Constitutionally and statutorily, the sheriff is responsible for the well-being of the jail inmates committed to his or her custody. “It is but just,” the supreme court once wrote, “that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.” Spicer v. Williamson, 191 N.C. 487 (1926). Still, a jail can charge certain fees. Continue reading
Tag Archives: jails
Inmates do not forfeit the right to practice their religious faith while they are incarcerated. But of course that right is not unlimited. Officers can impose certain restrictions when an inmate’s religious practices would conflict with the institution’s legitimate interests in safety, security, and good order. There is a lot of case law about those restrictions, both as a constitutional matter under the First Amendment, and under a federal statute, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc-1(a)(1)–(2)—which is even more protective of inmates’ rights than the Constitution. Continue reading →
By administrative regulation, North Carolina’s jails are required to have written policies and procedures on inmate rules and discipline. 10A NCAC 14J .0203(a)(5). The only thing the jail regulations tell us about the substance of those policies and procedures is that they may not use food as a reward or punishment. 10A NCAC 14J .0902. Beyond that, the framework for how a jail should handle inmate disciplinary procedures is a question of constitutional due process. A recent case from the Fourth Circuit reminds us what process is due when a jail responds to alleged misbehavior by an inmate. Continue reading →
Today’s post discusses two recent federal cases involving the use of Tasers in North Carolina jails. (The post draws from an article I originally prepared for the North Carolina Jail Administrators’ Association newsletter.) Continue reading →
Handling mail to and from inmates is a challenge for jail administrators. Of course they want to enable inmates to handle their legitimate business (including pending legal matters) and maintain family and community ties. On the other hand, they must be on guard against contraband or inappropriate materials coming into the jail, or inmates participating in crimes or planning an escape from within. Inmates have a constitutional right to communicate with others and to access the courts, but those rights are limited by the jail’s obligation to preserve security, good order, and discipline. This post collects some of the basic legal principles that should be incorporated into the jail’s policy on mail regulation. By state administrative regulation, every jail must have a written policy on handling inmate mail. Continue reading →
What can a jail do when an inmate becomes unmanageably dangerous, or unmanageably vulnerable, or unmanageably sick? Or what about when so many people are arrested at once that the jail cannot house them all? In those situations, the jail may seek to have the inmate transferred to the state prison system through a safekeeping order. Continue reading →
North Carolina inmates are not allowed to have tobacco products, and other people are not allowed to give tobacco products to them. This session, the legislature changed the law—twice—to address the use of vapor products (like e-cigarettes) in our prisons and jails. Today’s post discusses those changes, beginning with some background on existing law. My colleague Jill Moore, expert in public health law, previously wrote more broadly about e-cigarettes here and here, and I credit her with flagging some of the issues discussed below.
Let’s start with existing law. For the state prisons, G.S. 148-23.1 prohibits any person from using or possessing tobacco products on the premises of a State correctional facility, except for authorized religious purposes. The restriction extends to inmates, employees, and visitors, although employees and visitors may keep (but not use) tobacco products in a locked motor vehicle in the parking area. G.S. 148-23.1(b1). Inmates and employees who violate the prohibition are subject to administrative sanctions, while visitors who violate may lose visitation privileges. There is no criminal penalty for a violation. By contrast, under G.S. 14-258.1, any person who gives or sells tobacco products to a prison inmate, or to a non-inmate for delivery to an inmate, is guilty of a Class 1 misdemeanor. G.S. 14-258.1 defines “tobacco product” by reference to G.S. 148-23.1, which previously covered cigars, cigarettes, snuff, loose tobacco, and similar goods used for smoking, chewing, or dipping.
The rules for jails are similar, but not identical. The prohibition on giving or selling tobacco products under G.S. 14-258.1 applies to jails just as it does to prisons. As for possession, G.S. 14-258.1(e) makes it a Class 1 misdemeanor for any jail inmate to possess tobacco products—again defined by reference to the definition in G.S. 148-23.1—other than for authorized religious purposes. The jail prohibition on tobacco possession is different from its prison analogue in three ways: (1) it is a crime; (2) it outlaws only possession, not use; and (3) it does not apply to jail employees and visitors.
