AREAS OF REFORM AND JAIL OPERATIONS: TIMES ARE CHANGING

Historically, our high dollar jail exposure has dealt with in-custody death, lack of adequate medical treatment, strip searches, assault and conditions of confinement (traditionally referred to as overcrowding). Coming soon to a jail near you are some new players: adequate treatment of the mentally ill, solitary confinement and a new way the courts are looking at use of force in jails. This article explores each of these evolving topics and suggests a couple of things that can help your jurisdiction, jail administrator and elected officials prepare to mitigate these challenges, risks and subsequent exposures.

Adequate Care for the Mentally Ill

The mentally ill in jails has been an evolving issue since President Kennedy signed the Community Mental Health Act in 1963. The lack of funding for community mental health centers, coupled with the deinstitutionalization of the mentally ill, has left jails as the de facto mental institution. Some jurisdictions have tried to decline accepting the mentally ill until stabilized, but with 16% percent of arrestees seriously mentally ill, and 40%-50% having some type of mental illness, when the mentally ill commit a crime, jails are left with no alternative but to accept the person and do their best to care for them.

In the past 24 months, advocacy groups have started to intensely look into how the mentally ill are treated and housed in jails. Popular groups such as the American Civil Liberties Union (ACLU) and the American Bar Association (ABA) have joined the cause through the Disability Rights Agency in each state (in my home state the name of the advocacy agency is Disability Rights Washington). Under the federal Developmental Disabilities Assistance and Bill of Rights Act of 1975, each state is required to have a statewide protection and advocacy system in place (Public Law, 94-103). This was implemented to safeguard the rights of people with developmental disabilities. If you are not familiar with your local state disability rights agency, I strongly recommend doing so. Each of these agencies produces their own annual report, which outlines past litigation and areas of current focus. Jail conditions and the mentally ill are either a current or near-future area of attention.

Isolation or Solitary Confinement

Isolation or solitary confinement is the next area of change in jails (use the term segregation when talking with your local jail administrator). Segregation is used to separate jail inmates who are violent, or acting out, from the general population. It is a tool that has been used for decades in jails and prisons, but is now under scrutiny at the federal level because local jails, out of desperation in dealing with either the extremely violent or mentally ill, may have used segregation (isolation cells) for extended periods of time. A number of studies have been produced showing that segregation causes inmates to deteriorate and actually increases your risk and exposure, as an entity. Including your licensed mental health counselor in your jail classification process is a start to reducing your reliance on segregation. This consultation should include a behavior plan that holds the mentally ill person accountable to the level they understand, encourages behavior that conforms to jail rules and eventually moves them to the least restrictive housing based on the jail’s objective classification system.

Use of Force

The last area of evolving change is use of force in jails. In the past, jail use of force was addressed by the Eighth Amendment (cruel and unusual punishment) for sentenced offenders, and the Fourteenth Amendment for (due process) pre-trial offenders. The Kingsley vs. Hendrickson Supreme Court case shifted the way use of force is viewed for pre-trial offenders to the Fourth Amendment or Objective Officer Rule. “To prove an excessive force claim under 42 U.S.C. § 1983, a pretrial detainee must show only that the officers' use of that force was objectively unreasonable; he does not need to show that the officers were subjectively aware that their use of force was unreasonable.” This is a dramatic shift for jail officials, particularly if your jail employees do not have a background or training as patrol officers. This concept is better understood when applied to the United States Supreme Court ruling, Graham v. Connor (490 U.S. 386). Finally, consult your local corporation counsel or legal representative for a clear explanation of the nuances and concepts of this ruling and the subsequent changes needed for your local jail’s policies, procedures and training.

Times are changing for jails and jail management. In future blogs, we will discuss the transgender population, incarceration of the poor and more reforms that are just around the corner.