Reduction of Lawsuits Filed against County Jails Sergeant Victoria York Livingston County Sheriff Department 2003 School of Police Staff and Command Class 16
2 ABSTRACT This research identified the rise in lawsuits filed against jails, the history behind this rise and ways to reduce the liability. Ross (2001) The top cause of lawsuits filed is for medical care and use of force (p. 6). These subjects were researched, which led to other ways of reduction. The material gathered for this research was by means of Periodicals, articles and professional trade journals downloaded from the internet. The goal was to find ways to reduce liability. The medical aspect is diagnosing and treatment of chronic illness. Ascertaining that medical needs are met in a timely basis by which ever means are necessary or available. Use of force is dealt with the thorough the training practices. Screening of new hires for the skills needed in today s corrections field, along with a through working knowledge of the laws pertaining to inmate s rights. The research results were interesting and sound. There are inexpensive and logical ways to accomplish this, from reviewing and updating of the Policy and Procedure, to changing hiring practices, to training existing staff in the laws pertaining to inmate s rights. More extensive and sometimes not viable options include the physical layout of the jail and new technology. This would include, but be not limited to video surveillance equipment and updating computer software. The research while interesting has lead to the conclusion that, while there are ways to reduce liability, a jail will still be sued, there are no guarantees. All of
3 the suggestions require at the least, the cost of manpower, if not major restructuring. Therefore, any changes are subject to budgetary concerns. Any positive steps towards attaining any of the suggestions should be taken within the limits of the budget. The lack of attention to the details is more costly than the alternative.
4 TABLE OF CONTENTS ABSTRACT Page 2 TABLE OF CONTENTS Page 4 INTRODUCTION Page 5 BACKROUND AND SIGNFICANCE Page 6 Medical Page 8 Use of Force Page 9 Regulation Page 11 Hiring Practices Page 11 Policies Page 12 PROCEDURES Page 13 RESULTS Page 14 TABLE Page 15 DISCUSSION Page 18 RECOMMENDATIONS Page 19 REFERENCES Page 20
5 INTRODUCTION With the potentially crippling cost of suits filed against the County Jail, reducing liability is very important to both staff and administrators. Through researching articles and the internet possible solutions were identified. Schlanger (2001) Medical care and use of force were the top two lawsuits filed against Jails nationally (p.3). Ross (2001) Medical care and property were the top two lawsuits filed in the State of Michigan (p. 6). Medical care is to the top reason inmates file suits both locally and nationally. The care needs to be timely and thorough. The resources are needed to accurately diagnose and treat any manner of illness and diseases. Use of Force is approached in numerous ways. Accurately screening new hires for the job skills that are needed in today s correction field. Training in the laws that deal with the rights inmates have is a protection against liability. There are other issues that can be dealt with which will aide in the reduction. Policy and Procedures can be updated and checked against the task for operational accuracy and to be sure they are task specific.
6 BACKROUND AND SIGNIFICANCE Prior to 1960 the courts practiced a hands-off approach to cases brought to the court by inmates. The courts felt that the jails were administered by experts and therefore better able to define correctional programs (p.5). Strom, Callaghan, Betancourt (1997) - The hands-off doctrine was based in several assumptions, first while a criminal suspect was entitled to his or her constitutional rights during the trial, upon conviction he or she somehow lost any rights he or she had. Second, since corrections were designed to benefit the inmate, correctional staff would know what was best not only for the inmate but also for the institution (p.5-6). In the late 1960 this was abandoned, in Arkansas, the federal district court was compelled to declare the entire corrections system a cruel and unusual punishment. Once published, three other states challenged the states practices. Strom, Callaghan, Betancourt (1997) This, of course, does not mean that everything corrections is doing is wrong or that it does not meet constitutional standards It must be proven in a court of law when properly challenged (p. 6). Michigan Municipal Risk Management Association (MMRMA) goes into great detail of the liability facing jails today. Drapkin (2003) (MMRMA has compiled statistical data (p.2). The emphasis is on Policy and Procedures. According to Drapkin (2003) One of the purposes for having good policies and procedures is to serve as a proactive tool in liability risk management For that reason, is important to think about policies in advance and to develop and implement them so that if and when lawsuits occur, policies will be useful to your defense and will not provide ammunition for plaintiff s lawyers to use (p2). Drapkin went on to outline the points the plaintiff s lawyer would be looking for. The object is to use them against you. The first would be if
