(9‘ 367/7

LIBRARY
Michigan State
University

This is to certify that the
thesis entitled

The Impact of Law on Juvenile Detention Facilities

presented by

Wendy Jackman

has been accepted towards fulfillment
of the requirements for the

Master of degree in Criminal Justice
Science

 

 

 

 

Major Professor’s Sigdature

08/23/05

 

Date

MSU is an Affirmative Action/Equal Opportunity Institution

 

 

PLACE IN RETURN Box to remove this checkout from your record.
TO AVOID FINES return on or before date due.
MAY BE RECALLED with earlier due date if requested.

 

DATE DUE DATE DUE DATE DUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

i 6/01 c:/ClFiC/DatoDue.p65-p.15

L __ _ _ -_ _ U.

 

 

THE IMPACT OF LAW ON JUVENILE DETENTION FACILITIES
By

Wendy Jackman

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF SCIENCE

Department of Criminal Justice

2005

ABSTRACT

The Impact of Law on Juvenile Detention Facilities

By

Wendy Jackman

This study examines whether the threat or fear of civil liability litigation
provides a greater impetus than direct judicial order(s) for shaping and/or re-
shaping policies, practices and procedures that govern juvenile detention
facilities. Using Rosenberg’s theory of The F ly-Paper Court, which proffers that
judges are powerless to effect significant social reform because of their lack of
implementation powers, and courts provide an illusion of change, an electronic
survey was created and distributed to 180 juvenile detention administrators
across the United States. The results, though not conclusive, reveal that
administrators express greater concern that their policies, practices, and
procedures are fashioned in accordance with the American Correctional
Association (ACA) guidelines and/or state regulations, as opposed to direct

judge-made rule or judicial order(s)

To the pillars in my life: my mother, Noreen Jackman and aunt, Marlene Elcock.

iii

ACKNOWLEDGEMENTS

I would like to express my gratitude to my thesis Chair, Dr. Christopher
Smith, and my committee members, Dr. Homer Hawkins, and Dr. Vincent
Hoffman for their time and unwavering support, and for allowing me to benefit
from their scholarly input and wisdom towards the completion of this project.

I would also like to extend my appreciation to Mr. Larry Miesner for his
invaluable contribution, and Ms. Vemie Nichols for donating her skill towards this

endeavon

iv

TABLE OF CONTENTS

INTRODUCTION ................................................................................... 1
CHAPTER 1
THEORETICAL FRAMEWORK ................................................................ 5
Review of Literature .............................................................................. 8
CHAPTER 2
METHODOLOGY ................................................................................. 27
CHAPTER 3
RESULTS .......................................................................................... 30
Survey Instrument ........................................................................... 30
Research Questions ........................................................................ 30
CHAPTER 4
DISCUSSION ..................................................................................... 35
Findings ......................................................................................... 35
Conclusion & Recommendations ......................................................... 38
APPENDIX ........................................................................................ 41
BIBLIOGRAPHY ................................................................................. 46

Introduction

Law and law-making institutions assert an immeasurable influence on
society, providing the foundation upon which policies, practices, and procedures
within criminal justice institutions stand. This thesis presents a study on the
impact of law on juvenile detention facilities. By conducting a national survey,
this study seeks to examine juvenile detention administrators' perceptions and
laWs impact on their policies, practices, and procedures.

Legal norms and institutions have frequently been called upon to address
problems and effect change, specifically within correctional facilities. Until the
19605 the separation of powers among the executive, legislative, and judicial
branches of government was presumed to prevent the courts from intervening in
the operations of any executive agency. Judges presumed that because they
were not penologists, their intervention in the internal administration of prisons
would disrupt prison discipline. They also believed that prisoners did not have
the same rights as free citizens under the Constitution. This belief was well
stated by a Virginia judge in Rufl‘in v. Commonwealth (1871): “The prisoner has,
as a consequence of his crime, not only forfeited his liberty, but all his personal
rights except those which the law in its humanity accords to him. He is for the
time being the “slave of the state” (Clear & Cole, 1997).

However, since the late 19605 the courts have become increasingly
involved in prison matters. The end of the traditional hands-off policy‘ was
signaled by the US. Supreme Court decision in Cooper v. Pate (1964), which

stated that prisoners in state and local institutions are entitled to the protections

 

1 A judicial policy of noninterfercnce in the internal administration of prisons.

of the Civil Rights Act of 1871. The justices ruled that a prisoner could sue a
warden or other official under Title 42 of the United States Code, Section 1983
(42 U.S.C. 1983), which imposes civil liability on any state or local official who
deprives someone of federal constitutional rights. In that ruling, the Court
recognized that prisoners are persons whose rights are protected by the
Constitution, and prisoners could use the federal courts to challenge the
conditions of their confinement in state and federal institutions (Clear 8 Cole,
1997). As Jacobs (1983) points out, “Just by opening a forum in which prisoners'
grievances could be heard, the federal courts destroyed the custodian's absolute
power and the prisoners' isolation from the larger society. And the litigation in
itself heightened prisoners' consciousness

The amount of prisoner-initiated litigation skyrocketed after Cooper v. Pate
(1964). The number of suits brought by state prisoners and pending in federal
courts alone rose from 218 in 1966 to 26,824 in 1992 (Clear & Cole, 1997). The
first successful cases concerning prisoners' rights involved the most excessive
prison abuses: brutality and inhuman physical conditions. For example, in 1967
the Supreme Court invalidated the confession of a Florida inmate who had been
thrown naked into a “barren cage,“ filthy with human excrement, and kept there
for 35 days. Gradually, prisoner litigation has come to focus more directly on the
daily activities of the institution, especially on administrative rules governing
inmates' conduct. In 1969 the Supreme Court ruled in Johnson v. Avery that
prison officials could not prohibit one inmate from acting as a jailhouse lawyer for

another inmate unless the state provided “some reasonable alternative to assist

inmates in the preparation” of a claim. This was followed in 1977 by Bounds v.
Smith, in which the court required that inmates have access to law libraries or to
persons trained in the law (Clear 8. Cole, 1997).

We live in a litigious society, and the field of criminal justice is hardly
immune to lawsuits. Those who support a system of civil liability for criminal
justice officials argue that lawsuits deter harmful behavior and provide needed
compensation to victims of misconduct and negligence (Lambert, Hall & Ventura,
2003). There is a substantial amount of literature on civil litigation against police
officers, their attitudes and perceptions, as well as the factors responsible for and
subsequent effects of such litigation (e.g. del Carmen, 1991: Kappeler et. al.,
1991; Kappeler, 1993: Kappeler et. al., 1993; Vaughn & Coome, 1995; Vaughn,
1999; Kappeler, 2001; Pipes & Pape, 2001; Silver, 2001; Stevens, 2001; Vaughn
et al., 2001; and Worrell, 2001 ). However, comparatively little or no research has
been conducted on civil liability vis-a-vis adult and/or juvenile correctional staff.
Lambert, Hall and Ventura (2003) noted that, “No studies could be located that
examined the perceptions of correctional staff members on the issue of civil
liability; it is therefore necessary to use the articles on the perceptions of police
concerning civil lawsuits as a stepping stone.“

Consistent with a focus on law enforcement, Smith and Hurst (1997)
conducted a national survey of police executives. The survey revealed that civil
liability lawsuits led to law enforcement policy changes more frequently than
constitutional decisions by the Supreme Court within recent years. According to

the authors, among those respondents who cited pre-1985 cases as the most

recent policy changes from judicial decisions, nearly 80 percent pointed to
appellate constitutional decisions rather than trial court civil liability cases. By
contrast, among cases cited since 1991, a majority were concerned with civil
liability issues rather than appellate constitutional decisions. For recent 1994 and
1995 cases cited as spurring policy changes, nearly two-thirds were civil liability
cases (Smith 8. Hurst, 1997). Modeled after this study, my thesis will examine
civil liability within a juvenile corrections context. My study hypothesized that the
threat/fear of civil liability provides a greater impetus for policy change(s) than

judicial order(s).

