Jessica Jackson was supposed to be released from Dallas County jail in time for the holidays last year. She was arrested in early December for misdemeanor drug possession and violating parole, but was credited time for two years she’d already served on a previous aggravated robbery sentence.
With the credits, Jackson was eligible for release on Dec. 19, when a judge ruled she had no time left to serve. But, Christmas passed, then New Year’s, and despite daily calls to jail staff from her public defender, family and a friend trying to help her, she could not understand why she was still in jail.
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By the time the county released Jackson 49 days later on Feb. 6, she had missed a job interview that she scheduled and lost her state-provided housing after missing a filing deadline, all without knowing why she was held so long, she said.
“I lost everything,” Jackson said. “I was expecting to go home that day, and I’d been gone for two months, so that position was already filled, where I was going to work at. So, it was really frustrating.”
What happened to Jackson is not unique to Dallas County, which did not respond to multiple requests for comment on her case. It’s unknown exactly how many Texans in county jails are kept well past the time they’re supposed to be released. That’s because no state agency tracks the number of so-called post-conviction over-detentions, and no state law prevents or punishes it. State agencies, including the Texas Department of Criminal Justice and the Texas Commission on Jail Standards, also do not formally track the number of over-detention cases.
Multiple attorneys told The Texas Tribune that delays in “pen packets” are often the reason why people are overstaying their sentences, including in about a dozen cases in the last five years that the Tribune reviewed. These packets are a collection of documents about an inmate’s impending release that counties must send to the Texas Department of Criminal Justice to be processed before release.
Unbeknownst to Jackson, Dallas County had not sent her pen packet to TDCJ by email until Jan. 29, and did not mark it for expediting until Feb. 2, more than a month after her sentencing, emails between the Dallas County Sheriff’s Office and TDCJ show.
State law outlines deadlines for TDCJ to process pen packets, but does not require counties to send the documents to TDCJ on time. Counties have attributed delays to a variety of reasons including difficulties with technology or calculating an inmate’s sentence, but all result in late releases.
After the Tribune asked about the lack of regulations or monitoring of over-detention, TDCJ said it plans on asking counties to indicate whether an inmate is “time-served” — a judge has ruled they are eligible for immediate release. It will act as “another layer of reminder” to get people stuck in Jackson’s position out of jail quicker, according to TDCJ.
This change, however, does not solve the problem of counties’ delaying sending their pen packets to TDCJ.
Without state oversight, over-detention victims have resorted to private lawsuits to get compensation, which can be a time-consuming way of getting reparations and expensive for counties. In February, 102 inmates settled a $1.5 million lawsuit against Smith County for pen packet delays that kept them confined beyond the end of their sentence, the largest settlement in Texas for victims of over-detention.
The settlement payouts lead to taxpayers having to “foot the bill twice” in many cases, said Nick Hudson, a policy and advocacy strategist with ACLU Texas: paying for the resources to house people for additional days in jail, then again for any resulting lawsuits.
Jails already face a plethora of issues that strain resources, including overcrowding and reduced staffing. Keeping inmates longer than necessary draws out those expenses.
“Coming up with a better way to ensure people are getting out when they are entitled to release, it would be good for the people who are jailed,” Hudson said. “It would be good for taxpayers. And ultimately, it’s good for the criminal legal system because we need a system that is operating based on the law and not one based on the whims of a jailer.”
At the same time, Krish Gundu, executive director of the Texas Jail Project which first identified the overdetention problem at Smith County jail, said settlements have not resulted in admissions of wrongdoing.
“Accountability is impossible to get when there is no admission of wrongdoing and unless there is admission of wrongdoing, you can’t begin to have the conversation about how to repair,” she said.
In the past two years, Dallas County commissioners have approved settlements in three lawsuits from inmates who accused the county of not releasing them from jail on time, two for $60,000 and one for $100,000.
Jackson’s public defender put her in touch with Jim Spangler, a private attorney involved in two of the previous settlements who said he was looking at 20 more cases.
Pen packet problems
Rebecca Yung, a defense attorney serving Central and West Texas, said at least three counties haven’t released her clients on time because counties have delayed in sending in pen packets to the state.
One of Yung’s clients In Tom Green County was held 17 days past his release date last May and was released only after Yung filed a request to a district judge to release him and asked to subpoena three county employees.
“Each time it comes up, it’s almost as if it’s the first time,” Yung said. “Not only do I say, ‘Hey, this person should be released,’ I always say, ‘Why did this happen? And what can I do so this doesn’t happen again?’ And I never really get much meaningful information.”
