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Use of Force

Correctional employees must sometimes use force to control inmates and protect both staff and inmates. Often the need for force arises in a volatile situation requiring on-the-spot decisions. With the high potential for injury in such circumstances, clear policies governing the use of force are vital. Use-of-force policies should define when force is justified, how it may be used, and what kind of force may be applied. Equally vital is a process for monitoring the use of force throughout the correctional system and for ensuring consistent disciplinary sanctions against employees who violate use-of-force policies or where the use of force is found to have been excessive and/or unnecessary.

A successful class-action lawsuit against the state has highlighted the need for substantive change in California’s correctional system use-of-force policies and practices. In this case, the court has supported plaintiffs’ claims of unjustified and excessive use of force and violation of the constitutional prohibition against cruel and unusual punishment. Underlying the deficiencies is the absence of system-wide policies for managing and controlling the use of force in the state’s correctional institutions.

The Corrections Independent Review Panel examined use-of-force policies employed in Department of Corrections and California Youth Authority institutions and parole operations. The panel also visited Pelican Bay State Prison, the subject of a court-ordered remedial plan governing the use of force, and reviewed the state’s use-of-force training, monitoring, review, and disciplinary policies. As a result of that study, the panel recommends the new Department of Correctional Services develop a core system-wide use-of-force policy. The policy should accommodate the difference between types and conditions of force between adult and youth institutions and between institution and parole operations. As part of the core policy, the department should institute specific use-of-force training, monitoring, investigation, and discipline processes.

Fiscal Impact

Implementation of the panel’s recommendations would result in potentially significant savings that cannot presently be quantified. Savings would result from a reduction in incidents involving unjustified, excessive, or negligent use of force, which in the past have resulted in significant costs to the State for litigation and medical expenses. Costs would be incurred for implementation of recommendations calling for improved use-of-force training and development of a comprehensive use-of-force database.

Background

State regulations and federal law provide the general framework for the use of force in correctional settings, allowing force to be used under certain conditions. Title 15 of the California Code of Regulations provides that force may be used as a last resort to gain compliance with a lawful order. [1] In the federal civil action Madrid v. Gomez, which successfully challenged the use of force at Pelican Bay State Prison, on grounds of violation of the eighth amendment to the U.S. Constitution, the U.S. District Court also noted the necessity for the use of force:

Perhaps the paramount responsibility of prison administrators is to maintain the safety and security of both staff and inmates…. Prison officials have the ‘unenviable task of keeping dangerous men in safe custody under humane conditions.’ There is no question that this demanding and often thankless undertaking will require prison staff to use force against inmates. Indeed, responsible deployment of force is not only justifiable on many occasions, but absolutely necessary to maintain the security of the institution. As one expert at trial succinctly stated, when it comes to force it is “as dangerous to use too little as it is to use too much.” [2]

Recent events have demonstrated, however, that use of force at California’s adult prisons and youth correctional facilities have sometimes exceeded acceptable limits and better accountability within their use-of-force policies is necessary.

The State’s use-of-force policies are undergoing revision

As a result of the Madrid v. Gomez case, the U.S. District Court ordered the Department of Corrections to develop a remedial plan to address the use of force at Pelican Bay State Prison and assigned a court-appointed special master to oversee the revision of the institution’s use-of-force policy. With the Madrid case as a guide, the Department of Corrections has also adapted the use-of-force policy and made it applicable to the other adult prisons, in parole operations, and is presently considering formal policy changes. [3] Following recent incidents at state youth facilities, including the videotaped beating of a ward, and litigation brought against the State concerning use of force in youth institutions, the California Youth Authority is also in the process of revising its use-of-force policies to make them consistent with the Pelican Bay Madrid v. Gomez remedial plan. [4]

The Corrections Independent Review Panel found the California Youth Authority’s draft use-of-force policy to be generally consistent with the Madrid plan, with differences in firearm usage and fight intervention specific to youthful offender incarceration. [5] The panel also found, however, that the State’s other efforts to bring use-of-force policies into line with the Pelican Bay remedial plan do not adequately take into account differences in appropriate use of force between institution and parole operations. In addition, the panel found that the proposed policies statewide fall short of the Madrid plan in providing for systematic review of use-of-force incidents and collection of use-of-force data.

