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Lee Jail continues to limit intakes

Policy not communicated in writing to jail personnel; local policy departments

By VALARIE HARRING - | Jul 8, 2021

If you’re facing arrest in Lee County, the lingering specter of COVID-19 might just have a silver lining of sorts — a temporary get-out-of jail free card.

As the pandemic got under way, a policy was implemented at the Lee County Jail that limits the intake of those arrested to certain crimes such as DUIs, domestic violence arrests and crimes classified as violent felonies.

Most other arrests, including many misdemeanors and non-violent felonies, net those accused a notice to appear from the arresting officer or, for a felony case, a subsequent arrest warrant issued by the State Attorney’s Office.

A notice to appear is an arrest but does not include transportation to jail, booking and, possibly, the posting of bond to be released. Law enforcement officers usually have the authority to decide whether a notice to appear or transport to jail is the appropriate means of arrest for a misdemeanor. A felony arrest usually requires an officer to transport the person charged for intake at the jail.

Although the statewide COVID-19 emergency lifted last month, the Lee County Sheriff’s Office says its COVID-related intake and bookings policy remains prudent and consistent with other major jails throughout Florida.

In response to emailed questions requesting information on the policy that continues following the lifting of Florida’s COVID-19 emergency order on June 26, and a related new law that went into effect on July 1 limiting how long any local state of emergency can remain in effect, the Sheriff’s Office responded with a prepared statement first released in May:

“During the COVID-19 crisis, public safety requires that space remain available in the jail to house violent offenders and others who pose significant danger to the community.

“To assure we can accept and house those individuals who pose a danger to the public, consistent with major jails throughout Florida, the Lee County Jail currently accepts arrestees charged with violent offenses, DUI, domestic violence, etc., or who otherwise pose a danger to the public or property. Additionally, the jail accepts arrestees resulting from special community-based operations implemented to address specific public safety purposes.

“Individuals who violate the law continue to be charged and held accountable. Non-violent offenders who do not pose a danger to the public are required to answer in court for their actions, through notices to appear, summons, or warrants,” the release states, in part.

The policy will continue as long as it appropriate, according to the prepared statement.

“We are constantly reviewing our agency practices, including our booking process as a pertains to COVID-19. If and when any updates to the above protocol are made, we will inform the media.”

In response to a public record records request made July 7 for a copy of the policy shared either internally or with other agencies, the Sheriff’s Office did not produce any written record.

On Monday, July 12, the office responded to a public records request for “a copy of the Lee County Jail’s intake/booking policy, provided to watch commanders, other jail staff, deputies or outside law enforcement agencies, as it relates to COVID-19, including but not limited to types/categories of crimes and other conditions under which those arrested will be accepted for intake at the jail or not” by directing The Breeze back to the prepared statement issued in May.

“Statement provided via email,” the records center message states.

The Charlotte County Jail did not limit intakes at any time during COVID-19. While Collier County deputies “are encouraged to issue NTAs for nonviolent offenses under COVID protocols,” they continued to have the discretion to make a physical arrest instead, officials said.

The Lee County Jail policy is impacting both the number of warrants issued by the Sate Attorney’s Office and how local agencies, like the Cape Coral Police Department, are able to handle arrests.

The number of warrant requests received by the State Attorney’s Office thus far this year has exceeded all those received in pre-pandemic 2019.

The office for the 20th Judicial Circuit — Charlotte, Collier, Hendry, Glades and Lee counties — received 1,296 requests for all of 2019. As of June 18, 2021, the State Attorney’s Office had received 1,293 such requests, most of them from Lee County agencies.

Lee County warrant requests totaled 1,057 as of June 18, up from 810 for all of 2019. The Lee County agencies’ request tally for 2020 was 1,433 of the 1,904 total received. Charlotte numbers for 2019, 2020 and 2021 thus far are 109; 135, 115; Collier, 233, 202, and 78; Hendry, 106, 99 and 26; and Glades, 38, 35 and 17, respectively, according to numbers provided by the State Attorney’s Office.

Other than confirming numbers are up, the office referred any comment on the policy to the Lee County Sheriff’s Office.

“We are aware of the policy but will direct any questions on the policy to the Lee County Sheriff’s Office. It has increased the number of warrants,” the office said via email.

An interview request made to Lee County Sheriff Carmine Marceno Wednesday was declined.

The Cape Coral Police Department, meanwhile, continues to operate with the policy it says it has not received in writing and sometimes results in officers not being able to book those taken into custody into the Lee County Jail.

“Anyone arrested for domestic violence, driving under the influence, active warrants, or any violent felony is being transported to the Lee County Jail,” Master Cpl. Philip Mullen, CCPD spokesperson, said in response to an email seeking information on the CCPD’s understanding of the policy. “All other felonies are being sent to the State Attorney’s Office for a warrant request, while all other misdemeanors are receiving a Notice to Appear (NTA) with a court date.”

Mullen said the CCPD has not received anything in writing regarding the ongoing policy.

“We have received nothing in writing nor any specific lists of crimes,” he said. “We transport anyone arrested for any felony battery, robbery, or any other felony involving threat of or commission of bodily harm…; I have been told it has been at the discretion of the jail’s watch commander on a case-by-case basis whether arrestees are accepted. When they are not, the case is submitted to the State Attorney’s Office as a warrant request.”

The CCPD did not have statistics related specifically to the jail policy and said it would be difficult to extrapolate a numbers-based impact.

“We have not kept separate, specific statistics related to arrests affected by this issue,” Mullen said. “Every arrest is of course tracked by disposition (physical arrest, warrant request, NTA, etc.) but there is no separate tracking for this change. In normal times officers have the discretion (depending on the crime) to issue NTA’s or physically arrest for misdemeanors, which is now restricted to NTA’s unless the crime falls under the aforementioned categories (DV, DUI, warrants.) Differentiating between officer choice/discretion and the jail policy would be difficult. Physical arrests would always be made when probable cause for a felony was established, but now they are having to be warrant requests unless classified as violent felonies.”

The department has been in communication with jail staff concerning the policy, which Mullen confirmed has resulted in transported subjects not being accepted for intake at the jail.

Editor’s Note; This story has been updated to include the Lee County Sheriff’s Office response to a public records request for “a copy of the Lee County Jail’s intake/booking policy, provided to watch commanders, other jail staff, deputies or outside law enforcement agencies, as it relates to COVID-19, including but not limited to types/categories of crimes and other conditions under which those arrested will be accepted for intake at the jail or not.”