While jail operations isn’t necessarily something championed during election time, it is probably a reality check for some sheriffs that may have only seen a sallyport door before an election to inherit an 800 lb baby jail with constant physical needs, ongoing maintenance and upkeep, requires your attention 24-7, costs a lot of money to operate and trained staff of which you probably don’t have enough of, and is usually the headache of the week. It may even smell a bit, especially as it gets older and funds to support the baby are seemingly cut annually by those that hold the budget purse. Perhaps most alarming, your baby is statistically the largest liability for the sheriff’s office and county government as a whole. In the end, jails don’t win elections but they can certainly cost one if things go bad.
After that dose of reality, it isn’t surprising that folks aren’t lining up in droves saying “sign me up for that gig” or “I want that job!”
That is the reality of what most sheriffs are dealing with and while the baby comparison may not be fully accurate, you can tell any sheriff that contracts the responsibility to another entity by the smile on his or her face. Key risk management areas of focus for most administrations tend to be policy and procedure, training and documentation – but often those areas are not as black and white as they seem, especially dealing with tough operational issues like where to house the transgender inmate, accommodating a unique religious diet request or dealing with an ACLU request that feels more like a fishing expedition. All of these are commonplace in jails.
Where does your policy come from? Are they based on current case law and defensible? What about procedure? How is the “how to” determined and upon what criteria? What is the training curriculum based on and does it reflect those changes in case law? These things must be formed on some foundation, usually called “standards.” Standards written based on “best practices” have been repeatedly slammed by the highest courts of the land. According to the Supreme Court (referring to standards written by the Department of Justice):
“[R]eliance on . . . correctional standards issued by various groups is misplaced . . . . And while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima; rather, they establish goals recommended by the organization in question.”1
For those that need assistance to the questions above, Legal-Based Jail Guidelines (LBJG)2 are an invaluable resource. They are unique in that they are based on case law, statutes, and objective research specific to the state for which they were written.
Every jail is different. Even those with the same physical design will vary in population, funding, staff, programming, management, etc. While policies from jail to jail may be similar, procedures will and must be very different to accommodate those variances. LBJG provide flexibility to operate uniquely with administrative discretion3 according to what the law requires; this is why they are used in jails from 5 to 3000 beds.
Considering the needs of each jail are extremely unique and different, the LBJG are being utilized by sheriffs and jail administrators across the country in a variety of ways to benefit their administration and jail. Below are a few commonly utilized applications for the Legal-Based Jail Guidelines in jails.
- Updating Policy and Procedure. Many jails have expressed the need and difficulties in updating policies and procedures. Policy is not procedure. Policy explains at a minimum the what, while procedure explains the how. Even template model policy requires officials to create procedure and customize both according to their specific jail and administrative needs. The LBJG address both components necessary for policy AND procedure, providing framework according to what the law requires. The 2017 LBJG had over 34 changes alone; 2018 will provide additional needed revisions. These all have a trickle effect – requiring ongoing attention by administrators to keep policy and procedure current.
- Proactive Litigation Defense. The Legal-based Jail Guidelines aid sheriffs and jail officials to understand and comply with constitutional and statutory requirements for incarcerating inmates. Our good-faith qualified immunity4 hinges on knowing and complying with clearly established law. Knowing the law isn’t easy and most agencies can’t spend 10 hours a week researching the latest and greatest cases in the law library. Consider how much training time does staff receive on correctional law or legal issues annually and the responsibility to run a constitutionally safe jail.
- Answering Inmate Grievances. Inmates submit grievances daily for very specific reasons. As policies are usually written generically, answering inmate grievances to specific issues can be challenging.5 The LBJG provide the what (guideline description), why (Rationale statement) and how (Compliance) along with over 1000 annotations to case laws and other references giving those who respond to grievances common sense, case-law answers at their fingertips. The online keyword search tool makes searching specific topics found in grievances simple and quick. For this reason and because there is no limit to the number of users, many participating agencies give all of their staff user access rights to the LBJG.
- Given the variety of topics and subjects,6 it would be impossible and costly to address them all in training. Many jail administrations are using the LBJG to serve as a daily training topic for each shift. When the line staff is questioned why they did or didn’t do something while on the defense stand, rather than saying “we did it because admin and policy says so” they can confidently respond knowing what the law requires and more importantly why. And because the LBJG are online, the training can be accessed at any time on any shift.
- An oft quoted saying in our litigious profession is “If it didn’t get written down, it didn’t happen.” Documentation is often key defense to show what happened and what didn’t happen behind closed doors. While the guidelines provide a knowledge of what the courts require to run a constitutionally safe jail, compliance is on the shoulders of the administration. Conducting self-audits to the LBJG are the most effective way to measure the jail’s policy, procedure, operational practices, and training. The audit process itself also provides necessary documentation. Many jails have used self-audits to identify strengths, discover weaknesses, and document non-compliance, particularly when caused by a lack of funding, especially 1983 or “Deliberate Indifference” claims.7
For those that want to find out more about the Legal-Based Jail Guidelines for your state, contact NIJO. If your agency is already using the LBJG, please note the mere existence of the LBJG provides no magical protection against civil rights violations. They are of limited value with defending inmate litigation, crafting legal-based policy, procedure or training if they are not utilized aggressively.
- Bell v. Wolfish, 441 U.S. 520, 543 n.27 (1979) (emphasis added).
- See Legal-Based Jail Guideline A02.02.00 (A) Application of Guidelines
- Turner v. Safley, 482 U.S. 78, 89-92 (1987).
- Harlow v. Fitzgerald, 457 U.S. 800 (1982).
- See generally 42 USC § 1997e. (PLRA)
- See LBJG B04.01.01 Policy and Procedures Governing Staff Training
- Farmer v. Brennan, 511 U.S. 825 (1994)