CHAPTER 1: THEORETICAL FRAMEWORK

Theory

The theory of the Fly-Paper Court proffered by Rosenberg (1991)
suggests that courts are “powerless” to produce change or significant social
reform primarily because of “their lack of implementation powers“ (p. 336). At the
core of his proposition is the belief that “turning to courts to produce significant
social reform credits courts and judicial decisions with a power that they do not
have” (p. 338). His accusation of misplaced confidence solely addresses a
judge-made rule or judicial order, he argues that courts and/or judicial orders are
only effective when pre-existing conditions that facilitate change are present.

Rosenberg (1991) adopts an almost cynical view of litigation as
instrumental in effecting social reforrnlchange. Through his eyes, litigation
seeking remedial orders by judges is presented as largely symbolic and “siphons
off crucial resources and talent” (p. 339). Essentially, courts “serve an
ideological function of luring movements for social reform to an institution that is
structurally constrained from serving their needs, providing only an illusion of
change” (p. 341). He argues that judges impact on social policy and societal
change is limited by three separate constraints built into the structure of the
American political system: the limited nature of constitutional rights, the lack of
judicial independence, and the judiciary’s lack of power of implementation.
These constraints can be overcome when: ( 1) there is “ample legal precedent for
change”; (2) there is “support for change from substantial numbers in Congress

and from the executive”; and (3) “there is either support from some citizens or at

least low levels of opposition from all citizens,“ in addition to one of the following
four conditions: (a) positive incentives to induce compliance; (b) costs to induce
compliance; (0) a market mechanism for implementation; or (d) administrators
and officials crucial for implementation who are willing to act and see court orders
as a tool for leveraging additional resources or for hiding behind (Sturm, 1993).
In other words, effective policy change depends on factors external to the
judiciary; judges cannot foster change on their own.

In essence, Rosenberg negates the efficacy of litigation to produce social
reform/change. He contends that there is no existing data suggesting “that court
decisions mobilize supporters of significant social reform”. Rosenberg compares
the contribution of courts vis—a-vis the involvement of Congress and the executive
branch in the arena of civil rights. Using the Board v. Board of Education
decision as his platform, he posits that,

Before Congress and the executive branch acted, courts had virtually no

direct effect on ending discrimination in the key fields of education, voting,

transportation, accommodations and public places, and housing.

Courageous and praiseworthy decisions were rendered, and nothing

changed. Only when Congress and the executive branch acted in tandem

with the courts did change occur in these fields. In terms of judicial
effects, then, Brown and its progeny stand for the proposition that courts
are impotent to produce significant social reform (pp. 70-71 ).

Additionally, Rosenberg states that “there was growth in the membership
and activities of pro-segregation groups such as the White Citizens Councils and
the Ku Klux Klan in the years after the Brown v. Board of Education” decision

(pp. 341-342). He uses this as evidence of the possibility that judicial

intervention is counter-productive. Rosenberg concludes that the threat of

“federal fund cut-off” to a Southern school board provides a greater incentive for
desegregation than a judicial order.

Rosenberg is seemingly persuaded that litigation in the form of a judicial
order(s) will be perfunctory without the cooperation of insiders, that is, the
administrators and staff of the institution subject to litigation or reform. Judges
lack the capacity to ensure compliance with, and avoid unanticipated
consequences of judicial orders, not withstanding the fact that judicial
intervention invites public scrutiny of the administration. This in turn may
contribute to the demoralization of staff manifested in resistance and
disobedience to judicial orders.

In light of the ensuing debate surrounding judicial intervention and the role
of the judiciary in public policy, the author of an article in the Yale Law Review
(1979), asserts that “bureaucrats may willingly favor judicial intervention. The
court's intervention might secure a level of funding that the bureaucrats would not
have obtained through the normal political process“ (p. 517). In defense of
judicial intervention, the author surmises that judges are poised “to fashion a
rational plan bemuse they are relatively free 'of the pressures of lobbyists,
bureaucracies, and interest groups. Courts, in sum, can create the apparatuses
needed to make and monitor decisions“ (p. 518).

My study raises the issue of civil liability and its role in policy-makinglre-
shaping within juvenile detention facilities. My hypothesis is that the threat or
fear of civil liability provides a greater incentive than judge-made orders for

juvenile detention administrators to implement changes or re-shape the policies,

practices, and procedures that govern their facilities. If the responses to the
survey indicate that civil liability is more powerful, these results may serve to
reinforce Rosenberg’s theory that courts indeed provide an “illusion of change,”
that direct judicial orders are less powerful than generally believed for shaping
policy and procedure in institutional settings.

Review of Literature

Smith and Hurst (1997) sought to evaluate the impact that civil liability
cases and constitutional decisions have as a source of, and influence over, law
enforcement policies and practices by conducting a national survey of police
executives. In this 1996 survey, 150 survey forms were sent to a sample of
police executives representing a diverse mix of agency sizes and geographic
regions. Fifty forms were sent to “large” agencies, which were defined as those
that contained 1,000 or more sworn officers. Additionally, in an effort to ensure
national representation among respondents, 50 forms went to “small“ agencies,
which were defined as those that contained 25 to 90 sworn officers (Smith 8
Hurst, 1997).

Forty-two percent of the respondents recalled when one of their agencies'
policies or training practices changed as a result of a US. Supreme Court
decision, 60% believed that the US. Supreme Courts recent constitutional
decisions had little impact or made their jobs easier, while nearly 80% believed
that recent trends in trial court civil liability mses made their jobs more difficult.
According to Smith and Hurst (1997), “the increased frequency and

contemporary predominance of civil liability cases as a source of policy change

may indicate that such cases have recently assumed greater importance than
constitutional decisions as an influence over law enforcement policies and
practices.” The authors suggest that civil liability decisions have recently had
especially important effects in shaping law enforcement policies and practices.

Barrineau (1994) accurately and succinctly noted that criminal justice
liability is an important and growing field. However, there is a noticeable
absence of research on civil liability involving staff within adult and/or juvenile
correctional facilities. Lambert, Hall and Ventura (2003) while pleading for future
research on civil liability and its implications for staff at correctional facilities,
reported the findings of their exploratory study to determine the attitudes,
experiences and perceptions of the staff at a county jail in Florida about civil
liability. The study yielded a total of 107 completed surveys, a response rate of
60 percent. The authors found that slightly less than half of the jail staff believed
that they had been adequately educated in civil liability or that their department
would support them if they were sued in the performance of their duties.

A mere 13% reported knowing of a specific policy that had been changed
because of litigation, and 68% reported knowing of no litigation-related policy
change. In addition, among those respondents who reported knowing another
jail staff member who had been sued: 17% reported knowing only one person
who had been sued, 40% reported knowing two staff members who had been
sued, 13% reported knowing three people who had been sued, and 30%
reported knowing four or more individuals who had been sued (Lambert, Hall &

Ventura, 2003). The authors are persuaded that these findings have implications

for jail administrations, particularly in terms of the need for staff training on civil
liability.

