Part III

1. Part III STATUTORY AND ADMINISTRATIVE LAW, JAILS, JUVENILES, PRIVATIZATION, AND OTHER SPECIAL ISSUES IN CORRECTIONS

2. Chapter 20 – Jails • Introduction: This chapter looks at holdings and standards that apply to jails, focusing on those peculiar to the main jail population – pretrial detainees

3. Chapter Outline • Constitutional Rights of Jail Inmates: Bell v. Wolfish • Other Constitutional Issues in Jails • Using Excessive Force and Failure to Train • Other Jail Issues and Cases • Removing the Sheriff

4. Constitutional Rights of Jail Inmates: Bell v. Wolfish (1979) • Bell v. Wolfish (1979) – leading case on constitutional requirements for jail conditions – standards set in Bell • Because of due process protections, a pretrial inmate may not be punished • He may not be deprived of his liberty without due process of law • Question becomes how to tell if the inmate is being punished

5. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Court held that the test is • “If a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment’” • Ordinarily, the objective is security or good order

6. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Court held that crowding, with double-bunking of inmates in single cells and even sleeping in non-bed areas did not amount to punishment

7. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Conditions other than the number of inmates and the square footage of cells are important • Length of time inmates are held at the jail • Amount of time spent in cells • Are there activities for them outside their cells • Does the large number of inmates adversely affect the delivery of other important services, such as food, sanitation, and health care

8. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Jail inmates also are protected when other rights, protected by other constitutional provisions, are implicated – but all may be limited by security concerns

9. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Permissible for jail officials to limit incoming publications to publisher-only mailings (First Amendment) • For searches, the Court upheld jail practices of doing cell searches without the inmate being present • And conducting visual (body cavity) searches after contact visiting (Fourth Amendment)

10. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Jails, along with pretrial inmates, may hold: • Those with short sentences (e.g., a year or less), with exceptions made as needed, such as for a disruptive inmate, or an escape risk • Those awaiting transfer to a state prison – stay may be extended due to crowding at the prison • Those sentenced prisoners who have been returned to court to be tried on additional charges, to challenge their convictions by appeal or by collateral attack, or to testify in another case

11. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Those who are ordered back to consult with counsel or be present for a hearing • Those who have been arrested as probation or parole violators and are being held locally pending revocation hearings • Jails may also house “cadre” for maintenance and other work • May have somewhat more than a one year sentence • May volunteer to stay at the jail in order to be closer to home or in some cases to have better living conditions

12. Constitutional Rights of Jail Inmates: Bell v. Wolfish: cont’d • Constitutional rights of convicted persons held in jails are the same as those for inmates in prisons or correctional institutions • In Bell, Court found that the mail and search issues were governed by the same security and good order concerns • Government policies and practices were valid both for the convicted and sentenced jail inmates and for the pretrial detainees

13. Other Constitutional Issues in Jails • Visiting – In Block v. Rutherford (1984), the Court held it was permissible for a jail to limit visiting to non-contact • There was a legitimate governmental objective – preventing the introduction of contraband

14. Other Constitutional Issues in Jails: cont’d • In Houchins v. KQED (1978), the Court said a TV station did not have any right of access to come into a jail to film a story on a jail suicide • Court restated its holding in Pell v. Procunier (1974) and Saxbe v. Washington Post (1974)

15. Other Constitutional Issues in Jails: cont’d • Grabowski v. Jackson County Public Defenders Office (1995) dealt, in part, with jail conditions • Grabowski claimed a § 1983 violation when his visiting privileges with his girlfriend were revoked and when denied telephone and recreation privileges while a pretrial detainee

16. Other Constitutional Issues in Jails: cont’d • Girlfriend also was an inmate at the jail • Privileges were revoked when Grabowski got into a shouting match with a paralegal and called her a racial slur in the presence of other (mostly black) inmates • Jail officials saw behavior as disruptive and not in accord with special visitation privileges he had been given

17. Other Constitutional Issues in Jails: cont’d • Lower court held no constitutional rights violated in the revocation of visiting privileges - action was reasonably related to maintenance of jail security and order • The court held that the evidence showed that the loss of other privileges were taken for his own safety and not for punishment (not allowed for pretrial detainee)

18. Other Constitutional Issues in Jails: cont’d • Following incident with paralegal, Grabowski was involved in altercations with other inmates (mostly black), a fire was set in his cell, and he was threatened • He was moved into protective custody where the privileges were not available • Lower court found good justification for actions of prison officials – institutional security and order, and safety of Grabowski

19. Other Constitutional Issues in Jails: cont’d • Loss of telephone privileges was upheld in Valdez v. Rosenbaum (2002) • Inmate had been identified as the leader of a drug smuggling conspiracy – was being held in pretrial detention, initially in the jail’s general population • In this setting, he had access to 4 telephones

