Last week, the Circuit Court in Milwaukee County rejected the effort of Sheriff David A. Clarke to maintain control over the County Correctional Facility South. (Judge Van Grunsven’s ruling is available here.) Although the CCF-S (formerly known as the House of Corrections) was run for decades by a superintendent who was independent of the Sheriff, the County transferred control over the CCF-S to the Sheriff in 2009 as a result of security concerns at the facility. However, the new management proved less than satisfactory to some important stakeholders.
Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.” (Background on the conflict is here; my critique of some of Clarke’s views is here.) Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective. Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent. Clarke’s control over the downtown jail, which has been his all along, remains unaffected.
Clarke sued the County in order to block the transfer.
His chief argument seems to be that, under the Wisconsin Constitution, each county’s sheriff has exclusive responsibility for all jails in the county. Although the CCF-S had operated for decades outside the Sheriff’s control as a “house of corrections,” Clarke maintains that the CCF-S became a “jail” under his watch. He concedes that the Board can run a house of corrections, but not a jail. So, the case really seems to boil down to the question of whether the CCF-S is now a jail.
I can’t say I had ever given much thought to “sheriff law” before I began to follow this litigation, so I decided to do a little digging.
Interestingly, this is not the first lawsuit over the relationship of Milwaukee’s sheriff with the House of Corrections. In fact, this was the subject of what may have been the seminal decision by the Wisconsin Supreme Court on the constitutional prerogatives of sheriffs. The case was State ex. rel. Kennedy v. Brunst, 26 Wis. 412 (1870). Here’s what happened: The state legislature adopted a law requiring Milwaukee’s sheriff to turn over all of his prisoners to the House of Corrections and formally designating the head of the HOC as the official jailer for the County. (It would be interesting to know the backstory to that statute!) When the sheriff refused to surrender his inmates, the head of the HOC sued to enforce the state law. The Supreme Court, however, ruled in favor of the sheriff. Here’s the key language from the court’s opinion:
The office of sheriff, in a certain sense, is a constitutional office; that is, the constitution provides that sheriffs shall be chosen by the electors of the respective counties, once in every two years and as often as vacancies shall happen. Sec. 4, art. 6. Now, it is quite true that the constitution nowhere defines what powers, rights and duties shall attach or belong to the office of sheriff. But there can be no doubt that the framers of the constitution had reference to the office with those generally recognized legal duties and functions belonging to it in this country, and in the territory, when the constitution was adopted. Among those duties, one of the most characteristic and well acknowledged was the custody of the common jail and of the prisoners therein. This is apparent from the statutes and authorities cited by the counsel for the respondent. And it seems to us unreasonable to hold, under a constitution which carefully provides for the election of sheriffs, fixes the term of the office, etc., that the legislature may detach from the office its duties and functions, and transfer those duties to another officer. In this case it is said that the legislature has attempted to take the largest share of the duties of sheriff, in point of responsibility and emolument, and to commit it to an officer selected by the county board of supervisors. If the legislature can do this, why may it not deprive the sheriff of all the duties and powers appertaining to his office, and transfer them to some officer not chosen by the electors? It would certainly be a very idle provision of the constitution, to secure to the electors the right to choose their sheriffs, and at the same time leave to the legislature the power to detach from the office of sheriff all the duties and functions by law belonging *415 to that office when the constitution was adopted, and commit those duties to some officer not elected by the people. For this would be to secure to the electors the right to choose a sheriff in name merely, while all the duties and substance of the office might be exercised by and belong to an officer appointed by some other authority. We therefore conclude that it was not competent for the legislature to take from the constitutional office of sheriff a part of the office itself, and transfer it to an officer appointed in a different manner, and holding the office by a different tenure from that which was provided for in the constitution.
Thus, in Kennedy, the fact that the constitution establishes the sheriff’s office as an elected one seems the basis for ascribing to the sheriff a set of powers (nowhere spelled out in the constitution) that lie beyond legislative interference.
(As an aside, I’ve often wondered about the history and wisdom of fracturing county-level executive authority in the way that we do, with multiple elected executive officers. In the federal government, of course, we have a unitary executive, and it is hard to imagine how the system would work if, say, the Attorney General or the FBI director were elected independently of the President. Are there good reasons for our county to operate differently? Why not consolidate all executive functions in the County Executive?)
The Supreme Court has repeatedly reaffirmed and elaborated on Kennedy‘s basic ideas about the sheriff’s constitutionally protected powers. There is an extensive treatment of the topic, for instance, in Kocken v. Wisconsin Council 40, AFSCME, AFL-CIO, 301 Wis.2d 266 (2007). This passage provides some sense of the tensions that have emerged in the post-Kennedy cases:
¶ 39 Cases addressing the constitutional dimensions of the office of sheriff establish the following criteria for identifying a sheriff’s constitutional powers, rights, and duties: certain immemorial, principal, and important duties of the sheriff at common law that are peculiar to the office of sheriff and that characterize and distinguish the office are constitutionally protected from legislative interference.
