Managing Risk in Jails

by Claire Lee Reiss and Mark D. Martin

Managing Risk in Jails

Doing time is something many talk about but few understand. We joke about it, criticize it, debate it and fear it. For those who must run these essential corrective facilities, jail is something else entirely-a set of unique risks that call for a unique brand of risk management. 

Safety and security, both for the public and within the institution, are the core of a jail's mission. Unlike most state and federal prisons, local jails must achieve this despite diverse inmate populations that vary by age, gender, legal status, charge severity, medical and health condition, intellectual capacity, threat level, escape risk, and length of stay. All of these factors combined with a spiraling growth in jail populations, limited resources and the courts' ongoing ambition to protect inmates' rights further complicate risk management within local jails. 

Jails are a critical part of the justice system and, as a public sector responsibility, most states require counties to either operate a jail or house their prisoners in other local government facilities. The local governments usually cannot avoid jail risk. But by making risk management vital to overall jail management program, authorities will be able to accomplish their mission despite these challenges. 

Involuntary confinement of any population is risky. Jail inmates have medical, mental health, addiction and behavioral problems at rates greater than the general population, increasing the danger they pose to the community, visitors, jail personnel, each other and even themselves. 

Furthermore, logistic challenges such as overcrowding, the cohabitation of violent and nonviolent inmates, staff limitations and resource scarcity all present truly unique safety hazards. With all these factors at play, creating a successful jail risk management program depends on identifying the problems and establishing controls that reduce the chances of harm for all involved. 

Naturally, the first concern is protecting the community from the actions of inmates. Jails do this by preventing inmate escape, adopting programs that combat recidivism and promoting successful reintegration into the community. Controlling inmate activity that could threaten the community from inside the jail is another challenge. Jails also must protect members of the community who enter the jail for visitation or administrative purposes. 

After those concerns, the focus turns to protecting inmates from themselves, other inmates and jail personnel-something that must balance safety with the preservation of inmates' rights. Given the criminal underpinnings of inmates, this presents a clear challenge, and the realities of mental illness, drug addiction and other circumstances of confinement only exacerbate the high rates of predatory violence, suicide and self-harm in jails. 

Inmates may also be harmed or exploited by jail personnel, especially custodial personnel in a position of power. Sometimes these people are inadequately trained and supervised or,  worse, they may have behavioral problems of their own. Of course, most staff do not fall into this category and jails must be concerned about protecting their personnel, especially those who work directly with potentially violent or mentally ill inmates and who are therefore most vulnerable to harm. 

In addition to all of this, jails also face the same safety concerns as other residential institutions. Hazardous materials, fire, explosions, attacks from outside and natural catastrophes are all constant threats to cause injury or leave the facility unusable. Communicable diseases, such as tuberculosis for example, are another concern since inmates live in close proximity and many have compromised health. 

Safety First 

The strategies that help jails manage safety risks fall into three categories: facility, operations and administration. 

First of all, jail buildings need adequate capacity, the flexibility to permit proper classification of inmates by risk level and an efficient layout that facilitates activities and services. Staff posts should provide clear visibility into housing areas. The secure perimeter between the jail and the community should include appropriate and well-maintained security, locking, detection and communications systems. And these must always be supported by an emergency power source. Similarly, emergency supplies of food, water and medication are required for temporary disruptions in lifeline services. Most importantly, the facility has to remain compliant with life safety codes, health codes, workplace safety standards and other applicable jail standards. 

Once those requirements have been met, active management of inmate behavior is critical. An admission assessment of each inmate's risks and needs supports classification of inmates for behavior-based housing and supervision. Other strategies include clear communication of inmate behavioral standards, incentives and sanctions, active supervision of inmates, good staff training, and a range of productive activities for inmates. 

Many other protocols are also necessary. Procedures that control inmate access to dangerous materials and objects, for example, will help limit inmate suicide, violence and escape. These include strict security, inventory and access procedures for weapons, tools, utensils and hazardous materials; careful selection of furnishings in inmate areas; and procedures to prevent the introduction of contraband. 

Additionally, strong hygiene, sanitation and workplace safety practices will also limit accidents, injuries and the spread of communicable illnesses. 

