This document fulfills the intent of House Joint Resolution No. 19 in reviewing the minimumstandards for correctional facilities. A standard is a measure established as a rule or basis forcomparison in measuring adequacy or quality. The standards for correctional facilities generallyapply to the conditions of confinement and preservation of inmates' rights, which promotes safecorrectional management and reduces liability. The first part of this report outlines the preceptsfrom which the conditions of confinement and the rights of inmates are derived: federal and stateconstitutional rights, law, and legal precedent. The second part of the report briefly discussesrelevant state laws on fire, health, safety, and building codes, the history of correctional standardsin Montana, and the resources that currently exist for standards for correctional facilities. Thethird part of the report discusses each type of correctional facility separately and includes the typeand description of the facility, specific governing and related statutes, the type of offender allowedto be confined, specific available standards, the status of Montana facilities, and any newproposals.
PART I: CONSTITUTIONAL CONSTRAINTS ON CONFINEMENT By Valencia Lane, Legislative Attorney
This document is written to assist the Correctional Standards and Oversight Committee inunderstanding the laws relating to inmates' rights and conditions of confinement. It was preparedfor a nonlegal audience to provide background information to the committee members, who arenot attorneys, that will help them understand the importance of jail standards in protecting life,health, and safety of inmates and, correspondingly, in protecting the state from liability forviolations of inmates' rights. Accordingly, there are no citations to specific court cases; however,the discussion is based on case law and legal citations can be found to support all statements.
The following discussion is based on 60 Am Jur 2d, Penal and Correctional Institutions, and LegalIssues Relating to Conditions of Confinement for Detained Children, Sue Burrell, Staff Attorney,Youth Law Center, San Francisco, California, July 1995.
I. GENERAL .
The rights of inmates derive from the United States Constitution and federal laws, including theJuvenile Justice and Delinquency Prevention Act for juveniles, from state constitutions and laws,and from court cases that interpret each of these sources.
A prison inmate does not lose all of the inmate's constitutional rights upon incarceration. Given avalid conviction, a criminal defendant is constitutionally deprived of liberty to the extent that thestate may confine and subject the inmate to the rules of its prison system so long as the conditionsof confinement do not otherwise violate the Constitution, 16A Am Jur 2d, Constitutional Law,sec. 572. The inmate retains those rights that are not inconsistent with the inmate's status as aprisoner or with the legitimate penological objectives for the corrections system. The inmate doesnot retain those rights that are inconsistent with the inmate's status as a prisoner or with thelegitimate penological objectives of the corrections system. Valid penological objectives includedeterrence of crime, rehabilitation of inmates, and institutional security. The fact of confinementand the needs of a penal institution impose limitations on constitutional rights. These limitationsare implicit in incarceration, 16A Am Jur 2d, Constitutional Law, sec. 457. While personsimprisoned for crimes lose many of their constitutional rights, they do not lose all protections ofthe Constitution. Inmates must be accorded those rights not fundamentally inconsistent withimprisonment itself or incompatible with the objectives of incarceration, 60 Am Jur 2d, Penal andCorrectional Institutions, sec. 26. Inmates must be furnished with adequate food, clothing,shelter, sanitation, medical care, and personal safety.
II. CONSTITUTIONAL PROTECTIONS.
The First, Fourth, Eighth, and Fourteenth Amendments to the U. S. Constitution (and similarprovisions of state constitutions) have been applied by courts in determining the proper limits ofconfinement and restrictions on inmates' rights. Generally, the Eighth Amendment's prohibitionagainst cruel and unusual punishment limits the conditions under which persons may be confined. In addition, the First Amendment protects the freedoms of religion, speech, press, and association. The Fourth Amendment provides protection from unreasonable searches and seizures. TheFourteenth Amendment guarantees that no state may abridge the privileges or immunities ofcitizens of the United States or deprive any person of life, liberty, or property without due processof law nor deny to any person within its jurisdiction the equal protection of the laws. In casesinvolving juveniles and pretrial detainees, the Fourteenth Amendment's Due Process Clause isgenerally used, rather than the Eighth Amendment, since these people have not been convicted ofa crime. The constitutional standard is whether they have been held under conditions that amountto punishment.
The first ten amendments to the Constitution, the Bill of Rights, apply to Congress and the federalgovernment only. However, the Fourteenth Amendment has been interpreted to extend many ofthe limitations contained in the Bill of Rights to the states, including, specifically, the FirstAmendment's guarantees relating to religion, speech and press, assembly, petition for redress ofgrievance, and association; the Fifth Amendment's privilege against self-incrimination and doublejeopardy; the Fourth Amendment's protection against unreasonable searches and seizures; and theEighth Amendment's protection against cruel and unusual punishment.
The Eighth Amendment has been applied in cases relating to restrictions on cell occupancy, size,and sanitation, requirements for inmates' medical care, and requirements for inmates' exercise,rehabilitation, and recreation. The First Amendment has been applied in cases relating to inmates'right to practice religion, right to mail and correspondence, right to reading material and massmedia, and right of association in organizations. The Fourth Amendment has been applied incases relating to inmates' and pretrial detainees' protection from searches. Inmates are entitled toequal protection under the Fourteenth Amendment. Also, the Fourteenth Amendment's guaranteeof due process has been applied to cases involving inmates' right of access to courts, legalassistance, and legal materials, to inmates' liberty interests protected by due process on transfer orrelease, and to procedures affecting their rights generally. See 60 Am Jur 2d, Penal andCorrectional Institutions, sec. 26.
