Part III

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

2. Chapter 19 – Federal Statutes: Equal Employment, Disabilities, and Tort Claims • Introduction: This chapter looks at examples of federal statutes that have direct impact on prisons and jails at all levels

3. Chapter Outline • Employment Law • Equal Employment • Dothard v. Rawlinson • The Americans with Disabilities Act • Tort Claims

4. Employment Law • Set guidelines, requirements, standards for staffing decisions in a corrections agency • Human resource management critical to smooth organizational operation • Dedicated, highly motivated staff essential • All correctional employees are considered “correctional workers” first, and then workers at their specialty

5. Employment Law: cont’d • Staff within a prison are interdependent • Must depend on one another for their safety and for the orderly running of the prison • Must be able to work with one another and with inmates for the security, good order, and discipline of the institution

6. Employment Law: cont’d • Training of corrections staff is a vital part of maintaining a quality workforce • Training, both initial and refresher, important • May include firearms proficiency, first aid, self-defense, emergency procedures, legal developments, and other aspects

7. Employment Law: cont’d • Virtually all areas of a corrections facility, especially where staff work directly with inmates, involve exposures to legal liability particularly if staff are not properly trained

8. Employment Law: cont’d • Failure to Train • Davis v. Mason County (1991) concerned four separate incidents where citizens were arrested by sheriff deputies • In each case, there was evidence that the persons were beaten and charged with offenses that were later dropped

9. Employment Law: cont’d • In a Section 1983 suit, a jury found the county, the sheriff, and the deputies liable for constitutional violations • The appeals court affirmed jury verdict finding constitutional violations • Appeals court also found sheriff and county were properly held liable for failure to provide adequate and proper training

10. Employment Law: cont’d • County held liable – responsible for setting policy for the type of actions involved – court said county’s failure to train showed “reckless disregard for” or “deliberate indifference to” the safety of its citizens • Sheriff held liable because he was a policy-making official, with ultimate authority to train persons in his department – his actions “constituted county policy” on the matter of training

11. Employment Law: cont’d • Appeals court found that many deputies were sent out without any training • Deputies were not given adequate training on arrest and search procedures • No training at all on the legal limits to the use of force, and this fact constituted “deliberate indifference” to the rights of citizens, as a matter of law

12. Employment Law: cont’d • In Board of the County Commissioners v. Brown (1997), the Supreme Court considered the injurious action of a deputy sheriff during a traffic stop • Reserve Deputy Burns grabbed passenger Brown’s arm, and pulled her from the car, injuring her knees • She sued Burns, the county sheriff, and the county claiming that by hiring Burns, the county was liable for his alleged use of excessive force

13. Employment Law: cont’d • Lower courts found liability, but Supreme Court disagreed • It vacated and remanded for a determination on whether Burns’ background made his use of excessive force in making an arrest a “plainly obvious consequence of the hiring decision”

14. Employment Law: cont’d • At a minimum, to avoid liability for constitutional violations under Section 1983, agencies should ensure staff are trained in the basics of job performance in any areas where their work may implicate constitutional requirements • Agency managers must ensure agency policy reflects the constitutional requirements

15. Equal Employment • The Federal Civil Rights Act of 1964 (Title VII) mandates that there be no discrimination in employment practices, based on a person’s race, color, religion, sex, or national origin. • In the Equal Employment Opportunity Act of 1972, Title VII coverage was extended to state governments.

16. Dothard v. Rawlinson (1977) • Rawlinson was denied employment as an Alabama prison guard (correctional counselor) because she failed to meet the minimum height and weight requirements • These were 5’2” and 120 lbs.

17. Dothard v. Rawlinson: cont’d • Rawlinson filed a complaint with the Equal Employment Opportunity Commission (EEOC), claiming sex discrimination • She also complained of the prison rule that barred correctional counselors from working in direct contact with inmates of the opposite sex

18. Dothard v. Rawlinson: cont’d • EEOC gave her right-to-sue letter, in effect transferring her case to the federal courts • Lower court found for Rawlinson, finding that the height and weight requirements would exclude more than 40% of the female population and less than 1% of the males who might apply • This was found to show a prima facie case of sex discrimination

19. Dothard v. Rawlinson: cont’d • Supreme Court concurred with the prima facie assessment, but felt this did not end the matter • State could still prevail if it could show that the pattern of discrimination was justified, legally rebutting the sexual discrimination showing

20. Dothard v. Rawlinson: cont’d • Evidence showed that the prison system • Was rife with violent behavior by the inmates • That there was frequent inmate-staff contact • That correctional agencies were understaffed • And that a substantial portion of the inmate population was made up of sex offenders

21. Dothard v. Rawlinson: cont’d • Due to these factors, Court said use of female officers in maximum security prisons would pose a substantial security problem, directly linked to the sex of the officer • Court found a BFOQ – a bona fide occupational qualification – that justified exclusion of females from Alabama guard force – at least in maximum security prisons

22. Dothard v. Rawlinson: cont’d • Dothard is a strange type of victory for the state – as the Court found the work environment a “peculiarly inhospitable one” • There continues to be a difference of opinion among correctional administrators on whether it is best to have officers of the same sex as the inmate population • The option of placing in non-contact positions could impact on an officer’s promotion potential – limits ability to show the ability to handle a variety of posts

23. The Americans with Disabilities Act (ADA) • Enacted in 1990 • Prohibits discrimination on the basis of disability • Two areas of importance to corrections • Employment • Inmate programs and services

24. The Americans with Disabilities Act (ADA): cont’d • Employment Under the ADA – Title I of the Act provides • Reasonable steps must be taken to accommodate an applicant or employee who is disabled if the person is otherwise qualified for the job

