Cover Story: Jail Break

More than crime and punishment are on the line in Hamilton County jail referendum

Sep 12, 2007 at 2:06 pm
C. Matthew Hamby

It's rare to find a local issue so volatile that it not only pits Republicans against Republicans and Democrats against Democrats but also forges an unusual alliance between conservative and liberal groups who otherwise wouldn't even talk to each other, much less cooperate on a political campaign.

The controversy over increasing Hamilton County's sales tax to build a new jail has accomplished that unusual feat and this one: allegations that no-nonsense Sheriff Simon Leis Jr. might have broken state election laws in his vigorous lobbying for the tax hike.

Amid all the heated rhetoric, though, the tax debate involves broader public policy questions about the most effective methods for dealing with criminals and how best to reduce the county's astonishingly high recidivism rate for prisoners.

A recent study by Voorhis Associates Inc. shows about seven out of every 10 criminals incarcerated in Hamilton County return to jail for committing another crime after their release. More than half committed another crime within 22 days of being released from jail, the study indicates.

With those statistics in mind, county commissioners Todd Portune and David Pepper this spring crafted a tax plan that would generate money for early intervention and rehabilitation programs in addition to building another jail to handle overcrowding. The multi-faceted approach has drawn criticism from various quarters.

Opponents of the sales tax hike include conservative activists, anti-tax groups, prison reform advocates and the NAACP, all of whom dislike the plan for widely different reasons.

Supporters include Portune and Pepper, both Democrats; Leis, the county's Republican sheriff; corporate leaders; the Community Action Agency; and some labor unions, who say the tax hike is a balanced plan to solve a jail overcrowding problem that's persisted for decades and will only get worse.

Remaining strangely silent are the Hamilton County Republican Party and Cincinnati's police union, each reluctant to wade into the divisive issue.

Voters will decide in a Nov. 6 referendum whether to stop the sales tax hike. Their decision will affect hundreds of millions of dollars in potential tax revenues and help shape the direction of Hamilton County's criminal justice system for the next 30 years.

'More honest'
In May, when Portune and Pepper increased the county's sales tax without first putting the question before voters, they knew it would ignite a political firestorm. After all, in November 2006 voters had defeated a different proposal to raise the sales tax and build a jail by a 57-43 percent margin. Then-County Commissioner Phil Heimlich, a Republican who created that plan, was ousted from office in the same election.

Portune and Pepper decided to raise the sales tax to pay for what they dub "the comprehensive public safety plan." Its main feature calls for constructing a $198 million, 1,800-bed adult jail in Cincinnati's Camp Washington neighborhood at the site of a former Kahn's meat-packing factory.

But the plan would also overhaul the county's criminal justice system by generating more than $20 million annually to create an endowment to operate the jail and fund substance abuse treatment, counseling and probation programs for offenders as well as expand sheriff's patrols and help pay for the county's emergency communications system.

Portune has called the proposal a "30-year program funded through a 15-year tax."

"It's a comprehensive plan that goes way beyond building another jail," he says. "It's more honest with the people of Hamilton County because we're covering all of the costs rather than just some of them, like the proposal put on the ballot last year."

Under the latest plan, Hamilton County's sales tax would increase by a half-cent, from 6.5 percent to 7 percent, for eight years; then it would be scaled back to a quarter-cent increase, to 6.75 percent, for seven years.

After 15 years the sales tax increase would expire. It would generate $736 million during that period.

The sales tax hike would cost an average person about $33 annually for the first eight years of the tax, then about $17 annually for its final seven years, according to county statistics.

Portune and Pepper had considered putting the tax increase on the ballot during a special election in August. When Republican state legislators balked at granting approval for the summer election, the pair briefly considered waiting for the November general election before deciding — at the sheriff's urging — to use their power to enact it without a vote by residents.

The two commissioners say they acted because inflation and the county's tight budget made any delays expensive and would cause a financial bind later.

"This is an urgent situation, and we don't have the luxury of time," Pepper says.