Pretrial detainees and juveniles have at least the same level of constitutional rights as convictedinmates. Because pretrial detainees have not yet been convicted and juveniles are not"convicted", the Eighth Amendment prohibition against cruel and unusual punishment doesn'tapply. Instead, the Due Process Clause of the Fourteenth Amendment applies. If a violation isalleged, the question is whether the conditions or restrictions "amount to punishment" of thedetainee or juvenile or otherwise violate the Constitution. In addition to constitutionalprotections, both federal and state laws specifically apply to the detention of juveniles. Forexample, the federal Juvenile Justice and Delinquency Prevention Act (JJDPA), 42 U.S.C. 5601,et seq., prohibits certain treatment of detained juveniles and requires certain protections ofjuveniles, including separate staff for juveniles and separate programming for recreation,education, counseling, health care, dining, sleeping, and general activities. Juveniles cannot bedetained in adult jails, and status offenders cannot be detained in secure detention. The improperdetention of juveniles, especially status offenders, can be challenged on the basis of a violation ofthe JJDPA or specific constitutional provisions.
If an inmate challenges a prison regulation based on asserted constitutional rights, the courts mustassess the challenge in light of the legitimate objectives of deterrence of crime, rehabilitation ofinmates, and internal security within correctional facilities. A prison regulation that impinges onan inmate's constitutional rights may nevertheless be held valid if it is reasonably related tolegitimate penological interests. The following is a checklist of factors relevant in determiningwhether a prison regulation that impinges on inmates' constitutional rights is reasonably related tolegitimate penological interests: (1) whether there is a valid, rational connection between the prison regulation and alegitimate and neutral governmental objective put forward to justify the regulation; (2) whether there are alternative means of exercising the asserted constitutional rightthat remain open to prison inmates; (3) what impact accommodation of the asserted constitutional right will have onguards, other inmates, and the allocation of prison resources generally; and (4) whether there are ready, obvious, easy alternatives to the challenged regulation. See 60 Am Jur 2d, Penal and Correctional Institutions, sec. 27.
III. ENFORCEMENT OF RIGHTS UNDER CIVIL RIGHTS LAWS
An inmate whose constitutional or other federal legal rights are violated by a person acting onbehalf of the state may seek redress under Section 1983 of the federal Civil Rights Act, 42 U.S.C. 1983. The federal civil rights law provides that:
Every person who, under color of any statute, ordinance, regulation, custom orusage . . . subjects, or causes to be subjected, any citizen of the United States orany 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 theparty injured in an action at law, suit in equity, or other proper proceeding forredress . . .
Such actions have been maintained in a wide variety of circumstances, including actions forviolations of religious freedom, the right to medical care, the right to correspondence or mail, theright of access to information, the right to contacts with the press and media, the right toprotection from unreasonable searches and seizures, the right to freedom of speech, the right tofreedom of association, the right of access to the courts, the right to freedom from unlawfulphysical violence, the right to freedom from cruel and unusual punishment, property rights, theright to equal protection of the laws, the right to procedural due process for protected libertyinterests, and the rights of pretrial detainees and juveniles. 60 Am Jur 2d, Penal and CorrectionalInstitutions, sec. 189. An inmate may also be able to sue in state court under state tort laws andseek other common-law remedies in state court. These kinds of suits would not be federal civilrights litigation.
Federal law controls the issue of damages in Section 1983 actions. The law permits the recoveryin meritorious cases of nominal damages, as well as the recovery of actual or compensatorydamages. Punitive damages may also be awarded. The law also permits the issuance of injunctiverelief and the award of attorney fees in appropriate cases.
In a suit seeking injunctive relief, the person is seeking to change conditions or practices. In adamages case, the person is seeking money for the harm suffered as a result of the violation of theperson's rights. Damages can be compensatory (the amount of money the person's suffering isworth), special (to reimburse the person for out-of-pocket expenses such as doctor's bills), orpunitive (to punish the wrongdoer for the wrongful behavior). A case can seek both injunctiverelief and damages. If a claimant in a federal civil rights case prevails, the claimant's attorney isentitled to attorney fees. These fees can be substantial, especially in a case that has gone to trial,because of the complexity of these kinds of cases and, subsequently, the amount of time anattorney must expend on these kinds of cases.
IV. LIABILITY
Any person who has responsibility for the confinement of inmates, pretrial detainees, or juvenilesmay face potential liability if the person is found to have violated the inmates', detainees', orjuveniles' constitutional rights.
The Eleventh Amendment to the U.S. Constitution bars suits for money against the state. However, this provides only limited immunity for state officials because state officials can be suedfor damages in their individual capacities. Commonly, as is the case in Montana, the stateindemnifies state officials acting in their official capacity. This means that the governmentalagency defends the official and pays any money damages, including attorney fees, awarded againstthe official. The state will not pay for punitive damages. The Eleventh Amendment restriction onmoney suits against the state does not apply to local governments.
Sheriffs and jailers, as well as juvenile detention staff, supervisors, and facility administrators andothers involved in the juvenile justice system, may be sued for damages or injunctive relief. Localgovernment officials are entitled to a qualified immunity to the extent that they are not liable fordamages unless their conduct violated clearly established statutory or constitutional rights ofwhich a reasonable person would have known. This means that these individuals are presumed toknow the existing law on a particular issue and must conform to that law or face liability. Thelocal governmental entities themselves are not entitled to qualified immunity and may be liableeven when the individual officials are entitled to qualified immunity. A finding that official conductviolated constitutional rights does not absolve an employing governmental entity from anobligation to defend and indemnify the employee to the extent that the employee was actingwithin the course and scope of employment when the offense occurred.
Governmental entities may be liable for implementing or executing policies, ordinances, rules, orcustoms that result in deprivations of constitutional rights; for example, providing inadequatetraining that results in injury may be the basis of liability. It is imperative when a governmentalagency adopts rules, jail standards, policies, or customs, that the rules, standards, policies, orcustoms take into account the current law on inmates' rights and are designed to protect thoserights while implementing legitimate penological objectives.
