Policy Wonk: Statewide jails need a chance to succeed

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Maine has a statewide court system, a statewide Public Utilities Commission, Department of Environmental Protection and Department of Transportation.

We attempt to equalize educational opportunity by distributing school aid statewide. We have a statewide university system.

Why? Because in all of these areas (and more) we realize that a statewide approach saves taxpayer money and provides better service to Maine people.

But somehow we seem to believe that a fragmented county jail system allowing each county (though widely different in population, existing jail facilities and tax resources) to operate its own jail will provide adequate and safe jail facilities.

It’s a belief not matched by reality.

In 2007, driven by the need for a more modern and less costly system of jails than individual counties could provide, the Legislature passed “An Act to Better Coordinate and Reduce the Cost of the Delivery of State and County Correctional Services.”

The act created the Maine Board of Corrections, not to run individual jails, but to oversee and manage a new statewide system; to carry out legislatively defined purposes and goals.

From the beginning, however, this legislation was strongly resisted (for different reasons) by many counties. Notwithstanding the higher cost of a fragmented jail system, this opposition rallied behind the mantra of “local control.” They called for the state to continue maintaining prison facilities, and for a continuation of county control of jails.

Passive resistance to the 2007 legislation took many forms: Significant portions of the act did not go into effect until 2008 and 2009, the BOC was understaffed and underfunded, board appointments to the original nine-member body (subsequently reduced to five) were slow, the act failed to address past and future capital construction issues related to jail facilities.

Notwithstanding these difficulties, the BOC made slow progress in the waning days of the Baldacci administration and early in the LePage administration. Amendments to fine-tune the original act were adopted in 2009 and 2011. The latter, signed by Gov. Paul LePage, provided the BOC with a needed full-time executive director.

But critical issues remained unresolved. Annual cost-sharing arrangements between the state and individual counties needed adjustment. The handling of capital construction costs was still not addressed. And it was clear that the powers of the BOC were inadequate to meet goals and duties laid out in the original act.

The 126th Legislature tackled these issues through the Committee on Criminal Justice and Public Safety. The Legislature (at the committee’s request) appointed a broad-based 15-member Study Commission, chaired by David Flanagan.

The commission met through the fall of 2013 and submitted a detailed report to the Legislature in December 2013. It outlined four options:

A return to the fragmented county jail system of the past; a regional approach to managing county jails; a complete take-over by the state of county jails, or modifying legislation to give the BOC the powers needed to meet the goals and purposes of the original act.

The commission recommended the last option. The Criminal Justice Committee crafted detailed legislation, LD 1824, addressing the unresolved issues and Commission recommendations. A financial analyst was added to the staff; counties were prohibited from withdrawing from the statewide jail system; enforcement tools were provided to the BOC.

This detailed emergency legislation was reported out of committee by a bipartisan, nearly unanimous, vote; it required a two-thirds vote in the Legislature, and passed overwhelmingly.

But LePage vetoed LD 1824.

He made clear his opposition to the Flanagan Commission report, and to the bipartisan legislative action. His real goal became evident: he wanted to shrink state government costs by returning to a fragmented county jail system, whatever the cost to local governments. The Legislature, however, unwilling to abandon the efficiency and overall cost savings of a statewide jail system, overrode the veto, and LD 1824 became law.

The governor then pulled out all the stops. He refused to pay the state’s annual shared-cost commitment to the statewide jail system, and, taking advantage of resignations and expired terms on the BOC (which reduced that body to two members, fewer than necessary to constitute a legal quorum), he steadfastly refused to make appointments to the BOC. This prevents the BOC from functioning.

LePage’s actions are constitutionally impermissible. Maine’s Constitution states that: “(The Governor) shall take care that the laws be faithfully executed.”

In short, LePage is constitutionally required to pay budgeted state commitments, to make appointments to the BOC. His refusal to do so is justified by apologists who call a statewide jail system “a failed experiment.”

This mischaracterizes reality.

Continued movement towards a statewide jail system is the law. It should not be cut off by a governor who refuses to “faithfully execute” the law. His conduct is a breach of his duty and his oath of office, and is shameful.

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Orlando Delogu of Portland is emeritus professor of law at the University of Maine School of Law and a longtime public policy consultant to federal, state, and local government agencies and officials. He can be reached at orlando.delogu@maine.edu.

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