After years of public complaints, the Bryan County Board of Commissioners has filed a lawsuit against the state Corrections Department over per diem rates paid by the state agency to house prison-bound inmates in county jails.
The lawsuit filed by the county doesn't seek money — necessarily.
Instead, the county's attorney has asked an Oklahoma County district judge to determine what should happen if the per diem rate isn't enough to cover the cost of an inmate's incarceration in county jail.
The state Corrections Department currently has roughly 1,700 inmates awaiting transfer to state prisons, a number that has grown nearly 300 percent over the last decade as state prisons struggle with overcrowding.
Each year, the state agency pays counties about $20 million to house these inmates, who can stay for months before moving to a state prison.
They are being housed at county jails across the state at a cost of $27 per day, plus qualifying medical and mental health expenses.
The rate, which was set by state law in 2007, is too low, some county officials and sheriffs say.
In Bryan County, officials have been complaining for years about the issue. Sheriffs and elected officials from other parts of the state also have made public comments about the county jail backlog.
Former Bryan County Sheriff Bill Sturch, who retired Jan. 1, said the $27-per-day rate simply isn't enough.
Sturch, who says judges are handing out lengthy prison sentences these days, called the per diem rate “a common concern” among sheriffs in Oklahoma.
“We charge $40 per day to house inmates from Durant and surrounding communities,” he said. “We just feel like the state should at least pay the same.”
Lawsuit is filed
The county's lawsuit against the state Corrections Department alleges that ad valorem tax revenue is being used to cover the costs of housing inmates bound for state prisons, Greg Jenkins, assistant district attorney for Bryan, Atoka and Coal counties, wrote in the petition.
The suit, which was quietly filed in late June, claims using ad valorem tax revenue in such a way isn't legal.
“The Oklahoma Supreme Court has held … (that) the Oklahoma Constitution is violated when the Legislature, either directly or indirectly, requires or permits county ad valorem revenue to be used to support a state institution,” Jenkins wrote in the suit.
Jenkins also contends in the lawsuit that an opinion written by Oklahoma Attorney General Scott Pruitt in 2011 addresses the issue.
“The Attorney General has rendered an opinion … that the housing of state inmates in county jails … serves a clear state purpose,” Jenkins wrote. “If the actual cost to a particular county from housing state inmates is not fully defrayed by the statutory payment … the result is that counties are forced to use county resources to make up the difference.”
Jerry Massie, spokesman for the state Corrections Department, said the agency would not comment while the lawsuit is pending.
However, documents filed by the department's attorney do shed some light on how the large state agency will defend itself in court.
Michael Oakley, general counsel for the state Corrections Department, wrote in a response filed in November that Bryan County hasn't “asserted that it is in a position of using ad valorem taxes to support offenders awaiting transport, nor that such a situation has ever existed.”
“To do so, (Bryan County) would be required to establish, factually, its actual per diem rate by revealing the amounts paid in debt service, meals, personnel costs, utilities and any additional expenses related to incarceration of inmates in their facility,” Oakley wrote in the response.
Oakley also wrote that counties would have to reveal “other sources of revenue, such as profits obtained from offenders for use of telephones and canteen and from the lease of cells to state, federal or municipal governments.”
“Otherwise, a county could claim they were being compelled to utilize ad valorem taxes and assert an artificially high per diem rate,” the attorney wrote.
The response filed by the state Corrections Department goes on to question why every offender sentenced to a term in a state prison must be held at a county jail.
“In the past, offenders were sent home on appeal bonds while awaiting reception into the state system,” Oakley wrote.
“Current technology, such as global positioning satellites, makes this option more viable and safer than it was in years past, and it can be funded by the offender himself.”
Pruitt weighs in
Pruitt discussed the county jail backlog issue in an opinion he wrote last year.
The opinion was in response to a set of questions submitted by state Sen. Josh Brecheen. Brecheen, R-Coalgate, who was elected in 2010, represents Atoka, Coal, Bryan, Johnston and Marshall counties in the southeastern part of Oklahoma.
Pruitt's opinion states the $27-per-day rate is sufficient — unless the cost of housing a particular inmate exceeds that amount.
Yet, the opinion ultimately offers no resolution to the controversy between the state Corrections Department and Bryan County officials.
“Whether the per diem rate … is sufficient to defray the full costs to a specific county, and whether a specific county used ad valorem tax revenue to cover the costs of housing state inmates in county jails constitute questions of fact, and are beyond the scope of an Attorney General Opinion,” Pruitt wrote in the opinion.