Principles for success as a CO: Federal law

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In what is the fourth of a nine-part series, I outline what I call the “Corrections Formula,” an easy way to remember nine principles to optimize your success as a correctional officer.

The formula is designed to guide your thoughts, decisions and actions so you develop an operational mindset where officer safety is your top priority, professionalism is your foundation and legality is your path.

There are three elements of the corrections formula:

1. Safety;
2. Legality;
3. Professionalism.

Each of these three elements contain three principles that make up the nine principles for success:

1. Officer safety – Your top priority and your duty to yourself and your coworkers.
2. Facility safety – Your duty to the communities you serve.
3. Inmate safety – Your duty to those you have been entrusted to protect.
4. Federal law – The U.S. Constitution, which shapes state law, major acts of congress and case law.
5. State law – The laws and statutes of the state, which guide your facility’s operations and practices.
6. Agency policy and procedure – The guardrails that keep you on the path of legality and in compliance with the law.
7. Guardianship – Your purpose as a correctional officer and why you do what you do.
8. Health and wellness – Maintaining both physical and mental wellness.
9. Firm, fair and consistent –The golden rule in being the same professional every day.

This month we look at the fourth principle, federal law.

It is critical to have a clear understanding of legal issues in corrections considering you are in a high-liability business. In terms of understanding how the legal system actually works, it is easiest to think of it as a funnel that starts at the federal level, and narrows down to the state level, then all the way down to agency policy and procedure.

The United States Constitution established America’s national government and fundamental laws, and guaranteed certain basic rights for its citizens. It is the backbone for the laws that officers have been entrusted to uphold. Below are four key amendments you should know as a corrections professional.

The First Amendment: The freedom of speech, press and religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The two most common First Amendment issues you deal with in corrections are inmate mail and religious practice.

Mail:

• Incoming and outgoing mail can and should be searched.
• If mail is rejected, the inmate and sender have the right to be notified of the rejection.
• Legal mail must be searched in the presence of the inmate.
• In Abbott v Thornburgh (1989), the courts decided that to reject mail, the facility must prove that the material advocated some type of safety risk or breech in security.

Religion:

• Religion is a sensitive subject, as well as the most common First Amendment issue that arises in jails and prisons.
• Corrections officials must be reasonable in allowing inmates to practice their faith unless the practice somehow threatens or violates the safety and security of the facility.
• This covers any genuine or sincere belief even if it is not common or required by the tenets (principles) of faith.
• This is a standard used to balance the inmate’s right and the institutions need for restricting that right. After two different First Amendment cases (Turner v Safley and O’lone v Estate of Shabazz - 1987) caught the attention of the courts, this Turner test is what the courts would then begin to use to resolve these First Amendment Issues.

1. Is there a rational connection between the restriction and the institutions need for the restriction? (Why is it being restricted?)
2. Are there alternative means for the inmate to exercise his or her right? (What are the alternatives for the inmate?)
3. Are there alternatives to the restriction? (What are the alternatives for the agency?)
4. What is the impact on correctional officers and inmates to accommodate the right?

• The Religious Land Use for Institutionalized Persons Act (RLUIPA) made it harder to restrict religious practices. It increased the power of the courts to second guess decisions made for restrictions, requiring that they are “least restrictive.”
• With religion being the constitutionally sensitive subject that it is, not only should you be reasonable, but you should document all reasonable efforts made to try and accommodate a need.
• Reasonable accommodations would include diets, materials and prequalified practitioners.

