Statutory and Administrative Law in Corrections

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

2. Chapter 18 – Statutory and Administrative Law • Introduction: This chapter looks at other sources of law, outside the Constitution, that will be of most concern to corrections workers and to offenders in the correctional system

3. Chapter Outline • The Hierarchy of Laws in the United States • Interstate Compacts and Uniform Laws • State and Local Laws, Regulations, and Policies • The Federal Bureau of Prisons • State and Local Corrections • Accreditation

4. The Hierarchy of Laws in the United States • U.S. Constitution – supreme law of the country • Constitution, federal laws, and treaties – supreme law of the land • Take precedence over state laws when there is a conflict

5. The Hierarchy of Laws in the United States: cont’d • Congress only has authority provided to it by Constitution • All other matters are left to state authority (Tenth Amendment)

6. Interstate Compacts and Uniform Laws • States may not enter agreements or compacts with other states without Congressional consent (U.S. Constitution, Article 1, Section 10)

7. Interstate Compacts and Uniform Laws: cont’d • Congress has given its consent for states to form • Cooperative efforts in crime prevention and • Criminal law enforcement and procedures

8. Interstate Compacts and Uniform Laws: cont’d • The Interstate Agreement on Detainers (IAD) is an example • One state wants custody of person being held in another state • State files detainer with the custodian holding that person, requesting to be notified before the offender is released

9. Interstate Compacts and Uniform Laws: cont’d • Once the detainer is filed, • The holding state (custodian) is obliged to notify the requesting state prior to the inmate’s release • An inmate may request prompt production for disposition of the charges • If such a request is made, requesting state takes the inmate to the charging jurisdiction

10. Interstate Compacts and Uniform Laws: cont’d • Inmate remains in custody of sending state during this time (sentence continues to run) • Inmate must be brought to trial by requesting state within 180 days of the inmate’s request • Charges are dismissed if there is no trial by that time • Inmate is returned to sending state where he was serving his sentence

11. Interstate Compacts and Uniform Laws: cont’d • IAD has benefits for both government and inmate • Easier process for requesting state to obtain defendant for prosecution • Provides inmate opportunity to get rid of detainers, the presence of which could affect current confinement status

12. Interstate Compacts and Uniform Laws: cont’d • Alabama v. Bozeman (2001) – example of benefit to the inmate • Bozeman in federal prison, and had state charge • State officials sought custody of him – for arraignment and appointment of counsel • Bozeman sent to Alabama, spent day in court, and sent back to Federal custody • Following month back to Alabama for trial

13. Interstate Compacts and Uniform Laws: cont’d • Inmate’s counsel filed for dismissal under IAD, article IV(e) • Section provides for dismissal if trial is not held on any indictment, information, or complaint prior to the inmate’s return to the original place of confinement (here, federal custody) • Bozeman was convicted in state – even though the IAD provision had not been met • U.S. Supreme Court held that the literal language of the statute was absolute – the conviction did not stand

14. Interstate Compacts and Uniform Laws: cont’d • In New York v. Hill (2000), the Court approved a waiver of the “absolute” language • In this case, Hill’s counsel agreed, at a court hearing to set the trial date, to a date outside the 180-day period • Inmate filed for dismissal of the charges prior to trial, but after the 180-day period

15. Interstate Compacts and Uniform Laws: cont’d • Court held this wasn’t an issue that Hill must personally make an informed waiver – adding that his lawyer has, “and must have” – full authority to manage the conduct of the trial • Hill’s conviction was upheld

16. Interstate Compacts and Uniform Laws: cont’d • Uniform Criminal Extradition Act – Article IV, Section 2 “extradition clause” provides • A person who is charged with a crime in one state • And who flees to another state • Must on demand of the executive authority of the state from which he has fled

17. Interstate Compacts and Uniform Laws: cont’d • Be delivered to the state with jurisdiction over the alleged crime • Federal rules are in 18 USC §§ 3181-3196 • Federal government handles requests for returns of a person who has fled to a foreign country • A treaty between the two nations is needed for transfer

18. Interstate Compacts and Uniform Laws: cont’d • In Cuyler v. Adams (1981) the Court looked at the somewhat competing aspects of the IAD and the Extradition Act • New Jersey prosecutor, under the IAD, moved to bring Adams who was confined in Pennsylvania, to New Jersey for trial • Adams objected, claiming he was entitled to a hearing under the Extradition Act