That covers the existing law. Let’s review the changes. First, in S.L. 2014-3, a tax bill, the General Assembly expanded the definition of prohibited “tobacco products” in G.S. 148-23.1 to cover “vapor products.” The bill defined vapor products to include nonlighted products that heat liquid nicotine solutions in a vapor cartridge, such as electronic cigarettes, cigars, and pipes. G.S. 148-23.1(d)(3). That revised definition, effective July 1, 2014, applies across the board to the use/possession prohibition for prisons in G.S. 148-23.1(b) and (b1); the possession prohibition for jails in G.S. 14-258.1(e); and the giving/selling prohibition for jails and prisons in G.S. 14-258.1(c). Even though the revised definition itself now covers vapor products, the bill also added clauses to the prohibitions set out in G.S. 14-258.1 to make absolutely clear that they cover all tobacco products, “including vapor products.” The old belt and suspenders approach.
After the bill was signed into law, some sheriffs and e-cigarette vendors expressed concern that the change would prohibit them from providing or selling vapor products to inmates—something that has become a nationwide trend. So they pursued another change to the law. S.L. 2014-115 amended G.S. 14-258.1 again to add a new subsection setting out an exception to the prohibition on giving or selling tobacco products to jail inmates. By virtue of the exception, jails may “give or sell vapor products or FDA-approved tobacco cessation products . . . to inmates while in the custody of the [jail.]” Earlier versions of the bill would have allowed vapor products to be given or sold to inmates only as part of an authorized smoking cessation program (see, for example, Section 23.(a) of the fourth edition of the bill). But given health professionals’ doubts as to whether vapor products should ever be a part of a cessation program, the final version of the law simply allowed jails to give or sell vapor products or cessation products.
The bill also removed the “including vapor products” clause that had been added to “tobacco products” in the possession prohibition for jails in G.S. 14-258.1(e), probably intending to pave the way for jail inmates to possess the vapor products given or sold to them by jail personnel. But recall that those “including vapor products” clauses were merely the suspenders of the aforementioned belt and suspenders approach; the belt was the revised definition of “tobacco products” in G.S. 148-23.1(d)(2), which was amended by the first session law to include vapor products. That amendment was unchanged by the second session law, and so continues to apply—arguably preventing inmates from possessing even properly obtained vapor products. At a minimum, I suspect the legislature intends for it to be a crime for a jail inmate to possess contraband vapor products (those obtained through sources other than the jail itself). Perhaps the scope of any exception to the possession prohibition could be clarified in the future. In the meantime, I doubt as a practical matter that a jail would charge (criminally, I mean) an inmate for possessing the e-cig it sold to him. And if it did, the inmate might have some sort of entrapment by estoppel defense.
So where does that leave us? Let me try to summarize:
- As of July 1, 2014, prison inmates, employees and visitors may not use or possess vapor products on the premises of a state prison facility, except for authorized religious purposes. Those who do are subject to administrative sanctions.
- As of December 1, 2014, it is a Class 1 misdemeanor for any person to give or sell a vapor product to a jail or prison inmate, or to a non-inmate for delivery to an inmate, except that the jail may give or sell vapor products to jails inmates. There is no similar exception for state prison inmates.
- As of December 1, 2014, it appears to be a Class 1 misdemeanor for a jail inmate to possess a vapor product, other than for authorized religious purposes, although that prohibition might not apply to vapor products provided by the jail itself.
Whew. That’s complicated. I don’t smoke or use vapor products, but if I did, I think I might go have one now.
Last week I wrote about how jails sometimes seek to limit medical expenses by having an inmate released. Today’s post is about the related issue of “refusing” an inmate on the front end when it appears he or she is in need of immediate medical attention. Common scenarios include a person who is injured in the course of committing a crime, or an impaired driver who is very drunk. Can the sheriff’s office refuse to accept such a person into the jail? And if so, does that refusal relieve the county of liability for the costs of the person’s care?
Under G.S. 15-126, “every sheriff or jailer to whose jail any person shall be committed by any court or magistrate of competent jurisdiction shall receive such prisoner and give a receipt for him, and be bound for his safekeeping as prescribed by law.” That law indicates that the jail has no choice but to receive a person—even a very sick, very intoxicated, or seriously injured person—once a judicial official has committed him or her to the sheriff’s custody. (Of course, if the person is in bad enough shape, the initial appearance should be delayed. G.S. 15A-511(a)(3) (allowing the initial appearance to be delayed for a reasonable time if a defendant is unruly, unconscious, or grossly intoxicated).)