¶ 40 Nevertheless, the constitution does not prohibit all legislative change in the powers, duties, functions, and liabilities of a sheriff as they existed at common law. “[I]internal management and administrative duties … [that] neither gave ‘character’ nor ‘distinction’ to the office of sheriff … fall within the mundane and common administrative duties of a sheriff which may be regulated by the legislature.”
¶ 41 The court has carefully explained its reasoning for allowing legislative change to certain powers, rights, and duties of a sheriff as follows: If the legislature could not act, “a constitutional amendment would be necessary in order to change the duties of sheriffs in the slightest degree, and in this respect ‘the state would be stretched on a bed of Procrustes.’”
In the absence of any guidance on sheriffs’ powers in the text of the constitution itself, the court has looked to historical practice in order to fill the void. Yet, the court has also been very wary about rigidly constitutionalizing all aspects of what sheriffs did in the nineteenth century. The result has been an unpredictable balancing act, with cases turning on the hazy line between “distinctive” and “mundane” administrative duties. As the Kocken court itself observed, “The traditional constitutional analysis is not, however, easy to apply.” Reflecting the difficulty, the court divided 4-3 in Kocken over the power of the Brown County Sheriff to outsource food preparation for his inmates.
But the Kocken court did affirm at least one clear principle that is relevant to the current dispute in Milwaukee: “We begin our analysis of the case law by stating that the operation of the jail and the custody and care of jail inmates are part and parcel of the duties from time immemorial belonging to the office of sheriff and are distinctive to the office.” Thus, it does indeed appear that responsibility for the CCF-S depends, as a legal matter, on whether the CCF-S is a jail.
How does one know whether a given detention facility is a jail?
One possibility, roughly consistent with the historical approach described in Kocken, would be to ask whether the facility would have been regarded as a jail in the nineteenth century. But what are we to do if the facility has some attributes of a nineteenth-century jail and not others? The difficulty implicates the very sort of philosophical divide so apparent now in Milwaukee County. The less a facility is viewed as a mere warehouse — and the more as a center for the administration of rehabilitative services and monitoring for offenders circulating regularly into the community for jobs, counseling, classes, and so forth — the harder it is to figure out how to classify it relative to historical norms.
Under the historical approach, there may even be perverse incentives for sheriffs to resist promising innovations in jail management for fear that some constitutional power over the facility will be lost.
A more conceptually straightforward dividing line might be between facilities that house pre-sentencing inmates (the classic jail population) and those that house post-sentencing inmates. But what to do about those facilities that house both?
Maybe we should just say that the primary (largest?) facility in each county for housing unsentenced criminal defendants is the jail; any other facilities lie beyond the sheriff’s constitutional power. (Of course, one imagines that counties would generally want to turn over secondary facilities to the sheriff as a matter of convenience, even if not as a matter of constitutional mandate.) This approach would respect the basic sensibility of Kennedy and Kocken that sheriffs must be given some significant, legislatively untouchable sphere of discretionary authority, without unduly stifling the capacity of other stakeholders to develop and implement innovative approaches to managing offender populations.
There are doubtlessly many other approaches that could be devised for the “what is a jail” problem.
In the event, the CCF-S litigation seemed to turn on whether the County Board intended to change the character of the HOC through the 2009 transfer to Clarke. Here is what seems to me the key portion of the Circuit Court’s opinion:
The 2009 Adopted Budget which effectuated the transfer stated: “In 2009 the Sheriff assumes the management of the House of Corrections (HOC) and all associated facilities.” Additionally, in that same section of the Budget (Section 4300) the language states: “The functions of the House of Corrections (HOC) are defined in Chapters 302, 303, 304, and 973.” This language used by the County indicates that Clarke is to take over management of the statutory HOC. . . . [T]here is nothing in the language of the 2009 budget which indicates that the intent of the County was to discontinue the statutory HOC. The document must be interpreted by the language on its face and that language unambiguously continues the current statutory HOC.” (5)
The Circuit Court was not swayed by Clarke’s argument that the inmate composition of the CCF-S, including both pre- and post-sentencing defendants, was largely the same as that of the downtown jail. There is some appeal, I think, to determining the status of a facility by reference to who is housed in it. On the other hand, it is far from clear what percentage of what type of inmate must be present so as to constitute a jail. Moreover, there may also be concerns about the sheriff’s ability to manipulate the constitutional status of a facility by simply shifting inmates around. (Indeed, reports surfaced at the end of last week of mass inmate transfers between the CCF-S and the downtown jail in the wake of the Circuit Court’s ruling.)
Should Sheriff Clarke appeal the Circuit Court’s decision? It would be interesting and potentially useful for the Supreme Court to weigh in on the “what is a jail” question. However, another year or more of uncertainty surrounding control of the CCF-S would be a steep price for the County’s criminal-justice system to pay.