V. SPECIFIC RIGHTS AND CONDITIONS OF CONFINEMENT.
A. Discrimination Inmates have a constitutional protection under the Equal Protection Clause of theFourteenth Amendment against discrimination on the basis of race, sex, and creed. Not alldisparities will be found to violate the Constitution. Segregation by race violates the FourteenthAmendment, but officials can, acting in good faith and in particularized circumstances, take intoaccount racial tensions in maintaining security, discipline, and good order in prisons and jails. Generally, as to sexual disparity, there must be essential equality in living conditions,decisionmaking processes affecting the status and activities of confined persons, and theavailability of community and institutional programs, including educational, employment, andvocational training opportunities. In addition to the Fourteenth Amendment protections, the U.S.Supreme Court recently ruled that state prisoners are protected by the federal Americans WithDisabilities Act against discrimination based on disability. The decision allowed a state prisonerto sue for damages over the prisoner's exclusion from a boot camp program because of high bloodpressure. Participation in the program, which had been recommended by a judge, could haveshortened the prisoner's sentence.
B. Religion and religious practices Inmates have certain rights and privileges in the area of religion, although prison officialscan control religious practices. Inmates must be provided reasonable opportunities to exercisetheir religious freedom guaranteed under the First Amendment. Inmates cannot be punished forreligious beliefs, such as by transfers to punish them for their religious beliefs. Prison officialsmay curtail some practices if, in their informed discretion, they conclude that the religious practicemay disrupt prison order or stability or otherwise interfere with the legitimate penologicalobjectives of the prison environment. It has been held that prison regulations restricting hairlength do not violate the First Amendment rights of Native American inmates when the regulationhas a rational connection to a legitimate governmental objective, such as promoting hygiene,eliminating places to hide contraband, avoiding gang and homosexual activity, using guards' timeefficiently, and promoting safety. At least one case has held that prison officials must provideNative American inmates with a sweat lodge for religious ceremonies; however, a later federalcase held that prison officials' refusal to provide a sweat lodge did not violate inmates' rights.
C. Mail or correspondence of inmates Prison officials can control mail to and from inmates. Generally, rules that regulatemailing privileges of inmates and that are uniformly applied and are necessary to the orderlyconduct of the facility do not violate any constitutional rights of inmates. Inspection of nonlegalmail is not unconstitutional; however, censorship of nonlegal mail may violate the FirstAmendment rights to freedom of speech and association. Due process requires that if mail is heldor censored, an inmate must be notified of the rejection of a letter written by or to the inmate, theauthor of the letter must be given a reasonable opportunity to protest the decision, and complaintsmust be referred to a prison official other than the person who originally disapproved thecorrespondence. In addition, prison officials must be able to justify any censorship rule on thegrounds of furthering a particular governmental interest involved, such as security, order, orrehabilitation. If a rule is so broad as to allow censorship of inmates' criticisms without furtheringa governmental interest, the rule is too broad and could be found to violate the Constitution. "Legal mail" is entitled to more protection than other, nonlegal mail. Prison official mustnot interfere with an inmate's access to the courts or with reasonable correspondence with aninmate's attorney. Generally, mail to or from an inmate's attorney, identified as such, cannot beopened for inspection for contraband except in the presence of the inmate. Mail to or from aninmate and a court must not be delayed any longer than is necessary for handling and sorting. Any other delay is inappropriate and unnecessary. Censorship of legal mail may violate aninmate's right to freedom of petition. A single incident of unconstitutional opening or delay oflegal mail when there is no evidence that the incident affected an inmate's correspondenceconcerning any legal matters may not provide an inmate with a cause of action. Officials cannotarbitrarily forbid inmates from corresponding with the news media.
D. Access to books, newspapers, periodicals, and mass media The same constitutional principles generally applicable to regulation of inmates' mail applyto the regulation of inmates' access to published materials, newsletters, or newspapers and to thecensorship of these materials. Inmates have a constitutional right to receive most publications,and a publication can be rejected only if it poses a threat to the order and security of the facility. Regulations have been found constitutional that prohibit receipt of hardback books unless they aresent directly from publishers, book clubs, or bookstores because of the threat of security problemsrelated to smuggling contraband. Such regulations must be reasonable as to time, place, andmanner of implementation and be necessary to further significant governmental interests.
E. Access to courts, legal assistance, and materials
Access to the courts is a corollary to the constitutional guarantee of due process. Underthe Due Process Clause of the Fourteenth Amendment, inmates have the right of access to thecourts in order to challenge their convictions and to seek redress for violations of theirconstitutional rights. Access means the opportunity to prepare, serve, and file necessarydocuments in litigation and to send and receive communications concerning these matters to andfrom judges, courts, and lawyers. Cases have held that indigent inmates must be provided withpaper and pen to draft legal documents and must be provided with notarial services, stamps,docket fees, costs for transcripts, and legal fees. Legal assistance may be provided byparaprofessionals and legal students, as well as licensed attorneys. If direct legal assistance is notprovided, inmates must be given access to a constitutionally adequate library. In one case,Arizona prison officials were found to have violated prison inmates' rights to access to the courtsby failure to provide a sufficient number of trained legal assistants and by maintaining aninadequate law library.