7 there was a policy in place or if the practice amounted to de facto policy. Failure to supervise and failure to train are common. The policy must follow jail practices, be well written, and distributed to jail staff. The conformance to jail standards both state and national is vitally important The defense attorney will be looking at these issues too; they will try to prove you acted with in these points. Drapkin (2003) Thus, the role of those who manage jails should be to provide defense attorneys with as much ammunition as possible that they can use in defending actions by jails staff members, and to provide as little ammunition as possible for plaintiff s attorney to use in trying to make a case against jail staff members (p. 2). The article went on to give recommendations of points to look at when reviewing policies. There is a check list for the salient points needed in a working policy and procedures. Justice Concepts Inc. wrote an article to County Commissioners outlining issues that needed to be addressed to have a full understanding of what it takes to run a jail. The article outlines six considerations that need to be known to have a working knowledge of how a jail is being operated. This is a barometer of how well the jail is run from an administrative point. According to Allen (2001) these six considerations are as follows; is the jail well maintained? Are there facility problems that affect security, safety, and health of staff and inmates? Does the jail have adequate staffing? Does the jail have adequate written policies and procedures? Is the jail budget clearly defined? Does the jail have an objective inmate classification system (p. 1-9). Allen (2001) Typically, if the jail fails to pass the considerations involving practices and procedures in jail operations, the commissioner should pursue pressing for improvement (p. 8). Allen (2001) goes on
8 to outline four ways of seeking improvement. Hiring a competent jail administrator or, sending the current one to training; seeking technical assistance from sources whose specialty is jails; hiring a consulting firm that specializes in jail management to assist. (p. 8). Connecticut Department of Corrections compiled a training plan for prospective employees to give them a broad spectrum of legal issues that could be faced with. Their training emphasized a working knowledge of laws pertaining to inmates rights. According to Strom, Callachan, and Bedancourt (1997) The role of the correctional employee is much larger that providing custody He or she needs training, some of which focuses on legal issues, so he or she can successfully protect all whom make up the jail/prison society (p.1) The Constitution of the United States Amendments I, IV, VI, VIII, and XIV were cited along with pertinent case law State Legislator and Court Orders (Precedent) were sources a correctional Officer should have a general understanding of inmate rights (p. 1-5). According to Schlanger (2001) with the passing of the Prison Litigation Reform Act reported the federal court civil rights inmate docket has shrunk by 40% (p.11). Medical The top suits filed against jails are medical treatment (NIC, MMRMA, Schlanger, Ross) (p.3, p.6). With the growth in prisons and jails in the last 20 years, corrections and health care professionals have realized chronic and infectious diseases and mental illnesses are concentrated in correctional facilities. A Correctional Center in Massachusetts along with the Community Health Organization developed a public health model (1997). The premise behind the idea was
9 that the incarcerated inmates were only temporarily not a part of the community. With this in mind the treatment spanned the time spent incarcerated in jail and moved onto continued care after release. While incarcerated their medical needs are met. With cooperation from the community after they return, care is continued. This will educate them, assist in the education of the illness, and provide in the long run a healthier community. They believe the benefits are to more than the facility. The families of the inmates are also empowered to continue the care after release. Possibly reducing recidivism, which in turn reduces liability due to the level of care received while incarcerated. Ten years ago a doctor would visit the jail and prescribe medication. The Deputies would dispense the medication per the doctor s orders. Now most jails contract with a medical service. There by reducing the liability with trained medical staff. The need for Mental Health Professionals has also become a necessity due to the Governor cutting State funds. Medical treatment has expanded to the point that most jails contract with a company that specializes in catering to the needs of a jail. Medical needs vary from a Doctor or Dentist on site to specialized visits for the more serious conditions. Inmates are no longer released due to serious medical conditions. Jails are expected to accommodate all conditions and disabilities. Medical staff coordinates with Community Mental Health Care for inmates with emotional challenges. Use of Force Second in law suits filed against jails is use of force Ross (2003) (p.6). As technology and skills increase the job demands change, that line of thinking is rapidly changing. Training has become a necessity due to the highly specialized field corrections