G.S. 15-126 does not, however, require the sheriff to take every inmate with a signed release order into the jail itself. A sheriff or jail administrator might reasonably have a standing order requiring immediate diversion of would-be inmates with, among other things, certain types of injuries, or a blood alcohol concentration above a particular limit. Such rules are permissible and often sensible, but they generally do not operate to relieve the county of liability for the costs of emergency medical care under G.S. 153A-224(b) once a judicial official has placed the defendant in the sheriff’s legal custody.
What about defendants who haven’t yet appeared before a judicial official? Is the county responsible for the costs of their care? The answer appears to be sometimes, depending on the circumstances of the person’s arrest.
The leading case in this area is Spicer v. Williamson, 191 N.C. 487 (1926). In Spicer, a sheriff’s deputy shot and wounded a man who had resisted his arrest for a robbery. Recognizing that the man was in bad shape, the deputy took him directly to the hospital for surgery. The hospital sued the county for the costs of care. The county argued that it was not liable because the man was not actually confined in the jail. The supreme court disagreed, extending the duty of the county to pay for a person in the custody of the sheriff who is unable, because the of the defendant’s condition, to take him at once to the jail.
The court of appeals applied Spicer in Annie Penn Memorial Hospital, Inc. v. Caswell County, 72 N.C. App. 197 (1984). In Annie Penn, a sheriff’s deputy shot a man who pointed a shotgun at him. The deputy handcuffed the man and took him directly to the hospital for emergency medical treatment. As in Spicer, the hospital sued the county for the costs of the defendant’s care. The county argued that the defendant was not in custody when the care was provided. The court of appeals disagreed, noting that deputies escorted the man into the emergency room, and then asked hospital staff to notify them when the man was ready to be discharged so they could pick him up. The man was therefore in county custody, and the county was obligated under Spicer to pay for the man’s care even though he never actually entered the jail.
Contrast Spicer and Annie Penn with Craven County Hospital Corp. v. Lenoir County, 75 N.C. App. 453 (1985). In Craven County Hospital, a habitual inebriate was picked up by city policy officers under authority of the public intoxication law (then in Chapter 122, now in G.S. 122C-303). They planned to take him to the jail to sober up, but as they helped him from the car he fell and was knocked unconscious. He underwent neurosurgery and eventually died 10 days later. The hospital sued the city, the county, and the sheriff for the costs of the man’s care. The court of appeals determined that the county and the sheriff were not liable because the man never actually came into the custody of any county officer. The court likewise concluded that the city was not liable for the costs of the man’s care—not because the man was not in the custody of the transporting officers, but rather because the General Statutes impose no duty upon cities to pay for medical services provided to persons in police custody. The court recognized the “apparent gap” in the law with respect to a “detainee in medical treatment who happens to be in the custody of city police officers rather than a sheriff or his deputy,” but concluded that “the gap must be filled, if at all, by the General Assembly.”
Some jails do a medical screen of arrestees when they arrive at the jail, before they process before a magistrate. If certain medical issues are identified (serious injury, high BAC, etc.), the jail staff ask the arresting officer to take the person to receive medical attention. Assuming any resultant delay in a person’s initial appearance is not unnecessary in light of the person’s condition, that practice seems a sensible way to get a person the care he or she may need. Ultimately, however, considering the cases discussed above, it appears that the county is still on the hook for the costs of care if the arresting officer was a sheriff’s deputy, but not liable if a municipal officer made the arrest.
The county is generally responsible for the cost of emergency medical care for jail inmates. G.S. 153A-224(b). It’s not always clear what constitutes an emergency, but state regulations include things like “severe bleeding, unconsciousness, serious breathing difficulties, head injury, severe pain, suicidal behavior or severe burns.” 10A N.C. Admin. Code 14J.0101(14). The rules also mention “dental care, chemical dependency, pregnancy and mental health” in a later discussion of emergency medical problems. Id. § 14J.1001(b)(4). Suffice it to say, the definition is broad. If an inmate is insured, the medical provider can bill the insurer first. G.S. 153A-224(b). But many inmates don’t have insurance, leaving the county to foot the bill.
With that backdrop in mind, jails understandably look for ways to limit their liability for inmates’ medical expenses. One way they do that is to seek to have an inmate released, either through the unsecuring of a bond or some kind of reduction in sentence. I know many judicial officials have received a late night call asking for an order to allow for a sick inmate’s release.