Finally comes jail administration. This component of jail risk management is responsible for providing adequate infrastructure, qualified staff, operational frameworks and consistent oversight. Clear policies to guide staff and control inmate behavior become imperative, as do adequate training and supervision for staff. Accountability in all these areas is also key. 

With all the aforementioned protocols in place, officials can then focus on identifying jail vulnerabilities and developing and practicing emergency response procedures. Continuity of operations planning is critical. Jails must plan for an orderly and secure evacuation of inmates to an alternative location if there is a prolonged loss of lifeline services or an approaching natural event, such as a flood or hurricane.  

Preventing Property Loss 

Jails face many of the same threats to their facilities, equipment, furnishings and fleets as other institutions. And they use many of the same strategies to manage and finance the risk. 

Included in this is the reality that jails face an increased risk of vandalism and destruction by inmates, which they address by controlling inmate conduct and access to potentially destructive objects. Jails face a revenue loss or extra expense if severe damage to the facility prevents them from boarding other jurisdictions' prisoners. 

Jails are responsible for safeguarding any inmate personal property confiscated at admission and returning it upon release. This property may include money-which is placed into an inmate trust account upon arrival-jewelry, clothing or other items. Common causes of loss are security breaches in storage areas and mismanagement of inmate trust accounts. Policies and procedures for handling property and money can establish a clear chain of custody that protects the jail from false claims. A secure property room, tamper-proof containers for storage and inventory receipts signed by the inmate are important tools. The inventory should not inadvertently overstate the value of confiscated items. The term "gold colored," for example, should be used to describe jewelry rather than "gold." 

Preserving Inmates Rights 

Litigation against jails is often based on facility conditions and staff actions that allegedly violate inmates' rights. Local governments, jail personnel and sometimes jail contractors are subject to lawsuits under 42 USC ยค1983, which establishes a cause of action against any person who, under the authority of state law, violates federally protected rights. While such litigation has focused on rights guaranteed to inmates under the First, Fourth, Eighth and Fourteenth Amendments of the U.S. Constitution, it has also been used by jail employees, volunteers and victims of escaped or released inmates. 

The body of case law now defines and dictates many details of jail operation. And the control is far broader than most people realize. As such, jail officials have both a "duty to protect" and a "duty to provide due care," which in layman's terms means to keep inmates safe and meet inmates' basic needs. What some view as "frills" within jailhouse operations may actually be mandated by law. 

When lawsuits do occur, they are often filed as class actions and are almost always expensive to defend. The outcome can include both compensatory and punitive damages as well as attorney's fees, an order of injunctive relief or a voluntary settlement, which may force the jail to make prospective changes in its operations and agree to monitoring--sometimes for years. 

As public institutions, jails are also open to greater public and media scrutiny than most private institutions, and the potentially adverse publicity can damage the reputation of the local government and its officials. Given this, some local governments opt to privatize jail functions ranging from nutrition and health care to inmate commissary services. Outsourcing is especially useful for noncustodial services that require staff with special expertise. Overall jail management, in some uses, is outsourced altogether. While this is a logical decision and third party contracts typically include indemnification agreements and require contractors to have liability insurance, this solution does not transfer all risk. The local government retains ultimate responsibility for the jail and, thus, the liability if the contractor's indemnification agreement or insurance fails. And some types of risk-namely, reputational risk-cannot be shared. 

In essence, jail risk management comes down to three key objectives: (1) protecting the safety of the community, inmates, jail personnel and visitors, (2) preventing property damage and loss, and (3) preserving inmate rights. Ultimately, the challenge is to achieve the first and second objectives without compromising the third.

Claire Lee Reiss, ARM, CPCU, is deputy executive director and general counsel of the Public Entity Risk Institute, a nonprofit organization whose mission is to advance the practice of risk management in public entities, and small private and nonprofit organizations. Mark D. Martin is a former chief of the Nebraska Jail Standards program and former administrator of the Nebraska Office of Juvenile Services. He is currently a principal with Justice Solutions Group, a criminal justice consulting firm.  

Reprinted from Risk Management Magazine.
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