, Muskogee, OK

Local News

January 3, 2013

County officials keep eye on lawsuit

Constitutionality of pay limit to keep prisoners at issue

Muskogee County officials are awaiting the outcome of a lawsuit that questions the constitutionality of a law that limits the amount paid to keep state prisoners in local jails.

The lawsuit was filed by Bryan County commissioners against the Oklahoma Department of Corrections. The lawsuit seeks a judicial ruling regarding the constitutionality of a state law that limits reimbursement rates at $27 a day.

Commissioners and sheriffs in several counties have complained the actual costs of keeping state inmates exceed the per diem rate set by state lawmakers. An attorney general opinion issued in 2011 concluded it is unconstitutional to use ad valorem taxes to subsidize state functions.

Muskogee County Sheriff Charles Pearson, who oversees county jail operations here, estimated in 2011 that it costs about $43 a day to house a state prisoner. Pearson, who could not be reached Wednesday, acknowledged the cost varies from county to county, but with a backlog of 1,000 to 1,500 inmates perpetually awaiting transfer to state prisons the cost differential could be substantial.

District 1 Commissioner Gene Wallace, who also serves as president of a statewide association of county commissioners, said he and his colleagues have “been focused on this problem for some time.” With no apparent legislative remedy in sight, Wallace said Bryan County commissioners were “forced into filing the lawsuit.”

“We had debated this internally to decide how to best proceed, and we decided this would be the best vehicle,” Wallace said about his conversations with other commissioners and sheriffs across the state. “The court will reconcile whether the legal interpretation (of the statute and constitution) is consistent with attorney general’s opinion.”

Bryan County Assistant District Attorney Greg Jenkins, who filed the lawsuit on behalf of the Bryan County Board of Commissioners during the latter part of June, alleges “counties are forced to use county resources to make up the difference” between the cost of housing state prisoners and the authorized reimbursement. That, Jenkins argues, violates the state constitution.

Michael T. Oakley, general counsel for the corrections department, argues in his response brief the per diem rate set by law is intended only to defray the costs of equipping, maintaining and operating the jail. Oakley, however, said the law states no “intent to reimburse the county for the actual cost of incarcerating the offender.”

Oakley also said that while commissioners allocate a portion of a county’s ad valorem revenue to fund jail operations, there are a variety of other fees that often are used to cover the costs of jail operations. Determining whether ad valorem taxes are being used to subsidize a state function would require a county-by-county accounting.

Citing a county’s continued interest in the incarceration of a convicted felon, Oakley said, “It can scarcely be said the interest and the responsibility of the county expires when the judgment and sentence is transmitted to the state.” Oakley also expressed doubts the actual costs of keeping state inmates exceed the reimbursement rate of $27 a day.

Wallace said commissioners appropriate money annually from ad valorem revenue to fund jail operations. He was unable to confirm whether any of that revenue has been used to subsidize the cost of keeping state prisoners.

“The one advantage we have in Muskogee County that they might not have in other counties are the contracts we have for keeping federal prisoners,” Wallace said. “The federal reimbursement is substantially greater than what the state provides.”

Reach D.E. Smoot at (918) 684-2901 or

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