10 has become. The lawsuits filed have dramatically increased in the last ten years. Most departments have developed a hands-on training program along with the technical training needed to perform the day-to-day tasks. Community colleges have added jail curriculum, and for a while, grants were available to train at the local level. Continued training is available from many places. The actual job is difficult, regardless of the size of the jail. A corrections officer faces many challenges, sometimes under crisis conditions. The county inmate consists of pretrial detainees or sentenced up to a year. An arrestee enters the jail from the street. The jail is unlikely to have any personal information on record as a long-term prison would (who incidentally receives their information from the county jail). The corrections officer must gather information and make a decision about placement of the inmate. These decisions are made sometimes with out any background information. A wide variety of behaviors are handled, most under crisis conditions. The mentally impaired, suicide risks, substance abusers, and contagious diseases are some of challenges the corrections officer must become masters at recognizing and handling. A local facility has different classifications under one roof with different behaviors and needs. Housed in the facility are sentenced and pretrial detainees, some are new to the criminal justice system while others are repeat offenders. Each category will react differently to the jails rules and regulations. This requires the corrections officer to be flexible and sensible, sometimes using imagination to meet the many demands of the job. Good communication skills are a must in today s correctional environment. Regulation
11 There is no established state or national standards for the selection and training of local Correction Officers. Most of the jail management is under the jurisdiction of local law enforcement. As a result there is no one administrator, which is responsible for overall state management. Therefore the philosophies of staffing and how a jail should be run vary according to the particular sheriff or police chief running the facility. The employment requirements are what the local agency requires. These standards vary by location rather than a state or federal standard. Training is not standardized. Because of this the transfer to another location may not be a viable option. Career advancement is quite limited in relation to a state or federal institution given the small number of positions available. It is more likely that the turnover rate is high due to personnel changing fields in the interest of career advancement. There is much debate whether to make corrections a stand-alone field or to use it as a stepping-stone for advancement into the overall law enforcement pattern. The disruption to the staffing levels as the lateral transfers occur effect the overall operation of the jail. There is currently legislation pending in the House in reference to this same issue. Michigan Sheriff Association is trying to develop and regulate standards for certifying Corrections Officers. Hiring Practices The hiring practices must be such that the duties described above are who we are hiring today. The Turn-key or Guard aren t what is needed in the Corrections field today. The job is much more complex and demanding than previously. The skills needed today are such that a person must have the right temperament for the job. With liability
12 being such a large issue, finding the right person for the job is a necessity. The screening practices need to cover the technologic advances, the communication skills and laws that pertain to inmate s rights. The Correction Officer today must be a problem solver and know when to act and when not to. They have to have a working knowledge of the policies and procedures that govern the facility as well as the Federal and State laws that govern the rights of Inmates. In summary the new hires have to have the knowledge to protect the facility, inmates, and themselves. Policies Policies are the back bone of any facility. The attorney for the inmate looks at them to see if a policy is followed or if past practice is the Rule of the day. They try to discredit the jail thereby making the jail appear incompetent. The attorney for the jail goes through the same procedure to ascertain the jail is following the policies. In any event the need to keep the policies and procedures current is the best defense against law suits. The policies must be clear, concise and be followed. They must be accurate to the task they outline. They must be current. The laws as they pertain to inmates rights are a necessity in today s Corrections field. A working knowledge of the types of lawsuits an inmate can file and under what conditions will help to prevent lawsuits from occurring
13 PROCEDURES The research material for this paper was primarily obtained from articles off the World Wide Web. The source of information was National Institute of Corrections, Michigan Municipal Risk Management Association and Training manuals from various Departments. The articles that they had available aided tremendously in the research I needed. The World Wide Web in other areas was confusing and ambiguous at best. When the search was narrowed not enough information was available. A wide search was not the type of information I required. Conversations with Veterans enabled me to see the way the jail was operated 25 years ago until now. The changes that have taken place as the growth continued.
14 RESULTS It is clear that the way the Corrections field has changed over the years that the need for a reduction of liability is a must. There are no guarantees that a facility won t be sued, quite likely it is only a matter of when. The only defense a department has is being armed with the information to reduce the chances. A good training program and structured hiring practices will help. Policies and procedures that work and are current are the back bone of a good defense. The hiring practices need to change with the times. The Correction Professional will need brains to go with the brawn in today s jail. Recently a committee has been formed to construct a curriculum for the field of Corrections Officer. The goal is to create a training standard. This standard will set the pattern for Corrections Officers training and certification through out the State of Michigan.