20. Other Constitutional Issues in Jails: cont’d • Government prosecutor asked that inmate’s telephone privileges be suspended as new indictments were being issued, with five new defendants named, as well as Valdez • The five new defendants were not in custody • Prosecutor wanted to curtail Valdez’s ability to communicate with these persons

21. Other Constitutional Issues in Jails: cont’d • Inmate was placed in administrative segregation and he was allowed one attorney call each day; visits were not curtailed • Remained in this status for four and a half months while other defendants were being arrested

22. Other Constitutional Issues in Jails: cont’d • Returned to population, at prosecutor’s request, following release of one of the co-conspirators • Following conviction (given a 30-year sentence), Valdez filed a § 1983 suit alleging the phone restrictions violated his constitutional rights to due process and freedom of speech

23. Other Constitutional Issues in Jails: cont’d • Appeals court held no violation • Preventing Valdez from tipping off his co-conspirators was a legitimate governmental interest, and not for punishment • Valdez retained the right of communication through such means as visiting and correspondence • To allow phone access would have required prison officials to allocate additional resources for monitoring

24. Other Constitutional Issues in Jails: cont’d • Inmate Suicides • The problem of suicides is one that is at least as pressing in jails as it is in prisons • Constitutional standard for liability - deliberate indifference to the needs of the inmate • Staff must be on the lookout for suicidal tendencies and take preventive steps when indications of suicidal risks are clear, based on the circumstances of the individual case

25. Other Constitutional Issues in Jails: cont’d • A lower court found liability when there is a “strong likelihood, rather than a mere possibility” that failure to take certain action would result in harm to the inmate (Matje v. Leis (1983) • Liability also found in Heflin v. Stewart County (1992), where a deputy sheriff didn’t cut down an inmate who was hanging himself – the deputy wanted to wait for emergency medical staff • No liability was found in Freedman v. City of Allentown (1988) where officers did not realize there was a suicide risk because of observable scars on the inmate’s wrists and neck

26. Other Constitutional Issues in Jails: cont’d • In Logue v. United States (1973), the Supreme Court held federal officials couldn’t be held liable for the negligence of local jail officials who were holding a federal prisoner who committed suicide • The county jail staff were not agents or employees of the federal government • Could be tort liability if the federal agent placing the inmate in the jail knew there were suicidal problems and failed to notify jail staff

27. Other Constitutional Issues in Jails: cont’d • Searches • As noted previously, in Bell, Supreme Court held room searches at the jail were an appropriate security measure – and that, for similar reasons, the inmate did not have the right to be present during the search of his cell • Court also upheld necessity of conducting body cavity searches after inmate contact visits, finding these to be reasonable under the Constitution

28. Other Constitutional Issues in Jails: cont’d • In Shain v. Ellison (2001), a federal appeals court considered whether the law, in 1995, clearly established a bar against searching a person arraigned on misdemeanor charges, absent reasonable suspicion that the person possessed contraband or weapons

29. Other Constitutional Issues in Jails: cont’d • Shain was arrested for first degree harassment, spent the night in custody, and appeared the next day before a family court judge • He was remanded to the Nassau County Correctional Center (NCCC) without bond • He was strip-searched upon arrival at the NCCC and the next morning prior to his appearance in family court • Shain filed suit, claiming the strip search was unconstitutional

30. Other Constitutional Issues in Jails: cont’d • The appeals court held for Shain • Distinguished Bell as it dealt with “after contact” visiting • Arrestees ordinarily don’t have notice they’re about to be arrested, and thus don’t have an opportunity to conceal something

31. Other Constitutional Issues in Jails: cont’d • Appeals court, based on prior cases requiring reasonable suspicion, held the law against strip searching persons charged with misdemeanors absent reasonable suspicion was clearly established • Sheriff was not entitled to qualified immunity

32. Other Constitutional Issues in Jails: cont’d • Courts have held there is no privacy to be expected in jail visits, so it is permissible for authorities to monitor and tape conversations between inmates and their visitors; examples include • Lanza v. New York (1962) – where the Supreme Court upheld the use at hearings of a taped jail visit conversation between an inmate and his brother – privacy is lost in a jail

33. Other Constitutional Issues in Jails: cont’d • United States v. Hearst (1977) – federal appeals court upheld the use at Hearst’s trial of an intercepted conversation during visiting that Hearst had had at the county jail • Held a valid governmental purpose existed to monitor and record visiting room conversations, and the tapes from such monitoring could be provided to law enforcement officials for their use

34. Other Constitutional Issues in Jails: cont’d • Legal Access • An appeals court (Strickler v. Waters,1993) held for the government against an inmate’s claim that the jail law library was inadequate, and that one hour per week of access time was also inadequate • Appeals court found materials were sufficient for the time the inmate was held at the jail

