By PATRICK HUGHES | March 31, 2020

Wisconsin sheriffs' flexible approach to managing the spread of COVID-19 is a better model than the rigid statewide orders to halt prison admissions and most court proceedings issued by Gov. Tony Evers and the State Supreme Court. These blanket prohibitions have placed Wisconsin’s county jails in a difficult position. Fortunately, the jails are responding with more innovative and nuanced approaches.

State officials are right to take precautions. The confined conditions inherent in correctional intuitions, combined with significant overcrowding, make containing a highly infectious virus extremely challenging. Moving people through courtrooms and facilities could certainly hasten its spread.

But shifting these risks to county jails merely relocates the problem. Jails must continue to admit new inmates even though their ability to reduce populations is limited. County sheriffs are working to find ways to contain the virus as new inmates continue to head their way.

Evers’ emergency order restricting new prison admissions was issued March 20. Two days later, the Wisconsin Supreme Court halted most in-person court proceedings until April 30 and all jury trials until May 22.

That leaves county jails as the last option for detention. Defendants serving pre-trial detention will remain in custody, convicted inmates who would normally transfer to prisons will stay put and ex-offenders who are revoked for violating community supervision will be jailed. The governor’s order allows temporary holds and sanctions at the DOC’s Milwaukee Secure Detention Facility, but this facility has limited capacity.

Compounding the problem, the suspension of trials and in-person proceedings will create a backlog of cases when the courts reopen, resulting in longer pre-trial detentions. Attempts to hold hearings via teleconference are unlikely to alleviate the problem.

Under normal circumstances, large numbers of offenders move through Wisconsin jails every day. In 2018, the most recent year with available data, the average daily population in Wisconsin jails was 13,434. Wisconsin jails processed more than 211,000 admissions in 2018, an average of approximately 17,500 per month or nearly 600 per day.

Many of these bookings are short-term incarcerations, but the transient nature of jail populations makes preventing the spread of a virus like COVID-19 more challenging than the comparably stable state prison population.  

There may be mitigating factors that help slow the growth of jail populations. Judges are likely to be more lenient on bail and pretrial detention. Criminal activity may decline as a result of the statewide lockdown. Police may arrest fewer people.

Still, some portion of new inmates will need to be held in jail for the duration of this crisis. Suspended and limited court operations will result in an unknown number of offenders – those who under normal circumstances would receive probation or have their charges dismissed – remaining in custody.

On top of that, it’s unclear who will pick up the significant costs associated with these new inmates.

Sheriff departments throughout the state are working to address these issues and prepare their facilities and staff for the challenges posed by COVID-19, according to Green Lake County Sheriff Mark Podoll, president of the Badger State Sheriffs’ Association. He said that county sheriffs were surprised by Gov. Evers’ order, which was communicated by email to jail administrators.

Communication between DOC and the sheriffs has improved since then, he said, and both parties are coordinating probation and parole operations, with DOC evaluating jail-to-prison transfers on a case-by-case basis.

In the meantime, jails are developing protocols to manage infected inmates, establishing housing units to segregate healthy inmates from the sick and using negative pressure rooms for those who become infected, Podoll said. They are also encouraging staff to take social distancing seriously when off duty for their own safety, to prevent the virus from entering jails and to reduce the risks of understaffing due to illness.

Some sheriffs are opting for an alternative to incarceration: home detention. Wisconsin law gives sheriffs and house of correction superintendents (Milwaukee is the only Wisconsin county with a house of correction) the authority to “place any person confined in jail” in home detention, commonly known as house arrest. In addition to remaining in his or her residence (with a few exceptions), the inmate is required to be on electronic monitoring and pay a portion of the costs.

Home detention provides jails with flexibility as they work to contain the virus. A sheriff can release an inmate to home detention when the jail is full and return the inmate if space becomes available. Jails can provide space for inmates to implement social distancing and give institutions the room to create segregated housing units to quarantine infected inmates.

This option is already being used in Wisconsin counties. The Leader Telegram reports that Chippewa and Barron counties have released inmates with Huber privileges (work release) to home detention to prevent them from bringing the virus into the facilities.¹

It is unclear whether inmates awaiting transfer to state prisons would be eligible for home detention, but it is more likely sheriffs would use this option for defendants convicted of misdemeanors. Inmates on pre-trial detention would probably not be good candidates because a judge would likely release inmates on a signature bond if they were not a threat to public safety during this crisis. State law does not permit the use of home detention for offenders on supervision in custody pending a revocation hearing.

There are other inmates who will not be good candidates for home detention, perhaps due to the severity of their crime, unwillingness to comply with monitoring requirements, risks to public safety or mental health issues. There also may be a limited supply of electronic monitoring equipment available. A significant expansion of home detention could be controversial if large numbers of offenders are released or commit new crimes.

Inmates currently on work release are the best candidates for home detention during this crisis. Those with jobs in essential services like construction, warehouse operations, transportation and manufacturing can continue to support the economy and themselves. Home detention would allow them to keep working and prevent them from interacting with the jail population.

Sheriffs should evaluate other home detention candidates to determine if they present a risk to the public, have access to stable housing and are healthy enough to avoid burdening the health care system. Once the virus is contained, inmates can be returned to jail if the sheriff determines that is the best option. Inmates who fail to follow the rules can be returned to jail at the direction of the sheriff at any time.

Managing this crisis will require a coordinated effort between state agencies, local government and the public. Before making any more sweeping, top-down policy decisions, the Evers administration and the courts should allow local governments to evaluate and implement the options provided in statute for managing jail populations. Home detention is a viable option for limiting the spread of COVID-19 and one that can be implemented immediately.

Read the article here.

Patrick Hughes is a Badger Institute corrections consultant. He served as assistant deputy secretary and division administrator in the Wisconsin Department of Corrections and as a senior policy advisor to Gov. Scott Walker. Permission to reprint is granted as long as the author and Badger Institute are properly cited.