Chapter 2- Legal for Corrections

Due Process

the administration of justice according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing.

5th Amendment

The Right to Remain Silent/Double Jeopardy, right to due process

4th Amendment

Protection against Unreasonable Search and Seizure; Inmates experience a diminished expectation of privacy and zero requirement for a search warrant.

6th Amendment

The right to a Speedy Trial by jury, representation by an attorney for an accused person; right to be informed of the nature of the charges and confrontation of witnesses.

Regarding inmates: access to Law Library, D.R. court and all of its steps, privileged communication with an attorney.

Bill of Rights

First 10 amendments to the Constitution

How does the Constitution impact the role of a Correctional Officer?

It defines your authority and duty to act as a correctional officer.

8th Amendment

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Relating to corrections: Living conditions; conditions of confinement; access to food and water; access to medical care

Why is it important to stay current with Policies and Procedures?

More discretion, clarification or restrictions may be imposed due to the specific setting of an institution as compared with others.

Felony

Max punishment is death; Minimum punishment is 1 year and 1 day in a state correctional facility

Misdemeanor

Maximum punishment is one year or less

Offense

A breach of law and broadly describes criminal or non-criminal acts that are punishable under Florida law.

14th amendment

Declares that all persons born in the U.S. are citizens and are guaranteed equal protection of the laws; extends the bill of rights to States and Local governments.

Where can someone read Florida Statutes?

In a digital format online or in a physical format provided by the agency.

Substantive Due Process

the fair and consistent enforcement of the law

Procedural Due Process

procedural laws that protect the rights of individuals who must deal with the legal system

What does the Constitution do?

establishes the structure, functions, and limitations of government

Legislative Branch

Creates Laws

Judicial Branch

Interprets Laws

Executive Branch

Enforces laws

Role of Constitutional Law

Defines powers and limitations of each of the three branches. Upholds standards set forth in the Constitution and court decisions or Constitutional interpretations handed down by the federal district courts and the Supreme Court.

Supremacy Clause

Article VI of the Constitution, which makes the Constitution, national laws, and treaties supreme over state laws when the national government is acting within its constitutional limits. State laws can be more restrictive but never more relaxed.

Criminal Law

Identifies behaviors that are deemed unacceptable by society and sets punishment for those behaviors

Statutory Law

Body of law written by legislatures in response to a perceived need, including criminal, civil, administrative and regulatory laws

Ordinance

Laws passed at the local level.

Relationship between Criminal Law and Statutory Law and Ordinances

Criminal Law provides the foundation for what is deemed acceptable or unacceptable behavior. Statutory laws are put into place at the federal or State level. Ordinances are enacted locally to regulate those actions.

Civil Law

Concerned with legal action that a person takes to resolve a non-criminal, private dispute with another person

Administrative Law

the body of law that regulates the operation and procedures of government agencies.

Case Law

body of law formed by the decisions of the court system, based on the court's interpretation of constitutional provisions.

Common crimes committed by Inmates

petit theft, dealing in stolen property, assault, battery, sexual battery, drug-related crimes, criminal mischief, arson, escape, lewd and lascivious behavior, possession of contraband, STG-related crimes, gambling, vandalism, loan-sharking, homicide.

Elements of a crime

1. Proof that a crime has been committed

2. Proof the person being charged committed the crime.

First amendment in relation to Corrections

Inmates have the right to freedom of speech, religion and press. Inmates lose the right to assemble. Inmates have a diminished right of expression.

People who can commit crimes in a correctional facility

Inmates, Staff, Visitors.

Instrumentality of a crime

Any object that enables a person to commit a crime

Fruit of a crime

benefits gained or obtained by committing a crime

Types of evidence

Physical, testimonial, documentary

Physical Evidence

material objects

testimonial evidence

evidence that is spoken

documentary evidence

evidence that is printed or written

Categories of Evidence

Direct and Circumstantial

Direct Evidence

directly proves a fact without presumption

Circumstantial Evidence

Conclusions drawn from reasoning, not personal knowledge of observation and is presumed to be true.

chain of custody

A documentation of everyone who handled the evidence as well as when, why, and what changes, if any, were made to it

What must the responding officer do, regarding chain of custody?

Preserve the chain of custody and protect the integrity of the evidence, documenting everything, even if it does not seem immediately relevant

Types of evidence documentation

Written, video, photograph, audio

Components of the chain of custody.

a. Who- People that have touched the evidence

b. What- Materials used and secured

c. When- Date and time the incident occurred and any time the evidence was

handled.

d. Where- Location from which the evidence was collected, transferred to and

stored.

e. Why- Reason evidence or material was handled.

f. How- Proper methods for preservation, how evidence is collected is crucial to

verifying its integrity and thus its useability in trial or hearing.

