After 28 years, New York State recently settled the class-action lawsuit regarding the Attica prison riot that left 43 dead in 1971 for $12 million. Although the agreement to settle allows the state of New York to admit no wrongdoing, the legal issues are lasting and confront corrections professionals every day. The use of force, for example, continues to be an area of concern. 

Is your department being proactive enough to ward off litigation? 

The corrections profession has a long legal history and according to Lynn J. Lund, of Lynn Lund Consultants, the United States Supreme Court has made many decisions that affect corrections. And although corrections practice has evolved through battles in the courts, legal issues that affect corrections will continue to shape the profession. 

According to Bill Collins, an attorney in Olympia, Washington who tracks legal trends in corrections, issues that remain at the forefront such as use of force, sexual conduct, the Americans with Disabilities Act (ADA), mental health and crowding and confinement continue to demand attention. 

Sexual Contact Between Officers and Inmates

According to Collins, sexual contact between officers and inmates is an area of major concern. Although, many cases involve officers taking advantage of inmates, Collins warns that there is a flip side in which inmates can set up officers. 

When there are allegations about sexual misconduct, “agencies need to jump on those allegations and investigate the dickens out of them,” said Collins. If the allegations are true, then the agency, potentially, has a very serious management issue if not legal issues. The agency needs to send a message that that type of conduct is not accepted and that message can be sent by taking allegations seriously. “A lack of a strong message from agencies can contribute to a misuse of force,” said Collins.

Sexual misconduct cases can involve inmate to inmate relationships or inmate to officer relationships. “It will start with one officer doing something ranging anywhere from forcible rape to pressuring the inmate, not physically, to a purely consensual relationship to the inmate setting the officer up,” said Collins.

Paul Marino, general counsel for The American Jail Association, agrees with Collins that sexual contact is a real concern in the field. “What we are seeing here is that agencies need to do more than just have a written policy,” on sexual harassment and sexual misconduct, said Marino. To clearly communicate that policy so that staff truly understands its meaning, comprehensive training and education should be done regularly. “Agencies must maintain a high vigil in this area,” said Marino.

Marino advises that facilities develop two separate policies – one for sexual harassment and one for sexual misconduct. The issue can start as incidents of harassment, but become incidents of actual touching, which is misconduct. 

“You have this mixture of men and women corrections officers working together, corrections officers with inmates, [agencies] need to be clear. I don't care if it's between opposite sex, same sex, whatever. Folks have got to understand that that environment has to be neutral,” said Marino. 

In addition to sexual misconduct and sexual harassment, Collins believes that cross gender supervision is an unresolved issue and cause for potential concern. Female officers working in male facilities are permitted to perform the same duties as male officers. However, in a Washington State women's facility male officers were conducting the routine pat down searches of the female inmates. In Jordan v. Gardner, the court said that this practice was in violation of the Eighth Amendment as cruel and unusual punishment because many of the inmates, prior to entry into the facility, suffered from sexual abuse. The searches conducted by the male officers were seen as a continuation of abuse for many of the female inmates who would suffer mental repercussions from the practice. 

However, “the practice has continued in other agencies around the country. I expected to see similar cases pop up around the country and they haven't,” said Collins. He sees cross gender supervision as a larger issue for small jails where staffing issues are a concern. It is not always easy to have female officers on hand to conduct pat searches on incoming female offenders, he said.

Sexual misconduct is an area that garners much attention, however it is not the only issue affecting corrections today.

Mental Health Issues and Inmates

Both prisons and jails face ongoing problems associated with the management of inmates with mental health problems. Collins believes that jails have a larger problem because the offenders come right off the street into a jail setting that is not always equipped with the resources to deal with the offenders' problems.

“Suicides are a dramatic component of the problem, but the problem is much broader than that. It's largely a resource issue,” said Collins. “The larger legal problem with mentally ill inmates is now that we've identified them, what do we do with them? How do we get them treatment?”

According to Jane Irving, BSN-MS, a correctional medical consultant in Florida, one of the issues that clearly affects every institution is the obligation to treat. “The propensity for immediate care tends to focus on the jail environment. The intake area of a jail is an emergency room without equipment,” said Irving. However, if all facilities conduct a mental health screening, it will be doing something proactive because then the facility will be able to begin treating the inmate.

