Handling inmate litigation is no picnic for any correctional institution, but for a county or city jail an inmate lawsuit can have a marked impact - be it financial or otherwise.

While state correctional institutions typically fall under the control of a high-level state department with its own battery of attorneys, local jails do not always have the luxury of that kind of support. What that means for jail administrators is they need to pay attention to the legal landscape and make sure they create a professional atmosphere in their facilities.

"I think that it is always the sheriff or the commissioner of corrections that sets the tone for behavior. You push the supervision down. Your immediate superintendents are responsible to you. Everyone understands what is expected of them and what they need to do to report up," said Suffolk County, Mass., Sheriff Andrea Cabral.

Promoting a professional atmosphere is important for reducing inmate litigation of all kinds.

Even though corrections has seen a drop in frivolous lawsuits since the passage of the Prison Litigation Reform Act in 1996, which imposed lawsuit filing fees and required offenders to exhaust administrative remedies prior to filing, those cases that do come forward can have a profound effect on jails.

A survey by Harvard University Law School Assistant Professor Margo Schlanger shows that although jails are the recipients of far fewer lawsuits in comparison to prisons, they are burdened much more by those fewer lawsuits.

For example, large jails in the survey reported higher annual damages for lawsuits than prisons. Also, a higher percentage of large jails settle class actions rather than go all the way to trial and test their policy and procedure there - preferring to pay up front and negotiate rather than try their chances in court.

"This suggests that although class actions are less common among jails, they may be more consequential," said Schlanger in her report on the survey, which was published by the National Institute of Corrections last year.

This begs the question, are there other reasons why jails may face larger legal costs?

Some in the field believe that it has to do with jails not ultimately controlling their own destiny.

Take the issue of jail overcrowding for example. A jail may be double or triple bunking and officials know their facility is overcrowded, but the county government holds the purse strings for building a new facility.

"They do hold off [when making changes they need to make.] It's very expensive and nobody wants to spend money on [building] and, population control measures that are possible have to be undertaken by actors other than those who are dealing with the crowding," said Schlanger.

This is just one example, but a salient one when looking at other issues that surface for jails from inmate litigation.

Trends in Litigation

Because of the variety of what jails do - hold pre-trial detainees, arrestees and sentenced offenders - the lawsuits jails face are just as specific to these activities. One such issue that has been raised over and over again related to jails, that would not typically affect prisons, has to do with strip searches.

Searches

According to Bill Collins, Editor for the Correctional Law Reporter and a correctional legal consultant, strip searches were the subject of several lawsuits in the 1980s and several court rulings across the country made it clear that jails cannot conduct broad-based strip searches of everyone who comes through the door.

But these cases have come back.

"All of a sudden over the last four years or so we have seen a bunch of new cases come out. It was as though jail administrators had forgotten what had been going on," Collins said.

Strip-searching would not be an issue in a prison since an offender has already been sentenced and this practice would be required for security purposes.

But there are some other legal trends that do have crossover between jails and prisons - notably those related to the provision of health care.

According to Collins and others watching these trends, these cases include providing pre-release planning for inmates with mental illness, providing timely health care to inmates with a critical medical problem and others.

Pre-release

Last year, a New York court ruled that jail officials at Rikers Island in New York City had to provide pre-release services for mentally ill inmates based on an interpretation of a state law that requires as much.

"The emerging issue with jails is continuity of care both for inmates who arrive who may be on medications that are not on the jail formulary - such as hepatitis C -- or for other ailments that have to be addressed. Interrupting that care could be bad," said William Rold, a health care attorney and legal expert who serves on the National Commission on Correctional Health Care board.

Rold said the New York City case involving Rikers, known as Brad H., made it clear at least in New York State that "patient dumping" of those who are receiving medical or mental health services while incarcerated is against the law. The Rikers facility instituted a new pre-release plan for these offenders so that at release they would have connections to resources and medications.

"The interruption for certain inmates could be disastrous if they don't provide continuity of care. [But] it's harder for jails to track when people are leaving," Rold added.