Jail for the poor
Opponents, however, counter that the commissioners knew any tax hike would be unpopular with voters and likely face defeat.

"This jail plan would never pass, and they knew that," says County Commissioner Pat DeWine, who voted against the tax hike, the sole Republican on the commission. "This was a plan that was never designed to be voted on by the public."

Stung by Portune's and Pepper's action, a coalition of individuals and groups from across the political spectrum joined together to collect enough signatures to force a referendum on the tax hike.

Included in the coalition were liberal-leaning groups like the NAACP and the No Jail Tax political action committee, led by figures like former Cincinnati City Councilman Christopher Smitherman and social justice advocate Dan La Botz.

Also involved were right-wing groups like the Coalition Opposed to Additional Spending and Taxes (COAST) as well as DeWine, conservative activist Christopher Finney and David Langdon, a lawyer connected to Citizens for Community Values.

Each faction has its own reasons for opposing the tax hike, but all agree the issue should be decided by voters and not elected officials.

The NAACP believes African Americans are treated more harshly than whites by the local criminal justice system, a situation that would worsen with a new jail.

"Until the justice system is fair in Hamilton County, the Cincinnati branch of the NAACP cannot support building a new jail," says Smitherman, the chapter's president. "The NAACP knows well that the sentences and punishments for African Americans are harsher and longer. It is this disparity in the justice system that underscores the discrimination of African-American people in Hamilton County and across the nation."

Critics also say sales taxes are regressive and have a greater impact on poor residents than on middle- and upper-income consumers.

Research by the University of California shows that people with income low enough to be eligible for food stamps typically spend about 45 percent of their income on goods subject to sales taxes.

Meanwhile, the No Jail Tax PAC says the plan relies too heavily on the "warehousing" of prisoners in jail instead of allowing other options for non-violent offenders. The local criminal justice system is inefficient, taking too long to process people who are arrested before they can be released on bond while awaiting a court date, the PAC says.

Further, a significant number of people filling local jails haven't yet been convicted but cannot be released because their bond amounts are set too high.

"The plan being put forward doesn't address the root causes of the overcrowding," says Michael Earl Patton, a PAC member.

Better solutions include establishing a night court to more quickly process suspects and hiring more public defenders to handle a backlog of cases, Patton adds.

By comparison, some of the more conservative tax opponents dislike that the plan includes any "social programs" aimed at intervention and treatment, preferring it concentrate only on building a jail.

COAST remained neutral on last year's tax proposal, leaders say, because that plan included money for a property tax rollback that would've offered some relief for homeowners. Portune and Pepper scoff at the assertion, noting that COAST was a major backer of Heimlich and says its recent opposition to a jail tax shows the group is motivated by politics and not principle.

DeWine believes county government should make cuts from its current budget to finance jail construction, not raise taxes. Among his proposals, DeWine wants the county to stop housing federal prisoners at the county jail, which he says would free up beds for local prisoners.

In a written statement, Leis says federal prisoners have minimal impact on jail overcrowding.

"We average approximately 30 federal inmates on any given day, and the cap is 35," he says. "That represents about 1.6 percent of our (jail) population. I hope to continue the practice in the spirit of cooperation with the federal authorities with whom we participate in a fugitive task force that arrests many of those inmates. We have provided this service to the federal authorities for over 40 years, and they pay for the service. If we build a new jail, they will pay to house even more, bringing needed money into the county."

Also, DeWine prefers stopping county subsidies for the Chamber of Commerce and Cooperative Extension Service and taking surplus money from the convention center tax.

Further, he wants the county to stop using court reporters in local criminal and civil cases. Like many other jurisdictions, Hamilton County should rely on a digital recording system, he explains, which would save about $2 million annually.

"They ought to fund a jail before they fund other items," DeWine says. "This is a priority, and it's required by law. Some of these other things aren't priorities, or at least they shouldn't be."

'No belt left'
Portune and Pepper say DeWine's proposed cuts — which total about $5 million — wouldn't generate enough money to build a jail, let alone operate it or offer any intervention and treatment programs.

