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Scott G Winterton, Deseret News
A bathroom area of one of the pods inside the Canyons pod at the Utah County Security Center, in Spanish Fork on Friday, March 14, 2014.

SALT LAKE CITY — The Utah County Jail may soon release as many as 70 inmates convicted of felonies because the state hasn't been paying its share of daily incarceration costs.

Thanks to a new bill that just passed the Utah Legislature, all county jails in Utah could also soon release certain felons, even though the jails may not be allowed to release inmates who are convicted of lesser misdemeanor crimes.

"The ludicrous part of this is now to keep my misdemeanor criminals, I'm letting felons out the door. ... That's not good for my community," Utah County Sheriff Jim Tracy said.

The inmates that could be released are called "condition of probation" prisoners, which jailers call COP prisoners. They get that label when a judge sentences a convicted felon to a prison term, but then decides to stay that sentence and instead orders the person to serve up to a year in a county jail.

Under current statute, the state is supposed to pay 50 percent — around $37 — of daily incarceration costs for each COP prisoner through a program called jail reimbursement.

But there's a caveat in the law that says the state will fund either 50 percent or whatever the Legislature appropriates that year. Last year, counties received an average of only $27 per inmate per day — much less than 50 percent, according to Tracy and Sen. Scott Jenkins.

The Utah Legislature passed SB241 on the final day of the legislative session last week. The bill, now on its way to the governor, creates a clear, statewide policy for when counties can release COP prisoners when the state isn't providing enough funds.

"The system is going broke. ... Their jails are full. They’re busting at the seams," said bill sponsor Jenkins, R-Plain City. "This will force it into being addressed. ... It is time to deal with this."

SB241 allows county jails to release as many COP prisoners as necessary until the jail reaches the number of such prisoners for which the state has provided funds.

Jailers say the Utah Legislature seldom appropriates the "agreed upon" 50 percent rate. The counties then have to pay their own half, plus foot the bill for whatever portion the state doesn't pay.

"They have never, ever, ever funded it at the 50 percent level," said Tracy, who became sheriff in 2003.

Under the proposed law, if a jail is at maximum capacity, it will take a new condition of probation prisoner — counties have no choice. But the jail can then release another of its COP prisoners — usually someone who has served the largest percentage of his or her sentence.

This one-in, one-out method is already in practice at some county jails. The Weber County Jail has been using the practice since 2010 because of a county ordinance authorizing the jail to manage its inmate population, according to Weber County Sheriff's Sgt. Lane Findlay.

That jail has allocated 180 beds for COP prisoners. The daily average is between 140 and 170, and the current amount is 152 out of the total population of 666 inmates.

Findlay said jail personnel work closely with the Weber County judges so they know what’s available and the process seems to be working well.

“So far, everybody has worked together to make sure the public is not in danger,” said Rick Schwermer, assistant state court administrator.

Tracy said he appreciates the additional $1 million in funding the Legislature appropriated this past session for COP prisoners, but said it's "not where it needs to be."

The Office of the Legislative Fiscal Analyst confirmed the budget will be raised from about $12 million to $13 million. But it would take about $16 million for the state to fully fund its half. For fiscal years 2012 and 2013, $11 million was appropriated — a significant increase from the $6 million appropriated for fiscal year 2011.

Jail reimbursement has been an issue for the Legislature since the 1980s. It has many nuances, and is a complex issue that's difficult to reduce to simple principles. Schwermer called it a Rubik’s cube involving historical understandings, conflicting recollections of agreements and a lot of moving parts.

Judges often choose to sentence a felon to up to 12 months of jail rather than prison as a condition of probation. Reasons vary, but a judge might do so if he or she thinks the defendant is low risk, if a prison sentence could be more detrimental to the defendant or if the felon would benefit from treatment programs in jail.

Schwermer said the sentence gives judges an option of imposing intermediate sanctions — “less than prison and more than nothing.”

Utah averages about 1,100 COP prisoners, according to Ron Gordon, executive director of the Commission on Criminal and Juvenile Justice. This is around 16 percent of those in state custody.

The Salt Lake County Jail has an average of 350 COP prisoners out of 2,180 total inmates, according to Sgt. Cammie Skogg.

The Utah County Commission says it can’t keep paying more than what was agreed upon by the state to house its COP prisoners. Tracy said he’s been hesitant to “pull the trigger” like Weber County has, but if the funds aren’t there, he has no choice but to release some convicted felons into the community.

He said his 1,200-bed Utah County Jail has three things working against it when it comes to jail reimbursement.

"We're under-represented at the prison, but we're paying our fair share of taxes because of our population. I'm using actual money per day for each one of them that's in there," Tracy said. "And then the third one is I'm going to have to build another jail."

He said it's about money long term, it's now an issue of space, and his jail is essentially full. Regardless of whether the prisoners are paid for or not, they're filling up jail beds. Tracy said he may have to ask for $20 million for a 400-bed expansion of the jail.

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