Rold said that one way to promote the continuity of services is for jails to assist offenders in applying for Medicaid coverage. He said that few know that offenders can apply for this coverage prior to discharge even though it won't begin until they are released.

This system works better for jails when the date of discharge is known, he added.

There are other discharge-related issues that jails should consider as well.

According to Collins, an Alabama case against a county jail there raises a question about releasing an offender too early before he has received treatment.

In the case, Marsh v. Butler County, an offender was badly beaten by other inmates in the jail, was rescued by officers and then transported to the hospital. Doctors released the inmate back into the care of the jail officials with instructions to watch him carefully as he could show signs of a head injury.

Collins said the jail staff instead helped the offender work out his bail release, loaded him into a squad car with his head bandaged and dropped him off at a highway interchange. The man had a relapse, was picked up by police and ended up back in the hospital that night.

The inmate filed a lawsuit claiming the sheriff had a policy of early medical releases. Ultimately, an appeals court determined that the allegations were not strong enough to fault the sheriff.

Collins said although there was no trial, this kind of case may show the legal trend that corrections officials have a duty to care for an offender rather than set him free.

"The potential problem comes up if you get that early release for that reason and it results in the situation where the inmate is placed in a position of risk or danger because of the release. If an inmate has a serious medical condition or needs prompt care, is released and has no resources or ability to access the medical system, then the result is there is a gap that has serious consequences and the jail could be at fault for creating it," said Collins.

A jail might be able to cover itself legally by simply providing an inmate with a list of resources, a medical appointment or contact information for additional resources, Collins said.

Health Care

Another medical issue that jails may soon have to address on a regular basis is how to manage an offender's pre-existing medical condition.

Collins said this might be more challenging for smaller jails that have fewer medical resources at their disposal.

"More potential issues are coming up where they are confronted with a medical problem and there is no one there to deal with it. Questions arise such as 'Do we call someone,' or 'Do we transport someone to the emergency room?' These are jails where the budget is really sensitive. One person can have a noticeable impact on their budget," he said.

Collins said that although jails may decide, yes, they will treat for a condition such as diabetes; they question whether they should provide dental services to a person who hasn't brushed his teeth in 20 years. What jails should know, Collins said, is that the kind of pre-existing condition is irrelevant to the courts.

"The most dramatic example was a heart transplant in California. You could see it was an issue that was waiting to happen. The only treatment that would save his life was a heart transplant so are they deliberately indifferent if [officials] don't put them on the list?," Collins said.

The court in this case required the corrections department to not only put the inmate on the transplant list, but also to pay for the operation.

One way corrections officials can prevent litigation is to put into place protocols and criteria for the treatment and handling of certain diseases that are common among the inmate population.

One that has received attention of late is hepatitis C.

Rold said that agencies would be wise to set up a protocol for how or when an offender with hepatitis would meet the criteria for treatment and access to specialists.

"There is not quite a consensus as to how you deal with that kind of patient. I think jails that make an effort to deal with them and set up a protocol are better off that those who say we are not going to treat Hep C," he said. "There may be some who are not candidates for certain treatments but when you have a large body of people [with this disease] there are probably some who do qualify for treatment."

There are even more potential legal challenges on the horizon for corrections officials beyond medical care -- one of them is prison rape.

Offender Rape Receives a High Profile

With the passage of the federal Prison Rape Elimination Act last fall, corrections officials will soon be required to put into place policies and procedures for handling allegations and investigations of rape as well as education programs.

Some correctional legal experts say that facilities and corrections departments should be ready for a new battery of litigation that may follow the implementation of these requirements.

According to Lynn Lund, a correctional consultant and expert in corrections law, agencies should think ahead about how they are going to handle allegations of prison rape.

"This new rape elimination act is going to be as big as anything corrections has had. We have to have a totally different mindset on this. We have to be proactive and think prevention. It is clear, the courts have ruled that an inmate has no legal capacity to consent to a sexual encounter," said Lund.

