A debate over whether or not to continue the county’s successful pretrial release program following recent personnel shortages rested on constitutional claims.

The board of county commissioners, Monday, considered a temporary shutdown of the county pretrial services program following the resignations of two key personnel.

District Judge Sheila Condren vehemently defended the programs continued existence, citing the constitutional rights of defendants.

Assistant District Attorney Todd Wagner argued that keeping a currently nonfunctioning program afloat was a risk to public security an opened the county up to a greater potential for lawsuits.

“A meaningful discussion about this vote cannot be had without first a discussion about how we got here and why the pretrial program was started,” Condren said.

A 13-member committee was formed in 2016 to study and address overcrowding at the Rogers County jail.

Working with the Vera Institute of Justice, a think tank which also collaborated with Oklahoma and Tulsa Counties’ justice systems, the committee prepared a report of actions to positively address jail overcrowding in Rogers County.

One of the major recommendations was a pretrial release program.

And so a sub-committee of the 13-member committee created the program and brought it into being.

“There were literally hundreds of man hours spent working on the issues that drive jail overcrowding,” Condren said. “Because it was the sheriff’s office most directly affected by jail overcrowding, they offered two employees to staff this program with the idea that the county would eventually take over the program once it got up and running.”

“The efforts of the committee were successful,” Condren said, referencing a decrease in jail population from over 300 to approximately 170.

Condren said that before terminating the program, the board should consider the current scope of the program, the people currently involved in the program, and the potential litigation that could arise from closing the program.

“First, when you vote to terminate the entire pretrial program, we want to make sure that you understand there are various parts of the program,” Condren said. “The misdemeanor book and release program, the intermediate release program, as well as the supervised release program.”

“If you vote to terminate the entire program, I want to make sure that you understand you are terminating all three programs,” she said. “It is my understanding that most stakeholders don’t even want to do away with all three pretrial programs.”

Secondly, Condren said, there are over 100 people currently out on the three pretrial programs.

“Terminating these programs fails to address the reality that we need to figure out some way to supervise these folks until their cases are disposed of, which in many instances could be over a year from now,” Condren said.

“If we simply put them all back in jail and let the chips fall where they may, we will be overcrowded again, instantaneously.”

Condren added that the pretrial program is more cost effective than incarcerating low or moderate risk non-violent people.

Also, having a pretrial release program addresses the concerns brought up in ongoing litigation across the country. Specifically, pretrial justice litigation focuses on the Constitutional rights of citizens to a fair trail, and to not be punished for a crime before they have had their day in court.

Condren also cited that pretrial justice was a fixture in Governor Kevin Stitt’s legislative platform.

“Keeping low to moderate risk non-violent people in jail because they are too poor to pay a monetary bond potentially violates their civil rights,” Condren said.

“The program does not need to be terminated to work on revamping it,” she said.

In addition to requesting that the program remain open, Condren said the county should employ outside legal counsel to work with the district attorney’s office, law enforcement, the courts, the board of county commissioners and defense attorneys to come up with program improvements that serve every entity’s interests.

“Please understand that I am not disparaging any person or entity with this request for outside counsel, it is just that any DA’s office has a vested interest in people remaining in jail, focusing solely on the issue of public safety,” Condren said. “Everybody has their roles in this system. Law enforcement and the DA’s office are concerned with public safety. Defense attorneys are concerned with making sure the defendant’s rights are being protected, and the courts and to some extent, the county, have to balance these interests. Having a neutral, outside attorney helps all sides in moving forward.”

“You have an opportunity to be leaders in an area that we know will eventually draw litigation,” Condren said. “We can be proactive, and deal with it now, or wait until we are forced to change, and pay a lot of hard-earned taxpayer money in the process.”

Hendrix asked if it was possible to maintain the book and release program for misdemeanors while closing the other two, but Condren said that from experience, without the proper enforcement of the full program, the failure to appear rate is too high.

“We would not have come this far if we did not wholeheartedly agree that this would be a benefit for the county,” Hendrix said. “Because we obviously have lost personnel … how can the program run? What is your recommendation to continue the day-to-day business without personnel in place?”

“Part of the problem is that you haven’t even given the undersheriff and I the opportunity to meet, discuss and figure that out,” Condren said. “This is all happened within the last week and this is now on the agenda and I’ll indicate that that was with no discussion with the courts, not in any discussions whatsoever with us. If you would give time for the undersheriff and I to discuss those matters, and in fact, employ independent counsel, we could figure that out and move forward.”

ADA Wagner said that his office worked with Undersheriff Jon Sappington to create a plan for supervising those currently on pretrial release and allowing them to remain that way while simultaneously ending the program.

“I put this on the agenda because several of the cases relating to pretrial justice and to unconstitutional bonds relate to counties, municipalities, entities that had pretrial programs that were not functioning constitutionally,” Wagner said. “My concern is that if the program is for the purpose of evaluating risk when we have no staff to do so, that we are in a position where we are open to liability.”

Wagner’s primary concern was that, without professionals trained in evaluating risk for new defendants, a misevaluation could also give someone grounds for a civil rights infringement case.

“Until such time that we develop a plan … we need to have some resolution to finalize whether or not a pretrial program that is in the process of evaluating all these people is in place,” Wagner said. “If we don’t have that type of program we need to terminate that until we can develop a finalized program and put that in place under new policies.”

Wagner said, “Why do we have a pretrial release program that is not doing any pretrial release functions as far as evaluating inmates and making recommendations to the court, pursuant to the statute? I feel like that opens this county up to potential liability.”

“I disagree,” Condren said. “First of all, when you all recognized that there was a county pretrial release program, here we are, and you’ve got 100 people on it. I don’t think you can just come in now and say ‘We changed our minds, sorry’. You want to talk about litigation? I think you are asking for it by doing just what you’re suggesting.”

“Nobody is saying we changed our minds,” Hendrix said. “We are still wanting to move forward with this program.”

“Okay, so again, before you vote, my request is that you employ outside counsel to talk to you about this request as well,” Condren replied. “Table it until you get outside counsel to advise you about the efficacy of this vote.”

County Commissioner Ron Burrows expressed concern over the idea that the Board of County Commissioners would take over the program from the sheriff’s department.

“I can tell you right now the BOCC is not prepared to manage that program. That is way outside our wheelhouse,” Burrows said. “The BOCC is not prepared to manage the day-to-day operation and there were some challenges there as to who was going to manage the program.”

Condren said outside counsel would be able to help with Burrow’s concerns.

“I am not in favor of being, for any length of time, without book and release,” Commissioner Hendrix said. “It makes a tremendous impact on the population. That is my concern.”

The issue was tabled for two weeks in order for the BOCC to retain outside legal advice.

“Two weeks is going to give us time to find this stuff out and know where we are headed,” Commissioner Dan Delozier said in closing.