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An Open Letter to President Obama

The American Jail Association (AJA) was fortunate to have the opportunity to submit in writing AJA’s suggestions and priorities to the Obama Administration.

Contained herein is the “Open Letter to President Obama” submitted on behalf of our organization with input from the AJA Board of Directors and several of our former presidents. This letter conveys our position on broad areas. It does not detail initiatives that give every element of what we need. These finer points are being advanced through meetings with the Obama Administration. The text of that letter may be downloaded here.

Regulating Inmate Phone Systems

National Criminal Justice Commission Act of 2009

Support for Second Chance Act Funding in Fiscal Year 2010

Working Group CJS Letter

Safe Prisons Communications Act of 2009

PREA Documents

PREA Pannel Report

Publications: Jail and Prison Legal Issues

JAIL AND PRISON LEGAL ISSUES: AN ADMINISTRATOR'S GUIDE

William Collins, Esq.

Purchase Jail and Prison Legal Issues: An Administrators Guide via PDF printout

CHAPTER 1: Nuts and Bolts

I. CITATION FORM

II. 42 USC §1983

A. Person
B. Color of State Law
C. Causation
D. Federal Rights
E. Relief in §1983 Lawsuits
F. Injunctions

III. DAMAGES IN §1983 ACTIONS

A. Indemnification

IV. CLASS ACTIONS

V. QUALIFIED IMMUNITY: A DEFENSE TO DAMAGES

VI. THE PRISON LITIGATION REFORM ACT

A. Reducing Inmate Litigation
B. Reducing the Power of the Federal Court
C. Terminating Orders Under PLRA

VII. CRIPA AND THE UNITED STATES DEPARTMENT OF JUSTICE

VIII. THE LOGISTICS OF A LAWSUIT: LITIGATION STEP BY STEP

A. Exhaustion of Administrative Remedies
B. Filing the Complaint
C. Filing Fees and In Forma Pauperis Complaints
D. Judicial Screening of Inmate Complaints
- Frivolous complaints
- Malicious complaints
- Failure to state a claim
- Officials are immune
- Effects of judicial screening
E. The Scheduling Order
F. Getting Rid of Cases Before Trial: Motions to Dismiss and Summary Judgments
- Motions to dismiss
- Summary judgments
- Which motion is best?
G. Discovery
- Depositions
- Interrogatories
- Requests for production
- Requests for admission
H. Settlement and the Prison Litigation Reform Act
- Consent decrees
- Prospective relief
- Termination of orders
- Trial and relief
- I. Trial and Relief
- Injunctive relief
J. Attorney's Fees
- For the winning plaintiff
- PLRA limits attorney's fees
- For the winning defendant
- Attorney's fees: still a factor
K. Appeal

III. DAMAGES IN §1983 ACTIONS

CHAPTER 2: Access to the Courts

I. DEVELOPMENT OF THE RIGHT

II. LEWIS V. CASEY AND THE RIGHT OF ACCESS TO THE COURTS

A. Applies to Jails
B. Affirmative Duties Continue
C. Scope of the Right
D. Actual Injury

III. WHAT AMOUNTS TO "ACTUAL INJURY?"

A. Getting Material to Court May Defeat Injury Claim
B. Complete Denial of Access to Materials for Short Times

IV. NONFRIVOLOUS CLAIMS

V. LAW LIBRARIES

A. Understanding Legal Research
B. What Should the Library Contain? The Traditional Approach
C. Is There a New Post-Lewis Law Library?
D. Computerized Research Services
E. Donations: More Trouble Than They Are Worth?
F. Direct Appeals, Collateral Attacks, and the Jail
G. Law Library Collateral Issues

VI. ILLITERATE INMATES: THE REALLY TOUGH PROBLEM

VII. SEGREGATION AND ACCESS TO THE COURTS

A. Paging Systems
B. Something Is Required

VIII. THE PRO SE CRIMINAL DEFENDANT AND ACCESS TO A LAW LIBRARY

A. Does Bounds Apply for Criminal Defendants?
B. A Practical Problem

IX. JAILHOUSE "LAWYERING": A SOMEWHAT PROTECTED VOCATION

A. Charging for Services
B. Possessing the Legal Papers of Another
C. Is There a "Jailhouse Lawyer-Client Privilege?"
D. Communication Between Jailhouse Lawyers and Their "Clients"