There are some potential problems with that sort of thing.
First, the judicial official involved needs to comply with the relevant rules of law and judicial conduct when evaluating any change to the defendant’s bond or sentence. For a pretrial detainee, the prosecutor and the defendant and his or her lawyer would need to be present for a proper hearing in front of the proper judge under the bail article. It would seem that the judicial official would need to consider how the information about the inmate’s medical status changes the evaluation of his or her dangerousness and flight risk. Ultimately, it’s possible that the defendant might not agree to the change to his or her bond, which may leave a dismissal of charges as the only surefire way to effectuate a release. For a sentenced inmate, a judge generally lacks authority to modify a sentence once a court session ends. A judge can shorten a contempt sentence under G.S. 5A-12(c) and a probationary split sentence under G.S. 15A-1344(d), but aside from those situations, a sentence can only be shortened by the governor or through some other form of post-conviction relief.
Second, the jail must take care to follow its medical plan when an inmate falls ill. Under G.S. 153A-224(b), “[i]n a medical emergency, the custodial personnel shall secure emergency medical care from a licensed physician according to the unit’s plan for medical care.” Failure to follow the plan is a crime, and having a policy or routine practice of releasing sick or injured inmates could give rise to civil liability. Cf. Marsh v. Butler County, Ala., 268 F.3d 1014 (8th Cir. 2001) (discussing the issue but finding no liability on the facts of the particular case).
Third, it is incorrect to assume that the county is always relieved from liability for the costs of a person’s case upon that person’s release from custody. In University of North Carolina v. Hill, 96 N.C. App. 673 (1990), for example, a pretrial detainee being held on a $1,500 secured bond became very sick. When he was diagnosed with spinal meningitis, the sheriff’s office contacted a magistrate, who in turn contacted a district court judge to get the inmate’s bond unsecured. Though the inmate was unconscious, the judge ordered the man “released without the necessity of signing bond.” The hospital sued the county for the man’s $100,000 medical bill. The county argued that it should not have to pay once the man was no longer in custody.
The court of appeals ruled in favor of the hospital, finding “nothing in the statutes to support [the county’s] argument that the General Assembly intended that a county . . . could avoid its statutory obligation by releasing from its custody an unconscious prisoner in need of emergency care.” To the contrary, the appellate court concluded, the county “remained duty bound” to secure and pay for the care. Id. at 675. In general a county’s obligation to pay for care ceases when an inmate is released, but Hill shows that liability can continue in certain (seemingly extreme) circumstances.
The bottom line is that judges and jail administrators alike should exercise caution when seeking an inmate’s release for medical reasons. There is no medical emergency exception to the ordinary rules of procedure, ethics, or sentence administration. A related cost-control strategy is for the jail to refuse inmates at the outset, requiring instead that they receive medical attention before being accepted into the facility. There are some issues with that practice as well, which I’ll cover in a future post.
I’m just getting back to work after a leave of absence, and I’m still getting caught up on some major cases that were decided while I was out. One such case is Florence v. Board of Chosen Freeholders, __ U.S. __, 132 S. Ct. 1510 (2012), the jail strip search case recently decided by the Supreme Court. I wrote about that subject in this prior post, but the Court’s new opinion in Florence changes the legal landscape and calls for an update.
In Florence, the Court considered whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of everyone arrested for any minor offense, no matter the circumstances. The petitioner in the case, Albert Florence, was arrested during a 2005 traffic stop based on an outstanding warrant for failing to appear in a prior criminal case. There is some indication that the warrant shouldn’t have been in the officer’s computer system at all—Mr. Florence had long since paid the fine that had led to its issuance—but it nevertheless led to seven days of confinement in two county jails in New Jersey. At both jails, Mr. Florence was, pursuant to standard operating procedures, subjected to non-contact searches that involved removing all of his clothing and manipulating his body so officers could check for body markings, medical issues, and contraband.
Florence sued the jails under 42 U.S.C. § 1983, claiming it violated the Fourth and Fourteenth Amendments to perform a search like that on a person arrested for a minor offense as part of the routine intake process, without reasonable suspicion that he was dangerous or likely to be concealing contraband. Mr. Florence won in the district court but the Third Circuit reversed, 621 F.3d 296 (2010), holding that the jails’ search procedures struck a reasonable balance between inmate privacy and jail security. The Supreme Court granted certiorari to resolve a circuit split on the question of whether the constitution allows jails to conduct suspicionless strip searches of everyone admitted to a jail’s general population.