In its landmark decision Monroe v. Pepe (365 US. 167, 1961), the US.
Supreme Court began the process of resuscitating the Civil Rights Act by holding
that abuse of state delegated authority constituted action under color of Iawz for
purposes of Section 1983 jurisdiction. Prior to Monroe, the Civil Rights Act of
1871 was enacted by Congress to allow citizens whose constitutional rights were
violated as avenue of redress. Congress enacted this legislation in large part
because of the failure of state governments in the south to control the lawless
behavior spurred by activities of the Klu Klux Klan following the Civil War.
Congress was interested in providing a federal remedy for the violation of
individual constitutional rights. Lawsuits brought under this legislation are now
known as Title 42 United States Code Section 19833 as they provide a remedy
for deprivation of civil rights (Ross, 1997). Section 1983 lawsuits claim that state
officials have deprived the prisoners of their constitutional rights, such as
adequate medical treatment, Estelle v. Gamble, 429 US. 97, 103 (1976);
protection against excessive force by correctional officers, Hudson v. McMilliam,

112 US. 995 (1992); violence by other inmates, Farmer v. Brennan, 114 US.

 

2 In Screws v. United States. 325 US. 91 (1945), the Court held that a sherifs fatal beating of a black
prisoner constituted conduct “under color” of the law. In effect, the Court, through Justice Douglas,
defined “under color” of the law as meaning “under the pretense” of law. Thus, at least in criminal
actions under the Civil Rights Act, conduct “under color of law” encompassed unauthorized, and indeed
unlawful, conduct of a state officer, as long as the “pretense” of authority with which he acted furthered

3 the constitutional violation in any way (Barrineau, 1994).

Every person, who under color or any statute, ordinance, regulation, custom, or usage of any State or
Territory, subjects or causes to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress.

10

1970 (1994); due process in disciplinary hearings, Wolff v. McDonnell, 418 US.
539 (1974); and access to awarded money damages or other relief, Bounds v.
Smith, 430 US. 817 (1977).

Prior to Monroe, it was extremely difficult to hold individual police or
correction officers liable under Section 1983 because they had to be performing
actions under color of law. Before 1961, the accepted interpretation of Section
1983 was that a state official who acted in violation of state law was not acting
under color of state law. Monroe changed and expanded this concept of acting
under color of law to include actions of the police or correction officials who were
authorized by state law or by departmental policy. As a result, correctional
officers can be held liable for their actions or omissions under Section 1983
(Ross, 1997).

Monell v. Department of Social Services of the City of New York (436 U. S.
658, 1978) represents another crucial decision regarding civil liability. The
Monell decision held that lowl entities of government may be liable for
unconstitutional action if taken on the part of the officer who is performing actions
in accordance with the agency's policy or custom. This case has signifimnt
bearing to corrections as both the individual officer and the department can be
held liable for actions or inactions. Monell has encouraged the filing of numerous
lawsuits against both jail and prison facilities and officers on the idea that if an
officer is unable to pay for damages, the government entity will, if custom and

policy can be established (Ross, 1997).

11

Both Monroe and Monell were instrumental in opening the door for
prisoner litigation in corrections. After the Cooper case, the 19603 through the
19705 witnessed a marked increase in prisoner litigation filed in federal courts.
This correctional legal period has been characterized as the “hands-on—doctrine,”
“judicial activist,” and/or “interventionist” era (Ross, 1997). In the first year (1966)
that the Administrative Office of the US. Courts recorded prisoner filings, there
were only 218 cases filed. In 1970, the number climbed to 2,030, and by 1994,
the number increased to 36,318 (Ross, 1997). In response to a survey
conducted by Correction Compendium, 47 states reported that $2.7 million were
awarded in compensatory damages, punitive damages, and attorney fees in
cases lost to and settled with prisoners during 1983 and 1984 (Ross, 1997).

Sturm (1993) notes that litigation contributes to inmate violence by raising
inmates' expectations, undermining prison officials' authority, widening the gap
between administration and staff, and limits the discretion of prison officials.
Other researchers suggest that judicial intervention has the inherent ability to
destabilize the authority of organizational administrators and staff (Ekland-Olson
& Martin, 1990). Dilulio offers two schools of thought regarding judicial
intervention, judicial activism and judicial restraint. Judicial activism maintains
that the judges’ intervention has been both constitutionally proper and highly
effective, that where judges have intervened, prison conditions have improved
(Dilulio, 1990). Judicial restraint suggests that judges’ intervention has been
both constitutionally irresponsible and largely ineffective. According to Dilulio,

judges are democratically unaccountable “generalists” lacking the expertise and

12

resources to determine appropriate correctional policies and practices. Where
judges have intervened, costs, prison violence, and other problems have
mounted.

Several authors, Jacobs (1977); Hopper (1985); Crouch and Marquart
(1989); and Yackle (1989) examine the impact of litigation on prison systems via
judicial order(s). These examples, although anecdotes, help to provide
justification for my study and hypothesis. With a penchant for detail, the authors
describe conditions and/or practices of diverse prison systems that were deemed
unconstitutional and the intervention strategies reflected in litigation that resulted
in immediate impact. Although litigation has been credited with transforming
these prison conditions, mention must be made of the often unintended
consequences and opposition that accompanied such intervention.

Employing methods such as participant observation; document analysis;
records sampling; and survey research, Jacobs (1977) portrays the Stateville
penitentiary as an entity unto itself, autonomous in nature and exclusive of its
institutional environment. Plagued with instability and inefficiency, the
penitentiary fell prey to external institutional pressure from the federal courts,
resulting in a number of cases being filed between 1954 and 1961.

The increasing number of black inmates and a societal rise in “black
nationalism“ were intervening factors in the institutional concentration of Black
Muslims; a religious sect that challenged the institutional authority of
administrators and officers concerning conditions of confinement. The first

Section 1983 of the Civil Rights Act was filed against Stateville in 1962 arguing

13

for the recognition of the Black Muslims as a religious group. The case, COOper
v. Pate (1964), was challenged by Stateville administrators claiming that any
concessions made to the Muslims would undermine correctional control. The
administrators and staff viewed the intervention of the court as illegitimate; they
resisted and found ways to circumvent new rules.

This ruling in favor of the Black Muslims became the first instance of court
ordered reform penetrating a once autonomous institution. According to Carroll
(1998), for 15 months after the order was entered, corrections officials outrightly
defied the court order, publicly denigrated the judge, and threatened to file suit to
dismiss the special master and have his staff investigated for criminal charges.
Although corrections officials' resented the intrusion, their motivation to comply
with court orders emanated from their fear of being sued. Jacobs (1977) notes,
“The decision makers don't like to be sued, hate going to court, and fear personal
liability.” The author also notes that changes in the prison mirrored changes in
the broader society, such as, the civil rights movement; pressure from media and
activists; and the introduction of trained professionals as administrators, rather
than from direct judicial orders. The legal process itself and the symbolic
importance of the decisions, not their substance, destabilized the traditional
regime.

Nazareth Gates and three other inmates sought relief from the conditions
and practices of the Mississippi State Penitentiary. The penitentiary was
represented in the person of John Collier, the superintendent at the time; thus,

Gates v. Collier (1971) was born (Hopper, 1985). The prisoners contended that

14

their confinement deprived them of rights guaranteed by the First, Eighth,
Thirteenth, and Fourteenth Amendments.

The major issues in Gates included, but were not limited to, racial
segregation; housing units were unfit for humans, that is, the water supply was
contaminated and the sewage system was inadequate which led to the spread of
infectious diseases; inadequate medical staff and facilities; prisoners were
confined to a “dark hole” without clothes, hygiene materials, and adequate food
for up to 72 hours; inmates were subjected to corporal punishment and were
given laxatives as punishment, some were deprived of clothing, adequate
bedding, and food; and inmates who were subjected to disciplinary actions for
violating prison rules were not informed of the charges against them, and were
denied the right to present witnesses on their behalf (Hopper, 1985).