F. Visitation rights The courts accord prison administrators great latitude in restricting inmates' rights to havevisitors for reasons of security and related administrative problems as well as accepted andlegitimate corrections policy objectives. It has been held that neither the First Amendment rightto freedom of association or the Fourteenth Amendment's guarantee of due process give prisonersunfettered visitation rights. Visitation rights are privileges that are subject to prison authorities'discretion as long as visitation policies meet legitimate penological objectives. It is constitutionalto limit visitors to lawyers, clergymen, relatives, and friends of inmates. Limitations, such as time,frequency, duration of visits, and number of visitors, can be placed on visitation rights. Otherreasonable and effective means of communications, such as mail correspondence, must remainopen to prisoners, and prison officials may not show discrimination in visitation rules.
G. Cell occupancy and conditions Prison overcrowding and double-bunking do not necessarily violate the EightAmendment's protection against cruel and unusual punishment. It is the effect on prisonconditions that overcrowding has that may result in a constitutional violation. If overcrowdingcauses increased violence or unsanitary and unhealthy conditions or if it affects health and mentalhealth services, educational programs, and recreation, the combined impacts may result in aconstitutional violation. For example, one case involving a juvenile facility stated that doublecelling can amount to an Eighth Amendment violation if combined with other adverse conditionssuch as allegations that the plaintiffs were subjected to sexual assault and that the prison officialswere deliberately indifferent to the potential for this kind of harm.
H. Medical care Inmates, detainees, and juveniles are entitled to adequate medical care under theConstitution. Health care includes both physical and mental health care. Inmates are not entitledto unqualified access to health care. In order to rise to the level of a constitutional violation, lackof care must be more than just negligence since medical malpractice does not become aconstitutional violation merely because the victim is an inmate. In order to violate constitutionalrights, the officials' actions must exhibit deliberate indifference to serious medical needs. Inmatesmust be able to make their medical needs known to the staff, and the staff must be competent todeal with the inmates' problems. The medical staff must be competent to examine inmates anddiagnose illnesses, and the facility must provide an adequate system for responding toemergencies. Budgetary constraints and lack of funding will not protect officials against liabilityfor constitutional violations relating to inadequate medical care. Denial of adequate medical caredue to overcrowding may violate the Constitution, and inmates' rights to adequate care cannot bemade dependent on a state legislature appropriating additional money.
I. Privacy and searches Inmates have few privacy rights under the Constitution since a loss of privacy is inherentin imprisonment. Generally, inmates' cells can be searched randomly without warrant or notice. However, inmates cannot be searched solely for harassment and are protected from suchharassment by the Eight Amendment's protection against cruel and unusual punishment. Forexample, in one case, the search of an inmate's cell 19 times in 10 days, leaving the cell in disarray,confiscating personal property, and issuing undeserved conduct violations to an honor inmate,was held to be calculated harassment unrelated to prison needs in violation of the EighthAmendment. A body cavity search may be constitutional, especially in response to emergencysituations, but may constitute a violation of an inmate's Fourth Amendment right againstunreasonable searches depending on the circumstances of the search and how it is conducted.
J. Rehabilitation, exercise, and recreation Inmates must be granted at least some meaningful opportunity for physical exercise. Totalor near-total deprivation of out-of-cell exercise may constitute cruel and unusual treatment. It hasbeen held in one case that because inmates have a right to access to both a library and outdoorrecreation, officials cannot schedule access to both for the same time. In another case, an inmatestated a claim for relief when the inmate was allowed only 30 minutes of out-of-cell exerciseduring a 3-month period. In another case, a county jail did not violate inmates' rights when thejail contained no formal exercise or recreational area, when the jail was not a long-term facility,and when it did contain a day room where the inmates could eat and had limited recreation, suchas use of TVs, radios, and limited forms of exercise.
As to rehabilitation, the Eighth Amendment does not require that every aspect of prisondiscipline serve rehabilitative purposes. Inmates do not have an unqualified right to participate inwork programs, and any such rights can be restricted by rules relating to security and order.
K. Other rights and conditions Inmates have a fundamental constitutional right to marry, but officials may regulate thetime and circumstances under which an inmate's marriage ceremony takes place. Inmates have aFirst Amendment right to communicate with family and friends and to have reasonable, but notunlimited, access to and use of telephones. Inmates can be housed in disciplinary confinement orspecial housing units but must still be allowed reasonable opportunity for meaningful exercise. Inmates can be regulated in the matter of their personal appearance. Inmates' personal propertycan be confiscated as long as the inmate is granted due process. As to diet, inmates must beprovided with nutritionally adequate food that is prepared and served under healthful conditions. For example, a diet that is unbalanced, consists primarily of starches, and is minimally adequate,together with other conditions, may result in a constitutional violation. Inmates have noconstitutionally protected property interest in running their private business concerns while inconfinement. Inmates have a constitutional right to be protected from constant threats of violenceand sexual assaults. Mere negligence in protecting an inmate is not sufficient to establish aconstitutional violation. In order to recover damages, an inmate must show that there was apervasive risk of harm from other inmates and that the officials failed to exercise reasonable careto protect the inmate from unreasonable harm.
PART II: MONTANA LAWS AND STANDARDS HISTORY By Susan Byorth Fox, Legislative Research Analyst
Part II outlines specific state laws that also provide guidance to inmates' rights and the effects onthe conditions of confinement in correctional facilities.
Related State Laws Correctional and detention facilities are subject to state laws on fire, health, safety, and buildingcodes. Building construction standards are contained in Title 50, chapter 60, of the MontanaCode Annotated (MCA), which includes the state building code, authorization for municipal andcounty building codes, and statutes related to plumbing and electrical installations. Buildingcodes are adopted and electrical and plumbing standards are promulgated by rule by theDepartment of Commerce. The Uniform Building Code has been adopted and applies to any newconstruction or remodeling of existing buildings. Title 18, chapter 2, MCA, authorizes theDepartment of Administration to supervise the construction of state buildings and to review andaccept all plans and specifications. All buildings that are built or leased or purchased under Title18, MCA, must comply with all laws and rules of the state of Montana.
