A Review of State Standards and Inspections for Local Detention Facilities

A Review of State Standards and Inspections for Local Detention Facilities GABRIEL PETEK LEGISLATIVE ANALYST FEBRUARY 2021 analysis full gutter AN LAO REPORT LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT Executive Summary Local Detention Facility Standards and Inspections Program Local governments are responsible for operating local detention facilities, including jails, which incarcerate people at various stages of the criminal justice process. In total, there are about 550 local detention facilities in California. Statute requires the Board of State and Community Corrections (BSCC) to (1) maintain minimum standards for the construction and operation of these facilities, (2) inspect each facility every two years for compliance with the standards, and (3) issue certain public reports on the inspection results. Lack of Clear Mission and Goals for Program Undermines Legislative Oversight In our review of the local detention facility standards and inspection program, we find it difficult to assess the program’s effectiveness primarily because state law does not specify the mission or goals BSCC should pursue as it implements the program. This leaves significant discretion to BSCC and the administration in determining how to operate the program and undermines the Legislature’s ability to assess whether the program is operating effectively and is consistent with Legislative priorities. Recommendations to Ensure Success of Standards and Inspections Program In order to address the above concern, we recommend the Legislature take the following steps to ensure the program’s success. Establish Clear Program Mission and Goals. We recommend that the Legislature establish in statute that the mission of the program is to promote legal, humane, and safe conditions for youth, inmates, and staff in local detention facilities. To further this mission, we recommend establishing four goals for the program: (1) maintain standards that help local leaders determine and meet legal requirements; (2) facilitate transparency and accountability through standards and inspections; (3) promote equitable provision of legal, humane, and safe conditions; and (4) provide technical assistance and statewide leadership to facilitate systemic improvement in detention conditions. Balance Board Membership to Facilitate Oversight. We find that the current BSCC membership does not have sufficient expertise and balance of perspectives to oversee local detention facilities based on the above mission and goals. Accordingly, we recommend that the Legislature adopt legislation to add board members with professional expertise in advocacy for and oversight of detention conditions. Require Plan to Align Program With Mission and Goals. We recommend that the Legislature direct BSCC to develop a detailed plan for how to align the program with our proposed mission and goals. To guide development of the plan, we recommend that the Legislature require that the plan include the following elements: www.lao.ca.gov 1 analysis full gutter AN LAO REPORT • Standards Reflecting Minimum Legal, Safe, and Humane Conditions. The plan should outline how the standards will be revised to (1) be more specific such that they effectively communicate what legal, safe, and humane conditions are and (2) ensure that standards equitably address the specialized needs of all inmates and detained youth. • High-Quality, Risk-Based Inspection Strategy to Ensure Pressing Issues Are Found Quickly. The plan should include consideration of key information (such as reported standards violations) that BSCC could use to more strategically target inspections. • Specific Benchmarks to Ensure Inspections Effectively Provide Transparency. The plan should indicate how BSCC will develop clear, transparent benchmarks for inspections; guidance for interpreting subjectivity in the standards; and a quality assurance process to ensure inspectors meet these benchmarks. • Quality Reporting to Support Transparency and Accountability. The plan should outline how BSCC will improve the quality of its reporting on the results of inspections, such as by ensuring reports clearly describe violations and issuing special reports to highlight serious violations. • Technical Assistance and Statewide Leadership. The plan should give consideration to (1) providing longer-term, more complex technical assistance to facilities and (2) how BSCC can help highlight and promote promising practices to facilitate continuous, systemic improvement in detention facilities. 2 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT INTRODUCTION Local governments are responsible for operating detention facilities and inspect facilities relative to certain detention facilities (such as jails) to those standards. Such programs can provide state incarcerate people in various stages of the criminal assistance for and oversight of local detention justice system. Detention facilities often engage facilities. The operation of local detention facilities in high stakes activities—including delivery of is currently of particular interest to members of the health care and use of force—that can have life Legislature in light of recent concerns raised around and death consequences for those incarcerated conditions of jails in California. as well as staff. Accordingly, proper facility policies In this report, we (1) provide an overview of and operations are critical to ensuring safety and local detention facilities in California, (2) assess humane treatment, protecting the rights of those the state’s program for setting minimum facility incarcerated, and minimizing exposure to legal standards and inspecting these facilities, and liability. (3) recommend steps to help ensure the success of Several states—including California—set the program going forward. minimum standards for the operation of local BACKGROUND OVERVIEW OF LOCAL DETENTION • Jails. These facilities can house people for significant periods of time including while they FACILITIES are serving multiyear sentences, though also In California, counties are responsible for may hold people for short periods following detaining, in secure facilities, both youth and adults arrest. Statewide, jails have a capacity of who (1) have been arrested for a crime and are 80,000 and had an average daily population of awaiting trial or court decisions or (2) are serving time for committing a Figure 1 crime. In addition, some city police Majority of Local Adult Detention Facilities departments operate detention Operated by Counties facilities used to detain arrestees on a short-term basis. In total, there are about 550 local detention facilities in the state. Total: 457 Adult Detention Facilities City Holding County Holding House Adults in Various Stages Cell Facilities Cell Facilities of the Criminal Justice System. As shown in Figure 1, there are 457 local detention facilities that house people in various stages of the adult criminal justice system. Of City Short-Term County Jails these, 281 are operated by counties Detention Facilities and 176 are operated by cities. These City Jails facilities include: County Short-Term Detention Facilities www.lao.ca.gov 3 analysis full gutter AN LAO REPORT 73,500 in 2019. Of this population, 67 percent on the severity of the offense and the background were unsentenced, 82 percent were charged of the offender, youth may be placed in detention with or convicted of a felony, and 87 percent facilities while their cases are being heard in court were male. and/or to receive rehabilitative treatment. Currently, • Short-Term Detention Facilities. These there are 90 local detention facilities in California facilities hold people for less than 96 hours, that house youth. As we discuss below, all of such as some police facilities that hold these facilities