Judge Vlfilliam C. Keady's ruling on these conditions delivered on October
1972 was an indictment of the leadership and practices of the penitentiary
officials. Wherever possible, he ordered the violations to be changed at once.
Segregation of inmates by race and mail censorship were immediately curtailed.
In addition, he issued rulings on petitions regarding disciplinary proceedings, law
libraries, religious rights of inmates, and medical care. Perhaps most important
in impact was a 1975 ruling which ordered that each inmate be provided at least
50 square feet of living space (Hopper, 1985).

Hopper (1985), while recognizing the value and role of litigation in
transforming conditions at the Mississippi Penitentiary adds two sobering points.

Firstly, he asserts that the Federal Court's intervention simply expedited changes

15

already in place, and facilitated changes in areas that were “lagging behind.” He
notes that the prison “had taken long strides in the changing treatment of
inmates by the time the court interceded (p. 61). Secondly, he notes
(regrettably) that the Gates decision changed the landscape and nature of the
relationships within the institution. He states,

“While Mississippi has been forced to move into the mainstream of

American corrections, the small units and the informal nature of its old

system have been lost. Vlfith the loss of informality and the creativity

which sprang from it, Mississippi's penitentiary has become just another

prison in which security and uniformity prevail (p. 54).

Crouch and Marquart (1989) provide a detailed account of the Texas
prison system before and after litigated reform. The authors begin by
acknowledging the role of the courts in improving prison conditions, stating that
with at least 80% of the state prison systems having experienced some type of
court order to reform, judicial intervention has become a widespread correctional
reality.

Both authors surveyed and interviewed recruits and veteran officers in
1979 and 1980. Marquart worked as a uniformed guard from 1981 through 1983,
the period when dramatic changes in Texas prison security were implemented.
In addition, he and Crouch visited many Texas Department of Corrections (TDC)
units regularly throughout the 1978—85 period and had numerous informal
conversations with administrators, guards, and prisoners (Rhodes, 1992). Ruiz
v. Estelle (1980) became the catalyst for the most comprehensive action suit in

correctional law history. David Ruiz, a Texas prisoner, filed a suit in federal court

against TDC and its Director, W.J. Estelle Jr., challenging the living and working

16

conditions within the prison. In that suit, Ruiz complained that the state's prisons
were, inter alia, physically deteriorated, dangerous for prisoners and
overcrowded (Crouch & Marquart 1989).

Before Ruiz v. Estelle (1980), Texas prisons enjoyed a national reputation
for effective management and a “firm but fair“ security system. The system's
order and stability were based on an elaborate control structure developed over
several decades which the authors describe as utilizing three major, largely
informal mechanisms: 3 highly organized subculture among correctional officers,
a wide array of punishments and rewards used to secure inmate conformity, and
a practice of co-opting the inmate elite by employing its members as guards
(Crouch & Marquart 1989).

After years of legal conflict and a lengthy trial, presiding Federal District
Judge William W. Justice ruled in favor of the plaintiff. His scathing opinion
detailed, among other problems, TDC's denial of adequate legal and medical
services and failure to protect prisoners from the brutality of guards and inmate
elites, otherwise known as “building tenders,”4 all in overcrowded facilities. For
the judge, these conditions rendered unconstitutional TDC's control system,
management style, and physical structure. Thus, he ordered reforms involving
conditions of confinement (fire and work safety, sanitation), overcrowding, access
to courts, medical care, discipline procedures, and prisoner supervision and

control (Crouch & Marquart, 1989).

 

4 Building Tenders were dominant inmates who worked directly with officials to enforce order and
maintain control. They primarily served as conduits of information.

17

However, the authors argue that judicial intervention caused an increase
in violence as corrections officers lost their absolute power and prisoners
became more assertive. The Texas Department of Corrections resisted the
court-mandated reforms for a significant period of time. The reforms challenged
values deeply ingrained in the organization's culture and supported by the larger
political community; they also required a substantial increase in the correctional
budget at a time when the Texas economy was in a severe downturn (Rhodes,
1992).

During 1984 and 1985, the prison administration's control became
tenuous; violence among inmates and between inmates and staff reached all-
time system highs (Rhodes, 1992). There was an increase in “rapes, assaults,
murders, and other forms of prison disorder,” as well as a “demoralized and
beleaguered staff’ (Crouch & Marquart, 1989). Gang activity, sales of drugs, and
prostitution increased as the old methods for maintaining discipline were
dismantled (Rhodes, 1992). Dilulio (1987) states that the disorder and violence,
which swept the Texas prisons in the aftermath of the Ruiz decision was not due
to the dismantlement of a totalitarian system of repression, but to the
administrative instability and abandonment of the formal system of control.
Although the court was not directly responsible for what happened, in Dilulio's
opinion, it nonetheless played a key role. He notes that events might have taken
a different turn had Judge Justice been,

.. more judicious, his information better, his appreciation for what TDC

had achieved in the past less unkind, and his preoccupation with its sores

less total, or if he and his aides had troubled themselves to consider the
possible unintended consequences of their sweeping actions, there can

18

be no doubt that things would not have degenerated as they did. The new

legal framework imposed on TDC was not a “straitjacket”; rather it was

more nearly a poorly designed and ill-fitting suit which the agency was
rushed into wearing and which eventually, and predictably, burst at the

seams (Carroll, 1998, pp. 14-15).

In his book Reform and Regret, Yackle (1989) vividly describes Alabama’s
prison conditions as “unfit for human habitation, filthy, noisy, dimly lit,
unventilated, vermin-infested, pipes and windows broken, toilets would not flush
and electrical wiring exposed.”

The book evolves around two cases that ignited penal reform: Pugh v.
Sullivan (1972) and James v. Wallace (1972). According to the author, the twin
themes of overcrowding and violence appeared in the complaint filed by Jerr}l
Lee Pugh, one of comparatively few white prisoners assigned to live with a large
number of black inmates in a 200-bed dormitory. Racial tensions were
heightened and Pugh was badly beaten and left to die, his medical records
showed that he sustained multiple lacerations and fractures and part of his skull
was crushed. On the other hand, a claim developed in the James case that
prisoners were entitled not only to protection from abuse at the hands of penal
authorities and other inmates, but to educational and vocational programs for
their benefit (Yackle 1989).

Federal District Judge Frank Johnson held that the “totality of
circumstances” in the prison system violated the Eight Amendment and ordered
state authorities to make numerous changes in the prison system to eliminate

unconstitutional conditions. Judge Johnson enumerated a list of things to be

accorded to inmates in the “Minimum Constitutional Standards for Inmates of

19

[the] Alabama Penal System” (Yackle, 1989). Under these “minimum
constitutional standards,” prisoners were to regularly receive specified clothing,
linens, storage lockers and other personal items, each prisoner was entitled to at
least 60 square feet of living space with “meaningful” jobs and a chance to enroll
in “basic” education or “vocational training programs.” In addition, he required
that prisoners be classified and separated on the basis of their propensity for
violence, educational and vocational needs, and their qualifications for
“community-based” facilities (Yackle, 1989).

As evidenced, judges lack complete control and cannot necessarily
guarantee implementation. Yackle expresses his ambivalence about the efficacy
of the federal court's intervention with what he sees as its limited impact and
failure to make fundamental changes in penal policy. He describes the failure of
the court's effort to reform Alabama's system for classifying inmates for purposes
of determining custody grades and program assignments. The court ordered
defendants to contract with an outside organization to implement a new
classification plan. The Prison Classification Project (PCP) developed new
procedures and criteria for classification and reclassified all inmates in the
Alabama prisons. A year after PCPs departure, an expert found “little trace of
the work that [PCP] had done” (Sturm, 1993). Over a two-year period, not much
progress was made, and changes that were made were quickly abandoned
(Carroll, 1998).