The Fourth Amendment: Searches and seizures

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Considering the amount of searching a corrections officer conducts each day, there are some key factors to remember with the Fourth Amendment:

• The Fourth Amendment does not apply to cell searches, unless the search is done solely to harass (see Hudson v. Palmer, 1984).
• When it comes to booking and intake, it is assumed by correctional staff that the arresting officer has lawfully detained (seized) the individual. Charging documents such as a warrant, court order or new charge must be present for any corrections officer to legally take an individual into custody.
• For an arresting officer to confiscate an inmate’s property who has already been booked into jail, he or she must obtain a warrant to do so.
• Random urine tests for inmates are seen as reasonable by the courts.
• You do not need “reasonable suspicion” to conduct a pat/clothed search. The courts have upheld that random pat down searches are reasonable within an institution. Again, the searches must be reasonable and not done solely to harass the inmate.
• The Supreme Court has approved strip searches without a search warrant in the following circumstances:
  • Inmates opportunity to obtain contraband (contact visits, hospital trips, furloughs);
  • Reasonable suspicion of contraband;
  • Drug charges;
  • Prior knowledge of incarceration;
  • Inmates who are post-conviction status;
  • Giles v Ackerman - 1984 determined that strip searches are reasonable under the Fourth Amendment where the security needs of the local jail outweigh the arrestees’ privacy interests in regard to strip searches. In this particular case, a woman (Giles) in Idaho was arrested on a minor traffic violation. She was never frisked by the arresting officer and was taken to Bonneville County Jail. After Giles was unable to post bail, she was booked into the jail and, within compliance of the jail’s policy, she was ordered to be strip searched. Giles claimed that the officer who searched her violated her Fourth Amendment rights. Initially, the court held that for an official to strip search a subject, the officials must have a reasonable suspicion that the subject is concealing contraband. However, after a cross motion for summary judgment was considered, the District Court found that the particular strip search did not violate Giles constitutional right, as the official was simply staying in compliance with the jail policy at the time of the search.
  • A strip search falls under all of the following:
    • Witnessing clothing exchange;
    • Clothing removal to photograph tattoos;
    • Clothing removal for a medical inspection.

The Eighth Amendment: Cruel and unusual punishment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This Amendment applies to post conviction status inmates (convicted). While the term “cruel and unusual” is fairly vague, the courts have come up with a test to define what cruel and unusual means according to the following:

• Shocks the conscious of the court (manifestly and grossly unjust);
• Violates the evolving standards of decency of a civilized society;
• Punishment that is disproportionate to the offence;
• Involves a wanton and unnecessary infliction of pain.

Conditions of confinement cases like overcrowding would fall under the Eighth Amendment. If the inmates have not yet been convicted, then the protections would fall under the Fourteenth Amendment.

Examples of conditions of confinement would be:

• Overcrowding;
• Inadequate food/nutrition;
• Poor sanitation;
• Safety/protection.

Estelle v. Gamble, 1976 was a critical case under the Eighth Amendment that established the term “deliberate indifference.” Deliberate indifference is simply ignoring a situation known to exist. It is a conscious or reckless disregard of the consequences of one’s acts or omissions. Deliberate indifference is relevant in failure to protect cases and cases where inmates complain of not even having basic needs met such as medical care as seen in the Estelle v. Gamble case.

In order for an “institution” to violate the Eighth Amendment:

• The conditions must be very bad, creating a substantial risk of serious harm by failing to adequately provide inmates with one or more basic human need (food, water, clothing, shelter, hygiene, medical care).
• The defendants knew of the serious problems and failed to take any sort of meaningful corrective response (deliberate indifference).

Excessive force cases are also evaluated under the Eighth Amendment for sentenced inmates.

Per Hudson v. McMillian, the use of excessive force against a prisoner may constitute “cruel and unusual punishment” even though the inmate does not suffer serious Injury.

The 14th Amendment: Due process and equal protection

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This Amendment applies to the deprivation of life, liberty and property without due process of the law. Pre-trial inmate cases typically fall under the Fourteenth Amendment. It basically means that a state is required to go through a certain procedure “due process” before depriving an inmate of a right.

The ultimate goal of due process is fairness.

The grievance system was a system put in place as an administrative remedy to address inmate concerns. Providing inmates with a proper grievance process helps the jail administration resolve internal issues before they become a full-blown lawsuit. Inmates must comply with the institution’s deadlines and procedural rules. Proper exhaustion requires compliance with the institution’s deadlines and other procedural rules.

