We’re Number Two

In 2006, Denver’s jail system is the second most overcrowded big city jail in the country at 142% of rated capacity, after Gwinnett County, Georgia, in suburban Atlanta, which is at 144% of rated capacity.

The good news is that Denver’s overcrowding problem will improve dramatically when a new jail, approved by voters in May of 2005, opens in December 2009. The bad news is that until then, an overcrowded jail system is a dangerous place.  Most recently Emily Rae Rice in jail on a DUI charge died in February 2006 because officials didn’t treat her serious injuries from the accident resulting in her arrest, and Frank Ortega was killed in 2005 in Denver’s first jail homicide since 1977.Denver had the most crowded big city jail system in the country in 2005 with 159% of capacity, and was number 3 after Maricopa County, Arizona (i.e. Phoenix) and Gwinnett County in 2004, when Denver was at 137% of capacity.

Gwinnett County, is likely to keep the top spot for some time to come, it just opened a new jail in September of 2002 and is still the most overcrowded big city jail in the nation.  In Gwinnett County,one inmate died in 2006 and another died in 2005 from failures to receive medical care.

A 10% drop in crime in Denver in 2006 helped bring Denver out of the national jail overcrowding top spot it held in 2005, but only a little, because the city has stepped up enforcement of minor criminal violations in targetted areas.  Arrests, and not crime itself, drives jail overcrowding.

Litigation and Interim Solutions

Litigation to force Denver to address jail overcrowding has seemed likely in 2005, before voters approved a new jail, after rejected an earlier proposal in 2001 near Highway 6 overpass at I-25.  But, given that the city is already in the process of building a new jail, it isn’t clear that litigation could progress fast enough to make a meaningful difference for inmates.

There are no statutory rules setting fixed limits on jail crowding.  Denver’s City and County government also has only limited control over how many inmates are sent to its jail.  Roughly half are awaiting trial and unable to make bail, often in serious felony cases, while roughly half are serving sentences set by judges for misdemeanors or awaiting transfers to state prisons.

There is no formal system in place to balance the availability of jail space with the sentences and bail conditions that judges impose, although judges and district attorneys try voluntarily to be conscious of space limitations.

The District Attorney is independently elected. The criminal statutes which fix penalties for crimes are predominately set by the state legislature, not the city.  The judges who set conditions for pre-trial release and impose sentences for misdemeanors can’t be removed except by voters or for cause.  Denver can’t easily compel the state Department of Corrections, which houses convicted felons sentenced to prison, to pick up convicts earlier, and can’t release convicted felons before they are transferred. 

Denver’s Department of Public Safety can urge District Attorneys to pursue alternative sentencing or simply bring fewer cases to District Attorney, but standard operating procedure is to leave sentencing decisions to the District Attorney and to present all cases where the is enough evidence to prosecute to the DA’s office for consideration.  In extreme situations the Denver Sheriff can release people staying at the jail before their jail terms for convictions are complete, but this is a safety valve the the Sheriff uses sparing to maintain the intergrity of the system.

Denver has a commission studying alternative sentencing options, but it is largely toothless, empowered mostly by its ability to persaude key players, like judges and prosecutors, to act differently.

Judges evaluate claims that a jail is overcrowded to the point where civil rights are violated on a case by case basis, usually in the context of class action litigation (which usually requires a showing that there is an intentional policy to violate rights) or in claims of inmates (or the families of deceased inmates) who argue that their injuries come from an overcrowded prison system (which typically requires only a showing of negligence).

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Andrew Oh-Willeke

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