Use-of-force policies for parole operations do not provide for adequate review

Department of Corrections parole agents are presently subject to the same use-of-force policies that govern correctional officers, even though the duties of parole agents differ from those of officers assigned to institutions. To accommodate those differences, in 2003 the parole division began developing a separate use-of-force policy that would be more consistent with parole field operations. [6] The Corrections Independent Review Panel found, however, that the parole division’s proposed use-of-force policy does not meet the standards of the Madrid plan with respect to review of use-of-force incidents and collection of use-of-force data. The deputy director of the parole division suggested to the panel that use-of-force incidents may be under-reported. [7] A survey of the state’s four parole regions found that parole agents performed approximately 30,000 arrests in 2003, yet only 71 use-of-force incidents were reported. [8] Use-of-force incidents in California Youth Authority parole operations also appear to be under-reported. A California Youth Authority staff member told the panel that the department’s parole division does not report use of force and attributed the lack of reporting to the fact that parole agents operate with less direct supervision than correctional officers in institutions. [9]

Development of the Pelican Bay use-of-force remedial plan

Pelican Bay has served as a laboratory for the development of a use-of-force policy that could be applied throughout the system. A special unit at the prison, the Madrid Compliance Unit, is responsible for gathering use-of-force reports, reviewing use-of-force incidents for compliance with the remedial plan, and presenting use-of-force reports to the prison’s Executive Review Committee, which reviews use-of-force incidents. According to the warden, acceptance and finetuning of the use-of-force policy occurred over a period of ten years with the guidance and approval of the U.S. District Court through the assigned special master. The warden reported that successful implementation of the new policy resulted from extensive formal and informal training, with group training and one-on-one discussions crucial to officers’ full understanding. [10] The comprehensive training contrasts with formal use-of-force training provided to Department of Corrections line staff, which consists of an eight-hour block of instruction at the academy with emphasis on deadly force incidents. [11] As a result of the training and implementation process at Pelican Bay, the warden said institution employees are highly knowledgeable about the details of the Madrid remedial plan and that the majority are overwhelmingly committed to the use-of-force policy. [12] One employee, a union representative told the Corrections Independent Review Panel, “[W]ithin the remedial plan we know what we can and cannot do, what to expect from managers and their review process, and it can even protect us from false inmate accusations down the road.” [13]

A model use-of-force policy

The use-of-force policy developed at Pelican Bay contains key elements upon which to build a statewide use-of-force policy. Central components include an effective process for reviewing use-of-force incidents; timely and thorough investigations into incidents involving use-of-force; and collection of use-of-force data in a database. Unifying the institution and field operations of the former Youth and Adult Correctional Agency departments into the new Department of Correctional Services will allow for development and implementation of a standardized use-of-force policy covering similar functions and job requirements. Every staff member will be provided a personal copy of the policy. The following describes the components of a model use-of-force policy.

  • Use-of-force review process

    The review and critique process is essential for adequate monitoring of the use of force. In the Madrid case, the court noted: “[T]he risk that force will be misused is considerably enhanced when prison administrators fail to implement adequate systems to regulate and monitor its use.” [14] Under the remedial plan in effect at Pelican Bay State Prison, use-of-force incidents are reviewed by the Madrid Compliance Unit and the prison’s Executive Review Committee. The Madrid review process includes review and critique from first line supervisors up to the warden of all use of force incidents.

