What's wrong with this picture? The Charlottesville-Albemarle Joint Security Complex opens a big new addition, vastly increasing its capacity. Soon after, a suit is filed on behalf of some of its prisoners, citing the severe overcrowding they have to experience there.

It's a tangled web involving Connecticut felons, federal authorities, local folks waiting for their day in court, and Virginia's head of corrections. It untangles something like this:

Some time back in the Allen administration, Virginia launched a prison building boom that resulted in a quantum jump in bed capacity. Around the same time, federal officials - as well as corrections officials from other states - were trying to figure out where to put their rapidly-increasing number of convicts. And they were willing to pay close to $70 for a night's lodging. Voila! "Virginia is for Prisoners" could have been the new State slogan.

All well and good so far, but as Virginia's facilities began filling up with out-of-state visitors, bed availability for our made-in-Virginia prisoners grew increasingly scarce. The result was that our Corrections Department began a systematic foot-dragging operation of leaving local prisoners in the local jails far beyond the time when they were supposed to be transferred to state facilities.

Consequently, as of a year ago our local jail had 450 inmates but a capacity of only 329. 104 of those inmates were "state responsible" - the ones the state was supposed to move to an appropriate state facility. (The Code of Virginia allows 60 days for the State to classify convicted felons and move them into appropriate facilities.)

On September 1, 2001, the Daily Progress reported that a lawsuit had been filed on behalf of 14 of these state-responsible inmates, some of who had waited as long as 10 months, after sentencing, to be moved to a state facility. While much has happened in the past year, the lawsuit is still alive.

The suit has only one defendant, Ronald Angelone, Director of the Virginia Department of Corrections (VDOC). (According to attorneys, Angelone's recent resignation willl not affect the lawsuit.) The local jail board, which has been critical of the State for not taking state inmates to state facilities, is listed as an "involuntary plaintiff," a somewhat arcane designation in federal law meaning roughly that the suit was filed partly on the board's behalf but it is not a direct beneficiary of it. But jail board members seem to welcome the suit. "The Jail Board has been complaining mightily to the Department of Corrections about this issue for the past several years, but has stopped short of taking any legal action," says Blake Caravati, former Charlottesville mayor and current Jail Board member. Former Board member Pat Smith, Executive Director of OAR, echoes Caravati: "The jail is certainly overcrowded, even with the new building. And this is a bad situation. It impacts local jails greatly when the State does not house state-responsible prisoners."

The suit was filed in federal court because its main contention is that the VDOC is violating the state-responsible prisoners' right, under the equal protection on the 14th Amendment to the U.S. Constitution, to be treated the same as prisoners in state facilities. According to Edward Wayland, one of the inmates' attorneys, the suit was filed for three prime reasons:

· Overcrowding. "When we filed the suit, there were 40 or 50 guys sleeping on the floor of the gymnasium," Wayland asserts.

· Unequal conditions of confinement. Prisoners in state facilities have certain privileges and conditions that are not present in the local jails. For instance, state facilities allow contact visits; local jails don't.

· Rehabilitation programs. VDOC is required to develop a specific rehabilitation program for each state inmate. If the prisoner follows the program, then he or she gets a certain number of days of "credit" which translate into reductions from the length of sentence. According to the suit, rehab programs are not being developed or offered for state-responsible inmates in local jails.

Wayland says that an additional allegation, in the original suit, of "cruel and unusual punishment" was dropped for technical reasons.

Finally, the attorneys for the plaintiffs asked the court to make it a class action suit so that it would cover all state-responsible inmates in local jails in Virginia.

The State Responds

According to Wayland, the State's first response was to move many of the 14 plaintiffs out into state facilities. In fact the whole situation improved for awhile, but the proportion of state-responsible prisoners in the local jail is once again on the rise. But even if they were all gone, the suit would remain, says Wayland, because it asks for damages for the plaintiffs.

On July 23rd, the State responded to the suit by moving that it be dismissed, alleging that the inmates' claim is not a valid legal claim in that the State has the right to treat different inmates differently and thus, there is no valid "equal protection" argument. In part of its brief, the State contends "no justification need be provided by the Department of Corrections for any differential treatment between the two."

Wayland was somewhat astounded by the State's position and request for dismissal. "They have asked for the suit to be thrown out without giving any reason for why they are doing what they are doing. If they had a good reason, why didn't they raise it? In my view, [they've taken] an extreme and somewhat arrogant position," he said.

Wayland expects a decision from the court in about a month. The judge has deferred deciding whether to allow the case to be a class action suit until ruling on the motion for dismissal.

The Money Angle

While it may or may not be a reason for the state's foot-dragging on relocating prisoners, it is clear that the Virginia has a financial incentive for keeping state-responsible prisoners in local jails. The figures are a bit fuzzy, depending on who's doing the figuring, but this much we know: The State pays the local jail somewhere between eight and 20 dollars a day to keep a state-responsible prisoner. But the State gets as much as 70 dollars a day for each out-of-state prisoner. The lawsuit contends that the State realizes a net revenue of $32 dollars a day per prisoner for this musical cells game.

A Double-Edged Mess

While the local jail suffers overcrowding, it appears that the State prisons' beds will soon be ready for new lodgers. Federal officials have decided to no longer send federal prisoners to Virginia, and most other states, Connecticut in particular, have followed suit. This decision is due at least in part to dissatisfaction with the way Virginia runs its prisons. Many of the low-risk out-of-state prisoners have found themselves housed in Virginia's super maximum facilities and treated as high security risks.

While the loss of the out-of-state prisoners would seem like a good situation - freeing up beds for those prisoners they were built for - it's going to produce a financial shortfall the State can ill-afford. A recent AP report notes that the state treasury can expect to lose $46 million in revenues for the 1,600 out-of-staters now visiting the Old Dominion. The Governor is concerned. He has just appointed a special task-force to investigate the situation and figure out what to do about it.

Final Thoughts

Over-built state prisons. Over-crowded local jails. Out-of-staters we don't want to lose. As Doctor John would say, "Somethin' don' seem to fit." Is it time to get past the Allen days of "build them and they will come" and take another look at what we do with those we convict? There seems to be a growing consensus that we have built too many cells and are not using them wisely. And, just maybe, there's a growing concern that we're locking up more than we need to. More and more localities are putting increasing resources (though still small in comparison) in to alternative sentencing projects. As Caravati said, "There is an issue with the way we put people in jail. Unfortunately, there is still little use made of in-home detention and other good alternatives." (Jim Heilman, August 1, 2002)

For other articles related to the political economy of jails and prisons, see also: Daily Progress Editorial on Inmate Suit, Wallens State Prison, Wallens Ridge, Documents Show Use of Force at Wallens Ridge, Virginia Sees End to Out-of-State Prisoner Boom, Virginia Prison Warden Sues Over Web Postings, and Mississippi Prison-Building Spree.