Bill Collins and John Hager have spent years focusing on the legal issues of local corrections. Through workshops, seminars and presentations, this legal duo aims to help officials proactively manage corrections.

“We want to make people step back and use the law to help them act before legal action is taken,” explains Hager, who holds training workshops for the National Institute of Justice and the National Institute of Corrections. “We want them to stay aware of these issues so they stay out of trouble; not get into trouble and then deal with the consequences.”

By keeping an eye on jail-specific cases across the country, both lawyers are able to provide a legal snapshot for COs and officials. Collins, who has spent 30 years focusing on local corrections, believes that by watching these cases, officials can get an idea of how the culture of corrections will shift in the future.

“Your legal problems will be minimized if you run your facility well,” Collins explains. “Your legal problems won't disappear, because even the best run organization has problems from time to time, but those issues won't come up nearly as often, and they will tend to be isolated to one situation. If, for example, you have one officer who uses too much force, that's one thing you can deal with much more easily beforehand than during a lawsuit that says officers routinely abuse inmates. That's what a well run facility avoids.”

Corrections.com spoke with the legal gurus about the most pertinent issues in court and the best practices that officials should keep their eye on.

Corrections.com: What is one major issue in local corrections right now?

Hager: One issue that continues to cause trouble is intake searches. Specifically, whether or not a strip search is appropriate. This is an issue that the courts continue to deal with. It seems to be one that administrators have a very hard time dealing with. It's a problem that we've talked about for the last fifteen years.

It used to be that whenever someone was arrested for a felony, the jail would do a strip search, which is also a cavity search. The courts are saying that you cannot strip search someone unless you have a reasonable cause - you just can't rely on the fact that they are arrested on a felony. You have to have a reason to strip search them - if they have a history of smuggling weapons or they are jailed on a drug charge. But a lot of jails don't bother to follow that procedure or back up that practice. We've spent lots of time training on this issue, and it's one that we want to continue to focus on. You don't want to find yourself at legal fault for conducting a strip search that wasn't necessary.

Collins: We've seen a bunch of cases in the last few years about when jails can strip search people coming into jail the first time. What makes that strange is that there have been a whole bunch of issues being decided about this issue, all being decide in the same way: You cannot strip search everyone coming in, you can only strip search certain people for certain reasons. That law has been around for more than 20 years. But, all of a sudden you find jails of all sizes, shapes and description that have suddenly just started strip searching everyone again. It's a big problem.

CC: What cases might change policy and procedure in local corrections in the future?

Collins: There are no new major issues looming, but there are just as many older issues still floating around. If you don't take steps to properly protect inmates from violence; if your medical system isn't doing what it's supposed to be doing in terms of allowing inmates access to care from qualified people for care in a timely way; officers using too much force - all of those things can result in litigation.

One issue that will continue to be litigated, however, is the use of the stun gun. There are two issues around stun guns that have been and will continue to be the subject of litigation. One is whether the stun gun causes death. Does a stun gun kill? There have been a number of cases where that has been alleged, but to my knowledge, no coroner has said that a stun gun caused an inmate death alone. What they are saying is that a stun gun used in combination with other factors, such as an intoxicated inmate, are associated with the person's death.

That's not the same as the stun gun causing it, but that issue is going to keep being litigated.

CC: How can a facility ensure they won't be sued for using a stun gun?

Collins: Training is obviously crucial when it comes to stun guns. You want to be sure that officers aren't abusing the stun gun, and you want to be sure they aren't used on persons who don't present an immediate threat.

Hager: Whenever there's a less-than-lethal weapon, such as pepper spray or a stun gun, it's always important to do some training about how these items are effective, but they shouldn't replace talking to or managing prisoners. There should be some standard as to when they are used. You don't have to give a stun gun to every officer in a facility. Everyone should be trained about how to use them and it should be documented when it is used.

People come to rely on stun guns too much rather than developing people skills. We're not saying we should never use stun guns, but you have to pick the best tool and you have to manage it. Many people do training on how to use stun guns, but not when to use stun guns and that training is just as important.

CC: What issues are important right now?

Hager: Sexual harassment by inmates. This is an old topic with a new twist. Certainly, if one of your fellow workers sexually harassed you, you would have a claim against your employer if they didn't stop. But what about a prisoner? Someone who is not there voluntarily? That's an issue that hasn't gotten much litigation but the cases that have been considered have said it is up to jail or prison management to have some way to deal with this issue. For example, discipline a prisoner. If it's sexual exposure, you charge him with a crime ensuring that the employee is able to have redress.

You have to require that this kind of crime gets reported when it occurs. This is another slightly new development that we've done some training on. Some people think it's just part of the territory, that it's just part of working in corrections. That is just not true. There is an obligation to try and manage it appropriately. If this is a reoccurring situation, you are getting close to having a claim.

CC: What other issues should officials keep an eye on?

Collins: One of the things that I think we're going to see more of, and this is pretty much an educated guess, but as an indirect result of the Prison Rape Elimination Act, I think we're going to see more litigation by inmates in which they raise the claim that they were a victim of sexual assault in prison.

I think the track record over the years is that we don't see many of those claims. The reason is possibly that there's a stigma attached to an inmate being labeled as a sexual victim. I think many inmates have just decided not to put themselves at risk for retaliation by those who might sexually assault them.

Those kinds of lawsuits are often hard to win, but I think the attention that PREA is going to create, or is creating, around sexual activity in prison is going to remove some of that stigma, so I think we're going to see more cases like this. They fall under a traditional category called ‘failure to protect.' The law involved won't be cutting edge stuff, but it will apply fairly used principles.

Bottom Line: Keeping up with legal issues, and following Hager and Collins' advice can help officials take pre-emptive measures to avoid legal battles over policy and procedure.