Dear Members of the Board:
The American Civil Liberties Union Foundation of Northern California (“ACLU NorCal”) writes to urge the Board to again reject Sacramento County’s proposed construction to build a new jail facility.
ACLU NorCal has reviewed the consent decree in Mays et al v. County of Sacramento, numerous County Consultant Reports, Consent Decree Monitoring reports, Important Class Counsel Letters, and Significant Court Documents.1 We acknowledge the County has made efforts with workshops and the creation of a jail population reduction plan to reach compliance with the Mays consent decree.
ACLU NorCal shares the concerns of the Board of Supervisors (“BOS”) about addressing the treatment of incarcerated people in the Main Jail and Rio Cosumnes Correctional Center (“RCCC”), while at the same time fulfilling the County’s obligations under the Mays consent
decree. However, there are more strategic and cost-effective ways to address these concerns than creating a new and expensive building that will only aim to address a small portion of the Mays consent decree’s Remedial Plan. The majority of what is required in the consent decree has little to do with the physical space and more to do with the policies, practices, culture, and management of the jail.2
This letter will share practical and cost-effective diversion programs that can help incarcerated people get connected with community-based treatment and housing, thereby dramatically reducing both government spending and recidivism. This is a better alternative than creating a new jail facility and would address the Mays consent decree’s Remedial Plan.
Court-appointed monitors3 have repeated that individuals in custody should be treated in community-based settings, which would also serve to significantly reduce the number of people with mental illness in the jail. The BOS should again vote “No” to expand the Main Jail until there has been a serious exploration of the potential of all existing mental health diversion options to comply with the consent decree.
Lastly, it is our position that the burden should be on the County to create a cost-benefit analysis discussing how the creation of a new jail facility would be the most cost-effective way to comply with the Mays consent decree. ACLU NorCal believes the County will be moving away from its mission statement4 of improving residents’ quality of life by providing cost-effective public services while fostering economic health if the county proposes a new jail facility without publicly providing the economic analysis to justify the need. We strongly urge the BOS to direct the County to publicly share its cost-benefit analysis used in justifying the new jail facility as the best route to comply with the Mays consent decree when compared to community-based alternatives to incarceration and potential retrofitting of the current building to comply with the American Disabilities Act (ADA) and Health Insurance Portability and Accountability Act (HIPAA). Facilitating a public discussion on cost-benefit analysis would be more aligned with the County’s commitment to serve communities with transparency.
The Mays Consent Decree’s Remedial Plan Does Not Require a New Jail Facility
In June 2019, the County entered into a consent decree with plaintiffs in the matter of Mays et al County of Sacramento, a class-action lawsuit alleging deficiencies in the medical and mental health care provided to individuals incarcerated in the County’s jails, especially individuals with disabilities. The settlement was approved in January 2020. The parties’ consent decree included a 62-page Remedial Plan articulating specific measures by which the County shall cure the myriad deficiencies of its jails, organized into six categories: (1) Americans with Disabilities Act (“ADA”) compliance; (2) mental health care; (3) disciplinary measures and use of force for prisoners with mental health or intellectual disabilities; (4) medical care; (5) suicide prevention; and (6) segregation/restrictive housing.6 The County agreed that reducing the jail population would be a “cost-effective means” to facilitate compliance with the Remedial Plan.7
The overwhelming majority of the measures laid out in the Remedial Plan implicate County policies and procedures, staff training and retention, and clinical practices—that is, measures which require changes to the management and culture of the County jails, not to the physical facility. Below we address each of the six categories laid out in the Remedial Plan.
The ADA Remedial Plan Does Not Require a New Jail Facility
Within the category of ADA compliance, the Remedial Plan lists seventeen sub-areas of needed improvement, including developing and implementing an ADA tracking system; hiring an ADA coordinator; screening for disability and disability-related needs among prisoners; creating a know-your-rights orientation for prisoners with disabilities; and a disability-related grievance process.8 Of the seventeen sub-areas provided in the Remedial Plan, there are only two which objectively call for modifications to the physical facility.
