When Douglas County officials say the county jail “legally must be expanded,” they don’t actually mean there has been any legal finding that a jail expansion is required, county commissioners acknowledged Tuesday.
A statement in a county-produced informational brochure about the upcoming sales tax election has drawn attention for its unequivocal nature. A brochure titled “Ballot Initiative Handout” includes a sentence that says: “Legally, a jail expansion must occur — the question is how it is financed.” The brochure is being used as part of an informational campaign conducted by the county in advance of a countywide vote for a half-cent sales tax that would help fund a $44 million jail expansion and about $11 million of mental health care initiatives.
However, when questioned on Monday and Tuesday, county commissioners were unable to point to a legal finding to back up the claim. Instead, commissioners said it was their opinion that the county could face legal jeopardy if the jail is not expanded.
“Do we have a lawsuit pending that forces us to expand? No,” Douglas County Commission Chair Nancy Thellman said. “Do we want to get to that place? No.”
But opponents of the sales tax say the county’s wording in the brochure — and at other times on the campaign trail — misleads some voters into thinking that an outside entity — be it a judge or a regulatory agency — has ruled that the county must expand the jail.
“It implies there is some sort of legal authority that has ordered them to do this,” said Patrick Wilbur, an organizer of the Jail No campaign. “That’s not true. The county is in complete control of this.”
County Commissioner Mike Gaughan acknowledged on Tuesday that the sentence saying the jail “legally must be expanded” could have been worded more clearly, but he thinks county commissioners have more accurately described the situation as they have been talking with constituents.
“All I can say is there is a better way of saying it, and we have been saying it that better way,” Gaughan said.
The statement in the brochure was unclear on what law would require the county to expand the jail. When questioned by the Journal-World, Thellman said there were several statutes in play. One frequently cited by county commissioners is Kansas Statute 19-1919. That law — which dates to 1868 — is brief. It reads: “All prisoners shall be treated with humanity, and in a manner which promotes their reform. Juveniles shall be kept in quarters separate from adult criminals. The visits of parents and friends shall at all reasonable times be permitted.”
County officials acknowledged that no court or regulatory agency has issued a ruling or an order stating that the county is out of compliance with that law or others related to jail standards. The county also has not received any warning letter or other formal notice from a regulatory agency stating the jail is in jeopardy of being ruled out of compliance with the law.
The statute provides no definition of what constitutes humane treatment or efforts to promote the reform of inmates.
It also was unclear what legal research the county had conducted on the issue. The county counselor has not been asked to issue a written opinion about the jail’s compliance with the law, Thellman said.
“We didn’t seek a legal determination of whether we are being forced to do the right thing, or whether we simply are doing the right thing before we are forced to do so,” Thellman said.
Governments, at times, do find themselves under order to take an action to remain in compliance with a law. The current school finance law in Kansas is an example. The Legislature has been ordered by the Kansas Supreme Court to make changes to the school finance law to bring it into compliance with the Kansas Constitution.
County officials acknowledged the jail issue faces no such order, currently.
“But we don’t want to get to that point, either,” Gaughan said.
Opponents of the sales tax, though, said the county is exaggerating the risk that the jail could be found out of compliance in the future. Benet Magnuson, executive director of Kansas Appleseed and a leader of the Jail No campaign, said such enforcement action against a jail is rare, and he believes there are several jails in Kansas at greater risk of such action than the Douglas County Jail.
“There is just no interpretation of these statutes that says you have to expand the jail,” Magnuson said.
More coverage: Douglas County votes on jail expansion, behavioral health campus• May 14, 2018 — County clerk reports that about 40 percent of Proposition 1 ballots have been returned by eve of deadline
• May 9 — Latest debate in sales tax election: How far can the county go in pushing for a ‘yes’ vote?