15 MMRMA/Ross Loss Frequency Severity index. 1995-200 (p. 3) Claim Type & Total Legal Loss % of All Cases Frequency Cost Cost Paid Closed W/O (N=202) $ $ $ Loss Payment Medical (22) 158,406 23,125 145,281 64 Excessive Force 71,205 8,647 62,558 92 (12) Classification (11) 31,346 0 31,346 45 Failure to Protect 13,698 10.809 2,889 67 (9) Conditions/ 38,304 2,679 35,625 75 Facility (8) Denial of Access 3,624 3,549 77 92 (13)
16 National Litigation Topics-Individual and class action lawsuits. Percentage and (rank) of responding agencies with and litigation in topic Large Jails (1000 inmates and over) (p. 6) Large Jail Individual (n=44) Class Action (n=13) Medical Care 91% (1) 14% (1) Use of Force 80% (2) Personal Injury 70% (3) Loss or Damage to Property 66% (4) Inmate-to-inmate Violence 64% (5) 5% (4) Law Library Services 41% (6) Crowding 36% (7) Sanitation/Living Conditions 32% (9) Food Services/Nutrition/Diet 30% (10) 2% (6) Disciplinary Procedures 27% (11) 2% (6) Sex(w/Officer) 25% (12) 2% (6) Religious Programs or Policies 25% (12) Other 25% (12) Search Policies 20% (15) 9% (2) Disciplinary Segregation 20% (15) Visiting, Mail, Phone 18% (17) 2% (6) Totality of Conditions 18% (17)
17 Large Jail Individual (n=44) Class Action (n=13) Administrative Segregation 16% (19) Security/ Staffing 11% (20) 5% (4) Recreation 11% (20) Access to Lawyers 11% (20) Race Discrimination 9% (23) 2% (6) Protective Custody 9% (23) Concealing 9% (23) Other Library Services 5% (26) 2% (6) Gender Equality 2% (27)
18 DISCUSSION Lawsuits affect the budget in a small jail. The counties can t afford lengthy litigation. It affects the day to day running of the jail both financially and morale wise. The ways to reduce liability are well mapped out. You need current policies and procedures that work and closely follow the actual procedure Drapin, (2003). They need to cover a wide variety of subjects. The training of Officers must be well documented and thorough. Training needs to cover all aspects of the job including the philosophy of the facility. New hires require a working knowledge of the laws protecting inmate s rights. The technology in today s jail requires a working knowledge of computers. Today s Correction field is very complex and diverse. The medical treatment is important due to it being the highest cause of lawsuits (Ross, Schlanger, 2001, 2003, p. 3 p. 6). A through medical team is important because there are any number of ailments in today s society and there-fore in today s jails. Diagnosing and treating accurately and an inmate s ailment is a right. The hiring practices must be detailed to cover the complexities of the job. A person needs to care about others rights and that there is more than one way to resolve conflict. Communication skills must be high on the priority scale. The State mandates that a Sheriff run a County Jail. The Jail has become a major budgetary concern. Law suits are now a reality. Prior to 1960 the courts practiced a hands-off approach to cases brought to the court by inmates.
19 RECOMMENDATIONS The screening practices for new hires needs to be more through reflecting the philosophies of the department. Applicants should know up front what the department s expectations are. The training should be thorough and encompass the whole job and all of its facets; Policies and the law as it pertain to inmate rights. The policies have to be reviewed on an as needed basis to see if they are still accurate to the specific job. They have to be current and thorough. The medical facilities have to treat a variety of ailments and conditions. A certified medical department would be a very good defense against lawsuits. Overall knowing your job and following the rules are the best way to avoid costly litigation. While there are no guarantees a jail needs the above mentioned recommendations to lessen the degree of lawsuits filed against them.
20 REFERENCES Beck (2001) What County Commissioners Need to Know About Their Jail Justice Concepts Incorporated Drapin, (2003) Importance of Jail Policies and Procedures Michigan Municipal Risk Authority Ross (2002) An Analysis of the Claims, Losses, and Litigation of Detention Facilities Insured by Michigan Municipal Risk Authority: 1994-1999 Schlanger (2001) Inmate Litigation: Results of a National Survey Large Jail Network Exchange, National Institute of Corrections Strom, Callaghan, and Betancourt (1997) Pre-Service Legal Issues Lesson Plan State of Connecticut Department of Correction The Medical Staff of Hampden County Correctional Center and Abt Associated, Cambridge Massachusetts (2002) Putting Public Health Services into Practice in the Jail Large Jail Network Exchange, National Institute of Corrections