are operated by counties. There are people following arrest. Statewide, short-term generally two types of juvenile detention facilities: detention facilities have a capacity of 4,000. • Juvenile Halls. Juvenile halls hold youth who The state does not collect population data for have been arrested and/or are having their these facilities. cases heard in juvenile courts and are not • Holding Cells. These facilities hold people for allowed to remain at home. They also hold less than 24 hours, such as courthouse cells youth placed there to receive rehabilitation that hold people for their hearings. The state programming and youth serving short stints does not collect capacity or population data of incarceration for violating the rules they for these facilities. must follow while under supervision in the community. There are 50 juvenile halls in While counties operate all of the different types California, which together have a capacity of of facilities, cities generally operate holding cells about 7,200 beds. In 2019, the average daily and short-term detention facilities, though one juvenile hall population was about 2,500. Of city—Santa Ana—operates a jail. this population, about 65 percent were being Typically Operated by County Sheriffs or held before a judge had decided their case. Police Chiefs. County detention facilities are • Juvenile Camps and Ranches. Juvenile generally operated by elected sheriffs while city camps and ranches are responsible for holding detention facilities are operated by chiefs of police youth placed there to receive rehabilitation who are appointed by elected city officials. Sheriffs programming offered at the facilities after and police chiefs typically maintain internal policy a judge has decided their case. There are and procedure manuals that instruct staff in matters 40 juvenile camps and ranches in California, of facility operations. For example, a jail’s policy which together have a capacity of about regarding external visitors may outline when staff 4,000 beds. In 2019, the average daily camp can deny or terminate a visit, such as if the visitor is and ranch population was about 1,200. under the influence of drugs or alcohol. Ultimately, sheriffs—who have broad and direct authority Operated by County Chief Probation Officers. over facility operations—and county boards of County juvenile justice systems—including juvenile supervisors—who allocate funding to sheriffs—are facilities—are operated by county probation responsible for conditions inside county-operated departments headed by chief probation officers. detention facilities. Chiefs of police, as well as the Chief probation officers are either appointed by city officials who appoint and oversee them, are the state trial court located in the county or by responsible for conditions inside city-operated the county board of supervisors. The board of detention facilities. supervisors determines what level of funding to allocate to the probation department. Probation Juvenile Detention Facilities departments typically maintain internal policy and House Youth in Various Stages of Juvenile procedure manuals, which instruct staff in matters Justice System. California’s juvenile justice of facility operations. Ultimately, the chief probation system, which is oriented around the treatment officer, county board of supervisors, and court are and rehabilitation of juvenile offenders as opposed responsible for conditions inside juvenile facilities. to punishment, has a broad array of methods and programs for addressing juvenile crime. Depending 4 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT State Support for Local Detention effective state and local efforts and partnerships in Facilities California’s adult and juvenile justice systems. Main Responsibilities. BSCC has four main State Funding for Operation and Construction responsibilities: (1) setting standards for and Costs. While counties and cities are primarily inspecting local detention facilities, (2) setting responsible for funding local detention facilities, standards for selection and training of local the state provides some funding to support these correctional staff, (3) administering various facilities. For example, in 2011, the state enacted state and federal grant programs related to legislation to realign to counties the responsibility recidivism reduction and prevention strategies, for incarcerating and supervising certain felony and (4) administering the state’s construction offenders. To pay for this realigned workload, the financing program for local detention facilities. The state provides counties with a portion of annual 2020-21 budget provides BSCC with $348 million state sales tax revenue, which has totaled around ($136 million General Fund) to carry out these $1 billion in recent years. Counties use a significant responsibilities. Of this amount, $315 million share of these funds to support jails. In addition, the is expected to be passed through to local state has sometimes provided one-time funding to governments and other entities. Of the $33 million support the construction of local detention facilities. retained by BSCC, $2.7 million—as well as 8.4 staff Since 2007, the state has authorized lease revenue positions—supports the standards and inspections bonds of about $2.5 billion to fund the construction program. (We note that this is roughly the same and modernization of jails and $300 million for level of resources proposed for the program in the juvenile facilities. Governor’s budget for 2021-22.) Other State Assistance for Local Detention Governance. As shown in Figure 2 on the next Facilities. In addition to providing certain funding page, the agency is overseen by a 13-member for local detention facilities, the state establishes board. In addition to a chair, statute requires minimum standards for the selection and training the board to include two administrators from of local correctional staff at the facilities, monitors the California Department of Corrections and compliance with the standards, develops core Rehabilitation (CDCR), five local law enforcement training curricula for entry-level staff, and certifies officials, one county supervisor or administrative other training courses. In addition, the state officer, a judge, two providers of rehabilitative establishes minimum standards for the building services, and a member of the public. Ten and operation of local detention facilities, which we members—including the chair—are appointed by discuss in greater detail below. the Governor and subject to Senate confirmation. The Judicial Council, Speaker of the Assembly, and BSCC RESPONSIBLE FOR the Senate Committee on Rules each appoint one ESTABLISHING STATE STANDARDS member. Statute requires the board to select either a sheriff or a chief probation officer from among its AND INSPECTING LOCAL members to serve as vice chair. The chair of the DETENTION FACILITIES board is a full-time paid position while the remaining members receive reimbursement for any expenses Overview of Board of State and incurred as a board member, such as travel costs. Community Corrections The agency is managed by an executive director who is appointed by the Governor and subject to The Board of State and Community Corrections Senate confirmation. (BSCC) was established in 2012, though similar Executive Steering Committees and Working agencies have existed in various forms since Groups. Statute requires the board to regularly the 1940s. Under existing state law, BSCC is seek advice from a balanced range of stakeholders responsible for providing statewide leadership, and subject matter experts. This is to ensure that coordination, and technical assistance to promote the board’s efforts (1) are well-informed by experts, www.lao.ca.gov 5 analysis full gutter AN LAO REPORT Local Detention Facility Figure 2 Standards and