Rights retained by inmates

Access to courts and legal counsel, freedom from unreasonable search and seizure, good living conditions, food that meets minimum nutritional standards, water, medical treatment, exercise, fresh air, mail, legal correspondence, speech, protection of health information, access to medical care.

Search

examining an area, person, or property for evidence in a place where a person has a reasonable expectation of privacy.

Why are searches performed in a Correctional facility?

to search for contraband that may jeopardize the safety and security of an institution.

Contraband

Any unauthorized article foreign to the facility, or any authorized article in excessive quantities or altered from its intended purpose.

probable cause

fair probability or reasonable grounds to believe someone committed a crime.

seizure

when an officer affects a person's right to have or control their property, usually by taking it.

types of searches

Pat search, canine, drug, body scan, and metal detector

Visitor Searches vs. Inmate searches

Visitors retain the right of refusal while inmates do not. Visitors refusing, however, may have their visitation revoked.

Miranda Warning

A series of statements informing criminal suspects, on their arrest, of their constitutional rights, such as the right to remain silent and the right to counsel: required by Supreme Court's 1966 decision in Miranda v. Arizona

Health Insurance Portability and Accountability Act (HIPAA)

sets privacy standards that make it a violation to knowingly disclose the protected health information of patients without their consent.

How does HIPAA affect the correctional setting?

Correctional facilities are required to reasonably safeguard an inmate's health information to limit intentional uses or disclosures. it may only be disclosed to protect yourself or others, assign work, or if it's pertinent to your job.

Privileged communication

information held confidential within a protected relationship such as an attorney and client

Prison Rape Elimination Act (PREA)

enacted by Congress to address the problem of sexual abuse of persons in the custody of U.S. federal, state or local correctional agencies, setting standards for the detection, prevention, reduction, and punishment of prison rape.

Sexual Abuse

any sexual act without consent. To give consent, one must be willing, free from threats (overt or implied) and have the free agency to say no.

Examples of sexual abuse

(1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

(2) Contact between the mouth and the penis, vulva, or anus;

(3) Penetration of the anal or genital opening of another person, however slight, by a hand, finger, object, or other instrument; and

(4) Any other intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or the buttocks of another person, excluding contact incidental to a physical altercation.

Additional Examples of Sexual abuse, but by a Staff member, resident or Volunteer

(1) Contact between the penis and the vulva or the penis and the anus, including penetration, however slight;

(2) Contact between the mouth and the penis, vulva, or anus;

(3) Contact between the mouth and any body part where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

(4) Penetration of the anal or genital opening, however slight, by a hand, finger, object, or other instrument, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

(5) Any other intentional contact, either directly or through the clothing, of or with the genitalia, anus, groin, breast, inner thigh, or the buttocks, that is unrelated to official duties or where the staff member, contractor, or volunteer has the intent to abuse, arouse, or gratify sexual desire;

(6) Any attempt, threat, or request by a staff member, contractor, or volunteer to engage in the activities described in paragraphs (1)-(5) of this section;

(7) Any display by a staff member, contractor, or volunteer of his or her uncovered genitalia, buttocks, or breast in the presence of an inmate, detainee, or resident, and

(8) Voyeurism by a staff member, contractor, or volunteer.

Voyeurism by a staff member, contractor, or volunteer means

an invasion of privacy of an inmate, detainee, or resident by staff for reasons unrelated to official duties, such as peering at an inmate who is using a toilet in his or her cell to perform bodily functions; requiring an inmate to expose his or her buttocks, genitals, or breasts; or taking images of all or part of an inmate's naked body or of an inmate performing bodily functions.

Sexual Harassment

(1) Repeated and unwelcome sexual advances, requests for sexual favors, or verbal comments, gestures, or actions of a derogatory or offensive sexual nature by one inmate, detainee, or resident directed toward another; and

(2) Repeated verbal comments or gestures of a sexual nature to an inmate, detainee, or resident by a staff member, contractor, or volunteer, including demeaning references to gender, sexually suggestive or derogatory comments about body or clothing, or obscene language or gestures.

How does sexual abuse and harassment affect the safety and security of the institution?

Increased behavioral issues, Spread of STI's, heightened tension among perpetrators and victims, risk of recidivism

What is the Correctional Officer's role in enforcing PREA?

1)Familiarize yourself with the facility- know blind spots

2)recognize signs of sexual abuse, both physical and emotional

3)recognize members of vulnerable groups in your facility.

4)recognize unusual behavior from inmates.

retaliation

when and inmate or staff member acts or attempts to harm or intimidate a person for reporting misconduct.

Types of resistance

Physical and verbal

Physical Resistance

what the inmate does

Verbal Resistance

What the inmate says

Items identified as contraband

Currency/coins, tobacco, controlled substances, non-prescribed drugs, excess or altered food or clothing, firearms, dangerous weapons, cellphones and other portable communications devices, any item(s) that can be used to attempt or make an escape.

people who can introduce contraband to the facility

Everyone

Chapters that govern Use of Force

775 F.S.

944 F.S.

Chapter 33 F.A.C.