In like manner, Mays and Taggart (1985) and Chilton (1991) document

prison systems that were engaged in equally unconstitutional practices and

20

housed prisoners under violative conditions, but were less amenable to reform.
Mays and Taggart (1985) document a confluence of factors that lead to a 1980
prison riot, a riot which proved to be the impelling force behind a consent decree
and substantive changes within the Department of Corrections.

In 1977, a class action lawsuit was filed on behalf of Dwight Duran, Lonnie
Duran, Sharon Towers, and other inmates detained by the New Mexico
Department of Corrections against then Governor Jerry Apodaw and other state
officials. The Duran lawsuit came in response to two highly related concerns: (1)
actual living conditions at the penitentiary, and (2) departmental policies and
practices which made for an unstable environment within the institution (Mays &
Taggart, 1985).

The Federal court played a prominent but passive role, allowing the
parties to attempt reaching solutions on their own timetables. There was no
substantial improvement in living conditions, and although partial consent
decrees were signed in 1979, delays in implementation of the new policies
frustrated the expectations of the inmates and caused additional mistrust (Mays
& Taggart, 1985). Thus, with inmates hope for improvements apparently
abandoned, the stage was set for the 1980 prison riot. Notably, five months after
the riot, the full consent decree was signed and the task of reforming the
Department of Corrections began. The department was reorganized; a new
judge was appointed; and a “compliance monitor” was appointed in the

department to ensure adherence to the consent decree (Mays & Taggart, 1985).

21

Chilton (1991) presents an exploratory study of the Guthrie v. Evans
(1987) lawsuit, which resulted in institutional reform at the Georgia State Prison
(GSP). Data for his study were gathered via direct observations of proceedings,
interviews with key decision-makers, and archival analysis of relevant court
records, monitors' reports, the US. Civil Rights Commission study of Georgia
prisons, departmental, legislative, and gubernatorial reports, other relevant court
decisions, and various newspaper and news magazine reports.

GSP was autonomous, a self-sustaining prison community that did not
require state funds for its operations. This insulation also isolated GSP from
changes in penology; thus, it continued practices of racial segregation, corporal
discipline, and forced labor unchecked by outside authorities. GSP also used the
hole: a small, dark, bedless and windowless room for solitary confinement of
troublesome inmates, who were often placed there naked, without toiletries, for
up to 30 days on a diet of bread and water with one full meal every fifth day.
Medical facilities were characterized as a modern equivalent of a medieval pest
house. A statewide review by Illinois penologist Joseph E. Ragen, expressed
alarm at the overcrowding and disciplinary practices at GSP and recommended
specific changes. However, administrators, guards, and inmates alike resisted
reforms (Chilton, 1991). Violence erupted and escalated continuously for four
years, the prison was frequently locked down and re-segregated at one point by
court order (Carroll, 1998).

On September 29, 1972, Arthur S. Guthrie, Joseph Coggins II, and fifty

other black inmates of GSP signed a four-page in forma pauperis (no fees

22

required) complaint to federal courts that led to the most detailed and
comprehensive set of remedial decrees ever imposed on a single prison facility
(Chilton, 1991). The complaint listed facts of deplorable prison conditions and
practices. These included housing conditions, food and its distribution, prison
discipline and punishment, visitation privileges, inmate mail and literature, staff
training and qualifications, lack of treatment programs, unresponsiveness to and
reprisals for voiced grievances, and racial discrimination. \fiolations of various
constitutional amendments were also claimed, including cruel and unusual
punishment [Eighth], right to privacy [Ninth], due process of law [Fifth and
Fourteenth], racial discrimination [Fourteenth], right to counsel [Sixth], right to
association [First], freedom of speech [First], and the right of human beings to be
treated with dignity and decency [Ninth and Fourteenth] (Chilton, 1991 ).

In 1978, public outrage after a correctional officer was killed in a
disturbance moved Governor George Busbee to release over a $1 million from
his emergency fund for immediate improvements, Governor Busbee's actions
were in response to the violence, not the court (Carroll, 1998). From 1978 to
1985, at least 61 non-procedural orders and consent decrees were handed down
to remedy the conditions at GSP. Judge Anthony A. Alaimo of the US. District
Court for the Southern District of Georgia became the change agent and
orchestrated changes in prison sanitation, food preparation, temperature control,
fire control, industries, and ventilation. He also mandated inmate classification,
racial desegregation, overcrowding restrictions, security segregation, disciplinary

procedures, grievance procedures, religious freedoms, security, safety, visitation

23

privileges, law library access, exercise privileges, rehabilitation, educational
programs, and medical, dental, and mental health programs (Chilton, 1991).
Aptly stated, “in institutional reform litigation the parties do not seek damages,
but equitable remedies that will re-structure the governmental institution at fault
by affirmative injunction requiring positive action” (Chilton, 1991).

Martarella v. Kelley (1972) and Shaw v. San Franciso (1990) highlight the
challenge to unconstitutional conditions and practices within juvenile detention
centers, and the subsequent injunctive relief provided through judicial
intervention. Martarella v. Kelley (1972) involved New York City detention
centers in the early 19708. The facilities involved in the case were Manida,
Zerega, and Spofford. Federal District Court Judge Morris Lasker found the
conditions in the Manida facility to be unconstitutional; the conditions in Spofford
to be constitutionally adequate, although he ordered numerous changes; and the
Zerega facility was closed by the time of the judge's initial order.

The plaintiffs alleged violation of children's constitutional rights concerning
restraints, discipline, treatment, staff numbers, staff training, mixing of status
offenders and delinquents, and the physical conditions of the facilities. The court
set standards for, among other things, the education of case workers and
counselors, training for recreational workers, in-service training for staff, access
to information about the child adequate enough to look after the child's interests,
schooling, access to a psychiatrist, protection against suicide, individualized

treatment plans, assignment to an appropriate living unit, staff/child rations, case

24

conferences, appropriate files, and most significantly, the appointment of an
independent Ombudsman (Dale, 1998).

Shaw v. San Franciso (1990) challenged various illegal policies, practices
and conditions of confinement at the San Francisco Juvenile Hall (Youth
Guidance Center), including an antiquated facility in need of substantial repair
and maintenance, fire safety, inadequate staffing and training, disciplinary and
grievance procedures, and the failure to provide clean clothes, adequate general
or special educational services, recreation and programs and activities. These
substandard conditions were confirmed by the US. Department of Justice
inspections and by independent audits; consequently, a taxpayer lawsuit was
filed in 1990 by the Youth Law Center with assistance from Landels, Ripley &
Diamond (Youth Law Center).

This case was settled by consent order"5 on October 4 1993. A detailed
agreement required an overall physical plant maintenance program relating to
various items including bathroom cleanliness, sanitary food, extra blankets,
workable plumbing and ventilation, fire safety, appropriate education including
special education, outdoor recreation, programming, a disciplinary system, staff
training including use of force, prohibition against use of restraints except
handcuffs, and visitation (Dale, 1998).

While the impact of court-ordered reforms on prison conditions and
practices has varied considerably, overall intervention has been a qualified
success (Carroll, 1998). Susan Sturm, Associate Professor of Law at the

University of Pennsylvania Law School concludes that courts have had a

 

5 A consent order is an agreement of litigating parties that by consent takes the form of a court order.

25

significant and positive, though limited impact on correctional institutions.
According to Professor Sturm (1993), “there is little doubt that litigation has
profoundly changed the conditions and practices in correctional institutions. The
most far-reaching and significant effects of litigation have been on the structure,
organization, and relationship of corrections to the larger community." She
asserts that the courts serve as reluctant but active participants in the task of

policing and reforming the nation’s correctional institutions (Sturm, 1993).