In fact, cuts identified by DeWine so far only would pay for about one-fifth of Hamilton County's estimated deficit for next year, Pepper says.

"These little games he's playing with cuts are a smokescreen," Pepper says. "There's nothing there. It's not enough."

Since at least 2001, Hamilton County has faced a worsening fiscal situation due to a depleted general fund budget caused by rising costs and flat sales tax revenues.

Last month Portune and Pepper approved $1.8 million in cuts to continue an emergency program to house prisoners at the Butler County jail for the remainder of the year. The cuts included using $1.1 million that was allocated to demolish the old Kahn's factory in anticipation of building a new jail and reducing maintenance on county facilities by $50,000.

Still, that's only a stopgap solution that provides a few months' worth of breathing room, Portune says. He warns of severe cuts if the referendum is successful and the sales tax increase is rescinded.

"This is not a case of tightening our belts," he says. "There's no belt left to tighten."

County officials are developing a fallback position in case the tax is defeated but "it's not pretty," according to Portune.

"It would most likely include massive cuts in services, layoffs at the county level and elimination of the property tax rollback," he says.

Noting that DeWine supported Heimlich's sales tax increase, Pepper says, "There's a reason Pat voted last year to build a jail. That's because he knows cuts alone won't do it. It's total malarkey."

DeWine replies that his change of heart is because voters clearly sent a message last year.

"This plan is far too expensive," he says. "It's two and a half times more expensive than what voters previously rejected. Of all the options set forth to build a new jail, this is by far the most costly."

His colleagues, however, believe the message sent by last year's defeat was voters wanted a more balanced approach than simply jailing all offenders.

"We are asking for more than was on the ballot last time because we're going to do more," Portune says. "The one on the ballot last year didn't cover operating costs for the jail and didn't have the treatment programs. It was a hollow and fake promise that wasn't sustainable."

Queensgate quarrel
The sales tax is designed, in part, to create more jail beds and lessen overcrowding. Building a new county jail first was proposed in 1986 but was delayed over concerns that it would jeopardize voter approval for a sales tax increase to pay for construction of new Reds and Bengals stadiums. After that tax hike was passed in 1996, subsequent county commissions ducked the issue until last year — commissioners who were all Republicans, Portune and Pepper are quick to note.

Between 2003 and 2006, jail overcrowding led to the early release of 807 prisoners — although all were non-violent offenders. Through March of this year, 16 prisoners were released early due to a lack of space.

Leis says the releases still should concern the public.

"We do not release violent offenders, but that does not mean that offenders we do release don't commit violent offenses after release," he says.

Beginning last year, Heimlich and DeWine cut a deal with Butler County to house up to 400 prisoners there at a cost of $55 per prisoner each day. The deal mostly ended early releases until Hamilton County officials settled on a plan to build a new jail, but critics call it an expensive option that cannot be used indefinitely.

Although the latest proposal would build an 1,800-bed jail, the net increase in new space is 784 beds because the county would close an aging facility it rents in Queensgate as well as shuttering its Reading Road and Turning Point jail facilities to save money by consolidating operations.

By consolidating the facilities, the county's jail consultants say it would save about $7.5 million annually or roughly $225 million over a 30-year period.

The Queensgate facility has been criticized for not meeting contemporary jail standards. Prisoners are kept in an open area on cots on each of the building's levels. Leis and other county officials say the design poses a security threat and is dangerous for both prisoners and deputies.

When Hamilton County began using the Queensgate space in the mid-1990s, state corrections officials allowed the arrangement only because it was supposed to be temporary and close in 1999.

Sales tax opponents criticize Leis for not letting them tour the facility to see conditions firsthand. Moreover, they say the Ohio Department of Rehabilitation and Correction inspects the facility each year, most recently in February, and found it met all 62 minimum standards set for jails.