Inspections BSCC Board Includes State and Local Officials and Program Service Providers BSCC Required to Perform Certain Activities Related to Appointed by Governor and Confirmed by Senate Facility Standards. The state first • Chair. created minimum standards for local • Secretary of CDCR. jails in the 1940s after a statewide • Director of DAPO for CDCR. survey of jails found them in need • Sheriff in charge of a small detention facility.a of improvement. The standards • Sheriff in charge of a large detention facility.a were first administered by the State • Chief probation officer from a small county.b • Chief probation officer from a large county.b Board of Corrections, which later • County supervisor or county administrative officer. evolved through various government • Chief of police. reorganizations into BSCC. The • Member of the public. standards have been revised over Appointed by Others time—including with the addition of standards for juvenile detention • Judge appointed by Judicial Council of California. • Community provider of rehabilitative treatment or services for adult facilities—and are currently codified offenders appointed by the Speaker of the Assembly. in Titles 15 and 24 of the California • Advocate or community provider of rehabilitative treatment or services for Code of Regulations. Current state juvenile offenders appointed by the Senate Rules Committee. law requires BSCC to perform the a Small defined as a capacity of 200 or fewer inmates. Large defined as capacity over 200 inmates. following specific activities, which b Small defined as population of 200,000 or fewer. Large defined as population over 200,000. make up the core of the standards BSCC = Board of State and Community Corrections; CDCR = California Department of Corrections and Rehabilitation; and DAPO = Division of Adult Parole Operations. and inspections program: • Maintain Minimum Standards for (2) include the participation of those affected by Facility Construction and Operation. BSCC board decisions, and (3) promote collaboration and is required to create minimum standards for innovative problem solving. In order to fulfill this construction and operation of local detention requirement, BSCC uses: facilities, as well as review and consider • Executive steering committees (ESCs) revisions to the standards once every two that are appointed by the board to carry out years. This work is done primarily by ESCs specified tasks and provide findings and and working groups generally consisting of recommendations as needed. For example, detention facility managers and advocates for BSCC routinely appoints an ESC to oversee inmates and detained youth, as well as formerly the review of local detention facility standards incarcerated people. In selecting members for and recommend changes. The board these groups, statute requires that BSCC staff either approves, rejects, or revises those seek to include individuals with expertise and recommendations. diverse perspectives. • Working groups that are appointed by • Inspect Each Facility Every Two Years. ESCs to carry out subtasks and make BSCC is required to inspect each local recommendations. For example, the ESC detention facility once every two years to tasked with reviewing local detention facility assess compliance with the above standards. standards convenes multiple working groups, Inspectors review policy manuals and other each focused on a particular subject area (such written documentation of facility processes and as nutritional health). These working groups procedures to assess their compliance with review the standards relevant to their subject the standards. In addition, inspectors assess area and recommend revisions to the ESC. whether operations match policy by touring 6 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT the facility; interviewing staff, inmates, and media have raised concerns about conditions inside detained youth; and reviewing documentation California jails. Many of these cases point toward of operations (such as log books and systemic problems, not just isolated incidents. grievance forms). Following the inspection, Following these concerns, and citing an overall BSCC staff continue to work with facility staff insufficient level of accountability and oversight of to develop and implement a corrective action jails across the state, the Governor directed BSCC plan if areas of noncompliance are identified. in January 2020 to make the following changes to • Report on Facilities’ Compliance With the standards and inspections program: Standards. Statute requires BSCC to provide • Ensure Standards Are Consistent With inspection reports to facility administrators National Best Practice. As part of its existing and certain other local officials, such as biennial standards revision process, BSCC the presiding judge in the county. BSCC is staff have started providing the working group required to post all inspection reports on its members with reading materials on possible website and submit a summary report to the best practices for operating detention Legislature every other year. This summary facilities. Staff also ask members to confirm report must include a list of noncompliant they are considering best practices in their facilities, the specific standards these facilities revision process. did not meet, and the estimated cost to • Prioritize Inspections and Technical each facility of achieving compliance. We Assistance for Facilities With History note, however, that BSCC does not report of Noncompliance. BSCC has begun estimated costs for compliance. According to conducting additional inspections and BSCC, such information is not collected and providing technical assistance at facilities that would be speculative. were found in the previous inspection cycle BSCC Not Authorized to Enforce Standards. to have more than two significant items of While statute requires BSCC to report which adult noncompliance. These additional inspections detention facilities are not in compliance with the are focused on the facilities’ specific areas standards, it does not give BSCC a mechanism to of noncompliance and do not replace their enforce the standards (such as by fining facilities). standard biennial comprehensive inspection. If BSCC finds juvenile detention facilities out of • Highlight Noncompliance Through Public compliance, it is required by state law to promptly Board Meetings. BSCC plans to implement notify the facility operator and those who have a new process to highlight cases of detention authority to place minors in the facility. If the reason facilities failing to comply with standards. for noncompliance is not addressed within 60 Specifically, BSCC will ask agencies that do days of the notification, state law prohibits minors not address areas of noncompliance within from being housed in the facility until the issue is specified time periods to appear before the remedied. However, as with the standards for adult board at a public meeting to discuss why they facilities, state law does not authorize BSCC to are not compliant. However, attendance is enforce this prohibition. optional and if an agency declines to attend, BSCC Modifying Program. In recent years, high there are no further consequences associated profile cases of inmate mistreatment covered in the with noncompliance. www.lao.ca.gov 7 analysis full gutter AN LAO REPORT STANDARDS AND INSPECTIONS PROGRAM LACKS CLEAR MISSION AND GOALS The BSCC standards and inspections program legal, humane, and safe conditions for inmates, provides an opportunity for state assistance for detained youth, and staff. However, since this and oversight of local detention facilities. As specific mission in not specified in statute, nothing such, it is important to ensure that the program prevents the current administration from operating operates effectively, particularly