26

CHAPTER 2: METHODOLOGY

A survey was developed in an effort to garner the opinions and/or
perceptions of juvenile detention administrators regarding court decisions with an
emphasis on how the threat or fear of civil liability impacts their policies, practices
and procedures. Survey research is a frequently used mode of observation in
the social sciences and is probably the best method available to the social
researcher interested in collecting original data (Babble, 2004).

Within the field of juvenile justice, there is a lack of research that examines
the issue of civil liability and its impliwtions for the shaping and/or re-shaping of
policies that govern juvenile detention facilities. Studies have typically evolved
around the cause-and-effect relationship between juveniles and delinquency.
Therefore, given the unique nature of this study, a qualitative approach using a
survey instrument is appropriate. The distinction between quantitative and
qualitative methods involves more than just the type of data collected.
Quantitative methods are most often used when the motives for research are
explanation, description, or evaluation. Exploration6 is the most common motive
for using qualitative methods (Bachman & Schult, 2003). According to Leedy
and Ormrod (2001), “when little information exists on a topic, when variables are
unknown, when a relevant theory base is inadequate or missing, a qualitative

study can help define what is important, that is, what needs to be studied.”

 

6 Exploratory research suggests that little is known about a subject, and therefore the task is to “do some
digging,” “delve into” and “investigate.” Exploratory research may be utilized to gauge how other
jurisdictions handle certain problems within their criminal justice agencies [it] also enables the
researcher to learn more about a specific phenomenon with the desired result of applying what is
learned to larger issues of policy and practice (Bayens & Roberson, 2000).

27

In order to preserve anonymity and secure maximum participation, the
survey will be distributed electronically to approximately 100 juvenile detention
administrators across the United States. The detention facilities receiving the
survey will be randomly selected from the National Juvenile Detention Directory
2003-2005, a publication of the American Correctional Association.

In an effort to add to the credibility of the study, the consent form
preceding the survey was written by the Director of Strategic & Effective
Practices of the National Partnership for Juvenile Services Center for Research &
Professional and Development, Michigan State University and former Director of
the Bureau of Juvenile Justice for the State of Michigan. The survey, which
seeks to divert attention from line staff to administrators and policy-makers
comprises of 15 open-ended questions, allowing the respondents the
convenience and freedom to express divergent views and to elaborate on their
responses. For the qualitative researcher, open-ended questions focus on
subjective meanings, definitions and description (Neuman 8. Wregand, 2000);
thus, providing in-depth information enabling greater analysis.

Singleton, Jr. and Straits (2005) state that the greatest advantage of the
open-ended or free-response question is the freedom the respondent has in
answering. The resulting material may be a veritable gold mine of information,
revealing respondents‘ logic or thought processes, the amount of information
they possess, and the strength of their opinions or feelings. The authors
enumerate problems relating to open-ended questions, such as, the varying

length of responses (some people are unbelievably verbose; others, exceedingly

28

reticent); the difficulty with inarticulate or semi-literate respondents; the difficulty
interviewers have in getting it all down accurately; and the reluctance of many
persons to reveal detailed information or socially unacceptable opinions or
behavior. They conclude by saying that open-ended questions also entail more
work, not only for the researcher but also for the respondent.

According to Bayens and Roberson (2000), it is not unusual to receive a
low return on a survey, since completing surveys is not high on peoples' priority
list. A fact compounded by the perception that filling out surveys is a bothersome
chore. Also, these may be a perception on the part of the respondent that there
is no value in providing the requested information (Bayens & Roberson, 2000).
Each type of survey method has inherent strengths and weaknesses. The
electronic survey used for this study is inexpensive; offers privacy and
anonymity; interviewer bias is limited, and data are easier to summarize.
Possible weaknesses include, a low response rate; open-ended questions may
be unfeasible; validity of responses; and the lack of control over who actually
completes the survey (Bayens & Roberson, 2000).

The survey questions for my study are designed to reveal what, if any,
mechanisms are in place to assist detention administrators in implementing
and/or shaping the policies, practices, and procedures at their facilities relating to
civil liability. Questions such as “Has your facility adopted/adjusted
policies/procedures regarding the care and supervision of the juveniles in
custody to minimize the risk of civil liability litigation” or “Have any specific law

suits/jury awards either directed at your facility or at another facility, affected the

29

development of your policies/procedures,” are specific and directed to the
administrator and the facility helshe represents. Consequently, what may be
interpreted as a precarious position, administrators may be wary to respond or
may respond by describing their perceptions rather than a firm factual grasp of
how polices are actually developed. Coupled with this is the fact that juvenile
detention facilities are often closely tied to local juvenile courts, and therefore

responses may reflect fears concerning the local judge’s reaction and/or action.

30

CHAPTER 3: RESULTS

Survey Instrument

The survey was electronically distributed to 180 juvenile detention
administrators. Administrators were informed that their participation was
voluntary, and that they may choose not to participate, decline to answer, or
discontinue their participation at any time. They were also assured that none of
the questions in the survey sought to identify individual administrators or
institutions. Sixty-five (36%) of the total number of surveys were returned as
undeliverable. A total of 15 surveys were completed, yielding a response rate of
8%. The use of different response categories posed no problems for this study
because only descriptive statistics were presented. The data from the survey
questions were analyzed using percentage frequencies.

Research Questions

The fundamental questions in this study examined what specific
lawsuitsljury awards have affected the development of policies and procedures in
juvenile detention facilities, what policies have been adopted or adjusted to
minimize the risk of civil liability litigation, whether the facility has ever been
involved in litigation that initiated change in the facility's policies and procedures,
who is responsible for creating the policies and procedures, and how staff
members are educated about new court decisions/legislation and/or other legal
developments that affect their policies and procedures.

The staff member completing the survey indicated that the Director,

Superintendent or Department Head, with input from staff and/or county/civil

31

generalizable district attorneys were responsible for creating the policies and
procedures that govern the detention facility. Other facilities follow state statutes,
the American Correctional Association (ACA), and state licensing standards.
Approximately 7% of the respondents indicated that the Department Head had a
law degree; 38% stated that their policies and procedures are reviewed by, or
created in collaboration with a civil district attorney; compliance officer; staff
attorney or assistant attorney general; the remaining 55% stated that experience,
education, and on-the-job training qualified individuals for the task of creating
their facility’s policies and procedures. Responses included, “previous 25 years
with Juvenile/Family Court as a probation officer and back-up Referee;” Master of
Public Administration, law courses and seminars;” “worked on Louisiana
Children’s Code;” “27 years of law enforcement, numerous courses, including
American Correctional Association courses on juveniles;” and “workshop type
training on developing policies and procedures.”

Thirty-eight percent of the respondents listed US. Supreme Court and/or
other federal, state/local court decisions, as having an effect on specific policies
and procedures at their facility. For example, strip search procedures and mental
health issues; juveniles separated based on type of court (juvenile/districtlfederall
circuit court); the Juvenile Justice Delinquency Prevention Act (1974); Prison
Rape Elimination Act (2003); and sight/sound separation, case law on suicide, as
well as inspections by governmental entities; 23% broadly stated that “all policies

reflect all court decision” and “all policies are designed to be in compliance with

32

all applicable laws regarding the confinement of juveniles;” while 39% stated that
court decisions have not affected their policies and procedures.

In terms of how staff members are educated about existing court
decisions/legislation and other legal rules that affect the policies and procedures
for detention, approximately 79% of the respondents indicated that this is done
via specialized training and staff meetings; 14% indicated that their policies and
procedures “reflect law;” and 7% stated that “we don’t do this routinely."
Similarly, 79% of the respondents stated that staff members learn about civil
lawsuits filed against, or jury awards imposed on detention facilities, via journals;
professional publications; magazines; training; staff meeting; and the internet;
with 21% stating that “there is no formal system” or “[is] not routinely done.”