Health codes are found in Title 50, chapters 1 and 2, MCA. The Department of Public Health andHuman Services has discretionary authority to make public health inspections for jails and otherplaces people assemble. This was mandatory until 1995 when the Department of Public Healthand Human Services requested modification of the requirement because of lack of resources (Ch.383, L. 1995). Title 50, chapter 2, MCA, governs local boards of health that have authority tomake inspections for sanitary conditions.
Fire codes are found in Title 50, chapter 61, MCA, and the Department of Justice is the agencyresponsible for inspecting public buildings and accomplishes this responsibility through the StateFire Marshal. Jails and houses of correction are included in 50-61-103, MCA, which allows forinspections of those buildings. The State Fire Marshal establishes priority schedules forconducting inspections of buildings and premises. Currently jails or detention centers are not on aspecific priority schedule. The state prisons at Billings and Deer Lodge and the youthcorrectional facilities at Miles City and Boulder are inspected by either a state officer or a localcertified cities program (Miles City and Billings).
In any contract for state, county, municipal, and school construction in which federal funds aresupplied, state law allows for insertion into the contract of provisions required by any federalstatutes or regulations under which funds are supplied. Since some of the recent construction ofcounty and state correctional facilities has used federal funds, those statutes or regulations mayalso be enforced.
Legislative History of Standards
Correctional standards, specifically jail standards, have been recommended numerous times inrecent history. A 1971 Jail Survey report, published by The Governor's Crime ControlCommission in 1972, stated that little or nothing had been done to upgrade most detentionfacilities since their original construction. At that time, there were 53 county and 21 municipal jailfacilities. Thirty-four of 50 county jails were built prior to 1920, and only two were built between1966 and 1971. The jails were inspected, and a majority were judged to be in fair to poorcondition. A recommendation was made for the state planning staff to set minimum standards inthe four areas of construction, maintenance, physical condition of the jail, and treatment ofprisoners. The staff recommendations were to be reviewed by a Corrections Task Force andapproved by the Governor's Crime Control Commission and submitted to the Legislature. Therecommendation included a recommendation for a state jail inspector.
In 1975, 1977, 1983, 1985, 1989, and 1991, legislation for jail standards commissions orinspection programs was introduced to and rejected by the Legislature. In 1981, standards forjuvenile detention were introduced to and rejected by the Legislature.
Of the more recent attempts, House Bill No. 282 was introduced in the 1989 Legislative Sessionand would have established state jail standards for Montana. The bill passed through the Houseon second reading but was referred to the House Appropriations Committee, which reported a DoNot Pass recommendation that was endorsed 50-42 by the House of Representatives.
A 1990 Jail Survey conducted under the auspices of the Joint Interim Subcommittee on Adult andJuvenile Detention indicated that there were 36 county jails, nine county, 72-hour lockups, andtwo city, 72-hour lockups for a total of 47 jails. Slightly under half of the jails surveyed, were rated as poor or fair for overall jail conditions. Of all those surveyed, only one jail (2%) wasreported to meet current, accepted jail standards, 38% indicated that the jail substantially meetscurrent standards, 60% did not meet standards or did not know whether their jail met anystandards.
A June 1990, Legislative Council report on "Adult and Juvenile Detention: Issues and Options"identified an option to establish jail standards and require regular inspection of local jails. It notedthat standards could be directly established by statute or adopted through administrative rules andthe option recommended annual inspections.
This indicates at least a 25-year history of attempts to put in place some form of standards for jailsin Montana.
Resources for Standards
An informational pamphlet provided by the American Correctional Association (ACA) states thatthe ACA and the Commission on Accreditation for Corrections are private, nonprofitorganizations that administer the only national accreditation program for all components of adultand juvenile corrections. It is a voluntary accreditation program in which 80% of all statedepartments of corrections and youth services actively participate. The accreditation programoffers an opportunity to evaluate operations against national standards, to remedy deficiencies,and to upgrade the quality of correctional programs and services. The ACA states that the: recognized benefits from such a process include improved management, a defenseagainst lawsuits through documentation and the demonstration of a "good faith"effort to improve conditions of confinement, increased accountability and enhancedpublic credibility for administrative and line staff, a safer and more humaneenvironment for personnel and offenders, and the establishment of measurablecriteria for upgrading programs, personnel practices, and physical plant on acontinuous basis.
The ACA standards include mandatory standards and additional standards that must be fulfilledfor accreditation. The full accreditation process can be costly, but the published standardsmanuals are a valuable resource that is available without participating in the full accreditationprocess.
Individual types of facilities may also be guided by standards developed by professionalassociations, such as the National Juvenile Detention Association.
PART III: SPECIFIC STANDARDS BY TYPE OF CORRECTIONAL FACILITY By Susan Byorth Fox, Legislative Research Analyst
CORRECTIONAL STANDARDS for Adult Detention Centers or County Jails
Type and description of facility: "Detention center" means a facility established and maintainedby an appropriate entity for the purpose of confining arrested persons or personssentenced to the detention center, 7-32-2241, MCA. There are various types of detentioncenters including multijurisdictional detention centers that are established and maintainedby two or more local governments for the confinement of persons arrested or sentenced toconfinement or a local government detention center contracting to confine personsarrested or sentenced by other local governments. In Montana, detention centers areoperated by counties. Governing and related statutes: Title 7, chapter 32, part 22, MCA: 7-32-2204, MCA,maintenance of detention center; 7-32-2205, MCA, confinement of inmates, 7-32-2207,MCA, confinement of persons on civil process; 7-32-2222, MCA, health and safety ofprisoners; 7-32-2247, MCA, annoyance of inmate prohibited; and 7-32-2248, MCA,inmate endangerment.
