During an onsite visit of a correctional center, I was led through an administrative hallway leading to a secure area of the facility. The hallway was about 30 feet long and was a heavily trafficked area – one that every correctional officer walked daily. The entire hallway on both sides was plastered with various administrative papers. There were so many papers on the walls I couldn’t see an inch of paint except above my head and below my knees. Papers were stapled or taped on top of each other and dates reflected everything from a few weeks to 15 years old. I asked a staff member escorting me what they all were and what purpose they served. I was told “Anytime anyone screws up or a new administrative program or announcement is put out, they stick it on a memo. The memos are sent out electronically too, but they figure this way we will all get daily reminders.” While the highly trafficked area seemed like an ideal location to place a message board, it was an obviously ineffective way to communicate changes. From the content, some appeared to supersede other memos but no references were provided to know that for sure. It would be difficult at best to decipher which memos were current and still applicable. More importantly, many of the memos were not memos at all but actually changes in policies and procedures. I wondered how many of these memos actually made it into their policy manual or how a new officer would ever know about the memo given the vast amount posted in the memo hallway. Lesson learned: If it is important enough to put in a memo, it is most likely important enough to be included in policy.
Written policies and procedures are essential to:
- provide an operational plan which meets constitutional, statutory, and professional requirements;
- reasonably ensure consistency and uniformity in performance of day-to-day tasks and responsibilities;
- provide a bench mark of expected performance requirements;
- document and formalize practices; and
- defend litigation against the jail and its staff.
Many jail administrations know the importance of keeping policies and procedures updated and current but find it terribly difficult to accomplish. Normally it comes down to knowledge (keeping current with case law) and time to actually sit down and write the policies. The process is often pushed to the backburner by jail administrators due to staffing shortages or other firefights. There will always be something more pressing (and more fun) than looking at a policy manual! Sometimes for larger facilities, policy review committees over-complicate the process or lack follow up with distractions or differences in recommended changes. And even if that all happens, legal counsel often weighs in with additional changes or it sits on their plate trumped by litigation or other pressing needs. Finally, the sheriff must sign off on the revisions. Then the arduous task of policy distribution, implementation with staff, contracted agencies, inmates (handbook changes as applicable) and training begins!
Even if an agency can afford the high price tag to hire consultants or an outside agency to write policies, the policies usually lack procedure and they will still need to be updated regularly and reviewed. Bottom line is there is no easy button. This is one of those administrative duties that cannot be overlooked or ignored without serious future consequences. Failure to provide adequate policy and procedure directives for reference or other use by staff may create liability for administrators if such failure is found by the court to be the proximate cause of subordinates violating clearly established rights.1 The policies and procedures which were in place at the time of the alleged violation of rights will be more relevant to the litigation than the directives written after the fact. It is the basis for all operations and deserves the utmost attention.
To be effective and legally defensible, jail policies and procedures should be based on legal requirements2 and according to administrative discretion using sound correctional practice and professional judgment. Because case law, statutes, operational requirements, funding levels, and other factors which affect the operation of jails tend to be dynamic, policies and procedures must be reviewed regularly in order to evaluate and implement court and administrative decisions which directly impact jail operations. Routine review of existing directives may reveal inadequacies in the policies and procedures which need to be corrected. Likewise, actual practices and inconsistencies contrary to those policies and procedures may creep into daily operations.
Here are some suggested considerations when looking at your policy and procedure review process:
- Policy should require a policy, procedure and directive review process. The policy should include the following areas:
- Authority to create or change policy, procedure, post orders and directives (i.e., “policy maker” – based on designated roles of Sheriff, Under Sheriff, Jail Administrator, Command Staff). The policy maker may designate a person to accomplish policy review and, if necessary, recommend modification of existing policies or procedures for consideration by the policy-maker.
- The policy should require documentation for the review process including:
- The date of the review;
- The reason for the review; and
- The name and title of the person conducting the review.
- Approval of the revised and final changes should be indicated by a signature and date by the policy maker (i.e., Sheriff, Under Sheriff or Jail Administrator).
- All superseded policies, procedures, post orders and handbooks should be archived for future reference.3
- Define policies, procedures, post orders and directives so that administration and staff know the differences of when each are used and how they should be applied.
- Policies should be reviewed annually whenever possible to keep current with case law and operational practices. No directive should remain in place for more than 18 months4 without review to determine whether there is a need for revision. If a directive is modified prior to the scheduled review date, it is suggested a new review date should be set to occur within the next 18 months period. It is also an acceptable approach to set a time each year to review the entire manual, rather than staggering the process. If time does not permit this process, the staff may be informed by memo of the forthcoming changes and will be told to whom they may direct their questions. Memos should be incorporated into policies as soon as feasibly possible so they are not forgotten with policy updates.
- Start with case law review. At the beginning of each year, key contacts for participating agencies using the Legal-Based Jail Guidelines receive a detailed email from NIJO with a list of changes made to the guidelines. This provides a user-friendly and time-saving, cost effective way to stay on top of changes required based on case law. Users can also search and look at guideline REVISION dates applied to each section which can be done through a keyword search or just by looking at the applicable guideline.
- Consider any discoveries of inconsistencies or weaknesses that may have occurred since the last review in policies, procedures or practices. Past incidents or issues involving staff, volunteers, inmates or lawsuits may be useful considerations to prompt policy review.
- Staff is encouraged to participate in policy, procedure, and post order development and revision. This creates officer “buy in”, involvement and ownership to the changes, and in many cases may assist the administration in getting better understanding of operational challenges in carrying out suggested changes with policies. Feedback, suggestions and recommendations may be submitted in writing to the supervisor or Jail Administrator according to policy. Once approved and finalized, the policies, procedures, post orders and directives should be made accessible to staff.5
- Inform inmates, whenever appropriate, of new or revised policies and procedures which directly affect them. They should be told to whom they may direct their questions and/or concerns. Update the Inmate Handbook as necessary and appropriate. This will cut down on papers and memos usually stuck on cell walls that often block the view of officers from the control room and are often ripped down or otherwise destroyed by inmates.
- See Perez v. Simmons, 859 F.2d 1411, 1417-1418 (CA9 1989), cert. denied, 109 S.Ct. 1736 (1989) (trial court’s directed verdict for defendants overturned in part due to the city’s admitted lack of written policies governing the type of search in question); Martin v. White, 742 F.2d 469 (CA8 1984) (prison superintendent liable for failure to have policies to prevent inmate assaults); Owens v. Haas, 601 F.2d 1242 (CA2 1979); Ford v. Brier, 383 F.Supp. 505 (E.D. Wisc. 1974).
- See Rhodes v. Chapman, 452 U.S. 337, 350 n.13 (1981); Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (referring to the need to have guidelines established on “constitutional minima”)
- See Legal-Based Jail Guideline B01.02.03 Archive All Superseded Directives
- See Legal-Based Jail Guideline B01.02.02 Periodic Review and Revision of Policy and Procedure
- See Legal-Based Jail Guideline B01.02.04 Directives Available to Staff
The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO. The information contained herein is to be used solely for training purposes and shall not be construed as legal advice. Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.