From CPP: NC counties base jail decisions on controversial consultant work

By Jordan Wilkie, originally published by Carolina Public Press. Carolina Public Press is an independent, in-depth and investigative nonprofit news service for North Carolina.

Editor’s note: This article is part 1 of the four-part investigative series Raising Jails, which examines how and why North Carolina counties decide to build bigger jails, the impact of deciding to build and potential policy changes that could lead to different outcomes.

When Sheriff Greg Christopher was appointed in 2013, he inherited a Haywood County jail that was already full.

The county was just coming out of a recession, money was tight, and he did not want to ask the county commissioners for the funds it would have taken to add on to the jail, he said.

In the years since, Christopher worked with the county and a local nonprofit to connect people getting out of jail to transitional housing and other support services, hoping to keep the population in check.

But by 2020, two years before his planned retirement, Christopher felt the county needed that jail expansion, so he contacted Moseley Architects to find out just how big the county should build.

Architecture firms like Virginia-based Moseley often assess whether counties need to build or expand jails.

In Haywood, Moseley came back with an assessment to build another 145 jail beds to last the county another 25 years. The firm presented its findings to county commissioners on Nov. 2, 2020.

Commissioners have not decided whether to build. The county continues to plan, testing the foundation and trying to get permission to build close to the railway. Costs to build today are estimated at around $20 million.

Last week, Haywood decided to reopen its jail annex to house women, a month after county staff told Carolina Public Press the facility was in poor condition.

Sheriff Christopher, County Manager Bryant Morehead and Kevin Ensley, the chair of the County Commission, agree they need to build a jail expansion.

But many counties can reduce jail overcrowding without building, both local organizers and national advocates say.

Opponents of jail expansion warn the assessments from companies that stand to profit from jail construction are inadequate, often project more jail growth than necessary and are tainted by the potential opportunity to profit.

Carolina Public Press requested assessments from the 46 counties that added jail beds since 2000 and from every remaining county currently considering an expansion.

In addition to the 13 counties that responded or had already posted their assessments online, 31 had not responded to requests for their records prior to publication of this article, and two said the records were unavailable. Counties are the only public agencies that keep these records.

Through these records requests, Carolina Public Press collected and reviewed 14 such jail needs assessments in 13 counties from the past 20 years. Of those 14, Mosely conducted 11.

The assessments used dated and inaccurate assumptions about the future of criminal justice policy and calculations that are unlikely to accurately predict the size of jail a county needs to build, according to several experts who reviewed the documents.

These experts told Carolina Public Press that the methods were not only flawed but also tended to stack the deck in favor of expanding jails or building bigger ones, without considering sharp reductions in crime rates, population shifts or new laws and policies that favor less incarceration.

Business of judging jail needs

Jasmine Heiss does not think architecture firms that stand to profit from designing jails are credible sources when deciding whether and how big to build.

“To say they also should be sort of deciding or opining on the kinds of policies that drive or reduce jail incarceration seems quite far afield from their actual expertise or experience,” said Heiss, director of the New York-based Vera Institute of Justice’s project challenging mass incarceration in rural communities.

North Carolina counties are not alone in accepting the advice of interested parties.

Conducting jail needs assessments has become a nationwide practice for companies that may stand to profit. After approving the projects, the counties often hire the same companies to design the jail.

But these firms only get one piece of the pie. When a county decides to build, most money goes into construction.

Just as with Moseley and jail design, certain companies specialize in jail construction. Raleigh-based Bordeaux Construction built jails in Bladen, Granville, Orange and Sampson counties, according to its website. Moseley designed each of those.

Judah Schept, a professor of justice studies at Eastern Kentucky University who studied jail expansion projects in Indiana and Kentucky, saw architecture firms conduct assessments that recommended huge expansions to the county jails.

Badly executed jail needs assessments are a missed opportunity, Schept said. Counties often think about building jails when their current jails fill. A thorough needs assessment would help each county decide whether it really needs to expand the jail, or whether it could instead change the practices that keep jail full.

When a county builds or expands instead of reconsidering whom it jails, the county is “resigned to continuing the problem for at least the next several decades,” Schept said.

Inaccurate projections of a county’s jail needs can also lead counties to build jails they do not need or build jails much larger than necessary, Heiss said.

The expenditure has ripple effects, from spending more taxpayer dollars on jails to encouraging counties to get into the business of housing people for the federal government, the state or other counties in exchange for money.

Building a jail costs tens of millions for construction, millions more to pay off the debt taken on to afford the project and tens of thousands year after year in personnel costs for each additional staff member to operate the larger jail.

Rule of thumb 

Wendy Sawyer, research director at the nonprofit Prison Policy Initiative, which examines and advocates against mass incarceration, has a quick way for guessing the quality of a jail needs assessment.

