FORT WAYNE, Ind. (WANE) — “Act or answer.”  That’s what federal judge Damon R. Leichty told the county at a status hearing Wednesday.

The county has until Nov. 1 to find funding solutions to build a new jail, Leichty told Allen County Commissioners, the sheriff and representatives of Allen County Council. After that, he will impose measures, possibly extreme, to build the jail, the only solution that’s been proposed so far.

One of those measures would be to include Allen County Council in the lawsuit. Up until now, only the commissioners and the sheriff have been held responsible for the jail conditions.

Another potential solution would be to cap the jail population. Leichty said in his response to the lawsuit that the jail should be no more than 80% to 85% of capacity which would put the number around 580, instead of the 706 inmates it was at Wednesday.

The judicial threat came a year and a half into the county’s response to Leichty’s order to reverse unconstitutional conditions at the Allen County Jail after he sided with the Indiana ACLU and Allen County inmates in a lawsuit filed in January 2020.

This time around, the Allen County Council was on the hot seat. 

The council is the last step toward building a jail to new design standards – a jail that would allow for new sightlines, for one thing, that would keep inmates and confinement officers safer. 

But the council has so far refused to approve a .2% local income tax or Jail LIT, that would provide the necessary funding to build a jail projected to cost $300 million.

If the council does not approve the funding by the end of this month, the county won’t be able to collect taxes this year toward new jail construction. That could push completion past the 2027 target date, lengthening the time the inmates’s unconstitutional rights are being violated, something both Leichty and Ken Falk, the ACLU’s legal director, reiterated.

Tom Harris, Allen County Council president, said he believes the council may come up with a funding solution this month. 

Falk said extreme measures may prevail if nothing happens this month.

Leichty said he was “befuddled” by the council’s reaction and wondered aloud if any of them had read his opinion published on March 31, 2022.

“Is there any mystery there are unconstitutional deficiencies at the jail,” Leichty asked County Council attorney Mitch Harper and Harris. “Is there any mystery there needs to be a real solution?”

Leichty also wondered aloud if any of the councilmembers had ever visited the jail to which Harris replied that yes, they all had visited within the past six months.

Somewhat exasperated, Leichty asked again if all the county council members had read the court’s order. When Harper said they’d all had that opportunity, Leichty replied that he “would have expected they would have read this by now, given the significant interest in the community.”

When Harris said Allen County Council had talked about reconfiguring the existing jail, Leichty noted that the jail was at the end of its useful life, something he’d expressed before.

“Why is it even a talking point?” Leichty wanted to know.

Harper also brought up a Sept. 20 letter written to Kyle Kerley, former council president, from Allen Superior Court Fran Gull, acting as administrative judge, to say she believed “replacing the jail in its entirety is unnecessary … components can be renovated.” Gull said the county could “expand jail capacity outside downtown Fort Wayne to maintain efficient flow of defendants from pre-trial detention to the courts.”

Mentioned in court was Allen County Community Corrections which oversees the Residential Services Center off Cook Road; however, court testimony said that facility is currently full.

The point of mentioning the letter was to make sure the judge knew many stakeholders had placed input into the jail – existing and proposed – and it might have been the reason for some of the council’s reluctance to approve the Jail LIT, regardless of political influences.

Another influence has been the presence of an activist group, Help Not Handcuffs, who opposed the jail and has been a part of the lawsuit as a friend of the court. The group’s legal representative, Diane Bauer, appeared at the status hearing and recommended the group’s jail assessment. However, the judge wanted to know who authored the assessment. Bauer said the group was the author but had pulled information from other sources.

“It makes little sense that at this point the reins get pulled and we go on for something else,” Leichty said. “I hear nothing else. Mr. Falk has a few options. I assure you none of the options you want to hear. Act or answer.”

One of those options would be to file another lawsuit, Falk said, and include the council as a responsible party. As far as capping the jail population, it’s never been done in Indiana, but it has been done in other states, Falk said after the hearing.

Leichty said all parties had been “traveling down the road” toward new jail construction for a year and a half and that no one else had put forward another solution.

But every day, inmates’ constitutional rights are being violated, Leichty said.

“I’m not sure what else to say,” Leichty said at the end of the hour-plus hearing. “I keep coming to Fort Wayne looking for a solution. If appropriate steps aren’t taken yet this month, then I fear what steps will come thereafter. Act or answer.”