One area that has yet to be resolved is disability litigation.

Inmates with Disabilities 

According to Collins, until recently there has been relatively little litigation regarding the ADA. However, he believes that there is much litigation potential with inmate disabilities. According to Collins, the most common inmate disability is probably having an inmate who is hearing impaired and the more dramatic of disabilities is having a paraplegic inmate who is confined to a wheelchair. 

Recently, The New York Times reported that the Clinton administration has urged the Supreme Court not to hear an appeal in a 15-year-old case (Davis v Hopper previously known as the Onishea case) concerning HIV positive inmates in Alabama, who due to the virus are barred from participating in recreational and educational programs and religious services where they might have contact with other inmates. 

If they choose to tackle the issue, the question at hand is, if a disability is a “significant risk” to others, can the “reasonable accommodation” ordinarily required under federal disability laws be eliminated.

Use of Force

The use of force is always an issue that corrections officials are concerned with. Collins highlights one of the most extreme cases of brutality to hone in on the seriousness of accountability.

In California, “it was a clear policy that authorized shooting at inmates with bullets to break up a fight,” said Collins, referring to the Corcoran facility where seven inmates died and 43 were injured between 1989 and 1995. “No other state in the country, that I am aware of, was even considering shooting into an enclosed exercise area as an option to break up fights. It shows a cultural issue of the department. The department convinced itself that this technique was okay,” which Collins believes shows a serious lack of accountability.

In 1998, a three-member panel, commissioned by state officials, reviewed 31 deadly and serious shootings at Corcoran from 1989 to 1995 and found the use of deadly force was not justified in 24 of the cases. 

According to Collins, “They [California] are now trying to pull themselves back to a more conventional approach to use of force issues.” 

Crowding and Confinement

Although crowding and confinement are other issues of concern to correctional administrators, legally they may be moot issues. “The issues we were once concerned with 15 and 20 years ago, crowding and confinement, they haven't gone away, but it's much more difficult to make a winning case out of them. We refer to double bunking and crowding, but the legal issue of concern to the court is: as a byproduct of crowding, is the institution no longer able to provide basic human needs to inmates?” said Collins.

The two major areas that should be considered to determine if basic human needs are being met are medical care and inmate safety. Others include food, sanitation and shelter, which encompass heating, ventilation, lighting and noise level. The question administrators should ask of their facilities is: Is this facility so crowded that inmate classification has broken down? If the answer to this question is yes, then the facility most likely has a problem.

Five Steps to Avoid Litigation

 According to Lund, avoiding litigation is a five-step process.

1. Corrections officials should get to know the law.
2. The policies and procedures within a facility should reflect the law.
3. Train the staff on the policies and procedures.
4. Supervise staff to ensure that policies and procedures are being followed.
5. Set up an internal auditing system to check that the staff is in fact carrying out the policies and practices.

Corrections officials should ask themselves: “Am I being fundamentally fair to my staff and the inmates? If you are not being fundamentally fair that is the standard that a jury will always apply,” said Lund.

Advice to Corrections Officials From the Experts

“They should act proactive and make sure they understand new legal practices,” said John Hagger, attorney at law, court monitor for Alaska and Federal Court Special Master in California. He also encourages training to enhance professionalism in corrections and open communication to keep the public informed.

According to Collins, corrections is facing some new challenges having wished to have the courts get off its back and getting its wish. “How does an agency hold [itself] accountable to sound correctional practices?” said Collins. He believes the challenge now is, can agencies do it on their own or does there need to be some external checking method in place?

“The most important thing that we have found is that in all times corrections officials and administrators have to act reasonably,” said Marino.

Resources
Bill Collins
360-754-9205
Lynn J. Lund, of Lynn Lund Consultants
208-745-5282
Kara Gotsch, ACLU Prison Project
202-234-4830
Jane Irving, BSN-MS, a correctional medical consultant in Florida
727-462-5727
Paul Marino, general counsel for The American Jail Association
727-827-1710
John Hagger, attorney at law
415-771-1911
 Pat Scholes, NIC Information Center
1-800-995-6429