Mike Sieving, Hamilton County's construction project executive, says the Queensgate facility isn't structurally sound and it would take about $44 million to correct the problems. The county rents the facility from the Corrections Corp. of America (CCA), which has been reluctant to make any improvements on its own.

"The cost to make those repairs would actually be double that, because we'd have to finance them, and we still wouldn't own the building," Sieving says.

Also, Ohio corrections officials have classified Queensgate only as a minimum-security facility, but Hamilton County has housed medium- and maximum-security prisoners there because of the space crunch.

"When the state evaluates Queensgate, they assume they will all be minimum-security folks kept there," Sieving says. "The standards require that they be segregated from everyone else, but we have to put them where we can."

The Queensgate building, which is about a century old, has bowing walls that have no insulation or waterproofing. Sewers routinely back up and overflow when there is rainy weather, and the foundation is cracked.

Additionally, Queensgate has older-style magnetized door locks that would fail if there ever were a total electrical blackout, which officials fear could occur due to the facility's aging generators.

Hamilton County pays $2.2 million annually to CCA to use the site, an amount that typically increases by about 4 percent per year.

"If the sales tax is voted down, it would be like shooting fish in a barrel to negotiate a new lease," Sieving says. "They would know this is our only option."

Did the sheriff break the law?
As the referendum debate grows more heated, questions are being raised about recent actions by Leis. The sheriff — who has been so desperate to build a new jail that he threatened to sue county commissioners unless they devised a plan — recently sent a letter to all deputies and other staffers in his department, explicitly asking that they work to defeat the ballot issue and encouraging them to lobby their families and neighbors.

"As most of you know, I have been advocating the need for a new jail since shortly after taking office as sheriff in 1987, for nearly 20 years," the letter states. "In the early '90s, a jail was nearly a reality but the commissioners at that time reversed their position at the 11th hour. We had a serious overcrowding problem at that time, and now we are in a crisis."

Moreover, Leis uses the letter to attack DeWine about his stance on the issue and tell staffers that some might lose their jobs if the sales tax increase is rescinded.

"I recently wrote a letter to The Cincinnati Enquirer containing specific facts as to why we must build a new jail," Leis writes. "This letter was in response to one written by Commissioner DeWine, who opposes the Comprehensive Safety Plan (the building of a needed jail) for what can only be political motives. I am attaching that letter to this message. Please read, copy it, distribute it and discuss this issue with everyone you know.

"Commissioner DeWine's position on the sales tax for the Comprehensive Safety Plan puts several factors into play," the letter continues. "If the sales tax fails, as he wishes, we will no longer house prisoners in Butler County, the Over-the-Rhine detail will be terminated and layoffs of personnel are a real possibility. As you can see, Commissioner DeWine is not a friend of law enforcement in general and the sheriff's office in particular."

Despite the letter, the sheriff's office has posted classified ads seeking new hires, opponents counter.

Leis' letter has sparked criticism not only from jail tax opponents but also advocates for good government, who say an elected official has no business engaging in political activity with subordinates.

Opponents say the letter is a sign that Leis, a former prosecutor who was arguably the most popular and well-known county official for years, is overstepping his authority and trying to intimidate people into supporting the jail plan.

"It's extremely inappropriate," Patton says. "It was done on a county computer, and it's being read on county time. If he wants to do that on his own time as a private citizen, that's fine, but to do it inside the office is wrong."

Ohio election laws prohibit using public money for campaigning for or against a political candidate or issue. It also prohibits using public money to compensate an employee for time spent on campaign activities.

Leis doesn't view his action as inappropriate.

"In my opinion, it is a public safety issue, not a political issue," the sheriff says. "I see no problem with asking my personnel, who see the downside of lack of jail space everyday, to support a public safety issue. It remains their choice."

Brian Shrive, a local resident who opposes the sales tax, sent a letter to Hamilton County Prosecutor Joe Deters asking that he investigate the matter.

