Zisser: Flawed push for a new jail is a disability rights issue

New construction does not cure a broken jail culture. Outdated architecture didn’t kill Michael Tyree in 2015 and seriously injure Andrew Hogan in 2018; that abuse was the work of officers operating inside a culture of corruption and callousness accustomed to dehumanizing people who needed services, but instead received cruelty and neglect.

Yet the County Executive’s Office has issued a misguided report that recommends designing an expensive new jail. This approach means continuing to warehouse people with serious mental illness. More than 9,000 such people cycled through the jail between August 2019 and August 2021. Nearly 1,500 are in the jail on any given day, making up 60% of the total daily count.

The report omits critical information, defers meaningful consideration of public input and lacks imagination. Yes, the serious human rights issues inside the jail require ongoing scrutiny. But the public and our elected leaders recognize the systemic disability rights issue that exists outside the jail walls and the need to invest further in community-based services and supports. Our neighbors and fellow community members deserve stability and access to care where they live.

Missing information

The County Executive’s report, scheduled to be taken up next week by the Board of Supervisors, puts the cart before the horse. It simultaneously recommends designing a new jail and a needs assessment study to assist the board on setting “priorities for the most appropriate way to care for justice-involved clients,” particularly those who need mental health services. It also urges a “jail population projection study… to determine if incarceration can be minimized.” But such studies presumably should happen before deciding to build a new jail.

The report also explicitly declines to estimate the cost of retrofitting the current facility to compare it to the cost of rebuilding: a cost analysis would simply take too long. Unsurprisingly, one county supervisor told this publication, “It appears we’re being asked to make decisions on solutions or prescriptions before we’re fully able to consider answers to all of our questions.” The report was deferred from November due to missing information.

Disregard for public input

The report also pays mere lip service to community input, despite costly surveys and multiple community-engagement sessions. The report promises considering that input in a future study, but it does not appear to factor into the decision as to whether to build a new facility at all.

The public has nonetheless made clear their focus on community-based responses to mental health needs and homelessness. According to the report, a major theme of the community-engagement sessions “was changing the philosophy of the justice system.” Participants identified the need for “systemic changes such as ending criminalization of social conditions,” “investing in the community,” and “making basic needs accessible and equitable.”

For over a year, the board itself has highlighted, in the words of one of the supervisors, an “opportunity to re-envision” alternatives to a new jail, especially in light of “a low jail population caused by COVID-19 prevention and the growing need for mental health services.”

Lack of imagination

On the other hand, the County Executive’s Office has invoked the ongoing federal consent decrees over the jail as one reason for rebuilding, even though the decrees do not require this. Rebuilding is like putting lipstick on a pig. Old and outdated or new and modern, brick-and-mortar is not the answer to a crisis of culture or the endless cycle of incarceration, homelessness and unmet mental health needs for thousands of residents each year.

I also worry about jail conditions, as a former federal attorney who investigated correctional facilities. I also reviewed our county’s jail in 2016 on behalf of the Blue Ribbon Commission and described “deplorable” conditions that violated basic human dignity. But intractable challenges inside the jail point to the need to keep people out of the system entirely.

The report only meagerly addresses the desire to “minimize the need for incarceration.” Its recommendation that the county’s public safety and justice partners continue to collaborate on identifying needed interventions focuses too narrowly on people already in the criminal justice system.

The larger concern is the dearth of upstream community-based responses to keep people from arriving at the jailhouse door in the first place. The public is rejecting the decades-long marketing of mass incarceration, with its enormous economic and human costs. Communities are reimagining systems and identifying comprehensive solutions aimed at prevention. A large psychiatric institution, which also has been discussed, would likely face the same challenges as a jail.

Diversion is a civil right

In fact, federal law requires that we look beyond facilities altogether. The Obama administration revived a long-neglected 1999 Supreme Court decision that is considered the Brown v. Board for people with disabilities. That decision, Olmstead v. L.C., held that unnecessary institutionalization—and serious risk of institutionalization—of people with disabilities, including psychiatric disabilities, is a form of discrimination under the Americans with Disabilities Act.

The U.S. Department of Justice’s Civil Rights Division now routinely evaluates how states allocate resources to promote community integration rather than isolation. Comparisons to the troubled deinstitutionalization efforts of the 1980s are understandable. But Olmstead enforcement is about expanding and sustaining services and supports, not shoving people into a vacuum.

DOJ recently took another significant step in its Olmstead enforcement: investigating a county rather than a state. That county happens to be our neighbor, Alameda County.

DOJ found Alameda County “relies unnecessarily on segregated psychiatric institutions.” The police bring people to jail or hospitals because of a lack of other options. Even short stays “isolate people from their friends and families and interrupt participation in community life.” Repeated admissions are “disruptive to people’s lives and can put people at risk of losing jobs and housing,” placing them once again at risk of institutionalization and incarceration.

DOJ’s shift should place other counties on notice. This county can do better. The Board of Supervisors have called BS on the County Executive’s retrograde and short-sighted recommendation. They should stand firm next week and invest in people, not places.

San José Spotlight columnist Aaron B. Zisser is the former San Jose Independent Police Auditor. He previously worked as an attorney with the Civil Rights Division of the U.S. Department of Justice and a consultant to Bay Area police and jail oversight entities. He continues to work in the field of police oversight and reform. His columns appear every first Friday of the month. Contact Aaron at [email protected].