    Unique in the Madrid process is a use-of-force analyst who represents a “common person” perspective and is responsible for conducting an in-depth analysis of the documentation of each use-of-force case. [15] The analyst applies specific standards identified by the U.S. Supreme Court in Hudson v. McMillian relating to justification for the use of force. [16] Those factors consist of the extent of injury suffered; the need for the application of force; the relationship between the need and the amount of force used; the threat reasonably perceived by responsible officials; and any effort made to temper the severity of a forceful response. The analyst prepares written recommendations addressing whether the force used was in compliance with policy, procedure, training, and applicable law and whether the reviews were complete. The analyst is also responsible for tracking the matter and verbally presenting the case and recommendations to the Executive Review Committee on a fixed schedule. [17] The success of the analyst function is dependent upon the direct support of the institutional head. [18]

    The use of force review processes being developed or presently in use in other Department of Corrections and California Youth Authority institutions and parole regions generally draw from the Madrid use-of-force review process, but are not as detailed, standardized, or consistent in every institution and parole region. Some adult institutions, for example, have a use-of-force coordinator who performs a clerical compilation function, rather than the analytical function performed at Pelican Bay State Prison by the Madrid Compliance Unit. The Parole and Community Services Division of the Department of Corrections does not conduct the structured analytical review of use-of-force incidents, nor does the California Youth Authority.

  • Investigation of use of force

    A comprehensive use-of-force policy must include a process for conducting timely and comprehensive investigations of use-of-force incidents. The investigation process should include a system for identifying acts that require mandatory investigations and should include classifying use-of-force incidents that resulted in specific consequences. The policy should also include a special unit for investigating use-of-force incidents.

    Categorizing the use of force by type and consequence allows for focus on those of highest risk. Labeling use-of-force incidents as either level I or II with level II the most serious, allows for prioritizing the focus of attention. Level II designation is only for those consequences that were the direct result of staff action. An incident report containing medical information identifying a qualifying injury would have to be reviewed to determine if it was caused by staff. If not caused by staff, the incident would follow the level I review process. A level II use-of-force includes any of the following acts:

    • Discharge of a firearm, including warning shots;
    • Strikes, blows, or kicks against a handcuffed subject;
    • Canine bites

    Level II use-of-force incidents also include use-of-force likely to have caused or that did result in death or serious bodily injury, with the latter defined as an impairment of physical condition including the following:

    • Loss of consciousness;
    • Concussion;
    • Bone fracture;
    • Protracted loss or impairment of function of a bodily member or organ;
    • A wound requiring suturing, and
    • Serious disfigurement [19]

    All Level II incidents should be investigated by a specialized team as described below. The results of the investigation should be reported to the hiring authority for a determination of whether the incident was consistent with policy and training; whether proper tactics were employed; whether lesser-force alternatives were reasonable; and whether discipline is warranted. The determination of the hiring authority would be reviewed and approved at the regional level. Under the model use-of-force process, the Civilian Corrections Commission would conduct an additional review of investigations involving death or in incidents where death was likely.

    All use of force incidents not classified as level II would automatically be classified as level I. Level I incidents do not trigger an automatic investigation, but if during an incident review a level I incident appears to have violated policy, the matter can be referred to the Internal Affairs Central Intake Unit, as outlined in Chapter 3, “Employee Investigations and Discipline.”

    Establishment of a specialized team from the Office of Internal Affairs designated to investigate only use-of-force incidents would ensure consistency and quality of fact gathering. In addition to the qualifications for an internal affairs assignment, team members should be specially trained. This team could be called the use-of-force investigative team. The team would be immediately notified of a level II incident and would respond to the scene. To ensure prompt response to incidents, the team should be regionally based.

    If, during the incident investigation specific personnel are identified as possibly committing misconduct, a personnel investigation would be initiated by internal affairs. (See chapter three, “Employee Investigations and Discipline.”)

    At present, complaints from inmates and parolees of excessive use of force do not receive uniform consideration throughout the Department of Corrections. [20] Unless an inmate complains immediately, the complaint is not considered during the review process. Since a large number of civil actions brought against correctional institutions arise from such complaints, a mechanism for including inmate and parolee complaints in the use-of-force review process should be in place. All complaints and allegations against peace officers brought by inmates, parolees, and citizens of unnecessary or excessive use of force should be investigated pursuant to California Penal Code Section 832.5. These complaints should be reviewed at the institution level regardless of the timeliness of the complaint and matched with the use-of-force incident review package and should also be forwarded to Internal Affairs Central Intake Unit for assignment. After reviewing the use-of-force package and complaint, however, the warden or hiring authority may request that the use-of-force investigation team conduct the investigation if the complaint appears to be serious. The team will audit a percentage of the use-of- force complaint investigations completed by each parole region and institution on an annual basis.

