Standard I01.03.02: Personal Hygiene Items Issued to Inmates

KEY ISSUES:

Often inmates who are booked into a jail come into the facility with very poor hygiene habits.  Many don’t shower, brush their teeth or take care of their hair.  Cleanliness may be an afterthought and,  considering the close proximity of arrestees being housed together, an offensive odor can set off a fight just as quickly as a missing remote.  An inmate’s poor hygiene habits can generate hostility from other inmates and create potential health hazards, compromising the sanitation of the facility.  Does an administration have a duty to address hygiene to ensure safety and security?  What exactly is required of administrations to provide to ensure personal hygiene is met?  Should those items be charged to inmates or issued free at the taxpayer’s dime?  And really, how much toilet paper does one really need?

Many states have statutes that determine specific items that are required to be issued to inmates,1 but others are less descriptive in wording, leaving the statutory keeper of the jail the responsibility to determine what items are provided to the inmates.  Even more difficult is determining the quantity and frequency those items should be issued.

For example, the issuing of toilet paper often becomes an inmate management debate.  The need for toilet paper is too obvious to require explanation.  Yet, while inmates claim regularly they didn’t get any or didn’t get enough, staff can document half the roll went to stuff the vents above their bunk that same day it was issued or turned into other creative contraband.  But inmates regularly claim it wasn’t them – it was their bunkmate who took it, or the officer that didn’t give out the full roll that time – and the finger-pointing game begins.   A 2015 report by the non-profit Correctional Association of New York found that more than half of survey respondents (514 of 957) said the monthly supply of menstrual pads did not meet their needs.  Yet in Rikers Island, the department said that with an average of 500 grievances filed a year at the Singer Center, none in the past three years had been related to menstrual hygiene.   This is extremely frustrating to the staff, not just the accusations and issues created but the fact that they know every dollar counts and adds up to an already underfunded jail.

The courts have clearly recognized the importance of sanitation.2  Proper sanitation is required because in closed environment, the possibility of the spread of infections and communicable diseases is higher than in the free world.  Hygiene items are also legally required3 and the Supreme Court recognized their need to aid in maintaining sanitation and to enable arrestees to comply with the jail’s grooming requirements.

Considering liability, Constitutional violations occur when hygiene problems have a serious effect on inmates.  In determining when conditions of confinement violate the Constitution, the touchstone is the effect upon the imprisoned.4  The court must examine the effect upon the inmates of the condition of the physical plan and sanitation.5  This may include the control of vermin and insects, lavatories and showers, clean places for eating, sleeping and working.  Certainly, personal hygiene plays a large part of the sanitation of the facility.

OPERATIONAL APPLICATION:

Considering operational issues related to the personal hygiene of inmates, the points below may be useful:

  • Many jails do not have policies and procedures governing inmates’ hygiene. Review your current policy to ensure they include and identify personal hygiene requirements, jail-issued hygiene, and hygiene/sanitation facilities and equipment.  The Legal-Based Jail GuidelinesTM can provide a template to ensure state and Constitutional requirements are met.
  • In addition to any items specifically addressed by state laws and statutes, the items listed in this standard are basic ingredients for meeting personal hygiene and should be provided at no cost to inmates:
    • Soap. Although it can be issued in various formats (bars or liquid), soap as a cleansing agent provides inmates an affordable way to ensure basic hygiene needs are met.   Free shampoo is not necessary, because inmates can use soap to wash hair.  Likewise, deodorants are not essential, because inmates can use soap and wash in the cell sink as often as they deem necessary to control body odors.
    • Toilet paper. The lack of toilet paper can create a claim if it has a serious effect upon the inmates.  Officers should closely monitor the use of toilet paper to ensure there is adequate supply for use in which it is intended.   That does not mean that inmates have an unfettered right to have as much as they want and whenever they want, especially when it is being used for purposes other than hygiene.  Administrations can and should set and enforce rules and procedures to effectively govern the use of toilet paper as well as all hygiene items issued by the jail.  Consideration should be given to individual and exigent circumstances that may require a temporary increase (such as a temporary digestive condition or when deemed medically necessary) to avoid potential liability issues.
    • Toothbrush and a cleaning agent. Toothpaste is not essential, because teeth can be cleaned with baking soda, salt, or tooth powders.  However, a type of cleaning agent for teeth should be provided.
    • Comb. A comb provides a basic way to address hygiene and hair care.
    • Sanitary napkins or tampons (for females). While some facilities may see this as something optional for good hygiene, many states, counties and cities have recently passed laws requiring administrations to provide them without cost.  For example, the New York City Council passed a law requiring city jails to provide free feminine hygiene products to inmates.6  Likewise, the Bureau of Prisons ordered all wardens to provide tampons (regular and supersize), maxi pads with wings and panty liners at no cost to female inmates.7    In Aug 2017, the ACLU filed a lawsuit against the Nebraska Department of Corrections,8  who referred to the pr
      In the television show “Orange Is the New Black,” a prisoner uses sanitary pads as shower shoes. Credit Netflix

      oducts as “luxury items.”  Just a few months later, the department changed the policy and is now issuing free generic tampons with brand name tampons available in the commissary.  A woman sued a county jail under the 8th Amendment Cruel and Unusual Punishment, claiming she had to sit in her own blood for 36 hours while in a holding cell after being denied feminine hygiene products.9  Consider consequences and risk related to these issues.

    • Lotion. If lotion is needed for medical reasons, it can be ordered by the jail medical providers at no charge to the inmate.
  • Additional hygiene items can be made available for purchase in the commissary (e.g., shampoo, lotion, tooth paste, and deodorant) as some inmates may wish to purchase a specific brand.
  • Just because hygiene items are given to an inmate doesn’t mean they will be used. In circumstances which an inmate’s hygiene habits create a potential health hazard or hostility from other inmates, it may be necessary to order the inmate to shower and/or take other sanitation and hygiene actions. If health issues are involved, it may be useful to involve the medical provider in the decisions and actions to enforce the sanitation and hygiene enforcement.

REFERENCES:

  1. See generally Legal-Based Jail Guideline C03.04.06 Jail-Issue Items
  2. Rhodes v. Chapman, 452 U.S. 337, 364 (1981)
  3. Wilson v. Seiter, 501 U.S. 294 (1991)
  4. Rhodes v. Chapman, 452 U.S. 337, 364 (1981); Laaman v. Helgemoe, 437 F.Supp. 269, 322 323 (NH 1977)
  5. Rhodes v. Chapman, 452 U.S. 337, 364 (1981); Laaman v. Helgemoe, 437 F.Supp. 269, 322 323 (NH 1977)
  6. Local Laws of the City of New York.  No. 82; Sec 1 § 9-141 Feminine hygiene products.  July 13, 2016
  7. US DOJ Federal Bureau of Prisons Operations Memorandum 001-2017  Provision of Feminine Hygiene Products, Aug 1, 2017  https://www.bop.gov/policy/om/001_2017.pdf
  8. Stoddard, Martha.  2018, Jan 18.  New Prison Policy will offer free tampons, lower prices on other hygiene products.  Retrieved from Omaha World-Herald Bureau.
  9. Beilman, Elizabeth.  2016, May 31.  Woman Sues Clark County Jail After Denied Personal Hygiene Items Despite Requests While Incarcerated. Retrieved from News and Tribune.   See also Houghlin v Clark County.  South District Case 1:16-cv-01331-WTL-TAB

 

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.

Add Your Comment