Tom Green County Sheriff Nick Hanna said in a statement that the sheriff’s office was in touch with TDCJ “to ensure inmates are not detained beyond their sentencing requirements,” but declined to answer specific questions about Yung’s client.
County officials’ delays in sending packets can dramatically affect how much additional time an inmate will have to spend incarcerated. But there are no state laws or guidelines requiring when a county should send a pen packet to TDCJ or counties to flag if a pen packet is for someone who has overstayed their sentence.
Under state law, TDCJ has 45 business days after packets are received to process them so that the agency can notify the county to release inmates, but the department aims to have expedited packets back to counties in 10 business days, TDCJ Classification and Records Director Timothy Fitzpatrick said. TDCJ encourages, but does not require counties to mark the pen packets of those who have overstayed their sentences as expedited.
TDCJ receives roughly 1,250 pen packets weekly from counties by email, mail and in some cases hand-delivery, Fitzpatrick said. It’s not clear how many of them are for those who have overstayed their sentences.
Counties have previously indicated that technical issues like incompatible jail and court software can cause delays in gathering all of the documents necessary for pen packets before sending them to TDCJ. Reports from the Dallas Morning News indicate Dallas County has pointed to jail systems causing delays as early as 2005.
But Dami Animashaun, an attorney who represented plaintiffs in the Smith County settlement, said counties show a “deliberate indifference” in ensuring timely release by pushing the blame to technological gaps. He wants state officials to implement a law or standard that tells counties to stop delaying releases.
Animashaun said without state guardrails, victims can go completely unnoticed if they don’t have an advocate on the outside like a private lawyer or a robust public defender office.
“These people have lives, and when they’re not released on time, it significantly affects their lives,” Animashaun said. “People lose jobs, people lose custody of their children.”
Jackson asked her public defender for help, had her family and lawyer speak with Dallas’ TDCJ liaison and begged officers to check her sentence, but nothing she said or did while she remained over-detained in jail seemed to quicken the process, she said.
Jail officials “kept on saying, ‘you’re going to get out, you going to get out [in] 10 days, five days,’ and it just kept on, more and more days,” Jackson said.
A state standard
To prevent over-detention and other issues caused by paperwork delays, TDCJ is launching a pilot program for a pen packet portal that would formalize the process and allow for instant document transfers between counties and the state. Dallas County will serve as the first testing ground, and Fitzpatrick said the agency hopes to begin utilizing the new program by the end of March.
Michele Deitch, a leading criminal justice expert who directs the Prison and Jail Innovation Lab at the University of Texas at Austin, said the state could do more to address the issue: have the Texas Commission on Jail Standards implement a requirement that jails release inmates when they’ve completed their sentence.
The Fourteenth Amendment bans the government from taking away a person’s freedom unfairly and arbitrarily. Having a standard would spell out what this constitutional right means to jails and what steps they need to take to avoid overdetention, instead of facing lawsuits after the harm has happened, according to Deitch.
“It’s more preventative,” she said.
When asked by the Tribune if his agency would implement a requirement for jails to stop over-detention, TCJS interim executive director Ricky Armstrong said the agency would do so if the Legislature passed a law or a member of the public proposed the change.
Armstrong said it wouldn’t be too much work for TCJS to remedy the problem, but described over-detention as a “fairly new hot topic” in the wake of the Smith County settlement.
“We definitely would be able to take it on as a responsibility, that would not be an issue [to] add to our inspections process, just another step, something else to look at,” Armstrong said. “We already look at releases, it wouldn’t take that much longer to look into some release dates.”
Republican state Sen. Pete Flores, chair of the Senate’s Criminal Justice Committee, said in a brief statement that over-detention in county jails is being “looked into and addressed,” but didn’t provide details on who was looking or what was being done.
State Rep. Sam Harless, chair of the House Corrections committee and who is not seeking reelection, was unavailable to comment.
Gundu, with the Texas Jail project, is however skeptical that adding just one requirement would fix the problem. The state needs to focus on incarcerating fewer people, she said.
“We have to start reckoning with this monster that we have created, this machinery that we have created, which routinely steals people’s lives because that’s what it did,” Gundu said. “That’s what over-detention does: you’re just basically stealing time from their life.”
Since leaving Dallas County Jail, Jackson has found a job and is staying with friends until she finds permanent housing. With no other recourse, Jackson is working with her attorney to file a lawsuit asking the county to compensate her for the mental anguish she endured during those 49 extra days she spent in jail.
“I’m trying to survive until then, I hope,” she said.
Disclosure: ACLU Texas and University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.