in light of recent the program based on a different mission. concerns shared by the Governor and members Furthermore, the lack of clearly defined goals of the Legislature regarding conditions inside in statute leaves significant discretion to BSCC local detention facilities. Based on our review of and the administration in how to further whatever the current standards and inspections program, informal mission it chooses to adopt. For example, however, we find it difficult to assess the program’s the following two goals would both generally effectiveness. As we discuss below, this is primarily support the mission of promoting legal, humane, because the program lacks a clearly defined and safe detention conditions: (1) supporting facility mission and goals from which to measure specific administrators in complying with evolving court program outcomes. decisions on detention conditions and (2) providing Program Mission and Goals Not Specified external oversight of local detention facilities. An in Statute. As discussed above, existing state agency with the first objective may develop reports law requires BSCC to maintain standards for written for facility administrators to help them local detention facilities, inspect these facilities, modify their operations to avoid lawsuits. Such and issue reports on their compliance with the reports would not need to be easily understood by standards. However, state law does not specify the the public. In contrast, an agency with the second mission or goals BSCC should pursue as it carries objective would likely release reports detailing out these activities. As such, it is unclear whether violations in layperson’s terms to allow stakeholders the intended mission of the program is to assist to hold facility administrators accountable. local government in determining legal requirements Undermines Legislative Oversight. Without for facility conditions, create statewide uniformity clear program mission and goals, it is difficult for in facility operations, ensure humane and safe the Legislature to assess whether the program conditions, or something else. fulfils an important state function that is consistent Leaves Significant Discretion to with its priorities. This includes whether the Administration to Define Mission and Goals. program is appropriately structured and resourced The absence of a defined program mission and or should even continue to exist. Moreover, to the goals in statute leaves significant discretion to extent the program does continue to exist, the lack BSCC and the administration in determining how to of clear goals makes it difficult for the Legislature, operate the program. Based on conversations with as well as the general public, to assess whether the BSCC staff and other stakeholders, there appears program is operating effectively and achieving its to be some consensus that the current informal goals. mission of the program is generally to promote 8 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT RECOMMENDATIONS TO ENSURE SUCCESS OF STANDARDS AND INSPECTIONS FOR LOCAL DETENTION FACILITIES In view of the above concerns, we recommend in statute that the mission of the standards and that the Legislature adopt legislation to establish inspection program is to promote legal, humane, a clear mission and goals for the standards and and safe conditions for youth, inmates, and staff in inspection program for local detention facilities. local detention facilities. This mission is generally In particular, we recommend that the program’s consistent with what appears to be the current mission be to promote legal, humane, and safe informal mission of the program. In addition, we conditions for the youth and inmates in local recommend the Legislature adopt in statute the detention facilities—who tend to be among specific programmatic goals to further this mission, society’s most vulnerable groups—as well as which we discuss below. Later in this report, we the staff who work at the facilities. Based on our discuss the extent to which the current program is proposed mission and goals, we also recommend aligned to these goals and make recommendations that the Legislature restructure the membership of for how BSCC membership and the standards and BSCC to help ensure that they are achieved. Lastly, inspection program could be restructured to better we recommend requiring BSCC to develop a plan align with them. for aligning the current standards and inspection Program Goal: Maintain Standards That program to our proposed mission and goals. Help Local Leaders Determine and Meet Legal Overall, we find that our package of Requirements. Much of what defines legally recommendations will help ensure the success of acceptable conditions of detention is based on the local detention facility standards and inspection decades of past court decisions. In the process program going forward. Moreover, they will help of deciding these previous cases, courts resolved address recent concerns about conditions inside ambiguities in the law—setting a precedent for how local detention facilities by increasing transparency later courts analyze similar issues. This is often and better supporting local efforts to improve referred to as “case law.” For example, in 1993, the facility conditions. Figure 3 summarizes our United States Supreme Court held, in a case known recommendations, which we discuss in more detail as Helling v. McKinney, that allowing inmates to be below. exposed to second-hand smoke could constitute a violation of the United States Constitution’s ESTABLISH CLEAR PROGRAM prohibition on cruel and unusual punishment. This ruling established a principle that inmates may MISSION AND GOALS challenge detention conditions without sustaining Program Mission: Promote an injury if they can show that the condition puts Legal, Humane, and Safe Figure 3 Conditions. Based on our discussions with various Recommendations to Ensure Success of stakeholders (such as BSCC Standards and Inspections Program representatives of sheriffs and 9 chief probation officers, as well Establish Clear Program Mission and Goals as advocacy groups that focus 9 on the welfare of inmates and Balance Board Membership to Facilitate Oversight detained youth) and review of 9 Require Plan to Align Program With Mission and Goals best practices, we recommend that the Legislature establish BSCC = Board of State and Community Corrections. www.lao.ca.gov 9 analysis full gutter AN LAO REPORT them at serious risk of future injury. This principle facilities, which make external oversight of these has implications for the legality of other aspects facilities particularly important. For example, since of detention facilities, such as a facility’s ability to detention facilities are removed from public view, control the spread of infectious diseases. natural transparency around the conditions inside Not only does case law continue to evolve as them is limited. In addition, the public may not new court decisions are made, but it can be difficult choose to actively scrutinize detention facilities to translate it into practice. For example, due to because such facilities affect a relatively small the principle established in Helling v. McKinney, portion of the population and one that is often detention facilities must prevent infectious diseases considered “unsympathetic” due to being accused from putting inmates at risk of serious future injury. or convicted of crimes. However, determining the key elements for a policy There are various entities engaged in external to control the spread of infectious diseases may oversight of local detention facilities, as described require medical and public health knowledge that in the box on the next page. Well-structured facility administrators do not necessarily have. state standards and inspections programs are Accordingly, it is important