With specific reference to the issue of civil liability, 43% of the
administrators stated that there were no specific lawsuits/jury awards that
affected the development of their polices; 36% indicated that a lawsuit either
directed at their facility or a “neighboring state” assisted in re-shaping their
policies and procedures; 14% generalized by stating “globally lawsuits may
change standards and heighten awareness for policy revisions” or “everything is
done with this in mind — best practices” and 7% of the administrators indicated
that their policy manual was rewritten using the ACA standards. Fifty percent of
the administrators listed policies and procedures that their facilities have either
adopted or adjusted to minimize the risk of civil liability litigation, such as, strip
search policies; security check frequency policy; physical management policies;

increased documentation of all visits; and medical concerns; 7% of the

33

administrators indicated that they did not; while 29% stated that they follow
state/federal and ACA standards - “policies are compliant with ACA standards;”
and 14% gave general responses, such as “we always keep liability in mind
when making or reviewing policies and procedures.” When respondents were
asked whether or not policies and procedures at their facility were either adopted
or adjusted as a result of a court decision, 57% said no; 14% indicated that their
changes reflect changes in ACA standards; and 29% listed changes in policies
and procedures that included but were not limited to, cell phone use and juvenile
mail. Overall, 92% of the facilities represented in the survey have never been

involved in litigation that initiated change(s) in their policies and procedures.

34

CHAPTER 4: DISCUSSION
Findings

Due to the inadequate response rate, the results are less likely to be
generalizeable to the perceptions and/or concerns of juvenile detention
administrators in the United States as it relates to civil liability.

The responses fail to provide support for the hypothesis that the threat or
fear of civil liability provides a greater impetus for policy change(s) than direct
judicial order(s). Evident in the responses, the majority of the administrators are
not persuaded that court decisions and/or lawsuitsfjury awards have impacted or
assisted in the development of their policies and procedures. They seem less
educated, knowledgeable, and experienced in the area of civil liability, although
cummatively, the respondents span approximately 217 years within juvenile
justice, with the average respondent representing approximately 14 years in the
field of juvenile detention.

Alarmingly, 93% of the administrators responsible for creating the policies
and procedures within their facility possess no formal legal training. Additionally,
the facilities represented are bereft of any type of formal mechanism whereby
staff members are educated about lawsuits or civil liability litigation that may
directly or indirectly affect their facility. There appears to be a greater focus or
concern that policies and procedures are compatible with guidelines set forth by
the ACA and/or state regulations, as opposed to a direct judge-made rule or
judicial order(s). The administrators' preoccupation with ACA compatibility may

result from a desire to maintain accreditation and legitimacy. The American

35

Correctional Association, through the Commission on Accreditation for
Corrections, administers the only national accreditation program for all
components of adult and juvenile corrections (ACA develops standards, the
Commission evaluates institutions and awards accreditation).

More than 1,500 correctional facilities and programs are involved in
accreditation, a process that began in 1978. Approximately 80% of all state
departments of corrections and youth services are active participants. ACA's
Standards for Juvenile Detention Facilities (3rd Edition) includes all standards
that a juvenile institution must meet to gain ACA accreditation (and, many
agencies that do not go through the accreditation process still informally follow
ACA standards). Issues specifically relating to civil liberties are addressed
through the standards.

As a legal theorist, Rosenberg questions the extent to which legal rules
and the judicial system have the capacity to create social change. Rosenberg
believes that courts are important political actors and policy makers, but asserts
that reliance on litigation often has been counterproductive. Rosenberg's theory
appears credible, courts simply provide an illusion of change and are impotent to
produce significant social reform. Effective policy depends on factors external to
courts or court decisions, judges cannot foster change independent of insiders, in
this case, the administrators and staff of the juvenile detention facilities. To echo
Rosenberg's refrain, “the Court by itself doesn't matter.” The benefits of

accreditation seemingly outweigh and provides greater incentive than a judicial

36

order(s) or intervention. According to Joey Weedon, Director of Government
Affairs, ACA:

any facility or program that is accredited by ACA is considered to meet the

recommended best practices for the operation of the facility/program.

Thus, the institution is meeting the security needs of the community while

also ensuring that the offender's basic civil and human rights are being

qp‘lgelcliéw response rate may be attributed to administrators’ close
connection, deference to and control by loml judges, producing reluctance to
express their views. There may also be a perceived threat to the respondents
because of sensitive issues associated with the research focus, prohibiting full
cooperation. Further, juveniles in custody may not be aware of the constitutional
rights afforded them; thus, the lack of research about civil liability.

The Supreme Court in Bounds v. Smith held that a prisoner who wishes to
challenge conditions of confinement is entitled to access either to a lawyer or a
law library; therefore, access to counsel may be constitutionally required under
the F ilth Amendment. Access to an attorney or a law library is a difficult issue for
children because of the likelihood that they will not seek such access. One
court7 recognized this problem, but held that there was no constitutional right to a
library for juveniles because the average child in the facility was three years

behind his/her expected grade level; consequently, the library would not benefit

the children and waste state funds (Dale, 1998).

 

7 See Alexander v. Boyd, 876 F. Supp. 773 (D.S.C. 1995)

37

Conclusion and Recommendations

Results of this study, while not conclusive, reveal the need for training and
education among juvenile correctional staff in the area of civil liability.
Department Heads charged with the responsibility of creating policies and
procedures should implement mandatory training on issues relating to civil
liability and its implications for staff members, as well as, monthly on-site training
for detention workers in direct contact with the juveniles in custody. Training
should include relevant legal updates and court decisions relating to civil liability
that may directly or indirectly affect the juveniles in custody, staff and
administration.

There is a definite need for continued research on civil liability as it relates
to both adult and juvenile corrections. A survey conducted in a controlled
environment may yield better results, that is, where the researcher is allowed to
physically distribute and collect the surveys from individual detention
administrators. The researcher should run a pilot or pre-test for readability and
functionality, to ensure that the participants have a clear understanding of the
questions asked and information sought. With the pre-test, the researcher
administers the survey to a small group of subjects (corrections staff) who then
critique the instrument, paying close attention to the wording and organization of
the questionnaire (Bayes & Roberson, 2000).

Upon completion, the pre-test subjects provide suggested changes to
improve the questionnaire both in content and appearance. After the pre-test,

the questionnaire can be revised based upon the comments of the subjects, and

38

administered to the sample population. The results from the pre-test should not
be included with the final results (Bayes & Roberson, 2000). Additionally, rather
than open-ended questions, the researcher may opt for closed-ended questions.
Closed-ended questions are easier on the respondent because they require less
effort and less facility with words. The presence of response options also
enhances standardization by creating the same frame of reference for all
respondents. With closed-ended questions, for which specific response options
are provided, the researcher will more likely be able to elicit a fuller, more
complete response than will a questionnaire requiring respondents to write out
answers. This is particularly true with respondents whose writing skills are weak
or who are less motivated to make the effort to respond fully (Singleton & Straits,
2005)

Concern for job-related civil liability can have both positive and negative
consequences. The positive consequences of a system of civil liability include
providing compensation to victims, deterring misbehavior, acting as a catalyst for
needed policy and practice changes, identifying employees who need training or
who should be disciplined, and enhancing the legitimacy of the criminal justice
system by demonstrating that misbehavior is not tolerated (Lambert, Hall and
Ventura (2003).