“A good rule of thumb is if they are 100-200 pages long, they’re probably pretty OK,” Sawyer said. “If they’re a PowerPoint or 12 pages long, they’re bad.”

These analyses in North Carolina are generally short. Sawyer said the cases that Carolina Public Press identified “leave out a lot of important considerations.”

They left out detailed analyses of who is in jail, for how long and why. They also didn’t look at the criminal justice process that affects the jail population or analyze how potential reforms and legislation could change outlooks.

What the reports did include were calculations and assumptions that criminal justice experts frown upon. Every assessment predicted a county’s future jail bed needs by looking at recent rates of jail population and comparing them to projected population growth.

That’s not the method most researchers trying to predict crime and incarceration would make, according to Ruth Wygle, a Duke University doctoral student studying jails and incarceration rates. The approach is “very​ misconstrued,” she wrote.

A better assessment would examine who is moving to the county, Wygle said, an approach supported by the Jail Capacity Planning Guide from the National Institute of Corrections, a federal agency under the U.S. Department of Justice. A growing population of 18- to 24-year-olds is more likely to be jailed at higher rates than the growing population of a bedroom county full of retirees.

The planning guide also notes that every jail and jurisdiction is unique, so any jail projection should adjust to local factors. The jail bed projections Carolina Public Press reviewed used the same estimations to project jail needs over and over again, often using high estimations for capacity needs.

Moseley Architects has increasingly dominated the needs assessment and jail design business in North Carolina in recent years. Eleven of the 14 reports Carolina Public Press reviewed were conducted by Moseley Architects.

Of those 11, Moseley later received the contract to design eight of the jails and remains under consideration for another, in Haywood. One design contract, in Cleveland County, went to a different firm, and one county, Duplin, decided not to build. Company representatives did not respond to repeated questions from Carolina Public Press over several months or to a list of specific findings sent two weeks before publication.

Moseley’s analyses used data provided by each county, such as average length of stay in the jail and days when the jail population was “peaked,” or at its highest levels.

The company also zoomed out to look at the criminal justice process as a whole but did so in a way that likely led to suggesting more jail bed space, independent experts told Carolina Public Press.

In almost every assessment, Moseley included an analysis of local court “efficiency,” which it calculated by comparing how long people stayed in jail on average to the rates in surrounding counties.

A comparatively short length of stay, Moseley representatives concluded, meant the local courts were operating efficiently. What Moseley’s employees meant by an efficient operation of the courts remains unclear.

The assessments all included similar language encouraging counties to keep the average length of stay low as a way to keep jail populations down.

Still, the assertion ignores problems with how cases are processed through the courts, according to Catherine Grodensky, a doctoral student at Duke University whose research includes decision-making in local criminal courts that affects how they process cases.

“I think the architectural firms benefit from the weaknesses in the court system — obvious system remedies may arise if court inefficiencies were acknowledged,” Grodensky said.

She and other experts who talked with Carolina Public Press about the assessments criticized the assumption that past trends will persist.

“I think these needs assessments are flawed, but it is partly because they assume that past jail populations have been the result of a ‘natural’ or ‘inevitable’ process,” Grodensky said.

Every needs assessment in North Carolina concludes that when the county population goes up, the jail population will go up. In Surry County, Moseley projected no population growth meant no change in its jail population.

Moseley’s recent assessments also include guidance that future legal or policy changes would likely increase jail populations.

In its 2020 report for Wayne County, Moseley representatives said, “It would not be unusual for these numbers to increase with any revisions to current laws, best law enforcement practices or actions of the courts.”

“That is a crazy thing to say,” Heiss said.

The assessment assumes all the policy decisions that have increased incarceration, such as the criminalization of drug use, are good policy decisions that should continue, she said.

It also fails to recognize policies being implemented or discussed in North Carolina that would result in significantly less incarceration, like the potential legalization of marijuana, reforms to the criminal code or bail reform.

Local jurisdictions can take it upon themselves to decrease the jail population without waiting for the legislature to act.

In 2014, Mecklenburg County’s jail was full, and county officials thought they might have to build another jail. Instead, county leaders decided not to hold so many people in jail before their court dates, especially for the minor crimes that make up the majority of court cases.

They were so successful that the jail now operates at half of its total capacity, saving the county hundreds of thousands of dollars in operating costs each year.

When government won’t, private companies will

In providing needs assessments, architecture firms fill a void in statewide resources to guide counties on planning for jail needs.

North Carolina began regulating jails in the late 1960s through the Department of Public Welfare, which later became today’s Department of Health and Human Services, according to Amanda Hughett, a historian and legal studies professor at the University of Illinois Springfield, who did her Duke University doctoral research on North Carolina.