Types of Force

Basic Physical Restraint, Less Lethal Force, Deadly Force

Deadly force

Any force that is likely to cause death or great bodily harm.

Graham v. Connor (1989)

The Court ruled that "reasonableness " concerning the use of force must be judged from the perspective of a reasonable officer on the scene and take in account of split second decision making in reference to the use of force.

Objective Reasonableness Test

Requires the officer to answer two questions about the level of force used in any situation: (1) Was the action reasonable and necessary, and (2) was the amount of force applied reasonable and necessary

Kingsley v. Hendrickson

Supreme court ruled that objective reasonableness is decided from the Officer's perspective.

Types of Less Lethal devices

Chemical Agents such as O.C. (oleoresin capsicum) or CS (chlorobenzylidenemalononitrile) sprays, DFEID (taser), rubber bullets, sand bags

Whitley v. Albers

unnecessary and wanton infliction of pain is not permissible on an inmate, and is a violation of the 8th Amendment.

944

Authorized use of force; malicious battery and sexual misconduct prohibited; reporting required; penalties.—

(1)(a) An employee of the department is authorized to apply physical force upon an inmate only when and to the extent that it reasonably appears necessary:1. To defend himself or herself or another against such other imminent use of unlawful force;2. To prevent a person from escaping from a state correctional institution when the officer reasonably believes that person is lawfully detained in such institution;3. To prevent damage to property;4. To quell a disturbance;5. To overcome physical resistance to a lawful command; or6. To administer medical treatment only by or under the supervision of a physician or his or her designee and only:a. When treatment is necessary to protect the health of other persons, as in the case of contagious or venereal diseases; orb. When treatment is offered in satisfaction of a duty to protect the inmate against self-inflicted injury or death.

Hudson v. McMillian

The use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury, and that, Uses of force are not to be used as a means of punishment, but to restore the good order and discipline of the institution.

776.06 F.S.

Deadly force by a law enforcement or correctional officer.—

(1) As applied to a law enforcement officer or correctional officer acting in the performance of his or her official duties, the term "deadly force" means force that is likely to cause death or great bodily harm and includes, but is not limited to:

(a) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and

(b) The firing of a firearm at a vehicle in which the person to be arrested is riding.

(2)(a) The term "deadly force" does not include the discharge of a firearm by a law enforcement officer or correctional officer during and within the scope of his or her official duties which is loaded with a less-lethal munition. As used in this subsection, the term "less-lethal munition" means a projectile that is designed to stun, temporarily incapacitate, or cause temporary discomfort to a person without penetrating the person's body.

(b) A law enforcement officer or a correctional officer is not liable in any civil or criminal action arising out of the use of any less-lethal munition in good faith during and within the scope of his or her official duties.

Other use of force to prevent escape guidelines

944.35 F.S. for state correctional officer, 944.105 for private correctional officers.

Penalties for Excessive use of force.

Criminal, Civil, Civil Rights, Administrative

Liabilities and penalties for failure to report Use of Force

Officer discipline- Job loss, incarceration, fines, administrative action

Criminal Liability in cases of death

Coercion to alter testimony or written reports

Is considered a felony, thus can lead to incarceration, and loss of employment due to failure to maintain good moral character.

Criminal liability

when an officer is found guilty of committing a crime.

Civil Liability

responsibility for a wrongful act or the failure to do an act that an officer has a

duty to perform, that results in injury of another person or damages property.

Negligence

failure to use due reasonable care in a situation where an officer has a duty to act

and results in the harm of another.

Tort

A civil wrong in which the action or inaction of a person or entity violates the rights of another person or entity.

Elements of Negligence

a. Duty to act with care

b. Failure to perform that duty

c. Proof that failure caused damages

d. Actual damages resulted.

Categories of Damages

compensatory and punitive

Compensatory Damages

Damages awarded in a civil lawsuit that are intended to restore the plaintiff to the same condition that he or she was in prior to the incident.

punitive damages

intended to punish the defendant for conduct that is extreme and outrageous

General compensatory damages

Compensate for non-monetary aspects of harm suffered, such as pain and suffering.

Special Compensatory Damages

Damages awarded for things actually caused by the injury

Color of Law

When an officer claims to act in the performance of official duties under any law,

ordinance or regulation

Civil Rights Violation

an unlawful interference with the fundamental rights of another person

such as the right to due process and equal protection under the law.

Omission

neglecting to perform what the law or duty requires

Penalties for being civilly or criminally liable.

Monetary judgements, administrative discipline, suspension/probation, loss of certification and employment, incarceration