On the other side, if the fear of liability rises too high, employees may
become apprehensive to perform their duties. In addition to fostering
inefficiency, this situation poses risks to both citizens and employees. Because

criminal justice function necessarily involve deprivations of liberty and threats to

39

lives, a civil liability system that is too broadly constructed could threaten to
bankrupt public agencies. The challenge is to develop a system that adequately
deters misconduct, promotes the development of sound policies, is perceived as
legitimate by citizens, does not paralyze public employees from acting, and does

not pose a risk of creating a fiscal crisis (Lambert, Hall & Ventura, 2003).

40

APPENDIX A

The Impact of Litigation on Juvenile Detention Facilities

None of the questions in this survey seek to identify individual
administrators or institutions. Your responses will be combined with
responses from other surveys in the analysis of this study. In order to
enhance the anonymity of respondents, please do not place your name, the
name of your institution, or the name of your state on the form. Thank you
for your generous cooperation and assistance.

—l

Job title of person completing survey:

 

How long have you worked at this facility:

 

How long have you worked in the field of juvenile detention:

 

(a) Type of facility:
Secure detention [:] Capacity:
Non-Secure detention E] Capacity:

 

 

(b) State-owned facility [:l
Private-owned facility I:

Who is responsible for creating policies and procedures regarding the care
and supervision of the juveniles in custody?

 

 

 

 

 

 

 

41

6. What, if any, type of legal training does this individual possess?

 

 

 

 

 

 

 

7. Have US. Supreme Court and/or other federal, state or local court
decisions affected the policies and procedures of your facility?

Yes [:1
No C]

If yes, please specify:

 

 

 

 

 

 

 

8. Are there any specific federal or state laws that have shaped the policies
and procedures at your facility?

Yes I:
No C]

If yes, please specify:

 

 

 

 

 

 

 

42

 

10.

11.

How are staff members educated about existing court decisions, legislation,
or other legal rules that affect policies and procedures for juvenile
detention?

 

 

 

 

 

 

 

How do staff members learn about new court decisions, legislation, or other
legal developments that affect policies and procedures for juvenile
detention?

 

 

 

 

 

 

 

How do staff members learn about civil lawsuits filed against or jury awards
imposed on juvenile detention facilities and staff elsewhere in the state or
country?

 

 

 

 

 

 

 

43

12. Have any specific lawsuits or jury awards, either directed at your facility or
at another facility, affected the development of your policies and
procedures?

Yes [:1
No ]:|

If yes, please specify:

 

 

 

 

 

 

 

13. Has your facility adopted or adjusted policies and procedures regarding the
care and supervision of the juveniles in custody to minimize the risk of civil
liability litigation?

Yes [:i
No [:1

If yes, please specify:

 

 

 

 

 

 

 

44

14.

15.

Has your facility adopted or adjusted policies and procedures regarding the
care and supervision of the juveniles in custody as a result of a court
decision?

Yes [:I
No l:l

If yes, please state the reasons for those changes:

 

 

 

 

 

 

 

Has your facility ever been involved in litigation concerning the care and
supervision of the juveniles in custody that has initiated change in your
facility's policies and procedures?

Yes |:]
No [:1

If yes, please specify:

 

 

 

 

 

 

 

http:/Mww.c].msu.edu/detentlon_facillties_survey.htm

45

Bibliography

Babble, E. (2004). The Practice of Social Research (10th ed.). Belmont, CA:
Wadsworth/Thomson Learning.

Bachman, R., & Schutt, R.K. (2003). The Practice of Research in Criminology
and Criminal Justice (2"d ed.). Thousand Oaks, CA: Pine Forge Press.

Barrineau Ill, HE. (1994). Civil Liability in Criminal Justice (2"d ed.). Cincinnati,
OH: Anderson Publishing Company.

Bayens, G.J., & Roberson, C. (2000). Criminal Justice Research Methods:
Theory and Practice. Incline Village, NV: Copperhouse Publishing
Company.

Carroll, L. (1998). Lawful Order. A Case Study of Correctional Crisis and
Reform. New York: Garland Publishing, Inc.

Chilton, BS. (1991). Prisons under the Gavel: The Federal Court Takeover of
Georgia Prisons. Columbus, OH: Ohio State University Press.

Clear, T.R., & Cole, GP (1997). American Corrections (4th ed). Belmont, CA:
Wadsworth Publishing Company.

Crouch, B.M., Marquart, J.W. (1989). An Appeal to Justice: Litigated Reform of
Texas Prisons. Austin, TX: University of Texas Press.

Dale, M.J. (1998). Lawsuits and Public Policy: The Role of Litigation in
Correcting Conditions in Juvenile Detention Centers. University of San
Francisco Law Review, 32 U.S.F.L. Rev. 675 (LEXIS).

Dilulio, J.J. (1990). Conclusion: What Judges Can Do to Improve Prisons and
Jails. In John J. Dilulio (Ed), Courts, Corrections, and the Constitution
(pp. 287-320). New York, NY: Oxford University Press.

Ekland-Olson, S., & Martin, SJ. (1990). Ruiz: A Struggle over Legitimacy. In
J.J. Dilulio (Ed), Courts, Corrections, and the Constitution (pp. 73-93).
New York, NY: Oxford University Press.

Goodstein, L, & MacKenzie, D.L. (1989). Introduction: Issues in Correctional
Research and Policy. In L. Goodstein and D.L. MacKenzie (Eds), The
American Prison: Issues in Research and Policy (pp. 1 -1 0).

Hopper, CB. (1985). The Impact of Litigation on Mississippi's Prison System.
The Prison Journal, LX V ( 1), 54-63.

46

Jacobs, J. (1977). Stateville: The Penitentiary in Mass Society. Chicago:
University of Chicago Press.

Judicial Intervention and Organization Theory: Changing Bureaucratic Behavior
and Policy. Yale Law Journal, 89, 513-537.

Lambert, 56., Hall, D.E., & Ventura, L. (2003). Litigation Views among Jail
Staff: An Exploratory and Descriptive Study. Criminal Justice Review, 28
(1 ), 70-87.

Mays, G.L., & Taggart, WA (1985). The Impact of Litigation on Changing New
Mexico Prison Conditions. The Prison Journal, LX V ( 1), 38-53.

Neuman, W.L., & VViegand, B. (2000). Criminal Justice Research Methods:
Qualitative & Quantitative Approaches. Needham Heights, MA: Allyn &
Bacon.

Rhodes, S.L. (1992). Prison Reform and Prison Life: Four Books on the Process
of Court-ordered Change. Law & Society review, 26(1), 189-218.

Rosenberg, GM. (1991) The Hollow Hope: Can Courts Bring About Social
Change? Chicago: University of Chicago Press.

Ross, MM. (1998). Sword and Shield Revisited: A Practical Approach to Section
1983. Chicago: State and Local Government Law Section, American Bar
Association.

Singleton, R.A., & Straits, BC. (2005). Approaches to Social Research (4th ed).
New York, NY: Oxford University Press.

Smith, C.E., & Hurst, J. (1997). The Forms of Judicial Policymaking: Civil

Liability and Criminal Justice Policy. Law & Social Inquiry, 19 (3), 341-
354.

Stunn, SP. (1993). The Legacy and Future of Corrections Litigation. University
of Pennsylvania Law Review, 142 U. Pa. L. Rev. 639 (LEXIS).

Yackle, L.W. (1989). Reform and Regret: The Story of Federal Judicial
Involvement in the Alabama Prison System. New York, NY: Oxford
University Press.

Youth Law Center (n.d.). Retrieved January 15, 2005, from http://www.ylc.org.

47

It!

‘I‘llil

         

NIGAH STA

MIC . TE UNIVFRSITY LIBRARIES
III iiiiiiiill
‘l III III I“ Iii. "I all ii II III:
3

1293 02736 3559