A divided Court affirmed the Third Circuit, with five Justices upholding the searches. Writing for the Court, Justice Kennedy began by noting that running a jail is difficult and the courts should, as a rule, defer to correctional officials as long as their policies are reasonably related to legitimate penological interests. He then spelled out why a blanket policy of searching everyone is reasonable. First, strip searches aren’t just for weapons and drugs—they also detect medical issues like lice and body markings like gang tattoos, both of which might necessitate segregating some inmates from the general jail population. Second, searches of only those reasonably suspected of being dangerous or possessing contraband would be underinclusive. “People detained for minor offenses can turn out to be the most devious and dangerous criminals.” After all, the Court noted, Oklahoma City bomber Timothy McVeigh was stopped for driving without a license plate, and one of the 9/11 terrorists was ticketed for speeding just days before the attack. Slip op. at 14. And finally, a rule requiring jails to figure out which inmates were dangerous before searching them would be difficult to administer. For instance, officers often lack ready access to comprehensive information about an arrestee’s prior criminal record. More generally, the Court was reluctant to call upon officers to engage in difficult line-drawing exercises during the “pressures of the intake process,” and so it opted for a bright-line rule. Id. at 17.
The Court concluded by noting that the facts of the Florence case did not require it to rule on whether a strip search would be reasonable for a detainee who would not be assigned to the general jail population. Chief Justice Roberts and Justice Alito each wrote concurring opinions to emphasize that exceptions to the Court’s rule might emerge in the future. In particular, Justice Alito noted that the opinion did not consider whether it would be reasonable to conduct a full strip search of an arrestee whose detention had not been reviewed by a judicial official, or for whom facilities apart from the general population might be available.
Justice Breyer authored a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. He began by noting the longstanding rule that “[p]rison walls do not form a barrier separating prison inmates from the protection of the constitution.” Turner v. Safley, 482 U.S. 78 (1987). He then walked through the balancing test set out in Bell v. Wolfish, 441 U.S. 520 (1979), weighing the need for the search against the invasion of rights it entails. For him, the invasiveness outweighed the need in light of the alternatives available (metal detectors and other technologies, for example) and the lack of a record of specific record of instances where contraband was smuggled into a general jail population that could not have been discovered through searches based on a reasonable suspicion standard.
After Florence, a jail may have a policy of strip searching all arrestees who will enter the jail’s general population without any need for individualized suspicion. That’s new in this neck of the woods, as the Fourth Circuit was pretty clearly among those where such searches could only be conducted with reasonable suspicion that the arrestee possessed a weapon or other contraband. See Logan v. Shealy, 660 F.2d 1007 (4th Cir. 1981). I say “pretty clearly” because the Logan case actually involved a suspicionless search of an arrestee who was not admitted to the general jail population. Rather, she was detained in a separate holding cell at the jail. With that in mind jailers should continue to limit strip searches for those who will not enter the general jail population to circumstances where they have a reasonable suspicion that the arrestee possesses contraband. Moreover, in light of the 5–4 split in Florence, jailers may wish to pay careful attention to Justice Alito’s observation that the Court’s new rule might not apply to offenders who have yet to appear before a judicial official.
Finally, jailers should keep in mind the nature of the particular searches at issue in Florence, as the term “strip search” might mean different things in different places. The searches in Florence included, at one of the jails, an observed clothing exchange, showering, a visual inspection for body markings, and requiring the arrestee to open his mouth, lift his tongue, hold out his arms, turn around, and lift his genitals. At the other jail, officers inspected his “ears, nose, mouth, hair, scalp, fingers, hands, arms, armpits, and other body openings,” and required him to “lift his genitals, turn around, and cough in a squatting position.” Slip op. at 3. Importantly, officers never touched arrestees in any way, and the searches were apparently conducted professionally without “intentional humiliation and other abusive practices.” Id. at 19. A good search policy would probably offer a particularized description of what it means by “strip search,” as well as a reminder that an otherwise reasonable and permissible search can be spoiled by being conducted in an unprofessional manner.
(In closing, I’d like to publicly thank my colleagues for covering my work during my leave. Thanks!)