Lund said that jail administrators need to go back to the requirements of Section 1983 of the Civil Rights Act to understand how to approach this potential legal issue.

Lund said there are seven aspects of proper management that can help correctional institutions avoid litigation:
*take care in hiring and selection of staff,
*have adequate policies and procedures,
*provide adequate training,
*report violations of policy and procedure,
*adequately supervise staff,
*do not retain employees that violate policy and procedure, and
*do not entrust the operations of the facility to those who are negligent.

"You put this all together and it sets up a duty that you meet these. The jail administrators say they have been handling this but what's so scary about this is the attorneys are going to be circling," Lund said.

Collins agrees.

"We're going to see more litigation around inmate rape. The problem from the inmate's perspective is it is hard to prove what happened. The legal test - [meeting] the duty to protect inmates - is similar to medical care. The officials have to be deliberately indifferent and know that there is a risk of [an inmate] being raped and then fail to do anything about it," he said.

Collins said that prior to the law, inmates were hesitant to report sexual attacks against themselves or others for fear of reprisals or being viewed as a snitch. But under the new law, agencies must put into place mechanisms where inmates can report these crimes and be protected and safe, among other measures.

So, with the new law, this barrier will be removed.

"We are going to see more inmates willing to take [what they perceive as] a risk in coming forward," Collins said.

But beyond watching for potential liability, Lund says corrections administrators should pay more attention to case law and be smart about keeping their facilities or agencies litigation free.

Be Prepared

"What I'm finding is there just aren't many people who are aware of case law," said Lund.

Officials have to be willing to do something to ensure they won't get sued, he said.

"You get an Alamo mentality working in corrections; it's them versus us. You have to watch that you don't get hardened. Be able to think about cause and effect relationships. They are so important. Over half of all the cases I end up taking are what I call felony stupid cases," Lund added.

Lund said one of an agency's best defenses is to have a plan for improving operations at the facility in question. He said case law has shown that if an agency can show that it is in the process of improving things, such as by having an independent audit, revamping policy and procedure or re-training staff, then the courts have often backed away and allowed the corrections agency to "work their plan."

To do this, Lund suggests that agencies allow their inspection units to be responsible for proactive liability prevention, including conducting audits, surveys and inquiries into certain practices.

"The goal is to try and have an accurate reality index of what is really happening in your institution, but the goal is to focus on prevention," he said.

Aside from this, Lund suggests that agencies also consider mediation to resolve problems and potential legal issues with inmates when they do arise.

As a consultant to many different corrections agencies, including jails, he has often suggested that the agency try mediation with an inmate and settle the case so that it never goes to trials.

"Administrators get in a bind with a lawsuit and instead of taking four to five years to have it go through the court system, we sit down and talk with the administrator and talk with the inmate and be honest and talk about their case," said Lund. "It bothers administrators because they think apologizing is negative, but it isn't admitting liability."

Lund added that mediation is positive for the inmate who can feel empowered by walking away with a settlement - including a monetary one - "so they feel like they have a sense of control."

In the end, the jail or correctional institution resolves the issue without prolonged exposure in the media and with a lighter financial burden.

This, according to Lund, helps the corrections agency transcend the pattern of reacting to lawsuits and promotes a pro-active stance.

"[Typically] when you have a shocking incident in corrections, then everything changes," he said.

Suffolk County's Cabral agrees that creating a professional atmosphere among staff combined with a pro-active approach is the best prevention.

"When issues aren't dealt with they reach a critical mass point where it becomes an out-of-control situation, where if it had been dealt with early on, [it would not be]," she said. "By holding [staff] accountable they get that message from the top and at least everyone is on the same page in terms of what the consequences are."

Resources:

To read Margo Schlanger's article, Inmate Litigation, in Harvard Law Review, April 2003 go to:

http://www.law.harvard.edu/faculty/schlanger/publications/Final%20except%20pagination.pdf

To reach Bill Collins email billclr@aol.com

To reach Lynn Lund email lundconsultants@mounet.com