35. Other Constitutional Issues in Jails: cont’d • A second appeals court (Walker v. Navarro County Jail, 1993) held for the government against the civil rights claim of a pretrial detainee who said his incoming legal mail was opened and read • The court held that opening and checking incoming mail, without censoring it, was not a constitutional violation

36. Other Constitutional Issues in Jails: cont’d • Personal Injury • The Supreme Court held in Daniels v. Williams (1986) that, in a suit based on allegations of government negligence causing an inmate to fall on a stairway, mere negligence did not state a constitutional claim against jail officials

37. Other Constitutional Issues in Jails: cont’d • For a constitutional (Fourteenth Amendment) violation, an abuse by government officials of their powers would have to be shown • Negligence by government officials would support a common law tort claim

38. Using Excessive Force, and Failure to Train • In Davis v. Mason County (1991) , an appeals court held the county and the sheriff liable for failure to set up an adequate training program for deputy sheriffs

39. Using Excessive Force, and Failure to Train: cont’d • Supreme Court set the training requirement standard in City of Canton v. Harris (1989) • City or county may be held liable upon a showing that their failure to train amounts to “deliberate indifference to the rights of persons” with whom officials come into contact

40. Using Excessive Force, and Failure to Train: cont’d • Gibson v. County of Washoe, Nevada (2002) dealt with officers pulling Gibson over, after observing his strange behavior • Prescription medications found in his car • Gibson, unknown to the officers, had an “Attempt to Locate” notice out on him by the police • Gibson suffered from manic depressive disorder, did not like police, and according to his physician, should be taken to the hospital for emergency commitment

41. Using Excessive Force, and Failure to Train: cont’d • Gibson was taken to the jail, and the medication was given to the jail duty nurse • Nurse told one officer the medication was used to stabilize a person suffering from mental illness • The record doesn’t show that this information was further shared

42. Using Excessive Force, and Failure to Train: cont’d • Twice during evening, Gibson slipped out of waist chain • Staff ordered he be moved to a special watch cell after the second occasion • Gibson resisted, and force was used – Gibson suffered a heart attack and died

43. Using Excessive Force, and Failure to Train: cont’d • Wife filed a § 1983 suit against the county and several officials, citing three causes of action • Individual deputies used excessive force • Showed deliberate indifference to Gibson’s serious mental health needs • The deputies’ actions resulted from policies, practices, or customs of the sheriff’s department which caused or contributed to the death

44. Using Excessive Force, and Failure to Train: cont’d • Appeals court affirmed lower court finding that no excessive force was used and that deputies were not deliberately indifferent to Gibson’s medical needs • Appeals court reversed and remanded to the lower court on the issue of county liability • Citing City of Canton, the appeals court said a plaintiff must show three things in order to impose liability:

45. Using Excessive Force, and Failure to Train: cont’d • First, must show a violation of Gibson’s rights by a county employee – court felt jury could find that the nurse was deliberately indifferent to Gibson’s special medical conditions • Second, that the county had customs or policies that amounted to deliberate indifference – court felt jury could find this by the lack of a policy requiring the nurse to take action based on what a particular medication might indicate • Third, that the county could have prevented the violation if it had had an appropriate policy

46. Using Excessive Force, and Failure to Train: cont’d • Warner v. Grant County (1995) concerned a § 1983 action brought by two female plaintiffs, alleging constitutional violations when they were strip-searched following arrest for possessing marijuana • Suit was against the police officer, a private citizen assisting the police, the sheriff, and the county • The private citizen was given qualified immunity – had served as an officer’s agent

47. Using Excessive Force, and Failure to Train: cont’d • Arresting officer also given qualified immunity – in directing strip search be done, he had acted in accordance with the law established at the time • Strip search could be done based on reasonable suspicion suspect possessed drugs or other contraband • Or if suspect was to go into the jail general population • Arresting officer had reasonable suspicion that the two suspects possessed additional drugs

48. Using Excessive Force, and Failure to Train: cont’d • Sheriff and county were sued, based on allegations they had a policy and custom of not adequately training officers on constitutional arrest and search standards • Appeals court found for sheriff and county – Grant County had a clear policy there would be no warrantless strip searches of temporary detainees

49. Using Excessive Force, and Failure to Train: cont’d • That policy, conveyed to all officers, barred conducting strip searches on female detainees, because all female arrestees who required confinement were taken to a separate location, and were not kept in Grant County • No female arrestees had been held in Grant County for over five years • No reason for sheriff or county to think there would be any female strip searches, when policy said there would be none for temporary detainees, and that policy had been consistently followed

50. Other Jail Issues and Cases • State appeals court overturned an award of $100,000 to the family of a detainee who died in jail from a drug overdose – Brown v. Lee (1996) • Detainee when arrested for drunken driving, denied drug use, and was presenting only the symptoms of intoxication • Appeals court held it would be unreasonable to require the sheriff to provide medical treatment to every intoxicated inmate in his custody