AUGUSTA, Maine — Who runs the county jail system — and perhaps more importantly, who pays for it — has emerged as an $80 million question that the Maine Legislature will have to answer before the end of June.
Lawmakers and Gov. Paul LePage overcame a months-long impasse earlier in February when they agreed to provide $2.5 million in emergency funding to Maine’s 15 county jails, along with an arrangement that will have the state’s corrections commissioner oversee the jails until June 30.
Lawmakers and sheriffs say LePage created the problem with his refusal to follow a law passed last year that called on him to nominate members of the Board of Corrections. LePage said his refusal stemmed from his belief that whoever runs the jails should have full oversight, including decisions about funding.
Counties ran their own jails for decades before 2007 until costs spun out of control.
— Sheriffs operated the jails and county commissioners held the purse strings until the 2000s when jail budgets, from most perspectives, grew out of control with cost increases averaging 9 percent annually.
— According to the Maine Municipal Association (see page 4 at the link), county budget increases continued to far outpace municipal budgets from 2008 to 2012, which is the most recent comparison data the Maine Municipal Association has. While municipal costs for administration, public safety, public works, human services, parks and public libraries all increased a maximum of 4 percent or, in many cases, decreased during that time, county spending went up 17 percent. School budgets, by comparison, went up 19 percent between 2008 and 2012.
— In the mid-2000s, several counties became embroiled in controversy over the boarding of prisoners. Jails that were at capacity were forced to find bed space at other county jails, which created a sort of bidding war that pitted one county against another.
The Legislature tried to fix the problem In 2008.
— After a failed attempt at a state takeover of county jails in 2006 by former Democratic Gov. John Baldacci, lawmakers enacted a bill that froze what local taxpayers would pay for county jails, capping the cost of the statewide system at the 2007-08 figure of about $62 million (the system costs a total of about $80 million today; the state pays the difference). The legislation also transferred oversight of the system to a new Board of Corrections and ended the days of counties socking away year-end surpluses for future lean times or capital construction projects.
— Since then, jail funding problems have persisted. Sheriffs and jail administrators have argued that rising costs, coupled with mostly flat funding from the state under LePage, brought the problem to a head. Also contributing to cost increases are backlogs in the court system that put inmates that would otherwise be in the state prison system or who are awaiting trial in county jails.
According to former Board of Corrections Executive Director Ryan Thornell, the system needed $1.2 million in supplemental funds in fiscal year 2013 and $2.5 million this year. Recent projections indicate that the system would need some $4 million more from the state next year and $6 million the year after. All this while LePage maintains that he will not support higher funding requests.
— “That system is made to fail,” LePage told reporters on Jan. 13. “It cannot work the way it’s set up.”
LePage has maintained in recent weeks that he doesn’t care who runs the jails but whoever does should pay for them. That means either the state would pay the entire cost of running the county jails — and take over their operations — or that the full cost of the system revert to counties, which are basically dependent on property tax revenues.
Federal revenues have decreased.
— Part of the bidding war that erupted in the 2000s was over the lucrative housing of federal prisoners, but that funding has decreased significantly in part because of the construction of prisons in nearby states. In Piscataquis County, according to Sen. Paul Davis, R-Sangerville, the daily average count of federal prisoners has dropped from about 16 to four or fewer. Cumberland County Jail, has seen its revenue from boarding federal prisoners decrease by about $1 million a year since 2008.
— Sagadahoc County Sheriff Joel Merry, chairman of the now-defunct Board of Corrections, said federal revenues are decreasing faster than counties have been able to budget for them. Cumberland County Jail, for example, which houses the majority of federal prisoners coming to Maine, budgeted for about $3 million in federal revenue this year but has a nearly $400,000 shortfall.
The Legislature again thought it had fixed this problem last year.
— After months of work, the Legislature enacted a bill in 2014 that sought to correct problems that were leading to funding shortfalls, including implementing a set of standards for all jails, fixing the prisoner boarding problem and giving the governor authority to appoint a majority of the Board of Corrections. LePage vetoed the bill, but the Legislature overrode his veto.
