CORRECTIONS LITIGATION HOT TOPICS

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SUICIDE LIABILITY

RCW 70.48.071 – Washington jails are required to perform suicide screenings and offer suicide prevention programs.

The courts look at 3 things:

    1. failure to identify
    2. failure to monitor
    3. failure to respond.

You can be sued under State Law for negligence. It’s your agencies, and your own individual duty to protect.’

Farmer v Brennan (1994)Deliberate Indifferent – a decision that held inmates must prove that correctional personnel knew about a “strong likelihood” of risk that threatened the prisoner’s health or safety and consciously and recklessly disregarded it. Although these cases did not specifically address prisoner suicide, lower courts have applied the legal standard of deliberate indifference to this issue.

In Freedman v City of Allentown, an inmate killed himself who the probation officer knew of previous attempts, as well as the inmate showing the officer scars from attempts all over his body. The Courts saw this as both negligent and deliberate indifferent.

Only mental health staff should clear inmates off of suicide watch.

Slow down, pay attention to the warning signs, and trust you gut. It is always better to be safe than sorry.

Exercise Practical Wisdom, ask questions, gather information and take action.

If you suspect an inmate of being suicidal, notify your supervisor, and document, being specific in what was said or done, and the actions that were taken.

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OPIATE USE AND DETOXIFICATION

About 70% of our jail population are drug users, 80% in which are opiate users.

Avoid having a jaded mindset that sees those undergoing detox as just another “drug using inmate”. Be reasonable, be objective and remember that life is the core of all core values. You have been entrusted to protect it behind the walls.

Pay attention to the warning signs.

If they are thin, they are at a higher risk of death.

If they had diarrhea or if they are vomiting, they are at risk of dying from dehydration. (Gatorade / Cups / Water)

Notify medical, notify your supervisor and document all pertinent information.

In Crowell v Cowlitz City -2015, a young inmate was booked in on a misdemeanor warrant, was detoxing from heroin, and normal detox protocol was taken (medical was notified). During his detox, he fell off of his bunk, began vomiting and eventually died. A lawsuit was filed and the courts found that the jail was not deliberate indifferent.

Just because they are young does not mean that they will be fine.

When it comes to opiate use and detoxification, 83% of all in-custody deaths are related to drug and alcohol withdrawals. The human body simply cannot handle the rapid decline of the needed drug, causing a rapid neurological shock when the body is without the drug.

Some alternative solutions agencies are looking at to try and reduce the liability from in-custody deaths are methadone and suboxoen programs. These programs help the inmates come down off of the drug slowly, minimizing dangerous detoxification, ultimately reducing the risk of potential death while in-custody. These programs have a success rate of 33% for quitting the drug, whereas quitting without any form of assistance is at 3%.

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MENTALLY ILL IN INMATES

People who are in a mental health crisis are more likely to have encounters with police than receive the actual help they need. As a result, approximately 2 Million people with mental illness are booked into jail each year.

Approximately 64% of our jail population have some sort of mentally illness, with a large percentage of that population under chemical dependency and substance abuse. This percentage continues to rise.

Approximately 76% percent of jail inmates who have a mental health problem are dependent on, or abused alcohol or drugs.

When dealing with inmates who are severely mentally ill, be patient, be flexible and do not take things personally. Stay objective, be reasonable, and try to fix the problem not the person.

Notify Mental Health, notify your supervisor and point to the right resources.

Document all unusual circumstances, behavior, and all reasonable efforts made.

Only MHP should clear inmates off of suicide watch.

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ADA (AMERICANS WITH DISABILITIES ACT – 1990)

Passed in 1990

The ADA prohibits discrimination against people with disabilities in employment, transportation, public accommodation, communications and governmental activities. (confined in a correctional institution)

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.

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RESTRICTIVE HOUSING

Another topic subject to litigation is restrictive housing without reason. According to the DOJ, anything less than 4 hours a day is seen as “restrictive housing” no matter what you call it (specialized, ad-seg, observation). Even if it is for medical observation or some reason other than disciplinary, it is still legally seen as the county or cities problem since they are the ones detaining the individual; and it is still “restrictive housing”.

Anytime someone is placed in restrictive housing, the reason must serve some penological interest. The safety and security of the facility always comes first, just be sure to document and articulate your reason for placing individuals in restrictive housing.

According to federal law inmates are required showers and access to legal counsel and grievances at least every 72 hours, 1 hour a day in restrictive housing and 4 hours for general population. Anything otherwise must be documented.

The DOJ is encouraging agencies to seek alternative solutions for restrictive housing, and ways to increase out time and access to resources. Unfortunately, behavior and certain situations are what will dictate in inmate’s time out of their cell. Just remember to be reasonable, be creative, and that boredom is one of the biggest enemies used against you. Keeping those in restrictive housing occupied in their thinking brain keeps them out of an emotional brain, meaning less disruption and easier to manage. Look at things like activities, pointing to resources and future oriented thinking; and document those efforts made.

The DOJ is encouraging agencies to seek alternative solutions for restrictive housing, and ways to increase out time and access to resources. Unfortunately, behavior and certain situations are what will dictate in inmate’s time out of their cell. Just remember to be creative, and that boredom is one of the biggest enemies. Keeping those in restrictive housing occupied in their thinking brain keeps them out of an emotional brain, meaning less disruption and easier to manage. Look at things like activities, pointing to resources and future oriented thinking; and document those efforts made.

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INMATE RELEASES

Releasing inmates back out into the community can be a risk if the wrong inmate is released, or an inmate that has severe physical or mental health issues is released to the community without proper planning.

The DOJ believes inmates in restrictive housing should not be released directly to the community without some kind of release planning.

For inmates that are getting released, ask questions and identify if there should be some release planning.

  • are they able to care for themselves?
  • are they mentally ill?
  • do they have anywhere to go?
  • if they are taking medication, will they be able to access that medication upon release?
  • do they need to be released to a medical facility?

It should go without say, do not release the wrong inmates.

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CONDITIONS OF CONFINEMENT

In order for an “institution” to violate the 8th Amendment they must meet 2 factors:

  1. 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.
  2. The defendants knew of the serious problems and failed to take any sort of meaningful corrective response. (Deliberate Indifference)

Human Basic Needs of the inmates are as followed:

  • Food
  • Clothing
  • Shelter
  • Sanitation
  • Personal Care / Hygiene
  • Medical Care
  • Exercise

  • BOTTOM LINE IN TRYING TO STAY OUT OF THE FIRE OF LITIGATION:
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  1. Always DOCUMENT!

  2. Good documentation may be the one thing the saves you in the event of a lawsuit. With the number of incidents and interactions you have each day, years down the road it may be virtually impossible to recall the details of a particular event. Whether it is medical events, uses of force, unusual circumstances or simply just an act of showing efforts of reasonableness, proper documentation is key.
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  4. Never hesitate to notify your supervisor.

  5. Again, frontline supervision is quality control. There is a reason being a supervisor is considered a promotion; it is because there is more responsibility involved. They expect their staff to be problem solvers and leaders, handling situations at the lowest level possible. However, it is critical that they are kept informed about situations with potential liability attached.
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  7. Most importantly, be a reasonable human being and “CARE”

  8. Being a reasonable human being is the most important thing you can do to prevent litigation. Care about what you do and never compromise your integrity, doing the right thing, for the right reason all the time. Being reasonable goes hand in hand with your ability to exercise practical wisdom, because a wise decision is the right decision.
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