25. The Americans with Disabilities Act (ADA): cont’d • Disability as applied to an individual means: • A physical or mental impairment that substantially limits one or more of the major life activities of the person • A record of such an impairment • Or being regarded as having such an impairment

26. The Americans with Disabilities Act (ADA): cont’d • “otherwise qualified” is similar to the BFOQ exception to the Civil Rights Law • Discrimination is permissible if can show that qualification standards, tests, or selection criteria that screen out persons with disabilities are job-related, consistent with business necessities, and such job performance cannot be accomplished by reasonable accommodation

27. The Americans with Disabilities Act (ADA): cont’d • Employers are expected to make efforts to make a job possible for a disabled person, unless doing so will create an “undue hardship” • There is continuing interpretation on what constitutes “undue hardship”, “reasonable accommodation”, and “otherwise qualified”

28. The Americans with Disabilities Act (ADA): cont’d • “undue hardship” is defined as an “action requiring significant difficulty or expense” • Administrators can best show “undue hardship” if can show accommodation would adversely affect the security operations of the agency

29. The Americans with Disabilities Act (ADA): cont’d • If a person is qualified to perform essential job functions except for limitations caused by a disability, employer must consider whether person could perform these functions with a reasonable accommodation • Highly desirable for administrators to adopt policies and procedures that show the administration is aware of the requirements of the ADA and is trying to accommodate these

30. The Americans with Disabilities Act (ADA): cont’d • Inmate Programs and Services Under the ADA (Title II): • Corrections officials must take reasonable steps to include persons with disabilities in the programs and services offered to other inmates

31. The Americans with Disabilities Act (ADA): cont’d • The first, and possibly most significant aspect of accommodation is physical access • ADA does not require extensive remodeling of existing facilities • New construction and modifications, however, should be accessible

32. The Americans with Disabilities Act (ADA): cont’d • Program accessibility may mean relocating where activities are conducted • Another act requirement - communication • Must be as effective as it is with others • Example would be telecommunications devices for the deaf (TDDs)

33. The Americans with Disabilities Act (ADA): cont’d • Accommodations must also be sought for inmates who are mentally disabled • Special housing acceptable, but inmates can’t be excluded from the same kinds of programs and services available to other inmates • May be excluded when ineligible or incapable of participating without changing essential nature or when including would pose a threat to the health or safety of others

34. The Americans with Disabilities Act (ADA): cont’d • Agency policies should be revised as necessary to show that accommodations will be made as the need arises • Above statement relates to the critical issue of the classification of inmates

35. The Americans with Disabilities Act (ADA): cont’d • At intake screening, the needs of any incoming inmate who is disabled must be identified • Also extends to asking the inmate whether any of her prospective visitors has special needs due to disability

36. The Americans with Disabilities Act (ADA): cont’d • The goal always is to “mainstream” inmates with disabilities, unless doing so • Would fundamentally alter the nature of the program or service, or • Create undue financial or administrative burdens

37. The Americans with Disabilities Act (ADA): cont’d • Special program assignments present special challenges • To the extent possible, inmates with disabilities should be assigned to classes, vocational training, work programs, and other activities • Eligibility requirements for those programs should not exclude inmates with disabilities unless it can be shown that the requirements are necessary for the service to be provided or for the activity to take place

38. The Americans with Disabilities Act (ADA): cont’d • In Pennsylvania Department of Corrections v. Yeskey (1998), Yeskey was sentenced to 18-36 months • Recommended for service of sentence in the state’s Motivational Boot Camp • Successful program completion could lead to parole in just six months • Yeskey’s hypertension led to corrections officials denying him program participation • Yeskey sued, alleging an ADA violation

39. The Americans with Disabilities Act (ADA): cont’d • Supreme Court held the ADA clearly applies to state prisons • Court disagreed with state claim that the ADA language was ambiguous, that the law was not intended to benefit inmates, and the fact that the inmate was held against his will removed the inmate from coverage under the Act

40. The Americans with Disabilities Act (ADA): cont’d • Court held • Prisons offer many programs that, at least theoretically, are beneficial (act language refers to programs of a public entity) • That the Act does not require the programs to be voluntary • Even if the words did suggest voluntary participation, all prison programs would not be excluded – for example, participation in the boot camp program is voluntary

41. The Americans with Disabilities Act (ADA): cont’d • Other observations about the ADA: • Applies to all types of state and local facilities • Some accommodations would clearly be too costly – such as providing duplicate law books for blind inmates • But readers for the blind could be a reasonable accommodation

42. The Americans with Disabilities Act (ADA): cont’d • ADA does not give inmates in prison industries the legal status of employee for the benefits of the nondiscrimination portions of the act that protect employees • Auxiliary aids of some kind are ordinarily required to assist disabled inmates in program participation • It is permissible at classification or intake to ask the inmate about his disabilities – so long as it is done to ascertain the abilities of the person to participate in programs and activities and whether special accommodations need to be made

43. Tort Claims • Common law torts may be brought against governments if there is statutory permission to do so (if the legislature has waived its sovereign immunity to be sued) • The most frequent tort claims made by inmates are for lost or damaged property, for injuries from assaults, and for medical malpractice

44. Tort Claims: cont’d • If the government is shown to be liable, because of the negligent actions of its employees or agents, payment awards to the injured party are made by the government • Not by the individuals who were negligent

45. Tort Claims: cont’d • This occurs provided the employee is acting within the scope of her employment • In this instance, case will be defended by a government attorney; the individual employee will not need to obtain counsel • Key advice to all staff is to act in accordance with agency policy, procedures, and training

46. Tort Claims: cont’d • If the employee is found to be acting outside his instructions or in violation of policy and practice, he will need to obtain his own representation if a tort claim or tort suit is filed against a corrections agency • The representation costs will have to be paid for by the employee (or by his insurance company, if he carries liability insurance)