• May 8 — Proposition 1 brochures removed from County Treasurer’s Office counter after citizen complains
• May 7 — Proposition 1 ballots coming in at ‘impressive’ rate; county clerk says turnout could exceed 45 percent
• April 30 — Jail referendum fact check: A look at what both sides aren’t saying about the heated campaign
• April 30 — Midcase mental health evaluations for Douglas County jail inmates have increased
• April 30 — How much is violent crime up in Douglas County? Either a lot or very little, depending on which statistics you look at
• April 24 — A look at what is included in the proposed Douglas County Jail expansion
• April 23 — Americans for Prosperity campaigning against sales tax in county referendum
• April 22 — At forum, Douglas County commissioner explains 'what if' option if sales tax referendum fails
• April 22 — Get ready to vote: Questions and answers on the Douglas County half-cent sales tax ballot question
• April 22 — 4,198 days in: Meet the Douglas County Jail’s 5 longest residents
• April 20 — County says Justice Matters using wrong law to try to force mental health vote; group plans to start petition drive on Saturday
• April 18 — Douglas County leaders learn about first participant in diversion program for female inmates; Thellman cites Constitution on jail expansion issue
• April 17 — Average daily population at Douglas County Jail fell slightly in 2017 to reverse 5-year trend
• April 17 — Douglas County counselor: Meeting with Justice Matters about proposed petition would not be appropriate
• April 17 — Despite campaign literature to the contrary, county officials confirm there’s no legal finding that Douglas County Jail must be expanded
• April 16 — Douglas County legal counselor finds proposed Justice Matters petition legally invalid, but group says it can be fixed
• April 16 — What you will see and hear on a Douglas County Jail tour
• April 15 — Speakers at criminal justice, behavioral health forum look beyond jail expansion, crisis center
• April 14 — County-funded training expands number of peer-support specialists to share ‘been there, got better’ message
• April 11 — Criminal justice group’s spokeswoman says expanding Douglas County Jail would contribute to nation’s mass incarceration problem
• April 9 — Douglas County Commission may be forced to put new mental health, tax plan on November ballot
• March 25 — Increasing population at Douglas County jail at odds with national trend
• March 22 — Advocacy group forms to support county referendum on jail expansion, behavioral health initiatives
• March 21 — Douglas County District Court chief judge defends court’s processes, agrees serious felony crime is increasing
• March 12 — County’s pretrial release, home-arrest programs diverting large numbers from jail, but not enough to prevent overcrowding
• March 11 — DA was more likely to grant a diversion in 2017, but number of people seeking them declined
• March 6 — Douglas County Sheriff’s Office offering jail tours, presentations in advance of spring referendum
• March 5 — Online behavioral health care site available free to county residents pending referendum outcome
• March 4 — Felonies, not pot smoking, filling up the Douglas County Jail, new report says
• March 3 — Activist groups kick off their campaign against jail expansion
• March 1 — Town Talk: Here comes the opposition: Four groups join forces to campaign against Douglas County jail expansion
• Feb. 21 — Douglas County will face tough choices on jail expansion if tax referendum fails, official says
• Feb. 20 — Building jail expansion in phases would take 16 years, $6M to $8M a year, county says
• Feb. 19 — Town Talk: Fact checking county commissioners on assertion that big budget cuts will come if voters reject jail/mental health sales tax
• Feb. 17 — Activist leaders blast proposed expansion of Douglas County Jail
• Feb. 12 — As voters consider $44M expansion, report finds some changes could reduce overcrowding at Douglas County Jail
• Feb. 7 — Douglas County Commission to schedule forums on jail and mental health referendum, provide information on what happens if voters reject
• Feb. 4 — Johnson County built a larger jail and now has 300 unused beds; Douglas County can't use them
• Jan. 30 — State law won't allow Douglas County commissioners to campaign for passage of jail, mental health sales tax
• Jan. 24 — Douglas County Commission approves language for ballot question on jail expansion, behavioral health campus
• Jan. 22 — Following the money: Douglas County partners beefing up behavioral health services with funding
• Jan. 17 — Douglas County Commission agrees to put jail expansion, behavioral health campus on same ballot question
• Jan. 16 — Town Talk: Many residents want to vote separately on jail, mental health projects; there's a way, but county unlikely to go there
• Jan. 16 — Douglas County commissioners ready to ask voters to approve jail expansion, behavioral health initiatives
• Jan. 15 — 2014 speedy trial redefinition clogging Douglas County jail, district court
• Jan. 10 — Price tag of behavioral health campus, services estimated at $5.76 million annually
• Jan. 8 — No insurance and hooked on drugs? Chances are, you won't find treatment in Douglas County
• Jan. 5 — Town Talk: A look at how high Lawrence's sales tax rate would be if voters approve increase for jail, mental health
• Jan. 3, 2018 — Due to misunderstanding, county now says jail expansion, mental health projects must be on same sales tax ballot
• Dec. 31, 2017 — Undersheriff says 2016 annual report shows overcrowding threatening jail safety, re-entry programming
• Dec. 18 — Behavioral health campus plan grew from recognition of housing's role in crisis recovery
• Dec. 13 — Services that will be part of behavioral health campus to be introduced next month at LMH
• Dec. 13 — Douglas County commissioners confident of voter buy-in on jail expansion plan
• Nov. 30 — Douglas County commission agrees to move ahead with $44 million jail expansion design
• Nov. 26 — Sheriff's Office exploring modular units as stopgap solution to Douglas County Jail overcrowding
• Nov. 8 — Douglas County Sheriff's Office recommends jail redesign that would more than double number of beds
• Oct. 4 — Jail expansion, crisis center would require public vote on new taxes, officials say
• Sept. 20 — Estimated cost to expand Douglas County Jail jumps by millions of dollars
• July 26 — Douglas County Commission to forward report on future jail population to architects
• July 16 — Double bunking not considered solution for Douglas County Jail overcrowding
• June 26 — Jail, mental health initiatives help drive proposed tax increase in 2018 county budget
• May 14 — Douglas County data showing swelling jail population despite fewer arrests
• April 5, 2017 — Sheriff urges Douglas County Commission to make jail expansion a priority