for facility well-positioned to contribute to this overall administrators to continually monitor and translate system of oversight. As discussed above, case law specific to local detention facilities standards programs can help facilities meet into practice. However, because of the inherent legal requirements. However, standards can also difficulties involved, state agencies can assist encourage generally accepted practices that facility administrators with this work. For example, promote humane conditions and staff safety. BSCC’s current standards specify that facilities For example, case law requires facilities to serve must screen inmates and detained youth upon food that is nutritious and prepared under clean arrival for symptoms of infectious diseases. conditions. However, stakeholders may feel Moreover, it is likely more efficient for a single requiring one hot meal per day is appropriate entity—the state—to translate case law into because it promotes humane conditions and standards than for each facility to do so separately. inmate morale, which in turn, improves staff Furthermore, by inspecting facilities relative to these safety. By maintaining standards and inspections standards, the state can provide an independent for all local detention facilities, the state can assessment to help facility administrators ensure provide local leaders—such as sheriffs, boards their facility is operating consistently with what the of supervisors, or juvenile court judges—with an law requires. Such a program can benefit inmates independent assessment of how facilities compare and detained youth by promoting legal detention to generally accepted practices. They can then conditions, as well as help local government use this information to make changes as needed. reduce their exposure to lawsuits. Accordingly, Furthermore, other stakeholders—such as facility we recommend that an explicit goal of BSCC’s staff or community groups—may choose to use this standards and inspection program be to maintain information to hold facilities and/or local leaders standards that help local governments to effectively accountable for making such changes. Accordingly, determine and meet legal requirements. we recommend that an explicit goal of the BSCC standards and inspections program be to facilitate Program Goal: Facilitate Transparency transparency and accountability through standards and Accountability Through Standards and and inspections. Inspections. Local detention facilities engage in high-stakes activities—including delivery of health Program Goal: Promote Equitable Provision care and use of force—that can have life and death of Legal, Humane, and Safe Conditions. consequences for inmates, detained youth, and Standards are generally designed to apply the staff. Accordingly, facilities require heightened same requirement across all people or facilities. oversight that is tailored to the correctional setting. However, in some cases, applying the same However, there are special challenges to ensuring requirement could disadvantage certain groups transparency and accountability in detention relative to others. For example, a standard that 10 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT External Oversight of Local Detention Facilities in California Local detention facilities typically have multiple entities overseeing them, including entities from different levels and branches of government as well as nongovernmental entities. These entities often have different stakeholders and levels of authority over facilities. In addition, they often employ different methods of oversight and assess facilities relative to different benchmarks. In California, various entities (in addition to the Board of State and Community Corrections) provide oversight of local detention facilities. These include: • State and Federal Courts. Courts assess whether violations of law have occurred. At least 11 California counties have recently been subject to class wide court injunctions or consent decrees on jail conditions or are in the process of negotiating them. For example, inmates at the Santa Barbara County Jail sued Santa Barbara County and the Sheriff’s Office in 2017 claiming that the jail violated state and federal law by (1) failing to provide basic health care; (2) overusing solitary confinement; (3) discriminating against people with disabilities; and (4) providing inhumane, unsanitary, and unsafe living conditions. In 2020, the parties reached a settlement agreement under which the county will make several significant changes to jail policies and practices, such as implementing an electronic health records system. • United States Department of Justice (U.S. DOJ). Federal law allows the U.S. DOJ to conduct investigations of alleged civil rights violations at correctional facilities, which may lead to an agreed-upon set of standards that the agency must follow, along with long-term compliance monitoring. For example, after several inmate deaths—including a death following extended use of a restraint chair—the U.S. DOJ initiated an ongoing investigation into the San Luis Obispo County Jail’s provision of medical and mental health care to inmates. The U.S. DOJ also oversees standards and inspections for mitigating sexual abuse in federal, state, and local detention facilities. • California Department of Justice. The California DOJ can investigate local detention facilities and bring legal action against a local government if it determines that a practice or pattern of violation of constitutional rights has occurred in a detention facility administered by the local government. • Local Monitoring and Investigation Bodies. A few counties in California have Inspector Generals and Citizen Oversight Boards. Depending on how they are designed, these entities conduct investigations into specific allegations of wrongdoing and/or conduct ongoing holistic monitoring of the conditions inside the facilities. In addition, county grand juries and juvenile justice commissions may inquire into the conditions of county detention facilities. • Nongovernmental Entities. Media and advocacy organizations contribute to oversight by making conditions inside local detention facilities more widely known to the public and can put pressure on local officials to address problems. requires inmates to receive a written copy of facility disciplinary policies could disproportionately impact rules would disadvantage inmates who are visually inmates with mental health needs. For example, impaired or illiterate, unless the standard requires— placement of inmates with behavioral problems as the BSCC standards currently do—staff to caused by their mental health treatment needs into communicate the rules verbally to inmates who solitary confinement can worsen their mental health cannot read them. Moreover, uniform application of condition. In other words, if standards are not www.lao.ca.gov 11 analysis full gutter AN LAO REPORT crafted with acknowledgment that different groups be to provide technical assistance and statewide have different needs, they could inadvertently leadership to facilitate systemic improvement in create inequitable outcomes. This is particularly facility conditions. important given that local detention facilities tend to have relatively large populations of vulnerable BALANCE BOARD MEMBERSHIP groups. For example, during the first quarter of TO FACILITATE OVERSIGHT 2020, 28 percent of Los Angeles County’s jail inmates reported that they are homeless and Board Lacks Balanced Perspectives. In order 35 percent required mental health treatment. Given to ensure that BSCC has sufficient expertise and these concerns, we recommend that an explicit guidance in overseeing local detention facilities goal of the BSCC standards and inspections based on the above mission and goals, we find program be to promote equitable