— Since his veto was overridden, LePage has refused to nominate members to the Board of Corrections. Departures resulted in board membership falling below a quorum, which prevented it from implementing many of the provisions in the 2014 legislation. Some lawmakers say the jails’ funding problems are LePage’s fault.
“If the governor would just obey the law, we wouldn’t be in this situation,” said Rep. Peggy Rotundo, D-Lewiston, who is co-chairwoman of the Legislature’s budget committee.
— “The law hasn’t been able to be implemented because of the Board of Corrections situation,” said Bill Whitten, a lobbyist for county commissioners who was a coordinating force on the jail fix bill. “There are people who say ‘oh, it doesn’t work,’ but it’s a really good bill that corrects a lot of problems. The issues that aren’t working are because it hasn’t been fully implemented, and it appears like it’s not going to be, either.”
— Both of the Board of Corrections’ staff members resigned earlier this year, and all of the board’s meetings have been canceled.
Jail operations can continue, for now.
— The Legislature and LePage enacted a bill on Feb. 13 that provided $2.5 million in emergency funds to county jails, which some said was crucial for them to continue normal operations. That same bill installed Corrections Commissioner Joseph Fitzpatrick or his designee to oversee the jails. That arrangement will expire at the end of June.
— Fitzpatrick didn’t waste any time exercising his new authority. Later that day, he sent a letter to county sheriffs, urging their cooperation on sharing bed space.
“I do not believe the county system has a lack of bed space,” said Fitzpatrick, who called for a meeting of all sheriffs. “However, there does appear to be a lack of cooperation amongst some counties.”
— The Board of Corrections is probably a goner. Few people in state or county government believe that the board can or will continue while LePage is in office, and his refusal to appoint members continues.
“I’ve heard a lot of people refer to [the Board of Corrections] as a failed experiment,” said Merry. “I think because of the flat funding from the state, we have found a lot of ways to control our costs. … There has been a lot of synergy.”
A long-term fix is needed, and the pressure is on the Legislature’s Criminal Justice Committee.
— The committee will likely develop its own solution, but it has a starting point thanks to two bills submitted by Davis. One of Davis’ bills would allow counties to keep the revenue they receive from boarding federal prisoners, as opposed to letting it flow to the state. Davis’ second bill would return control of county jails to the counties.
Merry said the Maine Sheriffs’ Association voted unanimously last week in support of the latter bill.
Whoever controls the jails will have to fill a funding gap because at present, jails are funded with a mix of local and state funding.
— Davis said he is exploring funding sources at the state level and favors a tiered reduction in state funding. But it’s more complicated than that. Moving back to local control would create bigger financial problems for some counties than for others. But from LePage’s perspective, restoring local control would put the financial burden — and presumably the impetus to cut costs — on municipalities. LePage’s state budget proposals have sought to do that in many ways, including shifting teacher retirements costs from the state to school districts and eliminating revenue sharing.
“We know there are going to be winners and losers, so we’ve got to try to make it as least painful for everybody as we can,” said Merry.
— If control goes to the state, lawmakers would have to find about $62 million from state revenues, which is highly unlikely in the present environment where LePage is leading an effort to cut taxes and spending.
— Sheriffs, county commissioners and some lawmakers would clash with LePage if the Legislature opts for state control.
“I don’t believe there’s any appetite, at least among the sheriffs, to have the state set their boarding rates,” said Merry.” Nobody wants to see a county taken advantage of again.”
— Davis could prove to be a wedge between LePage and some Republicans.
“If he vetoes it and I don’t feel he’s got good reason to veto, I’ll do everything I can do to get his veto overridden,” said Davis, a former sheriff’s deputy and veteran legislator. “Plain and simple.”
It seems pretty obvious what has to happen, but lawmakers have their hands full with this one.
If the state were to take over county jails, LePage and lawmakers would have to find $62 million per year from the General Fund to cover what is currently being raised by property taxes. Restoring local control would mean municipalities would have to either find vast new efficiencies or raise something like an additional $20 million annually, which is being paid by the state.
Either way — and given the fact LePage rejected last year’s legislation — someone will have to pay more and finding consensus among the state, 16 county governments and hundreds of municipal governments will be no easy task.