X. OTHER ISSUES

A. Typewriters and Copy Machines
B. Storage of Legal Materials

XI. SUMMARY

CHAPTER 3: The Eighth Amendment: Overview and Use of Force

I. OVERVIEW

II. AREAS OF CONCERN

III. USE OF FORCE

A. The Malicious and Sadistic Test
B. Pretrial Detainees and Use of Force
- The reasonableness test

IV. THE FIVE FACTORS

A. Need for Force and Amount Used
B. Extent of Injuries
C. Threat Reasonably Perceived
D. Efforts to Temper
E. The Five Factors: An Example

V. MISCELLANEOUS FORCE ISSUES

A. Duty to Intervene
B. The Loud, Disruptive Inmate
C. Restraints
- Is overuse a problem?
- How long in restraints?
- Restraint devices: some suggestions
D. Hog-Tying
- Hog-tying vs. hobbling: Is there a distinction?
- The "studies" debate
- Hog-tying: the bottom line
- Restraint asphyxia
E. Extreme Handcuffing and Due Process
F. "Lasers, Tasers, and Phasers"
- Stun guns
- Stun belt
- Stun devices and medical needs
- Chemical agents
G. Using Force to Enforce Orders

VI. DEADLY FORCE

A. Escapes and deadly force
B. Warning shots

VII. DEFENDING FORCE CASES

A. Video Tape
B. Documenting Extent of the Injury
C. Force Cases and Credibility
- The missing files
- The lost video tape
- The arrogant officers

VIII. SUMMARY

CHAPTER 4: The Eighth Amendment: Medical Care

I. THE BASIC LEGAL TEST

A. Deliberate Indifference
B. Serious Medical Need
- Serious medical need: examples

II. PARTICULAR ISSUES

A. Cost of Treatment
B. Delayed Care
C. "Elective" Treatment
D. Admission Screening
- When should screening take place?
E. Abortion
F. Pre-Existing Conditions
G. Organ Transplants
H. Paraplegic Inmates
I. Officers Passing Medications
J. Will Following Policy Trump Good Sense?
K. Ignoring Instructions of Treatment Staff
L. Medical-Custody Conflict Resolution Process
M. Medical Co-Pay Plans
N. Medical Records and the Right to Privacy
O. Interpreters
- Interpreters and the right to privacy
P. A Right to Post-Release Care?

III. HIV/AIDS

A. HIV Is a Serious Medical Need
B. Mandatory Segregation
C. Right to Privacy/Disclosure
D. Protection
E. HIV/AIDS, the Americans with Disabilities Act, and the Rehabilitation Act
F. Security Concerns and ADA Issues

IV. DENTAL CARE

A. Extraction Only Policies

V. SMOKING

A. Secondhand Smoke
B. Smoke Free Jails
C. Employees and Smoke Free Jails
D. Summary

VI. TUBERCULOSIS

A. Screening
B. Response to Active TB
C. Mandatory Testing

VII. MENTAL HEALTH

A. Consent and Involuntary Medication
- Emergency medication
- Inmate refusals and deliberate indifference
B. Involuntary Medications and Pretrial Detainees
- Danger to self or others
- Involuntary medications and incompetence to stand trial
- When dangerousness and competency overlap, what then?
- Summary
C. Hunger Strikes and Other Involuntary Medical Treatment
- Is a court order necessary?
D. Transsexuals
- Transsexuals and other operational issues
- Housing
- Searches

VIII. HIPAA

A. Does HIPAA Apply to Jails and Prisons?
B. What Do the Regulations Require?
C. Exception for Correctional Facilities
D. Other Requirements
- Right of access
- Who can complain about HIPAA violations?
E. HIPAA Conclusion: Confusion

