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

Chapter 18 Statutory and Administrative Law Introduction: This chapter looks at other sources of law, outside the Constitution, that will be of most concern to corrections workers and to offenders in the correctional system

Chapter Outline The Hierarchy of Laws in the United States Interstate Compacts and Uniform Laws State and Local Laws, Regulations, and Policies The Federal Bureau of Prisons State and Local Corrections Accreditation

The Hierarchy of Laws in the United States U.S. Constitution supreme law of the country Constitution, federal laws, and treaties supreme law of the land Take precedence over state laws when there is a conflict

The Hierarchy of Laws in the United States: contd Congress only has authority provided to it by Constitution All other matters are left to state authority (Tenth Amendment)

Interstate Compacts and Uniform Laws States may not enter agreements or compacts with other states without Congressional consent (U.S. Constitution, Article 1, Section 10)

Interstate Compacts and Uniform Laws: contd Congress has given its consent for states to form Cooperative efforts in crime prevention and Criminal law enforcement and procedures

Interstate Compacts and Uniform Laws: contd The Interstate Agreement on Detainers (IAD) is an example One state wants custody of person being held in another state State files detainer with the custodian holding that person, requesting to be notified before the offender is released

Interstate Compacts and Uniform Laws: contd Once the detainer is filed, The holding state (custodian) is obliged to notify the requesting state prior to the inmates release An inmate may request prompt production for disposition of the charges If such a request is made, requesting state takes the inmate to the charging jurisdiction

Interstate Compacts and Uniform Laws: contd Inmate remains in custody of sending state during this time (sentence continues to run) Inmate must be brought to trial by requesting state within 180 days of the inmates request Charges are dismissed if there is no trial by that time Inmate is returned to sending state where he was serving his sentence

Interstate Compacts and Uniform Laws: contd IAD has benefits for both government and inmate Easier process for requesting state to obtain defendant for prosecution Provides inmate opportunity to get rid of detainers, the presence of which could affect current confinement status

Interstate Compacts and Uniform Laws: contd Alabama v. Bozeman (2001) example of benefit to the inmate Bozeman in federal prison, and had state charge State officials sought custody of him for arraignment and appointment of counsel Bozeman sent to Alabama, spent day in court, and sent back to Federal custody Following month back to Alabama for trial

Interstate Compacts and Uniform Laws: contd Inmates counsel filed for dismissal under IAD, article IV(e) Section provides for dismissal if trial is not held on any indictment, information, or complaint prior to the inmates return to the original place of confinement (here, federal custody) Bozeman was convicted in state even though the IAD provision had not been met U.S. Supreme Court held that the literal language of the statute was absolute the conviction did not stand

Interstate Compacts and Uniform Laws: contd In New York v. Hill (2000), the Court approved a waiver of the absolute language In this case, Hills counsel agreed, at a court hearing to set the trial date, to a date outside the 180-day period Inmate filed for dismissal of the charges prior to trial, but after the 180-day period

Interstate Compacts and Uniform Laws: contd Court held this wasnt an issue that Hill must personally make an informed waiver adding that his lawyer has, and must have full authority to manage the conduct of the trial Hills conviction was upheld

Interstate Compacts and Uniform Laws: contd Uniform Criminal Extradition Act Article IV, Section 2 extradition clause provides A person who is charged with a crime in one state And who flees to another state Must on demand of the executive authority of the state from which he has fled

Interstate Compacts and Uniform Laws: contd Be delivered to the state with jurisdiction over the alleged crime Federal rules are in 18 USC 3181-3196 Federal government handles requests for returns of a person who has fled to a foreign country A treaty between the two nations is needed for transfer

Interstate Compacts and Uniform Laws: contd In Cuyler v. Adams (1981) the Court looked at the somewhat competing aspects of the IAD and the Extradition Act New Jersey prosecutor, under the IAD, moved to bring Adams who was confined in Pennsylvania, to New Jersey for trial Adams objected, claiming he was entitled to a hearing under the Extradition Act

Interstate Compacts and Uniform Laws: contd Court held rights and protections of the Extradition Act, specifically the right to a hearing before transfer, were reserved for the prisoner

Interstate Compacts and Uniform Laws: contd If inmate requested transfer under IAD, that inmate is deemed to have waived transfer, and no hearing is needed If prosecutor requests and inmate does not waive, Article IV of IAD provides that the prisoner retains any right he may have to contest legality of transfer to the requesting state Thus, inmate had right given in the Extradition Act to contest transfer

