Standard B02.02.01: Policies and Procedures Governing Operations of the Jail

KEY ISSUES:

Back before the pandemic, we were conducting a training session on how to develop legal-based policies and procedures with a group of exceptional sheriffs, jail administrators and supervisors.   There was no need to emphasize why there is a need for jail policies and procedures in this litigious day and age to this group.  They clearly understood the dated concept of not having policies as an administrative defense was effectively put to bed by the Sandin v. Conner Supreme Court decision stating:

“Such guidelines are not set forth solely to benefit the prisoner. They also aspire to instruct subordinate employees how to exercise discretion vested by the State in the warden, and to confine the authority of prison personnel in order to avoid widely different treatment of similar incidents.” 1

This court ruling effectively ended the “less policy is better because they can’t use it against us if we don’t have it written down” argument.  Likewise, all the participants at the session expressed in order to be effective and leRelated imagegally defensible, jail policies and procedures should be based on legal requirements and according to administrative discretion using sound correctional practice and professional judgment.  Policies and procedures based on the term often used in our profession as “best practices”, are not necessarily defensible in court 2 — because they, in many circumstances, are based on the operational standards and goals of the group that developed them.

So if we all know and understand that policies and procedures are critical and necessary and we know they should be based on current laws applicable to our specific areas — now comes the hard part for those tasked with developing  policies and procedures and keeping them updated – how do we get the job done?

 

OPERATIONAL APPLICATION:

Having been part of the development of legal-based standards, policies and procedures for hundreds of jails across the United States, the task can be very frustrating.  While these are not inclusive, here are five practical suggestions observed that can make a big difference in the policy and procedure development process.

  • Put the right person for the task in the right chair.  Policy writing isn’t easy.  It is a responsibility that everybody scrutinizes and few, if any, want to tackle.  Some key characteristics and skills include:  organized, detail-oriented, strong writer, communicates well with others in the administration to get information and feedback, and can be or is trained on legal research to understand cases and how they apply to administrative discretion and policy and procedure development.   One individual should be given overall responsibility – not assigned to a committee.  A formed policy committee may be helpful for review or feedback but rarely works for actual development because they often over-complicate the process, lack follow up with distractions, may look after their own needs or shift rather than the collective agency, and let differences in recommended changes get in the way of progress.

 

  • Dedicate the time to do it right.  Most sheriffs want policy updated and they want it now!  OK, if so, give that assigned individual the time – without interruption – to do the job right.  It is about impossible to put together policy while being interrupted every 5 minutes with operational duties.  (I know that personally!)  Being locked in a room (perhaps even away from the office) for extended periods of time often brings better results than trying to get it knocked out sitting at a desk in between all the other assigned duties while being interrupted every 5 minutes by a well-intentioned officer asking how to respond to a grievance or the latest staff issue.  Does that ring a bell, any policy writers out there?  If an administration wants solid policy, provide the time and environment and dedicated focus for the job.

 

  • Take a one policy bite-at-a-time approach.  Start with the policies that your administration deems to be most critical and important, especially from a litigious/risk management viewpoint.  Nine times out of ten you will get it right.  I remember working with a great jail who got into a lawsuit over an inmate mail issue.  The Jail Administrator, who was appointed by the new sheriff and had only been in the saddle for less than a year, was questioned on the stand as to why the mail policies had not yet been modified.  His response was well received by the court who sided with the jail in their ruling.  He explained to them the following:  “I just inherited a battleship that had a lot of holes.  We looked at the holes and we determined that the primary focus first needed to be the safety and security of the inmates and staff.  We started there immediately.  Then we moved to conditions of confinement.”  He admitted the inmate mail policy needed some modifications but it was not on the top of the list when it came to life-safety issues.  He explained they had rewritten over 270 policies in that timespan and were in the process of rewriting more, which included mail.  This, at a minimum, showed the court that the administration was not being deliberately indifferent.  It was noted by the court that the mail policies were updated well before the trial began.

 

  • The manual is never finished.  Most policy writers are OCD – and that is not necessarily a bad thing.  They want policies and procedures written perfectly and like to check things off their “list” as completed.  That sounds great in theory to “finish” the manual, but the truth is, a policy and procedure manual is never done.  It will always need to be reviewed and modified because case law and individual operational circumstances change requiring ongoing effort to keep policies and procedures current – likely if you started from scratch, by the time you have finished there will have been something (case law or an operational procedure that will have changed).  This is not a “circle the date on a calendar” thing that allows it to be checked off.  Yes, do set goals and give yourself timelines, but know that a written policy is not “finished” but rather an ongoing process.  Adopting this mentality will allow those policy writers who like to check off the list to stay in control of the process.

 

  • Policy is not procedure.  While there is no set way of writing policies, many agencies don’t understand the difference between policy and procedure.  Many administrations who understand the difference between policy and procedure separate the two in function and purpose in writing, being acutely aware of what is required and permissible in court and what isn’t.  Policies provide the “what” and “why”.  Procedures provide the “how”.  One reason why having legal-based standards and guidelines is to assist the policy writer in determining not just the WHAT and WHY (policy) but the HOW (procedure).   Each of the 600 Legal-Based Jail Guidelines©  can be used as a great reference tool for policy and procedure writers.  The Rationale statement3 in the Legal-Based Jail Guidelines©  is the key to successfully defending policies, decisions, and actions in prisoner litigation.    The guidelines form the basis for developing written policies and procedures; there should be a rational relationship between the guideline and a legitimate penological interest being furthered.4   The Compliance statement5 contained in the Legal-Based Jail Guidelines© provides the framework for the “how” – a necessary component in procedure.  The Supreme Court ruled that there are different alternatives for addressing inmate rights.  For example:

    “A second factor relevant in determining the reasonableness of a prison restriction . . . is whether there are alternative means of exercising the right that remain open to prison inmates. Where ‘other avenues’ remain available for the exercise of the asserted right courts should be particularly conscious of the ‘measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.’”6    

Model policy can be purchased but often lacks procedure.  Jails often borrow and copy from one facility to the next with the often-used “search county jail name X and replace with Y” method, not knowing if those policies are legal-based.  Additionally, some don’t take the time to review whether the procedural components are still applicable.  I remember reviewing a  jail’s new policy and procedure manual and was observing the staff doing head counts while on a tour.  After the count wrapped up I asked why the officer hadn’t gone upstairs and completed the head count.  Puzzled, the administrator pointed and said “we have a linear single story jail – there is no upstairs” to which I replied “that isn’t what your policy and procedure manual says!”  They admitted they didn’t account for the jail structure being different from the neighboring multi-level podular jail from whence their procedure was taken.  Every jail is different, and even if the borrowed policies are legal-based, the procedures are most certainly going to vary.  No two jails are alike, and thankfully, the courts have recognized those differences and allowed for administrative discretion.

Bottom line is there is no “easy button”.  This is one of those Staples Easy Button Png, Transparent Png - kindpngadministrative 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.7

REFERENCES:

  1. Sandin v. Conner, 115 S.Ct. 2293, 2299 (1995) (emphasis added).
  2. 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”)
  3. See Legal-Based Jail Guideline A04.02.02 Rationale for Standard
  4. Turner v. Safley, 482 U.S. 78 (1987).
  5. See Legal-Based Jail Guideline A04.02.03 Compliance
  6. Turner v. Safley, 482 U.S. 78, 90 (1987) (emphasis added).
  7. Sandin v. Conner  515 U.S. 482 (1995)

 

DISCLAIMER:
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.

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