IX. SUMMARY

CHAPTER 5: The Eighth Amendment: Suicide

I. LEGAL TEST: DELIBERATE INDIFFERENCE

A. Deliberate Indifference: Examples
B. "Died by His Own Hand" Defense

II. LITIGATION THEMES: IDENTIFICATION, PROTECTION, RESPONSE (I-P-R)

A. Identifying the Suicide Risk
- Comment
- Screening and profiles
- Passing on information
- Records and threat identification
B. Protecting the Identified Suicide Risk
- Comment
- Frequency of checks
- Video surveillance: not recommended, but if you use it . . .
- Removal from suicide watch
- Comment
C. Response to Suicide Attempts
- Summary

III. POST ADMISSION SUICIDES

IV. JAIL DESIGN ISSUES

V. SUICIDE LITIGATION: A CAUTION

A. State Law Negligence Claims
B. Every Failure an Issue

VI. SUMMARY

CHAPTER 6: The Eighth Amendment: General Conditions of Confinement

I. CONDITIONS PROBLEMS: OLD HISTORY AND NEW HISTORY

II. WHAT "CONDITIONS" ARE OF CONCERN?

III. LEGAL TESTS: OBJECTIVE AND SUBJECTIVE PARTS

A. Objective Test: How Bad Are the Conditions?
B. Subjective Test: Deliberate Indifference
- The "pure of heart" defense
C. Crowding Is Not Necessarily Unconstitutional
D. The "Totality of Conditions" Approach Is No Longer Used
E. Standards: Professional or State-Mandated

IV. SPECIFIC CONDITIONS OF CONCERN

A. Personal Safety
- Classification
B. Shelter
- Padded cells
- General dust and dirt
C. Food
- Withholding meals
- Food loaf
- Vegetarian meals
- Hot food
D. Sanitation
- Showers and personal hygiene
- Inmate cleaning requirements
E. Clothing
F. Exercise
- Outdoor exercise
- Exercise in the cell
G. How Long Does the Condition Last?

V. LOOKING FOR ANSWERS

CHAPTER 7: The Fourteenth Amendment: Inmate Discipline and Other Procedural Due Process Issues

I. WHAT IS "DUE PROCESS?"

II. OVERVIEW: WHEN IS "PROCESS DUE" IN JAIL AND PRISON DECISION-MAKING

A. Is There a "Liberty Interest?"
B. What Is an "Atypical and Significant Hardship?"

III. PROPERTY INTERESTS

A. Fines in Disciplinary Hearings
B. Disciplinary Hearing "Fees"
C. Taking Inmate Property
D. Control of Cash
E. Sandin and Property Interests

IV. INMATE DISCIPLINE AND DUE PROCESS

A. Sandin Only Limits Due Process for Sentenced Offenders
B. Jails, Discipline of Pretrial Detainees, and the Liberty Interest Question
C. Good Time Earned vs. Expectations of Good Time and Due Process
D. Sandin as a Defensive Tool

V. MAJOR OFFENSES: THE PROCEDURAL REQUIREMENTS OF WOLFF V. MCDONNELL

A. No Right to Counsel or Cross-Examination
B. Privilege Against Self-Incrimination in Disciplinary Hearings and Miranda Warnings
- Miranda warnings
C. Notice and the Hearing
D. Inmate's Presence in the Hearing
- Waiver
- Refusal to attend the hearing
- Excluding the inmate for safety or security reasons
- An exception
- Suggestion
E. Witnesses
- Institution must justify denials
F. Grounds for Denying Witness Requests
- Advance notice of witness requests and witness summaries
- Relevance
- Security concerns: "unduly hazardous to institutional safety"
- Cumulative testimony
- Unnecessary
- Witness statements
G. Grounds for Not Denying Witnesses
- Blanket denials
- Credibility
H. Refusal to Testify
- Officer refusals
- Inmate refusals
I. Stating Reasons for Denying Witnesses
J. Right to Assistance
- Interpreters and the hearing impaired
- Role of the assistant
K. The Hearing Officer(s)
- Impartiality
- Inmate lawsuits against hearing officers and bias
- Role of the hearing officer
- Hearing officers vs. hearing committees
L. Evidence: When Is an Inmate Guilty?
- The "some evidence" standard of review
- The burden of proof
- Officers' reports as evidence of guilt
M. Anonymous Informants
N. Hearsay
O. Constructive Possession
P. Statement of the Evidence Relied Upon
Q. The Hearing Record and Its Importance
R. Prehearing Confinement

