Note: This article is provided for general informational and educational purposes only. It is not intended to serve as legal advice.
By Linda Byrant
Jail deaths are simply a reality. Even in correctional facilities where inmates often receive better care than they do in their communities, administrators can’t prevent all deaths from illness, disease, age or other natural causes.
Sometimes, of course, the cause is more troubling. The Bureau of Justice Statistics (BJS) reports that every year since 2000, suicide has been the leading cause of death in local jails (in prisons, more inmates die of natural causes, likely reflecting the longer incarceration periods). In 2013, over a third of all deaths in jails were suicides.
In part because of the rising rate of in-custody suicides, scrutiny of jail deaths is increasing. Following the suicide of Sandra Bland in the Waller County Jail, the Texas legislature passed a host of new requirements aimed at preventing and responding to suicides and other in-custody deaths. A key provision of the legislation requires that independent law enforcement agencies will investigate jail deaths. While not all states have such laws, the legislation passed in Texas, as in other states recently, underscores the necessity of responding quickly, thoroughly and professionally to all deaths that happen in your jail.
Following are three best practice steps to follow when an inmate dies in your facility.
1. Treat the death like a crime scene
Without evidence of foul play, it may seem strange to treat the scene of a death inside a jail as a crime scene, but that’s exactly what you should do to ensure a thorough review. Even deaths likely attributable to natural causes should be investigated until other factors can be ruled out. Notify the medical examiner immediately.
As you would with any crime scene, secure the location appropriately. This means removing any unnecessary personnel. If the death occurred in a shared cell, the other inmates will need to be moved. If the death occurred in the dayroom or other shared area, find a way to block off the area from staff and inmates. Good evidence-collection techniques are imperative too; maintain chain of custody for all evidence so that there is no question about whether the evidence was tampered with.
A very important step is to notify next of kin as soon as practicable. When doing so, explain the investigative process that will follow. Commit to providing next of kin with information as soon as appropriate, and provide your contact information so they know who to get in touch with if they have questions. This is simply the decent thing to do.
2. Preserve all digital evidence
In a recent webinar (available on-demand), my colleague Mark Chamberlain and I explored the risks and opportunities associated with jail video footage. More and more attorneys, investigators, judges and juries are expecting to see jail video when presented with an in-custody death case. And that makes preservation of video footage critical.
Federal Rules of Civil Procedure 37(e) indicates that if jail video footage should have been preserved in anticipation of litigation, but is lost or inadvertently recorded over, the court can a) enter judgment against the jail, b) assume the evidence would have hurt the jail, and c) impose sanctions on jail officials. When video isn’t preserved, juries can be instructed that the video “may have been destroyed.” While you and I know such destruction is usually inadvertent and part of the normal “recording over” functionality of any operationally sound digital jail surveillance system, the jury may think there’s a coverup.
So, courts expect us to store and maintain video for injury and death cases. But most jail video systems override automatically anywhere from 30 to 90 days – and after that, the video is inaccessible. Because in many jails the lawyers don’t get involved until later after a lawsuit has been filed, it’s rarely the legal counsel who will need to make the decision to preserve the video; the jail administrator or designee will need to make the call. For this reason, it’s critical to train your staff to be alert to situations where video retention may be important. Here’s a link to a sample litigation preservation letter that you may find helpful to instruct all staff to preserve relevant documents following a jail death.
And don’t stop at video footage. Additional information to gather and preserve includes:
- Intake records;
- Medical/mental health records;
- Inmate requests, complaints and grievances;
- Visitor logs;
- Phone calls and other electronic communications;
- Inspection notes;
- Logs documenting rounds made;
- Daily activity logs;
- Feed logs.
Collect as much information as possible about the inmate and ensure the information is organized and easily digestible to those who need to review it – whether your own agency head, jail administration, an outside law enforcement agency, or the state or other authority to whom your jail must notify when an in-custody death occurs.
3. Launch an administrative review in addition to any criminal investigation
Depending on the nature of the death, the criminal investigation may be over very quickly – if the death is ruled a result of natural causes, for example. But even in such clear-cut cases, you should have a process for conducting an administrative review (also known as an administrative investigation). It should include detailed interviews with correctional officers, other inmates, medical staff and any other potential witnesses. Be sure to record and document such interviews. A thorough understanding of Garrity rights as they apply to interviews of staff in an administrative review is also essential.
A key aspect of the administrative review is determining whether any policies were violated, and if so, whether the violations had any bearing on the death itself. If serious policy violations are at play, disciplinary action or even termination may be appropriate. It’s important to remember such discipline is separate from any criminal aspects of the death. As with police use of force investigations, it’s entirely possible that an officer’s actions were legal but violated policy.
Additionally, focus on getting to the root of the problem. Root cause analysis is a tool used by effective managers to identify the root causes of problems or adverse events and to then implement tools to prevent them from reoccurring. Root causes can often involve the response, or lack of a response, of other agencies or as we all know, inadequate community resources.
Depending on your state laws or jail policies, you may also have an independent body investigating the jail death. This body will look at many of the same questions your administrative review tackles, including circumstances of death, whether any act or omission directly or indirectly contributed to the death, whether your facility violated any standards or regulations, and recommendations for changes in construction, equipment, operations, or administration. The more thorough, organized and clear your own internal administrative review, the more helpful and easily understood it will be to the independent body.
A Final Word
Jail administrators and correctional officers have an obligation to do everything they can to prevent in-custody deaths. But it’s equally important to know how to respond when a death occurs. A thorough jail death review will allow your agency and outside authorities to determine whether the appropriate laws, regulations and standards were followed, and to see what, if anything, can be done better in terms of the care, custody and control of your inmates. A thorough jail death review seeks answers and gets to the root cause of why a death happened. In so doing, it can lead to improvements and prevent deaths in the future.
About the author
Linda Bryant, JD, CJM, was recently appointed by the Governor of Virginia to the Virginia Parole Board. Parachutist-qualified, she served as a captain on active duty in the United States Army, and a major in the United States Army Reserves. For over 17 years, she prosecuted violent crime and homicides for the city of Norfolk, Va., rising through the ranks to become a Deputy Commonwealth’s Attorney. In 2013, Linda was appointed to serve as Deputy Attorney General for the Criminal Justice and Public Safety Division of the Virginia Office of the Attorney General, where she oversaw the litigation of all lawsuits against the Virginia Department of Corrections. She has also served as the assistant superintendent and compliance attorney for a mega-jail that houses special management inmates. Currently, Linda is a consultant for Lexipol’s Custody Services. She also serves as a consultant and instructor for the American Jail Association.