Philosophy-Based Versus Legal-Based Standards and Guidelines
The Emergence of National Standards
During the 1970s, jail and prison standards were published by 8 or 9 special-interest organizations including, but not limited to, the American Correctional Association (ACA), the U.S. Department of Justice, the American Public Health Association, and the American Bar Association. Each of the various standards had one thing in common; their standards were reflections of the goals and prisoner-management philosophies of the organization that published them. Each organization advocated what it defined as the most appropriate and correct way to operate corrections facilities. Of the corrections management standards that were published during the 1970s, only the ACA standards1 survived. The ACA publishes a one-size-fits-all set of standards for jail operations, the Adult Local Detention Facility standards (ALDF). The ALDF are based on the proposition that the organization’s hand-picked collection of
The ACA approach to standards development assumes the organization’s standards are “best practices” which are the result of a consensus among the nation’s corrections professionals. Over the past 35 years I have provided training, technical assistance, policy and procedure writing, standards writing, and planning assistance to jail and prison officials from nearly every state in the U.S. I have learned during that time that there is no consensus among corrections officials about how best to manage and operate jails and certainly no consensus that ACA’s standards are the answer. I am not alone in my view of the lack of consensus among corrections officials regarding the claimed benefits of ACA’s detention standards. John J. DiIulio, a professor at Princeton University, completed an exhaustive study of various corrections management systems during which time he also evaluated the ACA standards. According to Professor DiIulio, “It is no disrespect . . . to the ACA to point out that neither the ACA nor any other group has accumulated anything that even remotely resembles a body of proven knowledge about how to manage prisons well.” He discovered during his research that “there is no discernable consensus among correctional practitioners that the ACA's voluminous publications and accreditation activities are based on an accurate assessment of how best to operate prisons2.”
It might well border on hubris to assume any one person or organization could write a one-size-fits-all set of “best practices” or standards that would be the perfect approach to managing each and everyone of the thousands of correctional facilities in the U.S. What one organization or person views as a best practice may be considered folly by others. ACA’s self-appointed role as the organization that knows best is illustrated by an email regarding the U.S. Supreme Court’s recent ruling Florence ruling that reversed lower court-imposed restrictions on strip searches of prisoners being booked into jails3. The ACA supported the prisoners’ litigation against the County as indicated in this email written to NIJO by one of its contributing authors:
I get really tired of the many variations I hear of "no one is going to tell us what to do." The constant turnover in sheriff leadership and jail administration is a recipe for disaster, as demonstrated by the endless involvement of the courts with jail conditions and operations. "Outsiders" will stop intruding in jails when officials and administrators get it right. Consistently right.
Although, as Justice Breyer pointed out in his dissenting opinion in the Florence case, the ACA supported continuing the strip search restrictions – restrictions that compromise the safety of officers and prisoners – the vast majority of Sheriffs and jail officials (and the NSA) applauded the U.S. Supreme Court’s decision overturning the strip search restrictions. With such wide differences between points of view and ACA officials supporting the prisoners’ litigation4, how can ACA’s standards speak for all Sheriffs and jail officials or be accepted by Sheriffs?
As Commander of the Salt Lake County Jail, then later the Executive Director of the Utah State Department of Corrections, I knew more about the profile of the prisoners we were incarcerating, our design and construction of our physical facilities, local public attitudes regarding corrections issues, and the budget and other resources available to us than did a collection of standards committee members sitting around a conference table 2000 miles away. What I did not know when I was first assigned to the Salt Lake County Jail was the legal requirements that governed my management and operation of the jail. It would have been useful to have had a system of guidance regarding the legal requirements for the various aspects of the management of jail. None were available at that time.
Unfortunately, the first set of standards I got my hands on – those published by ACA – provided no assistance in understanding the constitutional and other legal requirements which, if violated, could subject the Salt Lake County Sheriff and me to liability in federal court. And, compliance with the standards offered no protection against liability. The Supreme Court has overturned federal courts that had based rulings on noncompliance with ACA’s and other so-called national standards. According to the Supreme Court, “
Legal Based Standards
In 1993, I was asked by state corrections directors from several of the western states – unhappy with the ACA’s philosophy-based standards – to write prison standards that were annotated with case law, statutes, and other authority7. In 1994, as I was completing the prison standards, the Utah Sheriffs’ Association asked me to write jail standards that were annotated with legal authority to replace the standards the Utah Sheriffs’ Association had been using for the previous15 years. Both the western corrections directors and the Utah Sheriffs’ Association wanted something that provided guidance that was based on and cited the legal authority that governed incarceration of prisoners. Over 500 legal-based standards or guidelines were written and annotated with citations of the legal authority that officials needed to know to adopt constitutional policies and procedures and training.
What is the difference between legal-based guidelines and the philosophy-based standards such as those promulgated by the ACA? The difference is actually profound. Standards such as those published by ACA provide several hundred standards or processes that, according to the U.S. Supreme Court, merely “establish goals recommended by the organization in question”;8 however, “while the recommendations of these various groups may be instructive in certain cases, they simply do not establish the constitutional minima.” 9 Simply put, any of these organizations’ published standards simply provide the assumptions and recommendations of a group-think process instead of giving guidance regarding the requirements necessary to operate a constitutional jail.