VI. MISCELLANEOUS ISSUES

A. Polygraph
B. Settlement
C. Appeals
D. Overlapping Disciplinary and Criminal Charges
E. Major vs. Minor Offenses: Where Is the Line Drawn, and Is Some "Process Due" for Minor Infractions?

VII. DUE PROCESS AND LONG-TERM ADMINISTRATIVE SEGREGATION

A. Courts Differ on Determining "Atypical Deprivation"
B. Administrative Segregation and Pretrial Detainees
C. Some Process Is Easy to Provide

CHAPTER 8: The First Amendment: Mail, Religion, Publications, Telephone, and Grievances

I. INTRODUCTION AND PRELIMINARY ISSUES

A. Extends to Local Governments
B. Extends to Persons Incarcerated
C. The Most Common Issues

II. THE TURNER TEST: IMPOSING RESTRICTIONS ON FIRST AMENDMENT RIGHTS

A. What Are "Legitimate Penological Interests?"
B. Turner: The Four Questions
C. Why Understand the Turner Test?
D. Are Cost Concerns a Legitimate Penological Interest?
E. What Constitutional Issues Does Turner Apply To?
F. Must a Problem Have Occurred?
G. Exaggerated Responses
H. Consistency
I. Burden

III. RELIGIOUS ISSUES

A. The Religious Land Use and Institutionalized Persons Act
- Is RLUIPA constitutional?
B. What Is a Religion and Sincerity of Beliefs?

IV. PARTICULAR RELIGIOUS PRACTICES

A. Mandates from Faith Not Required
B. Hair and Beards
C. Hair and Male Inmates vs. Female Inmates
D. Personal Appearance
E. Group Religious Services
F. Religious Diets
- Common fare diet and co-pay plan
- Kosher
- Kosher in jails
- Is the sky falling on a slippery slope?
G. Native American Practices
- Must inmate be Native American?
- Sweat lodges
H. Satanic Materials and Practices
I. Establishment Clause: Can the Jail "Establish" a Religion?
- "God pods"
- Twelve Step programs
- Government chaplains
J. Equal Protection

V. PUBLICATIONS

A. Supreme Court Decisions
- Procunier v. Martinez
- Thornburgh v. Abbott
B. Total Bans of All Publications
C. "Publisher Only" Rules
D. Complete Bans on Hardbound Books
E. Due Process, Rejection Notices to Inmate and Sender
- Reading incoming and outgoing mail
- Rejection of letters and publications
F. Censoring Outgoing Mail
G. Bulk Mail Publications
H. Content Based Restrictions
- Racist/religious material
- Sexual publications
- Criticism of institution officials
- Photos of wives and girlfriends
I. All or Nothing Censorship
J. Segregation and Mail Access
K. Mail Between Inmates
L. Gift Subscriptions
M. Copying Outgoing Mail
Obstruction of justice
N. Foreign Language
O. Delays in Mail Delivery
P. Privileged Mail
- What is "privileged" or "legal" mail?
- General rule
- Media mail and privilege
- Opening privileged mail mistake

VI. TELEPHONE

A. Recordings
B. Calls to Lawyers

VII. GRIEVANCES

A. Disrespectful Language
B. False Statements
C. Abuse of the System
- How many grievances are too many?
- Petitions

VIII. INMATE MARRIAGES

CHAPTER 9: The First Amendment: Visiting

I. OVERVIEW

A. Summary

II. DENIAL OF VISITING RIGHTS, TURNER, AND DUE PROCESS

III. CHILDREN'S VISITS

IV. CONTACT AND CONJUGAL VISITING

V. VISITOR SEARCHES - GENERAL

VI. VISITING: SOME SUGGESTIONS

CHAPTER 10: The Fourth Amendment: Searches

I. WHEN DOES THE FOURTH AMENDMENT APPLY?

A. A Balancing Test
B. Should the Turner Test Be Used for the Fourth Amendment Issues?
C. No Warrant Requirement
D. "Reasonable Suspicion" - What Is It?