"It appears that this letter by Sheriff Leis, advocating a position and requesting a specific vote on a pending election matter, was prepared by personnel from within the office of the Hamilton County Sheriff," Shrive wrote. "Additionally, the initial dissemination of the letter, as well as subsequent dissemination of by its initial recipients, appears to have been undertaken utilizing the computer system within the office of the Hamilton County Sheriff."

Shrive asks the prosecutor to prevent a similar action from happening again and to seek reimbursement from Leis for the county money spent on the effort.

Despite the complaint, it appears unlikely that Deters, Leis' fellow Republican and one-time protégé, is going to pursue the matter. Through a spokesman, Deters declined comment for this article.

Known for his blustery, authoritarian style, Leis also is being accused of skirting election laws in other ways. Sales tax opponents took photographs of the sheriff's office marching county-owned equipment — including a helicopter, tank and speedboat — in a local parade that contained campaign signs.

In the process, opponents note that the money spent by the sheriff's office on its marine patrol — which duplicates the U.S. Coast Guard's efforts — and on high-priced, rarely used vehicles such as the tank should've been allocated for a jail instead.

Portune and Pepper both initially said they hadn't seen Leis' letter. After CityBeat provided them a copy, each declined comment, saying it was a pending legal matter.

'Motives are pure'
The sales tax referendum is becoming a high-stakes political showdown for the first Democrat-led Hamilton County Commission in 40 years.

DeWine, state Rep. Tom Brinkman Jr. (R-Mount Lookout) and other Republicans have asked the local party to endorse the referendum and support rescinding the tax hike, which they say is consistent with the party's platform. So far, the party only has stated it supports letting the public vote on the issue and gone no further.

"I think they feel pressure from having a Republican elected official (Leis) actively campaigning for it, but it shouldn't prevent the party from standing up for one of its core values," DeWine says.

CityBeat's repeated attempts to get comment from George Vincent, Hamilton County Republican Party chair, via telephone calls and e-mail were unsuccessful.

Another silent voice is the local Fraternal Order of Police. Although the police union supported Heimlich's sales tax plan last year, it hasn't taken a position this time. Union leaders have said they dislike a portion of the current plan that would fund more sheriff's patrols within Cincinnati's high-crime neighborhoods such as Over-the-Rhine, which are patrolled by the city's police department.

Leis is disappointed by the FOP's reluctance.

"Cincinnati officers are the most affected by 'process only' and early release. Many times, the officer and the offender are back on the street at the same time," Leis says. "The FOP is opposed to the sales tax because it would help finance continued patrol of Over-the-Rhine by deputies and would fund other deputies for patrols in neighborhood patrols throughout the county, including the city."

Portune and Pepper say they are handling a jail overcrowding problem that Republicans let fester for decades.

The Voorhis Associates study concluded that, if current trends persist, Hamilton County would need another 4,000 jail beds in the next 30 years to meet demand. Portune and Pepper say constructing a jail that large is too expensive and is one of the reasons why more emphasis is being placed on intervention and treatment for non-violent offenders.

"That's why we want to move so aggressively to cut recidivism," Pepper says. "This is the irony that folks who only want us to build a jail don't understand. That would simply mean we would have to build jail after jail after jail. It's far more expensive in the long-term."

Sales tax supporters point out that DeWine, who wants to renovate and continue using the Queensgate facility, receives campaign contributions from CCA, the building's owner, as does his father, former U.S. Sen. Mike DeWine. The commissioner states that has nothing to do with his views on the issue.

By opposing the sales tax, DeWine is bucking powerful forces in his own party, including Leis, he says.

"The best thing I can do at this point is stand up for what I believe in," DeWine says.

A frequent allegation by tax supporters is that conservative opponents such as COAST, Finney and DeWine are manipulating their liberal counterparts in the coalition for partisan purposes to harm Democrats Portune and Pepper. DeWine flatly rebuts the charge.

"People's motives are pure," he says. "We all feel it's a bad plan."

Portune and Pepper disagree.

"This is a balanced, comprehensive approach," Pepper says. "I would not support it if it only were to build a jail. This is the only plan that addresses recidivism." ©