Interstate Compacts and Uniform Laws: contd New Mexico v. Reed (1998) involved interstate extradition of a parole violator In 1993 Ortiz, after being told by Ohio officials that his 1992 parole was going to be revoked, fled to New Mexico Ohio sought his extradition. Ortiz opposed, filing a writ of habeas corpus Inmate claimed he was not a fugitive for purpose of extradition, but fled under duress Claimed he would be subject to physical harm if returned to an Ohio prison

Interstate Compacts and Uniform Laws: contd Lower court granted the writ, holding Ortiz was not a fugitive, but was a refugee from injustice Lower court held that his duress over fear of bodily harm negated his fugitive status U.S. Supreme Court disagreed held that New Mexico had made determinations it was not entitled to make on an extradition matter Ortiz had to be returned to Ohio

Interstate Compacts and Uniform Laws: contd The Interstate Compact for Transfer of Prisoners (Interstate Corrections Compact) provides the procedures for transfers of inmates between jurisdictions

Interstate Compacts and Uniform Laws: contd The Uniform Act for Out-of-State Parolee Supervision all states have enacted By the Acts terms, parolees may go to another state to live (with prior permission) Once transfer is approved, receiving state assumes supervision, under conditions set by the sending state Officers of the sending state may enter the receiving state to retake custody when appropriate No requirement for formal extradition proceedings

Interstate Compacts and Uniform Laws: contd The Uniform Juvenile Court Act provides procedures for cooperation between juvenile courts & juvenile agencies in different states The Uniform Victims of Crime Act concerns victims rights in criminal justice proceedings Authorizes compensation of victims injured during the commission of crimes Provides for monetary restitution for victims losses by criminal defendants convicted of committing crimes

State and Local Laws, Regulations and Policies: All levels of government have an executive authority to enforce laws May include, depending on jurisdiction, sheriffs, mayors, elected county executives and others The various types of government overlap and interact in a variety of complex ways

State and Local Laws, Regulations and Policies: contd Focus in this section is generalities there is no one system of state and local government in the United States There are laws, usually called ordinances in localities enacted by legislature There are also regulations, rules, and policies adopted by various government levels At the federal level, agencies may be given authority to adopt rules and regulations

State and Local Laws, Regulations and Policies: contd Rules are the detailed laws of most agencies are considered to have authority and effect of the statutory law that authorized the agency to issue them Can be either broad or limited Federal rules are found in the Code of Federal Regulations (CFR)

State and Local Laws, Regulations and Policies: contd Most agencies also have internal policies governing day-to-day operations Distinction between rules and policies - rules should be issued when they Affect the conduct of private citizens When they require certain actions to be taken, or When they incorporate penalties and other enforcement procedures for citizen actions or inactions

State and Local Laws, Regulations and Policies: contd Rules may be issued for public comment if federal, the rules are published in the Federal Register Following a period of consideration, final rules are adopted and published, and Codified in the CFR Policies also needed to cover such matters as personnel, business operations and other internal guidance to staff

The Federal Bureau of Prisons (BOP) Created by Congress it is part of the Department of Justice BOP is charged with safekeeping and care of federal inmates (18 USC 4042) Over 100 federal facilities, and 155,000 inmates

The Federal Bureau of Prisons (BOP): contd Facilities include Detention centers to primarily hold pretrial inmates, one houses immigration detainees Minimum, including prison camps, to high security (penitentiaries) Administrative facilities, such as medical centers and a super-max

The Federal Bureau of Prisons (BOP): contd BOP legal authority is set forth in 18 USC - statutes legislate such matters as Good-time allowances Parole eligibility Establishment of prison industries Providing medical care Providing other programs such as education, vocational training, and rehabilitative services Congress provides funding for BOP

The Federal Bureau of Prisons (BOP): contd BOP rules are published in the Federal Register and codified in Title 28 CFR Rules cover the core policies and procedures, such as inmate classification, programs, discipline, contact with the community, and medical care Public, including inmates and other interested persons and organizations, are invited to comment After consideration of the comments, final rules are published and codified

The Federal Bureau of Prisons (BOP): contd BOP also publishes Program Statements, which provide implementing policies Program statements govern the affairs of the agency nationwide Institutions may issue Institution Supplements sets local procedures

State and Local Corrections Same sort of legal framework, similar to BOP Authorizing statute establishing agency Other statutes authorize programs, activities, and services State legislature provides funds for operations of corrections agency As corrections agencies get smaller, down to city, county, and town level, complexity of rules diminish, and there are fewer of them

State and Local Corrections At all levels, good to invite local and nearby judges, and members of their staff, to tour the facility Provides opportunity to see what the facility is like, and not to rely on newspaper or other sources Good means to educate, could counter other information (such as those from media stories, inmate complaints)

Accreditation American Correctional Association (ACA) leading professional association in the corrections field; established in 1870