Type of offender allowed to be confined: Detention centers are used as follows: (1) for the detention of persons committed in order to secure their attendance aswitnesses in criminal cases; (2) for the detention of persons charged with crime and committed for trial; (3) for the confinement of persons committed for contempt or upon civil processor by other authority of law;
(4) for the confinement of persons sentenced to imprisonment therein uponconviction of a crime; (5) for the confinement of persons sentenced to the state prison, as agreed upon bythe state and the administrator in charge of the detention center (7-32-2203, MCA).
When a statute authorizes imprisonment for its violation but does not prescribe the placeof imprisonment, a sentence not to exceed 1 year shall be to the county jail (46-18-211,MCA).
The court, in imposing sentence upon an offender convicted of an offense for which nopenalty is otherwise provided or if the offense is designated a misdemeanor and no penaltyis otherwise provided, may sentence the offender to a term of imprisonment not to exceed6 months in the county jail . . . (46-18-212, MCA).
Persons who have been sentenced to the state prison are confined in a detention centerprior to transfer to a state prison. Because of overcrowding at both the men's andwomen's prisons, the state has contracted with many counties for bed space and the statepays a cost per day.
Available standards: The American Correctional Association publishes manuals on "Standardsfor Adult Local Detention Facilities" and "Standards for Small Jail Facilities". TheMontana Sheriffs and Peace Officers Association has developed voluntary Montana JailStandards. A copy of the Montana Jail Standards is available in the Legislative ServicesDivision Library.
Status of Montana facilities: Currently, county jails exist in 50 counties (excluding Petroleum,Carter, Judith Basin, Treasure, Golden Valley, and Garfield). There are no municipalitiesthat currently operate jails. As of April 1998, 38 counties had adopted the voluntaryMontana Jail Standards, up from 12 counties a year ago.
New proposals: The Jail Standards Subcommittee of the Correctional Standards and OversightCommittee has participated on a Montana Sheriffs and Peace Officers Jail Standards TaskForce to develop a proposal for mandatory jail standards and an inspection process to bepresented to the 1999 Legislature.
CORRECTIONAL STANDARDS for Regional Correctional Facilities Type and description of facility: A regional correctional facility means a correctional facilitydesigned, constructed, or operated under Title 53, chapter 30, part 5, MCA, by a localgovernmental entity, a corporation, the department, or any combination of a localgovernmental entity, a corporation, and the department for the housing of convicted felons(53-30-503, MCA).
Governing and related statutes: A regional correctional facility that is either privately operated or privately owned and operated is considered a private correctional facility subject to Title 53, chapter 30, part 6, MCA.
A regional detention center being operated in conjunction with a regional correctionalfacility would be subject to Title 7, chapter 32, part 22, MCA, as a detention center.
Offenders sentenced to a state prison and placed by the Department of Corrections undercontract would be subject to Title 53, chapter 30, part 1, MCA, and protected by anystandards or policies required in contract by the Department of Corrections that includecertain standards that apply to a state prison and for which the state has liability concernsthat cannot be contracted away.
Type of offender allowed to be confined: The only limitation in statute is that a personconvicted in another state may not be confined in the state portion of a regionalcorrectional facility in this state unless the confinement is under and governed by aninterstate corrections compact (53-30-504(8), MCA).
Available standards: Please refer to the correctional standards for the appropriate type of entityand refer to governing and related statutes above.
Status of Montana facilities: Cascade County is operating a regional correctional facility as ofJanuary 1998. Dawson County 's facility is expected to be open in 1998 and MissoulaCounty's facility is expected to be open in 1999. For the detention center portion, thecurrent standards are the voluntary Montana Jail Standards developed by the MontanaSheriffs and Peace Officers Association. In the future, if the proposed mandatorydetention center standards are adopted by the Legislature, they would apply. For the stateprison portion, the Department of Corrections requires in contract that certain Departmentof Corrections policies, e.g. classification, be complied with at the regional correctionalfacilities.
New proposals: See proposals for Adult Detention Centers.
CORRECTIONAL STANDARDS for Adult State Correctional Facilities or State Prisons
Type and description of facility: The correctional facility in Deer Lodge is the Montana StatePrison, and its primary function is to provide for the custody, treatment, training, andrehabilitation of adult male criminal offenders. The correctional facility located in Billingsis the Montana Women's Prison, and its primary function is to provide for the custody,treatment, training, and rehabilitation of adult female criminal offenders (53-30-101,MCA). Governing and related statutes: Title 53, chapter 30, part 1, MCA. There are no statutesrelated directly to standards or conditions of confinement. Section 53-30-101 and 53-30-106, MCA, provide the Department of Corrections with authority to contract for thecustody, treatment, training, and rehabilitation of offenders in a detention center in anotherjurisdiction with suitable detention centers or programs, including with public or privatecorporations, either because a correctional institution or system has exceeded itsemergency capacity or because the Department has no institution that is adequate forcertain inmates. Section 53-30-110, MCA, provides for expense of trial for offensescommitted in prison.
Type of offender allowed to be confined: The court, in imposing sentence upon an offenderconvicted of an offense which is designated as a felony and no penalty is otherwiseprovided, may sentence the offender for any term not to exceed 10 years in the stateprison . . . (46-18-213, MCA). A felony is defined as an offense in which the sentenceimposed upon conviction is death or imprisonment in the state prison for any termexceeding 1 year. Title 45, chapters 5 through 9, MCA, provide for criminal offenses thatmay be considered felonies. Title 46, MCA, contains statutes on criminal procedure.
Available standards: The American Correctional Association publishes a manual on "Standardsfor Adult Correctional Institutions" and accredits those facilities. There are also specificcorrectional health care standards available from the National Commission on CorrectionalHealth Care.