facility operations that it is important for the board to reflect a to ensure that all inmates and youth in local balanced perspective. However, 6 of the 13 BSCC detention facilities experience legal, humane, and board members are currently administrators of safe conditions. correctional agencies, with at least 4 of them Program Goal: Provide Technical Assistance overseeing detention facilities that are subject and Statewide Leadership to Facilitate Systemic to the BSCC standards and inspection program. Improvement. As discussed above, state-level While those who operate detention facilities provide standards and inspections agencies can enable critical perspectives for standards development, local stakeholders to hold facilities accountable they have an incentive to avoid approving standards and change policies or practices. However, in some that they believe would be difficult or costly to cases, facilities’ noncompliance with standards is meet. This raises questions about their ability to rooted in deeper issues that are difficult to address, provide objective external oversight of their own such as overcrowding, outdated or dilapidated operations and those of other counties. In addition, infrastructure, and staff vacancies. In these cases, the board does not include designated slots for solutions—such as constructing a new jail or members with experience providing external implementing new staff recruitment practices— oversight of such facilities, such as someone with may take years to implement, require novel experience in litigating local detention condition strategies, or require collaboration across multiple issues. This lack of expertise in external oversight decision-makers. of detention facilities is concerning given that State-level standards and inspections agencies approval of the standards is one of the board’s core are well-positioned to support local communities functions and arguably more important duties given in meeting standards—including addressing root the standards’ nexus to health, life, and safety. causes of noncompliance—by providing technical Balance Perspective of Correctional assistance and statewide leadership. For example, Administrators With Experts in Oversight. To if an inspector determines that jail staff used a achieve a balance of perspectives and expertise restraint device inappropriately, he or she could that is more conducive to providing oversight of help the jail administrator identify training for staff local detention facilities, we recommend that the and/or assess whether any revisions to the jail’s Legislature adopt legislation to add board members policy and procedures are needed. Moreover, with professional expertise in advocacy for and because they visit facilities throughout the state, oversight of detention conditions. To the extent that inspectors are in a position to facilitate knowledge the Legislature prefers not to increase the number sharing between facilities and can identify systemic of board members, it could make room for new challenges faced statewide. This information can members by removing current members. This could be used by leaders, such as boards of supervisors be achieved in a variety of ways. For example, or the Legislature, to address these problems. the Legislature could remove the Secretary of Accordingly, we recommend that a specific goal CDCR and Director of the Division of Adult Parole of the BSCC standards and inspection program Operations, as the work of BSCC is almost entirely 12 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT focused on local—not state—corrections. (We future evaluation of program effectiveness. To guide note that BSCC could still incorporate input from development of the plan, we recommend that the CDCR by involving CDCR staff in working groups or Legislature require that the plan include certain inviting CDCR leaders to attend BSCC meetings as elements, which are summarized in Figure 4 and needed.) discussed further below. We also recommend that more board members Standards Reflecting Minimum Legal, be subject to appointment by the Legislature. This Safe, and Humane Conditions change would create a better balance between Governor’s and legislative appointees on the board, Ensure Adequate Specificity in Standards which could enhance legislative oversight of the Aligned to Mission and Goals. We find that board. We note that balancing the perspective of insufficient specificity in the current standards the board members would likely help BSCC in its allows for subminimal policies and practices. For other functions as well. For example, having more example, the standard on the use of restraint balanced perspectives and expertise could help devices in adult facilities specifies that the jail must BSCC in setting standards for the selection and develop a written policy on the use of such devices training of local detention facility staff and allocating that addresses various topics, including inmates’ grant funds. hydration and sanitation needs. However, the standard does not provide a minimum frequency REQUIRE PLAN TO ALIGN at which inmates’ hydration and sanitation needs PROGRAM WITH MISSION AND must be addressed. Accordingly, a jail could craft a policy that provides for such needs every 2 hours GOALS or every 12 hours and still be in compliance. Various programmatic changes will be required However, providing for an inmate’s hydration and to align the BSCC’s standards and inspection sanitation needs only once every 12 hours is not program with our proposed mission and goals. humane. This means that some current standards Accordingly, we recommend that the Legislature do not communicate how to effectively minimize direct BSCC to develop a detailed plan for how legal liability or what safe and humane practices to align the program with the above mission and are. Furthermore, this lack of specificity undermines goals. Upon receiving this plan, the Legislature will the transparency created through inspections be better able to determine whether any statutory and reporting. For example, knowing that a jail changes are needed and/or whether to provide is in compliance with the current restraint device BSCC with additional resources to implement the standard does not inform stakeholders whether plan. Furthermore, by helping to align the program the facility addresses hydration and sanitation with its mission and goals, the plan will facilitate needs humanely. Given this, we recommend that Figure 4 Key Elements of Plan to Align Standards and Inspections Program With Mission and Goals 9 Standards Reflecting Minimum Legal, Safe, and Humane Conditions 9 High-Quality, Risk-Based Inspection Strategy to Ensure Pressing Issues Are Found Quickly 9 Specific Benchmarks to Ensure Inspections Effectively Provide Transparency 9 Quality Reporting to Support Transparency and Accountability 9 Technical Assistance and Statewide Leadership www.lao.ca.gov 13 analysis full gutter AN LAO REPORT the Legislature require that the plan developed by given clear guidance about what constitutes BSCC outline how the standards will be revised “minimum” or “best practice.” to be more specific in their requirements and Accordingly, the plan should outline how better align with the program’s mission and goals, BSCC will balance working group membership while still allowing for adequate flexibility to adapt between correctional administrators; people with to local needs. We note that, if any standards professional expertise in oversight of detention are substantially changed as a result, BSCC conditions and standards development; and could consider whether to establish intermediate others, such as formerly incarcerated people. benchmarks to allow facilities time to come into More specifically, the plan should consider what compliance. additional steps—such as expanded recruitment Ensure Standards Are