19. Interstate Compacts and Uniform Laws: cont’d • Court held rights and protections of the Extradition Act, specifically the right to a hearing before transfer, were reserved for the prisoner

20. Interstate Compacts and Uniform Laws: cont’d • If inmate requested transfer under IAD, that inmate is deemed to have waived transfer, and no hearing is needed • If prosecutor requests and inmate does not waive, Article IV of IAD provides that the prisoner retains any right he may have to contest legality of transfer to the requesting state • Thus, inmate had right given in the Extradition Act to contest transfer

21. Interstate Compacts and Uniform Laws: cont’d • New Mexico v. Reed (1998) involved interstate extradition of a parole violator • In 1993 Ortiz, after being told by Ohio officials that his 1992 parole was going to be revoked, fled to New Mexico • Ohio sought his extradition. Ortiz opposed, filing a writ of habeas corpus • Inmate claimed he was not a fugitive for purpose of extradition, but fled under duress • Claimed he would be subject to physical harm if returned to an Ohio prison

22. Interstate Compacts and Uniform Laws: cont’d • Lower court granted the writ, holding Ortiz was not a fugitive, but was a “refugee from injustice” • Lower court held that his duress over fear of bodily harm negated his fugitive status • U.S. Supreme Court disagreed – held that New Mexico had made determinations it was not entitled to make on an extradition matter – Ortiz had to be returned to Ohio

23. Interstate Compacts and Uniform Laws: cont’d • The Interstate Compact for Transfer of Prisoners (Interstate Corrections Compact) – provides the procedures for transfers of inmates between jurisdictions

24. Interstate Compacts and Uniform Laws: cont’d • The Uniform Act for Out-of-State Parolee Supervision – all states have enacted • By the Act’s terms, parolees may go to another state to live (with prior permission) • Once transfer is approved, receiving state assumes supervision, under conditions set by the sending state • Officers of the sending state may enter the receiving state to retake custody when appropriate • No requirement for formal extradition proceedings

25. Interstate Compacts and Uniform Laws: cont’d • The Uniform Juvenile Court Act – provides procedures for cooperation between juvenile courts & juvenile agencies in different states • The Uniform Victims of Crime Act – concerns victims’ rights in criminal justice proceedings • Authorizes compensation of victims injured during the commission of crimes • Provides for monetary restitution for victims’ losses by criminal defendants convicted of committing crimes

26. State and Local Laws, Regulations and Policies: • All levels of government have an executive authority to enforce laws • May include, depending on jurisdiction, sheriffs, mayors, elected county executives and others • The various types of government overlap and interact in a variety of complex ways

27. State and Local Laws, Regulations and Policies: cont’d • Focus in this section is generalities – there is no one system of state and local government in the United States • There are laws, usually called ordinances in localities – enacted by legislature • There are also regulations, rules, and policies adopted by various government levels • At the federal level, agencies may be given authority to adopt rules and regulations

28. State and Local Laws, Regulations and Policies: cont’d • Rules are the detailed laws of most agencies – are considered to have authority and effect of the statutory law that authorized the agency to issue them • Can be either broad or limited • Federal rules are found in the Code of Federal Regulations (CFR)

29. State and Local Laws, Regulations and Policies: cont’d • Most agencies also have internal policies – governing day-to-day operations • Distinction between rules and policies - rules should be issued when they • Affect the conduct of private citizens • When they require certain actions to be taken, or • When they incorporate penalties and other enforcement procedures for citizen actions or inactions

30. State and Local Laws, Regulations and Policies: cont’d • Rules may be issued for public comment – if federal, the rules are published in the Federal Register • Following a period of consideration, final rules are adopted and published, and • Codified in the CFR • Policies also needed to cover such matters as personnel, business operations and other internal guidance to staff

31. The Federal Bureau of Prisons (BOP) • Created by Congress – it is part of the Department of Justice • BOP is charged with safekeeping and care of federal inmates (18 USC 4042) • Over 100 federal facilities, and 155,000 inmates

32. The Federal Bureau of Prisons (BOP): cont’d • Facilities include • Detention centers – to primarily hold pretrial inmates, one houses immigration detainees • Minimum, including prison camps, to high security (penitentiaries) • Administrative facilities, such as medical centers and a “super-max”