Status of Montana facilities: The adult correctional facilities in Montana are not currentlyaccredited by the American Correctional Association and are not required to follow anyminimum standards by law. Two settlement agreements were reached between theDepartment of Corrections and various plaintiffs, including inmates, the U.S. Departmentof Justice, and the American Civil Liberties Union, regarding conditions of confinements. A class action suit involved conditions within Montana State Prison, including medical,dental, mental health, overcrowding of the physical plant, classification and treatment,security, maximum security, good time policies, and Americans with Disabilities Actcompliance. The Department of Corrections has recently updated its Policy Manual thatcontains policies and procedures department wide for all facilities. The task force thatreviewed the policies used the American Correctional Association standards as guidanceon which to model their policies and will continue to meet quarterly. Specific facilitiesalso adopt policy manuals for policies and procedures relevant to the respective facility.
New proposals: None.
CORRECTIONAL STANDARDS for Youth or Juvenile Detention Facilities
Type and description of facility: A youth detention facility means a secure detention facilitylicensed by the Department of Corrections for the temporary substitute care of youth that: (a) is operated, administered, and staffed separately and independently of a jail; and (b) is used exclusively for the lawful detention of alleged or adjudicated delinquentyouth or as a sanction for contempt of court, violation of a parole agreements, or violationof a valid court order. Detention, detention facility, secure youth detention facility,regional detention facility, and short-term detention center are also related defined terms in41-5-103, MCA.
Detention facilities are operated by county or tribal governments. Currently, there arethree long-term facilities licensed by the state in Flathead, Yellowstone, and CascadeCounties. A fourth is operated by the Fort Peck Agency in Poplar, Montana. There arefour licensed short-term facilities limited to a 10-day stay. A long-term juvenile detentionfacility with a capacity of 24 beds is planned for Missoula County that will be colocatedwith an adult detention center. Governing and related statutes: Title 41, chapter 5, part 18, MCA, related to custodial care,contains statutes relating to shelter care and to youth detention. Other related statutesinclude: 41-5-1802, MCA, which grants the Department of Corrections rulemakingauthority governing licensing procedures for regional and county detention facilities; 41-5-1803, MCA, which requires each county to provide services for the detention of youthin facilities separate from adult jails and provides various options on how to provideservices; and 41-5-1804 through 41-5-1806, MCA, which govern regional detentionfacilities, detention regions, and contracts with nonparticipating counties. Title 41,chapter 5, part 19, MCA, governs state grants for youth detention services.
The Montana Constitution, in Article II, section 15, states: "The rights of persons under18 years of age shall include, but not be limited to, all the fundamental rights of this Articleunless specifically precluded by laws which enhance the protection of such persons."Youth must be afforded protection because they have been removed from their homes andthe state is acting as the parent (parens patriae).
There are few statutes governing the conditions of confinement for youth. The state mustcomply with the federal Juvenile Justice and Delinquency Prevention Act of 1972, whichrequires that: juveniles who commit status offenses may not be detained in securefacilities; juveniles may not be detained in any jail or lockup for adults; a juvenile mustreceive a court appearance within 24 hours, with some exceptions; and an adequatesystem of monitoring jails, detention facilities, correctional facilities, and nonsecurefacilities must be in place.
Type of offender allowed to be confined: Section 41-5-341, MCA, provides criteria forplacement of youth in secure detention facilities. A youth may be placed in a securedetention facility only if the youth: (1) has allegedly committed an act that if committed by an adult would constitutea criminal offense and the alleged offense is one specified in 41-5-206, MCA; (2) is alleged to be a delinquent youth and: (a) has escaped from a correctional facility or secure detention facility; (b) has violated a valid court order or a parole agreement; (c) the youth's detention is required to protect persons or property; (d) the youth has pending court or administrative action or is awaiting a transfer toanother jurisdiction and may abscond or be removed from the jurisdiction of the court; (e) there are not adequate assurances that the youth will appear for court whenrequired; or (f) the youth meets additional criteria for secure detention established by the youthcourt in the judicial district that has current jurisdiction over the youth; or
(3) has been adjudicated delinquent and is awaiting final disposition of the youth'scase.
Available standards: The American Correctional Association has published "Standards forJuvenile Detention Facilities" and "Standards for Small Juvenile Detention Facilities". Asmall detention facility has a capacity of less than 20 beds, which currently would apply toall facilities in Montana.
The former Department of Family Services developed both licensing rules and a set ofproposed standards for juvenile detention facilities. After the 1995 reorganization of theExecutive Branch, the licensing function was transferred to the Department ofCorrections. The existing rules are being enforced by the Department of Corrections in itslicensing procedure, but a new set of proposed rules for licensing youth detention centersis in development. The Department of Corrections will be using the mandatory AmericanCorrectional Association standards and others as reference tools. Some of the youthdetention facilities have indicated an interest in becoming accredited, but none are at thistime. A set of adopted standards for juvenile detention facilities in this state does notcurrently exist.
Status of Montana facilities: Currently, three long-term and four short-term facilities in thestate are licensed by the Department of Corrections. None are currently accredited by theAmerican Correctional Association.
New proposals: The Department of Corrections will be proposing new administrative rules forlicensing youth detention facilities. These rules will, in effect, be the minimum standardsallowed in this state. There are no proposals currently to develop a full set of standards.