Equitable. As efforts or paying working group members—BSCC discussed above, standards that are not crafted will take to achieve a more balanced working group with acknowledgement that different groups membership that includes necessary professional have different needs could inadvertently create expertise in oversight. The plan should also inequitable outcomes. Accordingly, the plan should outline how participants will be provided with outline how the standards will be revised to ensure clear guidance on the goals of the standards that they adequately address the specialized and strategies for developing effective standards needs of certain populations of inmates and youth. aligned with the goals. For example, BSCC could For example, BSCC could consider producing a identify other states with particularly effective separate set of standards for women’s detention standards and provide these to working group facilities given that women often have substantially members as case studies. different needs and circumstances than men in High-Quality, Risk-Based Inspection correctional settings. By promulgating standards that appropriately acknowledge different needs Strategy to Ensure Pressing Issues between groups, BSCC can support the goal of Are Found Quickly ensuring the equitable provision of legal, humane, Historically, BSCC has inspected each facility and safe conditions for all inmates and youth. once every two years, irrespective of the facilities’ Ensure Working Groups Have Adequate track records. As a result, issues have been less Expertise and Guidance to Develop Standards. likely to be identified and resolved in a timely To facilitate the improvement of the standards way at problematic facilities, which is essential as described above, BSCC will need to re-think given that some issues impact the life and its standard revision process for two reasons. safety of individuals. However, BSCC recently First, it appears that the current process does adopted a new inspection process that involves not consistently involve sufficient expertise or the an additional inspection at facilities that were balance of perspectives necessary to develop previously found to have more than two significant standards as described above. Similar to the items of noncompliance. This shift is a positive BSCC board itself, the working groups tend to step. However, the strategy does not include be dominated by correctional administrators. other key indicators of facility performance such Furthermore, the working groups tend to lack as process data (like reported use of restraint members with professional expertise in standards devices), outcome data (like numbers of suicides development and oversight of detention conditions, or assaults), and standards violations reported by such as attorneys who litigate detention facility the public. Such information would likely be useful conditions. This may be, in part, because BSCC to help target inspections. We note that the Texas does not pay people to participate in the working Commission on Jail Standards—which operates groups. Second, working group members are the state’s standards and inspections program— not given clear guidance about the goals of the conducts additional inspections at facilities where standards and strategies for crafting effective data, such as numbers of inmate deaths and public standards. For example, members are not complaints, suggest problems may exist. 14 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT Accordingly, the plan developed by BSCC should transparent benchmarks for inspections, guidance include a consideration of additional information to for interpreting subjectivity in the standards, and inform the inspection strategy and further advance a quality assurance process to ensure inspectors the mission and goals of the program. Specifically, meet these benchmarks. BSCC should consider data points used by Quality Reporting to Support other states, such as Texas, including violations reported by the public. We note that incorporating Transparency and Accountability violations reported by the public would require Require Inspectors to Report Issues the development of a complaint intake system. of Concern Beyond Noncompliance With Recently passed legislation creates an ombudsman Standards. Currently, while BSCC staff inspect position within the Health and Human Services facilities, they might become aware of concerning Agency to receive complaints about juvenile practices that run counter to the informal mission facilities. BSCC could analyze the outcomes of of the program but are not in direct violation of the this approach as part of its plan development standards. For example, in the course of viewing process. The plan should also include a strategy videos of staff using force on an inmate to assess for how BSCC will target inspections, such as by compliance with a standard related to the use targeting partial unannounced inspections focused of force, inspectors may notice a pattern of staff on a specific area of concern raised by complaints directing racial slurs toward inmates. However, if outside of the normal inspection process. This the concerning practice is not a violation of the would further the goal of facilitating transparency standards, it would not be documented under and accountability to promote legal, humane, and BSCC’s existing practices. This is a missed safe conditions. opportunity to address concerning practices that could lead to violations of standards or worse. Specific Benchmarks to Ensure Accordingly, as a part of its plan, BSCC should Inspections Effectively Provide recommend any statutory changes to its authority Transparency that it believes would be necessary to allow it BSCC has not established clear and publically to document concerning practices that are not available benchmarks for the quality and direct violations of the standards. By surfacing consistency of inspections. For example, to assess these concerns, BSCC could support the goals whether facilities are providing inmates with of providing transparency around, and facilitating adequate exercise, inspectors may review facility systemic improvement in, conditions of detention. log books of recreation times and speak with This is because stakeholders, local leaders, BSCC, inmates. However, the amount of documentation or the Legislature could use the information to reviewed and the number of inmates spoken help proactively address the problem, such as by with to assess compliance is currently unclear. providing additional training to staff or changing the Furthermore, in some cases, the standards use standards themselves. language that is subject to individual interpretation. Ensure Reports Are Easy to Understand and For example, the standards require inmates Clearly Describe Nature of Violation. Currently, have “reasonable” access to a telephone, which BSCC inspection reports appear to be written can be critical to facilitate access to inmates’ with correctional staff and administrators as the attorneys and families. However, it is not clear intended audience. This is because the reports how inspectors decide what is reasonable or if often use correctional jargon, which is not easily inspectors interpret the term similarly. These factors understood by lay audiences. Accordingly, it can result in the quality and consistency of information be difficult for non-correctional professionals to gathered via the inspections being unclear, which understand the nature of the violation and its undermines transparency created by the standards implications based on the inspection report alone. and inspections. Accordingly, BSCC’s plan should, To align the program with the goal of creating at a minimum, indicate how it will develop clear, transparency around conditions of detention, www.lao.ca.gov 15 analysis full gutter AN LAO