was D.A.,” Overstreet says.

Overstreet says he would also pursue unsupervised probation and no jail sentence for anyone convicted of a misdemeanor, barring “compelling circumstances that dictate otherwise.” In 2019, about 72% of people booked into the Douglas County jail were booked on misdemeanors.

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The institution of a public defender’s office in Douglas County, being studied as an opportunity to further reduce the jail population, is another area of contrast. Overstreet supports the idea. Valdez says she currently doesn’t support instituting a public defender’s office in Lawrence, while Branson says he would like to see a “hybrid” system, in which a public defender’s office offers services in the early stages of cases. 

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Another opportunity to reduce the jail population is limiting the use of cash bail; in April, 70% of the Douglas County inmates were pre-trial, most unable to leave because they had not paid bail.

To reduce use of cash bail, Branson says his office implemented a pretrial release program, with more than 900 participants so far. Overstreet plans to request own recognizance bonds from the judge in all cases, except for “specific and exceptional” risks of flight or danger to the community.

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Valdez said her policy would be to request own recognizance bonds for non-violent offenses. “If someone has committed a violent crime … people should not be let out,” Valdez says. “That is why we have cash bail, and believe me, you as a citizen want that.” 

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Branson noted in a commission meeting in early June that he wasn’t sure what else his office could do to keep jail numbers down. He suggested that a short-term solution to reduce the jail population would be for police officers to rely on cite-and-release instead of arrests. Long term, he aims to maximize the potential of relatively new programs he helped create, such as the drug and behavioral health courts.

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The pandemic pushed Branson’s office to set up a system to handle cases more efficiently, by moving simpler cases through the system quickly. Before the pandemic, this was not done as deliberately, Branson said. 

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Looking forward

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Throughout June and July, at least six civic groups, including Justice Matters, Douglas County Democrats and the Douglas County bar association, held forums for one or more candidates. One question resurfaced multiple times: What is your position on the jail expansion? 

Doug Woods, who is running for sheriff after working in the office for 33 years, is the only candidate who has not declared a position on the jail expansion — he says that he will implement whatever decision the commission makes. In a written statement, he also made several allusions to the negative impacts of jail overcrowding. Woods’ statement stands out because most candidates have expressed, at a minimum, a desire to avoid jail expansion.  

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With nearly every candidate on the record aiming to avoid expansion, the election has become a contest of nuances, especially with the current county commission’s commitment to rethinking the expansion’s future. The contrast most evident in the election is when and how a candidate came to the anti-expansion position and how big of a priority it is in their campaign. 

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Multiple interpretations have surfaced about the changes of heart some candidates have had on jail expansion after the coronavirus pandemic and Floyd’s death. 

“If you are really looking critically at jail expansion, and what the makeup of the jail is, those questions existed before the George Floyd, Black Lives Matter, coronavirus situation,” Valdez says. “For people to say, ‘Oh, it shifted?’ Well, maybe it woke you up. Because these issues were all there.” 

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Hoffman, of Justice Matters, says, “In our instance, the bellwether of where a candidate is going isn’t (their stance on) jail expansion per se, it’s the decision to overrule the voting public who rejected a jail expansion. That says more in our context about what kind of leader you are. Are you a leader that stubbornly moves forward and uses your authority to work around the will of your voting public? Or are you somebody who appreciates that you might have gotten something wrong, and you’re going to double down on alternatives and reforms until you exhaust those things?”

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But candidates who have changed their mind argue this is exactly what they have shown by adapting to a world plagued by coronavirus and recently made more aware of institutional and systemic racism. 

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Where the jail expansion used to be a binary decision – opposed or in favor – it’s now being debated in some quarters as a marker of how strongly a candidate values the cause of criminal justice reform. But is being committed to the cause the same as effective leadership? Is the best candidate one who holds to purpose, or one who’s willing to change his or her mind in light of new information and circumstances?

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Criminal justice issues have been up for public debate perhaps more in Douglas County than any other county in Kansas in recent years. Who Douglas County voters choose to carry that deliberation forward could signal not only how much change local voters want to see on the issue, but also how much the coronavirus and Black Lives Matter could change the terms of the debate across Kansas.