Legal-based standards do not seek to dictate to Sheriffs regarding what is necessary to comply with an organization’s philosophy regarding jail operations – so-called best practices. Instead, legal-based guidelines inform Sheriffs and jail officials of what the federal courts have ruled and what federal statutes require with respect to incarcerating prisoners. As a young child growing up in Idaho, I spent my summers working on my grandparents’ ranch. I remember my grandfather having me drive a tractor back to the ranch house from the fields a mile or so from the house. His only instruction before I set off, was to “Keep it between the ditches.” In other words, don’t run off the road.
That is what the legal-based standards attempt to do - provide Sheriffs and their jail officials with the legal requirements to help them stay between the ditches, instead of providing a one-size-fits-all standard for all jails. All jails are governed by the same U.S. Constitution; however, there may be many ways to comply with a constitutional requirement. Instead of arbitrarily selecting an approach as the organization’s mandate, legal-based standards simply provide officials with a set of individual guidelines that explain what the law requires officials to do or prohibits officials from doing. That approach allows Sheriffs and their jail officials to choose their own path, as long as they stay between the ditches.
The guidelines adopted by the NSA – like the standards I wrote for Utah, Oregon, Arizona, Alabama, and others – provide for each individual guideline:
- The text of the guideline – what is required for compliance;
- The rationale for the guideline – why compliance is required. The Supreme Court over the past two decades has focused heavily of whether officials have a legitimate penological interest in doing something in a particular way. The rationale statement provides the justification for policies drafted using the legal guidelines.
- A compliance discussion – how to implement the guideline. Different jails will adopt different approaches. The compliance discussion assists that process.
- Annotations – includes the case law, statutes, or other authority that support the guideline.
The legal-based guidelines adopted by the National Sheriffs’ Association under the direction of NSA President Larry Amerson and NSA Executive Director Aaron Kennard recognize and support the principle that the discretion for formulating and adopting jail policies and procedures resides with the Sheriff and his appointed jail officials, a concept approved by the Supreme Court.
"[T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. Prison administrators therefore should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security." 10
Administrative discretion is apparently not held in high regard in the ACA world. Certainly, by supporting the prisoner-filed litigation that would deny Sheriffs the discretion over policies governing strip searches, ACA officials did not demonstrate trust in Sheriffs’ discretion. Tate McCotter, NIJO Administrator, received an email indicating such, stating “If [sheriffs and jail administrators] are the true experts, then I would suggest that they are also the perpetrators of the grievous practices and conditions that keep coming to the courts.” He then wrote that they encompass “the best and the worst, the professionals and the crackpots. Being a sheriff does not, in my experience, automatically qualify someone to know how to run a jail. I hope that's not what you are implying. The same could be said for jail administrators – having the title does not mean they are qualified.”
It is interesting that after his critique of Sheriffs expertise and susceptibility to prisoner suits, the author writes, “There are many examples of [ACA] accredited jails losing lawsuits and that should not be a surprise.” And, he correctly adds, “The courts have been specific in saying they will not use ALDF11 as an indication of constitutional minimums, and that's good because that's never been the intent of the ALDF standards.” 12
A Few Last Words
There is a major difference in content, objectives, and intent between the ACA’s standards and legal-based standards. The legal-based standards recognize the authority of Sheriffs to employ their discretion to set and/or approve jail policy. There are certainly wide differences among sheriffs regarding their knowledge of jail operations. One approach to maximizing Sheriffs' and jail officials' understanding of the legal requirements for managing and operating jails is to have a group of hand-picked committee members decide how Sheriffs should run their jails, yet not base their standards on legal requirements. The legal-based guidelines approach is entirely different. Legal-based standards recognize that the courts have already provided countless rulings regarding the legal requirements for operation jails, then codify the information in an easily understandable format to assist Sheriffs and their jail officials to use the guidelines in policy writing, training, and decision making.
1. The National Commission on Correctional Health Care (NCCHC) which grew out of the American Medical Association’s early effort to develop health care standards for jails is still alive and well; however, their standards are limited to health care issues.
2. John J. DiIulio, Governing Prisons: A Comparative Study of Correctional Management (New York: The Free Press, 1987), pp. 248-249.
3. Florence v. Board of Chosen Freeholders, 566 U.S. (2012).
4. ACA standards official wrote, “I was disappointed with Florence. I was part of an amicus brief filed in support of the plaintiff.”
5. Rhodes v. Chapman, 452 U.S. 337, 349 n. 13 (1981).
6. Rhodes v. Chapman, 452 U.S. 337, 349 n. 13 (1981), quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976) (joint opinion).
7. Model Standards for Prison Management.
8. Bell v. Wolfish, 441 U.S. 520, 543 n. 27 (1979).
9. Bell v. Wolfish, 441 U.S. 520, 543 n. 27 (1979) (emphasis added).
10. Bell v. Wolfish, 441 U.S. 520, 547 (1979). Also see Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 128 (1979); Procunier v. Martinez, 416 U.S. 396, 404-405 (1974); Cruz v. Beto, 405 U.S. 319, 321 (1972); Meachum v. Fano, 427 U.S. 215, 228-229 (1976).
11. The ALDF is the ACA’s Adult Local Detention Facilities standards.
12. Source: NIJO, Tate McCotter (emphasis added).