The two calls for modifications to the physical facility out of the seventeen subsections in the ADA remedial plan are minor when compared to the other fifteen remedies that do not require changes to the facility. A new independent architectural study is needed with a specific scope of work to examine options for meeting ADA and HIPAA in the Main Jail and RCCC. Given the County’s agreement that reducing the jail population will facilitate compliance, and in light of how many other areas of improvement still need to be implemented by the County, the question of whether the necessary physical modifications can be made within the existing facility warrants further examination. Even if a new jail facility were to be created, Mays consent decree issues will largely remain. Creating a new jail facility would not absolve the County of its duty to the incarcerated members that would be left in the Main Jail.
Further, complying with the ADA is better facilitated outside of an institution. Diversion programs not only improve public safety and public health, but they are also consistent with the purpose of the ADA and with the landmark decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), in which the U.S. Supreme Court affirmed that the ADA prohibits the needless institutionalization of people with mental disabilities. The BOS should vote “No” on a new jail facility and dedicate the necessary funding to provide people with the proper services.
The Mental Health Care Remedial Plan Does Not Require a New Jail Facility
The Remedial Plan details nine sub-areas within the category of mental health care. The majority of these sub-areas deal with policies and procedures, implementation of new practices, and staff training.9 Two sub-areas discuss the bed capacity in the mental health care and inpatient psychiatric units.10 While ACLU NorCal recognizes the need for an adequate number of beds to serve those with mental health disabilities housed in the jail, we believe the proper solution to an insufficient number of beds is not to keep expanding physical space, but to divert individuals with mental health needs to alternative programs in the community. This is a less costly and more effective way to approach mental health care. Section II will further detail a practical approach the BOS should consider investing into instead of a new jail facility.
The Medical Care Remedial Plan Does Not Require a New Jail Facility
Similarly, within the category of medical care, the Remedial Plan details eighteen sub-areas of needed improvement, including hiring more medical staff; improving access to and quality of chronic care; improving medication administration and monitoring; and better sanitation practices.11 Per the Third Monitoring Report on Medical Care filed with the court on October 25, 2022, the County continues to be out of compliance with many of these consent decree requirements, the majority of which do not call for a new jail facility.12
We acknowledge the Third Monitoring Report on Medical Care found that the jail continues to have “insufficient medical and custody staff” that makes the living conditions for people inhumane.13 However, since there is a lack of staff, millions of dollars should not be devoted to expand jail facilities, but instead there should be some resources dedicated to adequately staff the Main Jail while prioritizing jail population reduction. The medical care remedial plan can be addressed by reducing the patient load for staff inside the jail and improving policies and procedures. A new jail facility will not address this issue.
The Remedial Plans for Disciplinary Measures, Suicide Prevention, and Segregation/Restrictive Housing Do Not Require a New Jail Facility
None of the numerous sub-areas of needed improvement identified within the categories of segregation/restrictive housing or disciplinary measures require changes to the physical facility. Likewise, within the category of suicide prevention, none of the eighteen sub-areas clearly call for an expansion to the jail. While the Remedial Plan requires that clinical encounters – including post-intake mental health assessments and treatment of inmates at risk of suicide – occur in a setting that provides reasonable privacy and confidentiality, the Third Monitoring Report on Medical Care recommends that such changes be made by “reconfigur[ing] clinical spaces.”14 Thus, there is no demonstrable need for a jail expansion within these three categories. Further, the reasonable privacy and confidentiality can be achieved without a new jail facility by investing in diversion programs as explained below in Section II.
The Nacht & Lewis Report Should be Viewed Cautiously as Justification to Create a New Jail Facility
ACLU NorCal has reviewed the March 31, 2022, report of Nacht & Lewis and acknowledges the conclusions reached therein, including the assertion that the County’s Main Jail cannot comply with the Mays consent decree without expanding the facility.15 However, ACLU NorCal expresses skepticism about the conflict-of-interest Nacht & Lewis has in the jail industry. This firm is the original builder of the Main Jail, and it continues to be an active player in the jail construction business that can be seen throughout Northern California, the Central Valley and beyond.16 Although the BOS recused Nacht & Lewis from bidding on a jail augmentation, the county paid the firm $250,000 for the report.17
Furthermore, the Nacht & Lewis report assumed a greater population than the jail currently has, despite many recommendations to reduce the current jail population, which helped lead it to the conclusion for an expansion.