CORRECTIONAL STANDARDS for Youth Correctional Facilities
Type and description of facility: A youth correctional facility means a public or privateresidential facility used for the placement of delinquent youth or individuals convicted ofcriminal offenses (41-5-103, MCA). Currently the Department of Corrections operatestwo public youth correctional facilities. Pine Hills Youth Correctional Facility in MilesCity is an 80-bed secure facility for boys, and Riverside Youth Correctional Facility inBoulder is a 16-bed secure facility for girls. Youth can also be placed out of state. Governing and related statutes: Title 41, chapter 5, MCA, is the Youth Court Act, whichcontains the statutes governing all proceedings for delinquent youth and youth in need ofintervention. These statutes govern who may be placed in a state youth correctionalfacility and the process for doing so. Title 52, chapter 5, MCA, governs correctionsforyouthful offenders. Related statutes include: 52-5-102, MCA, control and managementof youth correctional facilities, which grants the Department of Corrections rulemakingauthority to establish standards of care; 52-5-105, MCA, which allows the superintendentto provide consent for medical care in the event that a parent or legal guardian cannot befound; 52-5-106, MCA, which governs academic and vocational curricula in facilities; and52-5-108, MCA, which requires medical examinations before admission and that requiresthe youth be accompanied by medical, social, and school records.
Pine Hills Youth Correctional Facility was under federal investigation and recentlyentered into a settlement agreement with the U.S. Department of Justice on conditions ofconfinement. In the process of complying with the settlement agreement, thesuperintendent of Pine Hills Youth Correctional Facility chose to pursue AmericanCorrectional Association accreditation.
Type of offender allowed to be confined: Section 41-5-1513, MCA, provides that a delinquentyouth may be committed to the Department of Corrections for placement in a state youthcorrectional facility or in a correctional facility or a program operated by the Department.The court may also sentence a youth to a state youth correctional facility under certainconditions regarding availability and release.
Limitations include: 41-5-345, MCA: a youth alleged or found to be a youth in need ofintervention may not be placed in a jail, secure detention facility, or correctional facility; 41-5-1504, MCA: a youth who, prior to placement or sentencing, is found to be sufferingfrom a mental disorder, as defined in 53-21-102, MCA, and who meets the criteria forcommitment may not be committed or sentenced to a state youth correctional facility, andif those conditions are found after placement, a more appropriate placement must bemade; 41-5-1512(15)(a), MCA: the court may not order placement for evaluation at ayouth correctional facility of a youth who has committed an offense that would not be acriminal offense if committed by an adult or a youth who has violated a consentadjustment; 41-5-1513, MCA: the court may not place a youth adjudicated delinquent in astate youth correctional facility for an offense that would be a misdemeanor if committedby an adult, unless the court finds that the youth presents a danger to public safety andthat the placement is recommended by a mental health professional after evaluation of theyouth; 41-5-1522, MCA: a youth may not be held in a state youth correctional facility fora period of time in excess of the maximum period of confinement that could be imposedon an adult; 52-5-111, MCA: the sentence of a youth who has not yet turned 18 and hasbeen sentenced to the state prison may be commuted and the youth may be placed in astate youth correctional facility.
Available standards: The American Correctional Association publishes a manual on "Standardsfor Juvenile Training Schools" and accredits those facilities.
Status of Montana facilities: Pine Hills Youth Correctional Facility is the first Montanacorrectional institution to go through the American Correctional Association accreditationprocess. It has passed the inspection and all of the tests and expects to be formallyaccredited by the end of summer 1998.
New proposals: None.
CORRECTIONAL STANDARDS for Private Correctional Facilities
Type and description of facility: A private correctional facility means a correctional facility thatis either privately operated or privately owned and operated. The term includes a regionalcorrectional facility if privately operated or privately owned and operated. The term doesnot include a private detention center or a regional jail governed by Title 7, chapter 32,part 22, MCA. (See Correctional Standards for Adult Detention Centers or County Jails.) Governing and related statutes: Title 53, chapter 30, part 6, MCA, governs the Department ofCorrections duties and responsibilities for rulemaking, requests for proposals, licensure,siting, and contracts. These statutes were enacted in the 1997 Legislature in House BillNo. 83 (Ch. 511, L. 1997). Other related statutes include: 53-30-604, MCA, theDepartment of Corrections has the responsibility to adopt administrative rules that includethe minimum applicable standards for the siting, construction, operation, and physicalcondition of a private correctional facility and for the security, safety, health, treatment,and discipline of persons confined in a private correctional facility. The administrativerules must require that a private correctional facility conform to applicable AmericanCorrectional Association and National Commission on Correctional Health Care for thefacility and achieve accreditation from both organizations within 3 years from the date thefacility begins operation. The Department of Corrections has completed the administrativerulemaking process pertaining to the siting and construction standards of privatecorrectional facilities. Relevant administrative rules are ARM 20.27.101 through20.27.106. Administrative rules for licensing criteria, for the operation and physicalcondition of a private correctional facility, and for the security, safety, health, treatment,and discipline of persons confined have not been completed to date.
Type of offender allowed to be confined: The type of jurisdiction that a private correctionalfacility contracts with will determine the type of offender confined, with the exception thata person convicted in another state may not be confined in the portion of a privatecorrectional facility in this state that is used for the incarceration of convicted felons for aterm of over 1 year unless the confinement is under and governed by an interstatecorrections compact (53-30-603, MCA). If a private correctional facility builds adetention center portion, that portion would be governed under Title 7, chapter 32, part22, MCA. (See correctional standards for adult detention center or county jails.)
Available standards: The American Correctional Association publishes a manual on "Standardsfor Adult Correctional Institutions" and accredits those facilities.
Status of Montana facilities: The request for proposals process has been completed, and arecommendation for a private contractor, Corrections Corporation of American, wasmade to the Director of the Department of Corrections. The contract for the first privatecorrectional facility in Montana is expected to be signed by July 1, 1998, and the facility isproposed to be built in Shelby.
New proposals: None.
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