The new regulation was part of a national trend, seeking to professionalize the criminal justice system, she said.

Until the late 1960s, jails were “governed according to local custom and personal whim,” Hughett said.

In 1990, North Carolina updated those policies at a time when incarcerated people were suing over poor conditions and Eighth Amendment violations over cruel and unusual punishment.

At the time, Patrice Roesler, now a professor at the UNC School of Government, was a decade into a 40-year career with the N.C. Association of County Commissioners. The new jail regulations and the increased understanding of liability from poor jail conditions came at the same time private insurers were backing away from covering public institutions, she said.

Roesler worked to create the counties’ shared insurance pool that exists to this day. Participating counties combine resources to create shared insurance coverage.

When creating this plan 30 years ago, the association turned to the Sedgwick risk-liability firm, where Nelda Leon headed the criminal justice risk control department.

The firm’s work found that law enforcement posed the greatest liability risk to a county, Leon said, driven largely by the risk that jails posed.

In their respective organizations, Roesler and Leon developed risk-assessment tools for jails, including how-to guides for building new jails, from engaging community stakeholders to deciding how large to build.

The N.C. Association of County Commissioners no longer offers this service, according to spokesperson Laurel Edwards, citing increased state and federal regulations for jails.

The paper copy of the comprehensive jail construction guide, as Roesler called it, probably burned in a fire in 2017. The association had not updated the guide to keep pace with regulations, Edwards said.

Into the 1990s, the state offered grants for counties to study jail needs, Roesler said. When the funding dried up and her guide for jail construction faded, counties turned to architecture firms for needs assessments.

While still at Sedgwick, Leon worked with Moseley to do a few jail needs assessments, she said. Then, she left the risk-assessment company to work at Moseley in 2000.

In her new role, Leon helped counties decide whether they needed new jails and, if so, how many beds they were likely to need.

Counties had nowhere else to go, Leon said. Absent a needs assessment, the counties turned to their sheriffs and asked how large to build, she said.

“That was probably the worst possible form of a needs assessment because the sheriff didn’t know,” she said.

Cornering the market

Moseley Architects designed 19 of the 49 jails built or expanded in North Carolina since 2000, according to data from the Department of Health and Human Services, which oversees jail conditions and reviews architecture plans. No other firm had more than eight contracts in the same period, according to DHHS data. Moseley’s dominance has only solidified in recent years, designing eight of the last 10 jails since 2016.

David Mahoney, Transylvania County’s sheriff and the chairman of the N.C. Sheriffs’ Association, chalks up Moseley’s extensive business to good reviews and word-of-mouth.

Moseley is also one of two architecture firms listed as a 2021 corporate sponsor on the association’s website and the only architecture firm to present at this year’s conference for the N.C. Jail Administrators’ Association.

Moseley’s promotional materials show the company worked with an additional 26 counties on renovations or construction going back 25 years, accounting in total for more than 8,000 of the state’s 27,500 jail beds.

Leon defended her practices during her 10 years at Moseley and said she has never heard of an architecture firm trying to sell a jail to a county. Instead, counties usually approach architecture firms after the “critical stage,” when the jails are already full or inspectors have identified problems with the facilities.

The solution is not always to build a jail, Leon said. In the early 2000s, she did tell Johnston County it needed a jail alternatives program, not a new jail, Leon said. The county didn’t decide to build a new jail until 2019, according to DHHS records.

Leon’s 2003 assessment in Sampson County included some detail that has been lost in Moseley’s reports since she left, like breaking down jail populations by security level and gender. Moseley’s recent reports are not signed, as Leon’s were.

“I conducted those studies independent of any influence or pressure by the architectural firm and often found the forecast we did projected fewer beds than a sheriff might want,” Leon said. “It is unethical to do otherwise.”

The methodology Leon used remains the basis for Moseley’s reports today.

But when Sawyer reviewed some of the reports, she noted places where she found the conclusions contradictory to other data in the report, with unclear charts. She said the overall reports lacked analysis in relation to the local context or overall justice system, according to the notes she provided to Carolina Public Press.

“The authors have not engaged in any analysis of state, county, or city-specific policies, practices or trends; they simply assume that any changes will result in more rather than fewer arrests or admissions, when policy nationwide is actually shifting toward less punitive responses and less unwarranted incarceration,” she said specifically of Moseley’s assessment in Wayne County.

Sawyer also questioned having the potential jail designer assess the need for a bigger jail.

“Involving an expert with no financial stake in the decision about whether or not to expand the jail — but whose focus is solely on the efficiency, safety and effectiveness of the system — would undoubtedly yield different analyses, proposals and results,” Sawyer said.