by Eric Geringswald | CSC
Maryland General Corporation Law
Maryland lawmakers approved legislation in 2022 that adds a new Subtitle 7 to Article 2 of the Maryland General Corporation Law (MGCL). The...
by Eric Geringswald | CSC
New Jersey Laws Governing Business Entities Annotated
Legal and business professionals working with New Jersey business entities need easy access to the latest business statutes...
by Eric Geringswald | CSC
Arizona Laws Governing Business Entities Annotated
CSC has just released the 2023 edition of Arizona Laws Governing Business Entities Annotated . The updated deskbook is a...
By National Veterans Legal Services Program
Burn Pits Claims Assistance
As we reflect on this Veterans Day, the National Veterans Legal Services Program ( NVLSP ) is proud to have recently marked the...
By Eric Geringswald | CSC
New York Business Entity Case Law
A New York court found that a shareholder could bring a direct suit and not just a derivative suit to address his complaint that a shareholders...
Throughout 2021 and 2022, new trends in use of force, medical care, mental health treatment, the Prison Rape Elimination Act, religious rights, and access to courts for the incarcerated emerged in corrections facilities across the United States.
Jail and prison staff need a clear understanding of these trends and the surrounding laws that impact their ability to do their job effectively and in accordance with the law.
In a 2022 webinar hosted by the American Jail Association and sponsored by LexisNexis®, Retired Superintendent and Special Sheriff Gerard Horgan walked through the biggest trends in inmate litigation.
This complimentary whitepaper from LexisNexis takes deeper dive into legal issues corrections professionals should be aware of going into 2023.
Horgan highlights three seminal court cases and tests for interpreting law surrounding use of force: Graham v. Connor (1989), Hudson v. McMillian (1992), and Kingsley v. Hendrickson (2015).
From these decisions came the concept of objective reasonableness.
In Kingsley v. Hendrickson, the United States Supreme Court (SCOTUS) determined that pretrial detainees do not have to prove subjective belief but only if the use of force was objectively unreasonable.
Objective reasonableness turns to facts and the circumstances of each incident. There does not need to be an intent to punish present—if the force is deemed excessive, that is punishment— no malicious intent is needed under the law.
Objective Reasonableness, according to SCOTUS, is based on:
For detainees to win use of force cases they must show: Use of force, that use of force was unreasonable based on the circumstances, the use of force was known to risk hurting them and was recklessly disregarded by failing to take reasonable measures to minimize the risk, and that harm was caused.
The courts look at several different circumstances like staffing levels (nurses, mental health professors, etc.) and how long an inmate has to wait for service from a provider. There is not a guideline set in this area but the facility will need a health care administrator to confirm staffing levels are acceptable along with accreditation and licensing levels that meet reasonable needs for those who are in custody.
Medication Assisted Treatment (MAT) can now include suboxone, methadone, and naltrexone for individuals with chemical dependences.
“If you turn the clock back 5 or 6 years, suboxone was one of the main contrabands coming into prisons,” Horgan said. “Now courts are weighing in on medication assisted treatments that include it. The way we talk about suboxone now is totally different.”
Horgan says more than 9 out of 10 “last resort” beds that existed in jails the 1950s are no longer in existence. The recommendation by mental health professionals is 50 designated mental health beds per 100,000 people. As of May 2022, prisons in the United States average 11 beds per 100,000 incarcerated persons – a 13% decline over the past decade.
“We have less mental health beds per capita today than we did in 1860,” says Horgan. “That’s a pretty shocking statistic.”
When is comes to mental health in prisons, courts are often looking at the efforts being taken to reduce the amount of time spent in restrictive housing.
Some best practices for this, Horgan notes, is a weekly meeting of high-ranking staff to discuss high risk inmates. Keeping minutes to these meeting, having an action plan specific to each inmates, and communication with other staff is a method courts are receptive to.
“When courts look at sexual misconduct cases, they’re always going to look at PREA issues,” Horgan says. “It’s very, very important you’re taking the proper steps as it relates to PREA. I’m of the mindset that you have a dedicated PREA coordinator who routinely trains and who is your resource for PREA issues.”
Some common checks facilities can have in place included:
Horgan says the efforts made by a prison facility to give the incarcerated equal, compliant legal content solutions is critical when it comes to access to courts litigation.
The correctional law library solutions offered by LexisNexis are compliant, customizable to each facility, dependable, and secure. LexisNexis® inmate law library solutions help facilities comply with state mandates and provide inmates with a thorough, secure, and compliant online or offline library collection.
“Access to Courts is an area where LexisNexis really is the gold standard,” Horgan says. “I’ve worked in facilities that have contracted with LexisNexis and it gave the inmates the ability to research their case, to work on trial petitions, to work on appeals and bail issues. When courts are told that LexisNexis is available that allows them to rule there is sufficient and constitutional access to the courts.”
LexisNexis collaborates with multiple product, service and content delivery vendors in the corrections field to offer a wide range of integrated solutions designed to address the unique individual needs of each facility – including access to training for staff and inmates.
About Gerard Horgan, ESQ, CJM
Gerard Horgan has over 30 years of experience in corrections and has served as the Superintendent of Jail Operations at the Norfolk Sheriff’s Office since February of 2013. In this role, he supervised all Uniformed, Programs, Medical, HR, Fiscal, Legal, Classification and other Administrative staff. Horgan is also an Adjunct Professor the University of Massachusetts Boston where he teaches courses in corrections and criminal justice.