REPORT stakeholders—such as county supervisors and safe conditions and providing technical and members of the public—must be able to assistance and statewide leadership to facilitate understand the reports. Accordingly, BSCC’s plan systemic improvement. Moreover, it is important for should include discussion of how it will ensure that the Legislature to have this information as it creates lay audiences are able to understand its inspection laws affecting statewide detention facility conditions reports. and considers whether to provide resources for Ensure Reports Facilitate Identification of facilities. Accordingly, BSCC’s plan should include Systemic Issues. BSCC publishes separate reports recommendations to modify its statutory reporting on each county’s compliance with the standards requirement as needed in order to provide useful during a given inspection cycle. However, this information to the Legislature. method does not facilitate comparison of how Issue Special Reports to Highlight Most counties perform across time or relative to each Serious Issues. As mentioned above, BSCC posts other. In order to make such comparisons, one inspection reports to its website and submits would have to review and compile information a summary report at the end of its two-year from dozens of separate reports. This makes inspection cycle. However, certain standards it difficult to identify systemic problems with violations that are particularly severe or have detention facility conditions. This is inconsistent a close nexus to safety concerns may warrant with our recommended goal of providing technical immediate reporting. For example, the state’s assistance and statewide leadership to facilitate Office of the Inspector General (OIG), which systemic improvement. Accordingly, BSCC’s plan monitors internal investigations and the employee should include a strategy to revise the way it disciplinary process of the state prisons, reports presents data to facilitate identification of trends semiannually on its findings. However, OIG may across facilities, counties, and over time. issue a separate public report regarding a case As required by statute, BSCC submits to the when it has determined that the handling of a case Legislature at the end of each two-year inspection was unusually poor and involved serious errors. cycle, a list of facilities that were found out of By adopting a similar approach, BSCC could compliance along with the regulation that was ensure that the level of transparency afforded by violated. However, this report is of limited use the inspections and reporting process matches because it does not communicate any information the severity and urgency of violations that result in about the underlying nature of the violations conditions that are not legal, humane, and safe. and whether BSCC observed systemic issues Accordingly, BSCC’s plan should include a strategy underlying areas of noncompliance that the for producing these out-of-cycle reports as needed Legislature should be aware of. Furthermore, as along with any recommended changes to its discussed earlier in this report, BSCC does not statutory reporting requirements. fully comply with its statutory reporting requirement Technical Assistance and Statewide as it does not report estimates of the costs to Leadership address areas of noncompliance. However, given that facilities are encouraged to submit plans on Increase Capacity for Longer-Term Technical how they will address areas of noncompliance and Assistance. Facilities’ failure to comply with cost estimates should be a key consideration such standards may be rooted in systemic issues, such plans, we think this information should be possible as hiring shortages, overcrowding, or physical plant for BSCC to report. While we acknowledge that all issues. These issues generally cannot be addressed cost estimates are inherently speculative to some by the existing short-term technical assistance degree, uncertain information is preferable to no provided by BSCC nor within the 60-day time information. frame that BSCC gives facilities to address areas of Given these issues, BSCC’s current reporting noncompliance. Furthermore, these complex issues practices are inconsistent with the goals of may require novel solutions or negotiation across facilitating transparency to promote legal, humane, multiple decision-makers, including sheriffs, chief 16 LEGISLATIVE ANALYST’S OFFICE analysis full gutter AN LAO REPORT probation officers, boards of supervisors, judges, longer-term technical assistance to local detention and district attorneys. Accordingly, in these cases, facilities as needed, including working with local counties may simply continue to remain out of stakeholders to facilitate collective problem compliance. identification and action planning processes around BSCC should consider contracting with a systemic issues faced by facilities. couple detention facility management consultants Highlight Promising Practices. Given that on a pilot basis to provide this longer-term, the BSCC staff regularly visit local detention more complex technical assistance to facilities. facilities throughout the state, BSCC has a These consultants would be available to work relatively unique opportunity to facilitate sharing with facilities and their stakeholders for longer of promising practices and effective solutions to than the 60-day compliance period. We note that shared challenges between counties. Accordingly, Tennessee has one such facility management in developing the plan, BSCC should give consultant—based at the University of Tennessee’s consideration to how its activities and products County Technical Assistance Service—that works can help highlight and promote promising practices closely with the agency that oversees Tennessee’s to facilitate continuous, systemic improvement in minimum standards and inspections program for detention facilities through these types of statewide local detention facilities. The consultant provides leadership. CONCLUSION The BSCC standards and inspections program and safe conditions; and (4) provide technical provides an opportunity for state assistance and assistance and statewide leadership to facilitate oversight of local detention facilities—which is systemic improvement in detention conditions. To currently of particular interest to members of the meet these goals, we recommend the Legislature Legislature. However, it is currently difficult to revise BSCC board membership to achieve a assess the effectiveness of the program because culture more conducive to this mission and goals it lacks a clearly defined mission and goals. and direct BSCC to develop a plan to align the Accordingly, we recommend that the Legislature program with the new statutory mission and establish the program’s mission in statute, which goals. These various steps will help local leaders we suggest be to promote legal, humane, and to promote legal, humane, and safe conditions safe conditions for youth, inmates, and staff in in detention facilities while providing other local detention facilities. To further this mission, stakeholders with better information about the we recommend that the Legislature establish four conditions in local detention facilities that they may goals for the program: (1) maintain standards use to hold local leaders accountable. Furthermore, that help local leaders determine and meet legal the steps will enhance the Legislature’s ability to requirements; (2) facilitate transparency and conduct oversight of the standards and inspections accountability through standards and inspections; program. (3) promote equitable provision of legal, humane, LAO PUBLICATIONS This report was prepared by Caitlin O’Neil and reviewed by Drew Soderborg and Anthony Simbol. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, CA 95814. 17 LEGISLATIVE ANALYST’S OFFICE