II. CELL SEARCHES

III. PAT SEARCHES

IV. STRIP SEARCHES: OVERVIEW

A. "Arrestee" Strip Search
B. "Inmate" Strip Search
C. Strip Searches: A Same Sex Task
D. Privacy and Strip Searches

V. ARRESTEE STRIP SEARCHES: THERE ARE NO LOOPHOLES

A. Is There a "Turner Test" Loophole?
B. Broad Definition of "Strip Search"
C. Unconstitutional Arrestee Strip Search Policy Exposes the County to Damages
D. What Is the Liability Exposure?
E. The General Rule and "Reasonable Suspicion"
F. Offense-Based Reasonable Suspicion
G. "Felony" Label Alone Does Not Establish Reasonable Suspicion
H. Drugs and Alcohol
I. Nature of the Offense and Criminal History
J. What Does and Does Not Constitute Reasonable Suspicion?
- "Furtive movements"
- Refusal to cooperate with arresting and booking officers - maybe
- Lack of ID not enough
- Arrests on outstanding warrants not enough
- Civil violations: No
K. General Population Placement
L. Medical Concerns
M. Clothing Exchanges
N. Bullpens and Holding Areas
O. When Does an "Arrestee" Become an "Inmate?"
P. Summary: Arrestee Strip Searches: A Recipe for Liability

VI. INMATE STRIP SEARCHES

A. Out of Institution Contacts
B. Inmates in Segregation
C. Incident to Cell Block Searches
D. Random General Population Strip Searches
E. Reasonable Suspicion Strip Searches
F. Emergency Situations
G. How, Where Search Conducted

VII. BODY CAVITY PROBE SEARCHES

A. Probe Searches and High Security Settings
B. Ad Hoc Probe Searches - Reasonable Suspicion or Probable Cause
C. "Less Intrusive Alternatives": A Good Idea
D. Manner of Search
E. Eighth Amendment
F. Probe Searches: Summary

VIII. VISITOR SEARCHES

A. Pat Downs and Searches of Bags and Purses
B. Vehicle Searches
C. Visitor Strip Searches
D. "Consent" Conditions
Where reasonable suspicion doesn't exist
Where reasonable suspicion exists
Visitor searches: summary

IX. INFORMANT TIPS AND REASONABLE SUSPICION

X. SUMMARY

CHAPTER 11: Cross Gender Supervision

I. FEMALE OFFICERS AND MALE INMATES

A. Observation of Male Inmates by Female Officers
B. Pat Searches of Male Inmates by Female Officers
C. Strip Searches of Male Inmates by Female Officers

II. MALE OFFICERS AND FEMALE INMATES

A. Pat Searches of Female Inmates by Male Officers
B. Pat Searches and Small Jails
C. Strip Searches of Female Inmates by Male Officers
D. Summary

III. BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ) ISSUES

A. BFOQs in Small Jails
B. Men Working in Women's Facilities
C. Limited Ban on Male Officers Approved
D. BFOQ Summary

IV. SEXUAL CONTACT BETWEEN STAFF AND INMATES

V. SUMMARY

CHAPTER 12: Retaliation

I. GRIEVANCE SYSTEM ABUSE

II. POINTS TO REMEMBER

APPENDIX 1 Table of Cases

APPENDIX 2 Glossary

About the Author...

William C. Collins received his J.D. degree from the University of Washington in 1969. His work has focused on correctional law for over 30 years. Bill has written several monographs on various topics in the field and is the cofounder and coeditor of the Corrections Law Reporter. He has provided legal issues training for corrections administrators and staff from coast to coast and has presented NIC Legal Issues at AJA's Annual Training Conference & Jail Expo for well over a decade.

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