Use of Force in Correctional Facilities
November 14, 2012 | Jeffrey A. Schwartz, PhD, President, LETRA, Inc.
This guest blog was written for NCCD by Jeffrey A. Schwartz, PhD, a California-based corrections expert who provided testimony to the Los Angeles Citizens’ Commission on Jail Violence. Schwartz is president of LETRA, Inc., a criminal justice training and consulting organization, and has worked with law enforcement and correctional agencies across the United States and Canada for more than 30 years.
This guest blog was written for NCCD by Jeffrey A. Schwartz, PhD, a California-based corrections expert who provided testimony to the Los Angeles Citizens’ Commission on Jail Violence. Schwartz is president of LETRA, Inc., a criminal justice training and consulting organization, and has worked with law enforcement and correctional agencies across the United States and Canada for more than 30 years. Schwartz has developed use-of-force policies and training curricula, investigated use-of-force situations, published articles on the topic, and served as an expert witness in a variety of use-of-force cases. He can be reached at (408) 379-9400 and firstname.lastname@example.org.
My intention in writing this piece was to provide an overview of critical issues regarding staff use of force in correctional facilities; it is a “think piece,” if you will.
First, it must be acknowledged that the use of force by staff in a correctional facility is inevitable. That is, in spite of the best efforts by well-trained, competent staff, physical force must be used in some instances. However, huge differences exist in the frequency and severity of use-of-force incidents between a facility committed to avoiding force when possible and a facility in which staff believe use of force is a necessary and first response to a wide range of situations in order to instill a fear of staff in inmates.
Arguably, the use-of-force policy is the most important single policy within a correctional agency. When a high-profile incident results in front-page regional or national media coverage or produces a six- or seven-figure settlement or judgment, it is likely the incident was a staff use of force.i Beyond that, an agency’s use-of-force policy and practices are often emblematic of its underlying organizational culture and values. It would be difficult to argue that a particular department had good community relations if the community believed use-of-force practices were out of control and poorly managed. Similarly, it is difficult to argue that professionalism is high in an agency with frequent, serious use-of-force problems.
In spite of the central role of use-of-force policies and practices, too many correctional agencies do not closely monitor or focus on this issue. For example, most correctional agencies have a code of silence—a code manifested most frequently in use-of-force situations. While the extent of the code of silence may vary significantly across departments, the author has seen only three or four correctional agencies or facilities in 35 years with no code of silence. Typically, correctional administrators are well aware the code of silence exists but do little to try to eradicate it, believing it is inevitable. That, in turn, compromises the integrity of the entire agency.
The foundation for appropriate use-of-force practices is a thoughtful and comprehensive policy. It is worth noting that almost everyone would like a two- or three-page use-of-force policy. That cannot happen. If policy must address the scope and coverage of the policy, training, guidelines for using force, types of force, equipment, use-of-force reporting, and reviews and/or investigations of force incidents, as well as 15 or 20 more specific considerations ranging from positional asphyxia to escalation and de-escalation of the level of force, a good policy will not be three pages. There is also a question of style and purpose: The use-of-force policy should provide specific guidelines for frontline staff, informing them as clearly as possible what is and is not permissible in what types of situations. Instead, too many use-of-force policies are intended to be used for staff discipline.
A good use-of-force policy will have three primary components: the first will describe when and how force should be used; the second will cover reporting use-of-force incidents; and the third section will detail the department’s procedures for reviews and/or investigations of use-of-force incidents. If any component is operating poorly, serious use-of-force problems are likely.
Myths about use-of-force policy are well-established. Policy should not reflect the old adage that the level of force is justified by the perception of threat by the staff member using force. While the perception of staff on scene at the time is important, some objective component of that threat must exist. Otherwise there is no accountability, and “I perceived that force as necessary to counter the threat” would be a sufficient justification for any use of force.
Another myth is that within-policy use of force equates with good performance. The two are different criteria. A particular use of force may fall clearly within policy, but may still be poor performance.
A third myth is that every department should have a specified use-of-force continuum with various authorized types of force located along that continuum in rank order. For reasons ranging from practical to legal, there is a distinct and helpful move away from the use of rigid use-of-force continua.ii
When force is necessary, it is in the interests of all involved that it be used as well and as safely as possible. Unfortunately, some agencies continue with force policies or practices that are diametrically opposed to staff safety because of historical precedent or staff biases toward more dramatic or more punitive responses (e.g, the continued use of cell extraction teams as the first physical option for extractions when OC spray is far safer for staff as well as inmates and has a strong deterrent effect, while extraction teams may encourage future resistanceiii).
Finally, this discussion may present use-of-force problems as almost intractable and extremely difficult, time-consuming, and expensive to fix. Surprisingly, while changing use-of-force practices is challenging, in the author’s experience it has not been as lengthy or difficult as trying to change overall department culture, the professionalism of staff, attitudes toward offenders, and other pervasive agency characteristics.iv However, without strong, principled, and consistent leadership support, poor use-of-force practices will not be changed.
i Schwartz, J. A. (2009, June). Reducing exposure in use-of-force litigation. Corrections Today.
ii Collins, B., Schwartz, J. A., & Leach, D. (2011). The force continuum: Is it worth keeping? Correctional Law Reporter, Part I, December/January, 2011; Part II, April/May, 2011.
iii Schwartz, J. A. (2009, July/August). Come and get me! The best and worst in cell extractions. American Jails.
iv Schwartz, J. A. (2010, January/February). Fixing use-of-force problems. American Jails.