33. The Federal Bureau of Prisons (BOP): cont’d • BOP legal authority is set forth in 18 USC - statutes legislate such matters as • Good-time allowances • Parole eligibility • Establishment of prison industries • Providing medical care • Providing other programs – such as education, vocational training, and rehabilitative services • Congress provides funding for BOP

34. The Federal Bureau of Prisons (BOP): cont’d • BOP rules are published in the Federal Register and codified in Title 28 CFR • Rules cover the “core” policies and procedures, such as inmate classification, programs, discipline, contact with the community, and medical care • Public, including inmates and other interested persons and organizations, are invited to comment • After consideration of the comments, final rules are published and codified

35. The Federal Bureau of Prisons (BOP): cont’d • BOP also publishes Program Statements, which provide implementing policies • Program statements govern the affairs of the agency nationwide • Institutions may issue Institution Supplements – sets local procedures

36. State and Local Corrections • Same sort of legal framework, similar to BOP • Authorizing statute establishing agency • Other statutes authorize programs, activities, and services • State legislature provides funds for operations of corrections agency • As corrections agencies get smaller, down to city, county, and town level, complexity of rules diminish, and there are fewer of them

37. State and Local Corrections • At all levels, good to invite local and nearby judges, and members of their staff, to tour the facility • Provides opportunity to see what the facility is like, and not to rely on newspaper or other sources • Good means to educate, could counter other information (such as those from media stories, inmate complaints)

38. Accreditation • American Correctional Association (ACA) – leading professional association in the corrections field; established in 1870

39. Accreditation: cont’d • Serves as umbrella organization for entire corrections professions – many affiliations • Jails • Community corrections • Probation and parole authorities • Adult corrections administrators • Juvenile and youth agencies • State corrections associations • International affiliations

40. Accreditation: cont’d • ACA issued the first set of accreditation standards in 1977 – for adult correctional institutions • Were, and still are, administered by the Commission on Accreditation for Corrections (CAC) • CAC is independent offshoot of the ACA

41. Accreditation: cont’d • Factors pushing ACA to accreditation process: • There was a need for agreed-upon standards • Corrections was best place for standards to be set, as opposed to outside efforts for reforms of all kinds • Recognition of the growing involvement of courts in correctional matters, with a recognition that it was best for corrections to “set its own house in order”

42. Accreditation: cont’d • Belief that most courts would appreciate and might even defer to the standards • Standards and auditing process would provide corrections professionals with comprehensive reports and guidelines to inform governmental authorities about agency needs

43. Accreditation: cont’d • Process was set to establish and, just as important, to modify standards • ACA Standards Committee reviews along with CAC • Review is based on changing practices, case law, and agency experiences

44. Accreditation: cont’d • Approved standards reflect views of correctional practitioners, architects, medical and legal experts • Input and recommendations are sought from the involved parties and other interested persons or organizations

45. Accreditation: cont’d • Various sets of standards, covering both adults and juveniles • Administration of correctional agencies and institutions • Community residential services • Boot camp programs • Detention facilities • Probation and parole • Health care

46. Accreditation: cont’d • Correctional industries • Training • Electronic monitoring • Day treatment • Aftercare services and • Food service programs

47. Accreditation: cont’d • For many years there were 3 levels of standards: • Essential – 100% had to be met to achieve accreditation - dealing with conditions that could affect life, health, or safety of offenders, staff, or the public • Important – 90% had to be met • Desirable – 80% had to be met

48. Accreditation: cont’d • Currently, there are two levels: • Mandatory – requires 100% compliance • Nonmandatory – requires at least 90% compliance

49. Accreditation: cont’d • Examples: • 4-4206 – (Mandatory) Written policy, procedure, and practice restrict the use of physical force to instances of justifiable self-defense, protection of others, protection of property, prevention of escapes, and to maintain or regain control, and then only as a last resort and in accordance with appropriate statutory authority. In no event is physical force justifiable as punishment. A written report is prepared following all uses of force and is submitted to administrative staff for review

50. Accreditation: cont’d • 4-4457 – (Nonmandatory) – Written policy, procedure, and practice provide that the security and program determinations necessary for any individual to be eligible for industries work are made by the classification committee