The County has not yet made many less costly and easier-to-implement changes required by the consent decree. Before investing hundreds of millions of dollars18 in building and maintaining a new jail facility, the County should seriously pursue other avenues of compliance, including by improving the existing facility and reducing the jail population by pursuing more effective, humane, and cost-effective community-based alternatives. The practical community-based investments can be made immediately as further described in Section II.
Jail Is Not the Proper Setting to Treat People Suffering with Mental Illness because There Are Evidence- and Community-Based Alternatives that Are More Effective
Sacramento County’s vision statement reads: “We are a Premier, Trusted Employer and Organization, Serving Our Communities with Transparency, Courage and Innovation.”19 We applaud this vision and encourage the County to hold true to it, ensuring it does not just exist in theory but is lived out in practice.
Sacramento County has the unique opportunity to be innovative in its approach to treat people suffering with mental illness with the best health services using cost-effective means and evidence-based programs. Below we discuss evidence-based programs that provides the County with the opportunity to create effective, efficient, equitable, and sustainable approaches to public safety.20 Two of the programs have been implemented as grant-funded pilot programs and one is an existing County inpatient psychiatric hospital funded at half its residential capacity.21 Together, they could serve 150 individuals who would otherwise be incarcerated, and all three have the potential to scale up to serve more people quickly and cost-effectively.22
The cost of these programs will cost far less than the new jail facility the County is proposing. The county staff’s recommendation for facility remediation are estimated to be $465 million.23 However, the county should instead use $465 million to invest in community-based programs that would free resources for support systems that mitigate criminogenic factors.24 Additionally, these programs can be far more flexible and responsive to changing practices and conditions, as compared with the constraints of large, fixed investments like the proposed jail facility. Each program could be scaled efficiently to alleviate some of the current pressure on the County related to increasing diversion from jail, reducing jail population, addressing inhumane conditions, and providing treatment for those suffering from health disorders all while meeting requirements of the Mays consent decree.
BOS Should Invest in the EMPOWER Program Instead of New Jail Facility
We urge the BOS to direct the County to fund Telecare’s EMPOWER program full-time so that it is not a limited term program.26 EMPOWER is an acronym for Enhancing Mental Health through Positivity, Opportunity, Wellness, Engagement, and Resources.27 Persons suffering from mental illness are offered a full-service partnership (“FSP”), which includes housing outside of a jail setting. FSP programs are considered the gold standard in outpatient mental health care.28 The Mays consent decree requires incarcerated people to receive the treatment and expanding the EMPOWER program is a practical way to do so that is an alternative to creating a new jail facility.
EMPOWER is a three-year grant ending June 2023 and totaling $4.5 million (partially matching).29 It has the capacity to serve 100 individuals and housing is provided to 50% of the clients. Fully funding EMPOWER will help address complying with the mental health care remedial plan in Mays far better than creating a new jail facility.
