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| Thinking about Change |
| By Steven C. Kelly, Director Jail and Court Services Bureau (Ret) |
| Published: 12/09/2013 |
I was driving through the southern California countryside when I spotted this old jail. This relic from the past reminded me that at one time, this facility met all of the legal requirements for the housing and detention of a prisoner. Of course this is no longer so. While it is amusing to view old jails like this, we need to remember why they have changed. The law is a constantly evolving animal. It sets the minimum standards by which we operate and tells us something about what the community expectations are for our outcomes. Changes in the law are one of the more latent challenges that we are exposed to. How often are we not made aware of a change in the law and suddenly get a call from our legal counsel asking why we are not in compliance? Sometimes the change is a subtle removal of a single word such as “and” or “or.” If no one is aware of these changes there can be serious consequences. While individually we may not be held accountable for our ignorance, the settling of a lawsuit can have a significant impact on our agency’s budget, which can translate to a loss of overtime, reduced staffing, no raises, or no equipment for the next fiscal year. I will be the first to admit that I do not always agree with the changes in the law, but that does not give me the freedom to ignore them. One of the recent laws that has come to pass is the Prison Rape Elimination Act. While at this time, the act is set up as a standard for all correctional institutions to aspire to, with some financial incentive for compliance, it will in some form likely become a law with penalties in the future. Why are acts like this written? Many agencies work hard to make sure that crimes such as rape do not occur in their facilities, however, others have either ignored, or covered up these problems. Eventually, the lack of resolve to address this criminal behavior comes to the attention of those who demand that something be done about it, and then we get a new law. Other issues such as strip searches, how we use force, Tasers, and proper medical care will come back to bite us if we do not police and regulate ourselves to make sure that we address these concerns in a fair and humane way. The case HUDSON v. McMILLIAN, 503 U.S. 1 (1992), has already changed the standards by which we judge the use of force in correctional settings. Throughout most of my career Graham V. Connor was taught as the guiding standard by which we should evaluate how we apply force; however, we must be aware that cases taken from patrol are focused around the 4th Amendment. In corrections, the inmate is already “seized,” and we must be more aware of the 8th and 14th amendment applications. As always, you should refer to your legal counsel for guidance in these matters as each jurisdiction will have their own legal standards and processes that impact these issues. You may ask yourself why changes in the law happen? In our business there has been a long trend for reform and making jails and prisons more humane. What was acceptable even 30 years ago, may not be looked upon as favorably by the public and legal community as it once was. We should keep ourselves aware of the emerging changes in public opinion, and be prepared to adjust for them. Don’t get me wrong, I don’t believe we should embrace every wild idea that comes down the road, but we should constantly review our practices to make sure they are directly related to effective operations, and that we are not doing something just because, “we have always done it this way.” I believe in working smarter, not harder, and not wasting our time defending a position only because we are unwilling to change. Cases such as Turner v. Safley and Bell v. Wolfish have shown us that the courts will support our rules and regulations as long as we are not being arbitrary and capricious in our thinking; for example, when we place an inmate into a security cell and remove articles of clothing, do we do this because the inmate has demonstrated that he will hurt himself with these items, are we doing it because we had one bad experience and are not taking any chances, or we doing it to be punitive? Is there a policy change that we can make that might mitigate the risk of injury or harm? Is there a feature change we can make with the cell that will make it safer? We should think in these terms when we create a procedure that may have far reaching impacts if we have to defend the practice in court. Many of the court decisions we live with today exist because a policy or procedure was not thoroughly thought through. So, as correctional professionals it is our job to always improve the way we do business. Relying on what was once acceptable will not keep us out of the courtroom today. We need to pay attention to new trends and see what our brothers and sisters in the field are doing. I am not ashamed to say that many ideas that were implemented in facilities where I have worked came from other facilities. We need to set many of our personal views and biases aside and follow the direction of the courts, and keep abreast of the law. If we do these things, not only will we avoid the wasteful exercise of litigation, but we also will continue to professionalize corrections. Corrections.com author, Steven C. Kelly served 25 years at Washoe County Sheriff’s Office retiring as a captain. His last post was as the Jail Director for the Ada County Sheriff's office in Boise, ID. He holds a master degree in Management from the University of Phoenix and attended the FBI National Academy in 2009. 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