INDIANAPOLIS, Ind. (March 10, 2015)-- For months, people held inside the Marion County jail have told FOX59 News their court ordered releases were delayed because corrections officers told them the sheriff had 72 hours to discharge an offender after a judge's ruling. Four people who filed federal class action lawsuit last month claim jailers told them the same thing.
Now, an internal jail memo written this week by Sheriff John Layton, and obtained by FOX59 News, confirms that the 72-hour excuse has been a standard but unapproved practice of jailers who give the delayed timetable excuse when offenders ask why they aren't being released as a judge so ordered.
"To all staff," begins the email written by Layton at 10:36 a.m. Monday, "It has come to my attention that there is a rumor that jail inmates can be held up to 72 hours after the date that they have been ordered to be released to the street. That rumor is false. Inmates must be processed for release in a timely manner, and the sheriff's office does not have 72 hours to process inmates for release. It is not, nor has it ever been, a policy of the Sheriff's Office to process inmates within a 72-hour window."
The lawyer who filed the lawsuit on behalf of the former offenders was unimpressed.
"I think that was written by the sheriff's lawyer to stop their liability for such a policy because it's clearly unconstitutional so they'd like to stop their people telling our clients that," said attorney Rich Waples. "As a matter of fact, that's what they've been telling people for months and months and months and that's what they've been following for a matter of practice so I think the sheriff has some real liability issues here."
Waples said the practice is too wide spread within the department to be the work of a couple misinformed deputies.
"The common thread is the sheriff's department doesn't have a handle on what they need to do to get people out on time. They've been pretty consistently telling people, 'Well, we have 48 hours to 72 hours to release people.' That's not the law. That's what our people have been consistently told, and they don't even adhere to that because we've had people held four and five days after they've been ordered to be released."
Sherman Duncan is one of those people.
Duncan was held for six days on a battery charge in December before he says he saw a judge and the charges were dropped.
He was then held another 80 hours, missed work and a job interview and was housed with killers and other high secruity inmates inside the jail before he was finally released.
"They told me basically, 'Sit back and relax. We have up to 72 hours to release you,' and I'm like, 'I don't understand that. If I'm released, then release me,' but that's what they told me, 'We have up to 72 hours.'
"I was free. I was supposed to be let go and it's like I did three and a half days for nothing."
After Duncan read Layton's email telling his staff to quit leaning on the rumored 72-hour rule as an excuse for release delays, the former detainee was exasperated.
"It seems like they're doing that to cover theirself, or he's doing that to cover hisself," said Duncan, "because clearly everybody around there speaks the same language. It's not just one guard that says that. All of them say that and even when I call my public defender to check, she said they told her that."
Apparently the overdetention problems, and excuses, are not restricted to the main jail.
Several blocks away on East Washington Street, at Jail II, operated by Corrections Corporation of America, the false detention claims are the same and the rationale is even more cynical.
"Now I'm asking the CO, 'What's going on? I should've been home. I don't get this,'" said Kevin Thomas who told FOX59 News he was held for 52 additional hours after a judge ordered him released in December pending trial. Thomas said the corrections officer's response was similar to that of the sheriff's deputies. "'Oh it takes 72 hours,'" Thomas said he was told. "We're not County One. We are a privately owned company. We got 72 hours to release you....Our computers are down. Our computers are down. We don't know your status."
"I'm like, 'Y'all are violating my rights,' and they're like, 'Naw. We're private.'"
Thomas said he was told specifically it would do no good to report his complaints to the news media.
"They private. Can't nobody come in there," he said. "Ain't no way that y'all would ever be able to step a foot in CCA, so I could just leave that alone. Ain't no way y'all going to get up in there. 'We not run by the state. We just a private jail company.'"
As a privately run jail, CCA is paid with public funds to house Marion County inmates.
Thomas said that's why he was told his released was being delayed and, when it came, it occurred at two a.m., more than two days after a judge ordered him free, so that CCA could charge the county for an additional day of incarceration.
"I see a CO I know from the streets," said Thomas. "A guy my age. I said,'What's going on, man?' He says, 'You all just paying rent. After three days they let you go. Every 12 o'clock you just paying rent basically.'
"'This is just how they run this,' Thomas quoted the private jailer as telling him. "'After 12 midnight, you pay our rent.' That's all he said. 'You paying our rent. We get money for y'all being here. You know that.'"
Thomas was also dismayed when he read Layton's memo.
"They know they in trouble," he said. "They know they did something wrong. It's in the Constitution. Due Process. 4th amendment. 8th amendment. 14th amendment. All them been violated. If the judge ordered something, it should be done. Period. Point blank."
Waples and FOX59 News have both received phone calls from dozens of former offenders telling the same story about overdetentions, delayed releases and excuses.
"We've had hundreds of people contact us about it, complaining they've been held over for days and days after they've been ordered to be released," said Waples. "Every other county around Marion County does this within 30 minutes. Marion County can do it within a couple of hours."
Those complaints began last summer when the jail installed a new Offender Management System to track inmates and the Marion Superior Court began using the new Odyssey system to track criminal cases.
An outside expert and MCSO personnel told FOX59 News that the two systems have struggled to share information.
The attorney expects to represent hundreds of plaintiffs in the federal class action lawsuit that could result in settlements for thousands of ex-offenders and invite U.S. District Court oversight of the jail.
"We want to get the system fixed," said Waples. "This is not only costing people their liberty, being held days longer than they should, but it's costing all Marion County taxpayers money keeping people in prison longer than they should. We're paying for that."
When asked for a comment, Sheriff John Layton's staff reported, "The Marion County Sheriff's Office does not try lawsuits in the media."
A spokesman for CCA told FOX59 News, "While we take these alleged comments by CCA staff members seriously, they do not reflect the reality of the offender release procedures at Marion County Jail II. All CCA facilities operate in accordance with the policies and procedures that are laid out by our government partner.
"Upon receiving a release order for an offender housed at Marion County Jail II, staff typically process and complete the release within a matter of hours, and no incentive exists-financial or otherwise-for CCA to house offenders past their ordered date of release. Finally, Marion County jail II is frequently audited and operates transparently with oversight from our government partner."
Other former detainees have told FOX59 News their jail II experiences were similar to those experienced by ex-offenders housed at the main jail and their releases were also delayed for several days.
An information management specialist was brought in by Sheriff Layton last September to analyze the systems and suggest solutions which were undertaken in October.
Most of the recent complaints fielded by Waples and FOX59 News are from offenders who were housed in the jail since last November.