EMPOWER can serve more people if it was fully funded. For example, when a client finishes the program, their case is dismissed. As more cases get dismissed, less people will need to be incarcerated, which will address the overcrowding and unsafe conditions the Remedial Plan addressed. The program is easily scalable such that it could continue to reduce the jail population thereby lowering criminogenic risks, increasing economic productivity, and housing opportunities, and restoring families.30
BOS Should Invest in Sacramento County Mental Health Treatment Center Instead of a New Jail Facility
Sacramento County Mental Health Treatment Center (“SCMHTC”) provides short-term comprehensive acute inpatient mental health services, 24/7, for adults experiencing a mental health crisis and/or condition.31
We urge the BOS to direct the County to restore SCMHTC to a 100-bed inpatient psychiatric facility. Following budget reductions in 2008, the County reduced SCMHTC’s structure to two parts.32 This structural change reduced the inpatient part to 50 beds. The new part became an urgent care facility. This urgent care facility limits intake services to weekdays between 8 a.m. and 5 p.m. The 24/7 stabilization unit closed, and the inpatient 50 beds no longer remain.33
However, the other 50% inpatient bed capacity remains.34 This means the County could serve 100 patients in the existing facility while complying with HIPAA and ADA to comply with the Mays consent decree. The SCMHTC capacity is only limited by the program budget, into which the County can invest adequate funding. We urge the BOS to explore investing in this program before creating a new jail annex. This is an underutilized resource that could add tremendous value as a restorative alternative to jail, helping the County address diversion and depilation challenges by returning to its original structure and intention. Further, it can also be considered for fixed structure and program scaling.35
Re-investing in SCMHTC to restore its pre-2008 capacity would be a relatively cost-effective and sustainable way to reduce jail population by 50 individuals with significant mental health needs, thereby alleviating several of the facility-related consent decree issues.
BOS Should Invest in the Public Defender Pretrial Support Program Instead of a New Jail Facility
incarcerated individuals with mental health needs; (3) longer time in jail for those with mental health and/or substance abuse treatment needs; and (4) lack of coordination with criminal court and jail discharge planning.38
This program meets many of the Mays consent decree requirements related to mental health care because the social workers embedded in the Public Defender’s office link the individuals to mental health services.39 Further, groups like the Exodus Project40 are valuable sources to help people with their basic needs such as transportation, food, and clothing, which will increase the likelihood of a person getting to the mental health treatment they need. Overall, PTSP will significantly lower the immediate and long-term cost for the County. The money proposed to be used for a new jail annex can easily be used to scale up a program like PTSP.41 The program is flexible, relies on personnel rather than facilities, is sustainable, and could be scaled up to many times its current capacity while remaining cost effective.42 There is no cap43 on the amount of people this program can serve and the BOS should direct the County to take advantage of it by investing more money into the program. Therefore, the BOS should vote “No” on the new jail facility and substantially invest more in the Public Defender Pretrial Support Program long-term.
The three programs highlighted above are what we mention for the sake of this letter. There are many more community-based organizations providing services that have immense potential to reduce incarceration. The ACLU NorCal would like to partner with the BOS to reach out and collaborate with the wealth of Sacramento County community-based organizations that can provide innovative solutions to not only comply with the Mays consent decree but go beyond the consent decree to tackle the systemic problems that plague our communities.
Rather than investing $465 million – and committing hundreds of millions more – at the expense of the rest of the County budget years into the future, we urge the BOS to vote “No” and reject any new jail facility proposal. The County has the resources and projects to provide alternatives to incarceration.44
Before you make your vote, keep in mind that jails are fundamentally places of punishment and control, not treatment and caring.45 We intend this statement less as a criticism than an observation about jails’ essential nature, design, and purpose.46 But it is an observation that is critically important for understanding why it is so difficult to create and maintain an effective system of mental health care inside a jail.47 All of the momentum inside such institutions – from their architecture to ideology – presses in the opposition direction of treatment.48 Moreover, because of the way jails are run and the assumptions by which they operate, ultimate decision- making authority is virtually always vested in the hand of correctional staff, not treatment.49
We applaud the BOS’s concern about those currently housed in the jail, but the large-scale incarceration of people with mental illness has been a failure—it is expensive, inhumane, and does not improve public safety.50 The Mays consent decree has provided Sacramento County with the opportunity to rethink its approach to criminal justice for people with mental illness and to fully invest in treatment and diversion programs that will reduce recidivism and costs while improving mental health outcomes. ACLU NorCal hopes to have the opportunity to work with County leaders and community-based organizations to locate these programs while also creating more programs, and creating implementation plans, which will benefit all of Sacramento County citizens.
Marshal Arnwine, Jr.
Criminal Justice/Police Practices Advocate ACLU Foundation of Northern California