Inmates have the right to have “access to the courts,” as well as legal counsel.

In regard to discipline for inmates, corrections officers must follow a disciplinary process:

• A hearing in which the inmate has the right to be present;
• Advance written notice given to the inmate at least 24 hours before the hearing;
• The opportunity for the inmate to call witnesses and present evidence on his or her own behalf, unless it would be considered hazardous to the institution’s safety;
• Assistance (right to a lawyer);
• Impartial tribunal;
• A written decision (evidence and reason for the decision).

Involuntary medicating an inmate is another common Fourteenth amendment issue in jails and prisons. The bottom line is that inmates have the right to refuse medical treatment unless it is absolutely necessary and in done in good faith.

Torts claims are civil as opposed to criminal. They are the first step in a legal proceeding that could lead to a civil lawsuit. These arise when there is a violation of:

• Damaged/missing property;
• Failure to protect the inmate from harm/assault/death;
• Medical malpractice or breaches of other duties of reasonable care that correctional staff may owe inmates or others;
• The most common torts in corrections are missing, lost or damaged property.

In 1995, congress passed the Prison Litigation Reform Act (PLRA), which placed several restrictions on the ability of prisoners to file lawsuits based on the conditions of their confinement. This was the single most important development in correctional law that took place in the 1990’s.

With the rise of thousands and thousands of lawsuits flooding the courts, PLRA ultimately made it easier for corrections officials to terminate court orders entered against them, and made it harder for inmates to file lawsuits.

PLRA also requires that inmates exhaust all administrative remedies (such as grievances and internal appeals) before filing a civil rights case.

PREA (Prison Rape Elimination Act) of 2003

The purpose of the act was to provide information, resources, recommendations and funding to protect individuals from prison rape. There are eight primary important functions of PREA:

1. Make prevention a top priority;
2. Sets national standards for detection, prevention, reduction, prosecution and punishment;
3. Increases data collection to determine prevalence of sexual abuse and develop applicable responses;
4. Standardizes definitions for collecting data;
5. Increases accountability of officials who fail to detect, prevent, reduce and prosecute sexual assault;
6. Protects inmates’ Eighth Amendment rights;
7. Established requirements for accreditation organizations to adopt accreditation standards (PREA);
8. Impacts health care, mental health care, disease prevention, crime prevention, investigation and prosecution, physical plant, maintenance and operation; race relations, poverty, unemployment and homelessness.

Here is how PREA affects you:

• PREA promotes good operational practices regarding safety and security.
• PREA standards give direction to staffing, classification, inmate supervision, investigations, first responders and training.
• Agencies are required to screen all inmates/offenders for rape risk.
• Agencies must also have a method to receive complaints to include anonymous complaints.
• According to PREA, inmates will be searched according to physiognomy (genitalia). With transgender searching, PREA prohibits “duel” searching (two people of opposite gender searching the transgender inmate). There are three practices consistent with PREA for assigning staff to perform pat searches on transgender and intersex inmates and residents:
  • Option 1: Searches are conducted only by medical staff;
  • Option 2: Searches are conducted by female staff only, since there is no prohibition on the pat-searches female staff can perform (except in juvenile facilities).
  • Option 3: Asking inmates to identify the gender of staff with whom they would feel most comfortable. This preference can be documented at intake.
• Housing: According to PREA, for the purposes of housing, inmates should be housed according to their gender “identity.” In regard to both housing and searching transgender and intersex inmates, all actions and accommodations should be documented.

ADA (Americans with Disabilities Act) of 1990

The ADA prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications and governmental activities confined in a correctional institution. It basically comes down to appropriate accommodations, but equal treatment:

• Medical care;
• Specialized housing;
• Mental health care;
• Voting;
• Visitation access.

Always look for reasonable alternatives and accommodations. If you have to, be creative, and document your efforts.

Next month: State law