  • Use-of-force database

    Without an accurate collection of data about force used against inmates or parolees, the department cannot assess what future actions should be taken to manage the use of force. Don Specter, Director of the Prison Law Office commented about the California Department of Corrections “it is too big and much too diverse; without information there is no management.” [21]

    The Madrid remedial plan specifically requires a use-of-force database.

    The Use of Force Compliance Unit shall maintain a database system that will provide key information relating to the use of force at PBSP.(Pelican Bay State Prison). This data shall be maintained as a reporting tool to provide the Warden and management staff monthly and quarterly reports, as well as ad hoc reports regarding the use of force. The reports will provide a means of evaluating trends, reasons for the applications of force, and the factors involved. [22]

    Moreover, at present, there is no common system or methodology at the California Department of Corrections in institutions for tracking and detailing use-of-force incidents in a database. The same is true of the parole regions. [23]

    The proposed use-of-force policy of the California Department of Corrections, however, makes a database permissive, and the use-of-force policy of the Parole and Community Services Division does not mention the need for a database at all. [24] [25]

    The California Youth Authority also lacks a uniform system for gathering information regarding use of force. A summary report of a review of six of the California Youth Authority’s fourteen facilities, conducted at the request of the California Attorney General, noted that “each institution uses different categories for reporting violent incidents or use of force… and…, as with other YA [Youth Authority] correctional issues, statistical data on use of force are scant and not consistent across facilities. Central office reviews a limited number of reports.” [26]

    The Madrid plan does not specify the content and specific use of the database, saying only that it is to contain “key information; be used as a reporting tool to provide the Warden and management staff monthly and quarterly as well as ad hoc reports… to evaluate trends, reasons for application of force, and factors involved.” [27]

    The draft use-of-force policy of the Department of Corrections requires only that “the use of force analyst/coordinator shall log and track all incidents.” [28] The implication of the department’s proposed policy is to establish a record of some kind but provides no specific detail or organizational purpose for the database.

    In the Madrid remedial plan, reports were to be prepared for the warden and the U.S. District Court for the purpose of measuring management compliance with court-imposed requirements. These reports are still prepared, although there are no defined standards against which the data is compared. [29] Under the model use-of-force policy described here, the new Department of Correctional Services would identify critical use-of-force facts to be assembled and define how those facts are to be analyzed and for what purpose they are to be used.

Recommendations

The Corrections Independent Review Panel recommends that the new Department of Correctional Services take the following actions:


  • Implement a standardized use-of-force policy applicable to all peace officers, but with elements specific to the differences among adult prisons, youth correctional facilities, and adult and youth parole operations.
  • Implement an enhanced training program covering the new use-of-force policy.
  • Implement the Madrid review and compliance unit analyst for all use-of-force incidents for adult prisons, youth correctional facilities, and adult and youth parole operations.
  • Establish a regional use-of-force investigation team to investigate any staff use of force that results in serious bodily injury or death and any other serious application of force.
  • Create a classification list of use-of-force consequences and acts that will mandate an investigation by the use-of-force investigation team.
  • Require investigations of inmate/parolee/ward/citizen complaints regarding use of force and consider the complaint during the use of force review and critique process.
  • Establish a standardized statewide network database for use-of-force incidents that defines critical facts relative to use of force.
  • Define how use-of-force data will be analyzed and used.

Fiscal Impact

Implementing the recommended standardized use-of-force policy, review procedures, investigation practices, and use-of-force database would result in an undetermined savings through an anticipated reduction in litigation related to use of force. Adopting the recommended policies derived from the guidelines already approved by the U.S. District Court would act as a deterrent against future class action suits.

At present, litigation costs resulting from use-of-force incidents are substantial. As of May 1, 2004, there were 370 non-class action inmate and parolee court cases pending against the Department of Corrections alleging excessive use of force. [30] Reducing the number of use-of-force incidents would also be expected to result in fewer injuries to staff and inmates.