Accreditation: contd Serves as umbrella organization for entire corrections professions many affiliations Jails Community corrections Probation and parole authorities Adult corrections administrators Juvenile and youth agencies State corrections associations International affiliations

Accreditation: contd ACA issued the first set of accreditation standards in 1977 for adult correctional institutions Were, and still are, administered by the Commission on Accreditation for Corrections (CAC) CAC is independent offshoot of the ACA

Accreditation: contd Factors pushing ACA to accreditation process: There was a need for agreed-upon standards Corrections was best place for standards to be set, as opposed to outside efforts for reforms of all kinds Recognition of the growing involvement of courts in correctional matters, with a recognition that it was best for corrections to set its own house in order

Accreditation: contd Belief that most courts would appreciate and might even defer to the standards Standards and auditing process would provide corrections professionals with comprehensive reports and guidelines to inform governmental authorities about agency needs

Accreditation: contd Process was set to establish and, just as important, to modify standards ACA Standards Committee reviews along with CAC Review is based on changing practices, case law, and agency experiences

Accreditation: contd Approved standards reflect views of correctional practitioners, architects, medical and legal experts Input and recommendations are sought from the involved parties and other interested persons or organizations

Accreditation: contd Various sets of standards, covering both adults and juveniles Administration of correctional agencies and institutions Community residential services Boot camp programs Detention facilities Probation and parole Health care

Accreditation: contd Correctional industries Training Electronic monitoring Day treatment Aftercare services and Food service programs

Accreditation: contd For many years there were 3 levels of standards: Essential 100% had to be met to achieve accreditation - dealing with conditions that could affect life, health, or safety of offenders, staff, or the public Important 90% had to be met Desirable 80% had to be met

Accreditation: contd Currently, there are two levels: Mandatory requires 100% compliance Nonmandatory requires at least 90% compliance

Accreditation: contd Examples: 4-4206 (Mandatory) Written policy, procedure, and practice restrict the use of physical force to instances of justifiable self-defense, protection of others, protection of property, prevention of escapes, and to maintain or regain control, and then only as a last resort and in accordance with appropriate statutory authority. In no event is physical force justifiable as punishment. A written report is prepared following all uses of force and is submitted to administrative staff for review

Accreditation: contd 4-4457 (Nonmandatory) Written policy, procedure, and practice provide that the security and program determinations necessary for any individual to be eligible for industries work are made by the classification committee

Accreditation: contd Steps for the accreditation process: Agency manager wishes to become accredited (program is voluntary) and contacts CAC CAC conducts initial review, sends papers to begin process Agency may request pre-audit assessment process helps agency staff determine level of compliance prior to actual audit, and identifies possible problem areas

Accreditation: contd Institution does its own self-evaluation to determine compliance, attaches documents in support of this, and drafts plans to correct any deficiencies Once required levels of compliance achieved, agency can request an audit to verify compliance Audit team visits facility team consists of persons trained for that type facility

Accreditation: contd Team reviews records, does first-hand observations, and interviews staff and inmates At close of audit, team meets with Warden and goes over findings Each member of team prepares an audit report team chair coordinates and summarizes CAC has regular meetings to publicly review audit results

Accreditation: contd Certificates of accreditation are given to those agencies meeting standards Those with deficiencies may work to correct them, and apply for reconsideration

Accreditation: contd Accreditation lasts for three years - during this period, agencies submit Annual certification statements, confirming compliance Progress on completing plans of action Events which may affect accreditation, and Written responses to public criticism, notoriety or complaints about agency activity that suggest a failure to maintain compliance

Accreditation: contd More than 1,500 correctional facilities and programs are involved in accreditation Approximately 80% of all state correctional agencies and youth services are active participants, as well as the Federal Bureau of Prisons, and The private sector in corrections

Accreditation: contd CAC standards are not the same as legal standards, especially constitutional requirements Courts review prison conditions to see whether constitutional standards are met If constitutional standards have not been established, the court can then address that particular constitutional provision and how it should be applied in a prison situation

Accreditation: contd Professional standards, by contrast, are based on commonly accepted levels of performance in every area of prison management and operation They are not tied to specific constitutional language Professional standards must never fall below the court standards In most areas, professional standards go beyond court requirements

Accreditation: contd Professional standards do have benefits: If done right, will incorporate at least the minimums set by court rulings Can assist in convincing a court that the particular program or activity is run professionally The courts have frequently looked at the standards in order to learn the current expectations for managing particular areas of corrections

Accreditation: contd Less frequently, courts will incorporate these professional standards as guidance for what the courts will require Or will adopt ACA standards as part of a court order or consent decree to correct specific violations after the court has found certain conditions or programs to be independently deficient under legal standards of review

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