The state would incur additional costs in implementing a standardized use-of-force policy as follows:

  • Costs would be added to training for curriculum development, academy training, in-service and specialized training for the general staff, analyst, and use-of-force investigation team.
  • Additional cost would be incurred by providing each peace officer with a personal copy of the use-of-force policy as a means of providing accountability.
  • The creation of a new use-of-force analyst position would entail additional cost.
  • A cost would be incurred for implementing a statewide network database for collecting use-of-force data.
  • Increased internal affairs staff to support the proposed use-of-force teams.

Endnotes

[1] California Code of Regulations, Title 15, Section 3268 (a)(1).
[2] Madrid v. Gomez, Case C90-3094-THE, U.S. District Court, Northern District of California, Findings of Fact, Chief Judge Thelton E. Henderson, January 10, 1995, page 14.
[3] Joe McGrath, Warden, Pelican Bay State Prison, interview, Sacramento, California, May 6, 2004.
[4] Major Daryl Ballard, California Youth Authority, interview, Sacramento, California, March 24, 2004.
[5] Department of the Youth Authority Institutions and Camps Manual, Section 2080, Use of Force, page 2, draft policy, May 18, 2004.
[6] Deputy Director Rick Rimmer, Parole and Community Services Division, Department of Corrections, interview, Sacramento, California, May 7, 2004.
[7] Ibid.
[8] C. Toni, Parole Agent III, California Department of Corrections Parole and Community Services Division, e-mail message, May 17, 2004.
[9] Mark Gantt, Assistant Director, Department of Youth Authority, Office of Professional Standards, interview, Sacramento, California, May 27, 2004.
[10] Joe McGrath, Warden, Pelican Bay State Prison, Interview, Sacramento, California, May 6, 2004.
[11] California Department of Corrections Basic Correction Officers Academy, lesson plan, Use-of-Force Policy.
[12] Joe McGrath, Warden, Pelican Bay State Prison, interview, Sacramento, California, May 6, 2004.
[13] Rick Newton, correctional officer, Pelican Bay State Prison and chapter president, Crescent City, California Correctional Peace Officers Association, conversation, April 30, 2004.
[14] Madrid v. Gomez, Findings of Fact, Page 18.
[15] Richard Kirkland, Chief Deputy Warden, Pelican Bay State Prison, interview, Crescent City, California, April 29, 2004.
[16] Hudson v. McMillian, 112 S. Ct. (1992).
[17] Pelican Bay State Prison Use of Force Policy, revised July 2003, pages 45-46.
[18] Susan Hernandez, Associate Government Program Analyst, Madrid Compliance Unit, Pelican Bay State Prison, interview, Crescent City, California, April 29, 2004.
[19] Pelican Bay State Prison Use of Force Policy, revised July 2003, page 2.
[20] Joseph McGrath, Warden, Pelican Bay State Prison, Interview, Sacramento, California, May 6, 2004.
[21] Don Specter, Director, Prison Law Office, forum held in Sacramento, California, April 15, 2004.
[22] Pelican Bay State Prison, Use-of-Force Policy, July 2, 2003, page 47.
[23] Rick Rimmer, Deputy Director, California Department of Corrections, Parole and Community Services Division, interview, Sacramento, California, May 7, 2004.
[24] California Department of Corrections Operations Manual, draft, Article 25, Section 52100.21, Use of Force.
[25] California Department of Corrections Operations Manual, draft, Chapter 8, Article 45, Parole Use-of-Force Policy.
[26] Barry Krisberg, Ph.D., General Correctional Review of California Youth Authority, December 2003, pp. 24 and 31.
[27] Pelican Bay State Prison, Use of Force Policy, revised July 2003, page 47.
[28] California Department of Corrections Operations Manual, draft Article 25, Section 52100.19.4, Use of Force.
[29] Joe McGrath, Warden, Pelican Bay State Prison, interview, Sacramento, California, May 6, 2004.
[30] Jennifer Santos, California Department of Corrections, Legal Affairs Division, May 1, 2004.