TAKE THEIR DEUCE TO COURT
Let the January 6th Lawsuits Begin!
In my career I have done a lot of law enforcement jobs, some of which involved jail time – not for me, of course, at least not in the way that is usually understood.
I started working at “intake,” where a newly-arrested person came in, and later I helped to run a jail in Texas. That experience gave me an overview not only of what goes on in a jail, but also the liabilities for the ones running it.
In Texas, every jail must comply with the standards of the Texas Commission on Jail Standards, which has a detailed list of the rights of prisoners and the responsibilities of those guarding them based on Federal and state law.
Inspectors show up and do compliance inspections—some announced, and some not, depending, and they have the authority to decertify and close jails that are out of standard.
In addition, staff members can face civil and criminal liability for things done, or not done, concerning these inmates.
Other jails in other states and jurisdictions have their own, similar regulatory systems and agencies.
There are some words that come up in these inspections that cause aware jail staff to pay attention.
“Deliberate Indifference” is one term you don’t want to hear. That is when you, or an organization under your charge, does not respect the civil rights of a person you have in custody or fails to keep them according to standards.
It gets worse when there is a “pattern and practice” of this indifference.
“Lack of due diligence” means you did not care for someone with a medical or other need to the standard a reasonable person would find prudent. Not following jail standards can create prima facie [“at first sight”] evidence of this.
Lawsuits can come under state law, or under Federal law Section 1983, covering deliberate deprivation of a civil right. Supervisors can be vicariously liable for the same when their subordinates engaged in violations and they knew or should have known it was happening.
When you have someone under arrest or in jail, you own their wellbeing. Everything that happens to them, or does not happen to them, can probably be said to be your responsibility.
If the housing they are in is dirty or unserviceable, if they are not getting access to recreation, or getting fed adequately with acceptable food, are not getting medical care, are not getting media, visits, or mail, or they are being subjected to abuse in any way—you personally and your department can get into a lot of trouble.
When I had that responsibility, we had a very long list of what we could and could not do with inmates, with little if any room for changes or alterations on my part. Certain reports were required, and if an inmate had a problem, or we had a problem with them, again, I followed the list. Period.
With that in mind, let’s talk about January 6th.
[Disclosure] I was not there and I do not have direct knowledge of what happened, so consider this alongside all else. I only know of what I have heard from various reliable sources.
It really seems to me than a whole lot of horror stories, ranging from a lack of reasonable medical care, unreasonable movement, poor classification and over-restrictive housing, and other things that sound eerily familiar to things I have seen happen, permeated the experiences of the January 6th prisoners.
Now, let’s talk about how jails are staffed these days. The sad truth is, the hiring standards are probably lower in most jails than at McDonald’s. No one wants to be part of running a jail, particularly in the modern environment.
People who are hired are generally not as well trained or supervised as they need to be, which inevitably leads to problems when you remember what we just discussed.
One term here is “crash test dummy,” to denote someone who is expendable in the eyes of their administration.
Let’s say that you have a bottom feeding leadership at the jail which has animus towards a certain group of prisoners, or has been told to treat them rough.
Right away, this is big trouble (an immediate violation of the 8th Amendment). So, because they know better than to get their own hands dirty, they encourage those below them to mistreat them, or look the other way when it happens.
The plan will be, if necessary, to drop those individuals in the grease and say that they failed to do their job correctly, in order to take the heat off of the higher-ups.
You would think the people down below wouldn’t fall for this. Some won’t. But many will, because in poorly chosen jail guards, the behavior found in the Stanford Prison Experiment manifests—and the guards begin to see the inmates as some lower class of human, and treat them accordingly.
And with hires of low intelligence and motivation, even the best training that you can give somehow tends to get pushed aside with shocking ease.
I can personally attest that this condition hovers on the edge of the mind of even the most well-trained jailer.
I at times found it hard to remember that the guy wearing the jail jumpsuit was a person like me. It was tempting at times to view them as “one of those,” even with someone who hadn’t been convicted yet or who was arrested for a minor crime.
I was fortunate to have had, in my own mind at least, the professionalism and maturity (I started in law enforcement in my thirties) to ward this off.
But bad experiences with inmates or the jail setting as a whole makes this monster hover close by, always.
Only good and rigorous supervision holds it at bay, particularly with staff of limited life experience and professional identity.
Given the nature of the charges and the situation with January 6th, one can easily imagine how this could work (or fail to) in the setting of a Washington D.C. jail.
Of course, probably no one down there at all expected those folks to be pardoned.
Here is another eternal truth about poorly led people with rotten managers in a jail setting: They inevitably screw up their paperwork.
Necessary forms and records are not diligently maintained. People get lazy.
Things you are supposed to do don’t get done, like the administration of medical care. Rules get violated.
Jailers may engage in outright abuse and violence and literally cease to consider if they will ever get caught.
When the inspectors or lawyers come calling and ask to see the records, it usually gets ugly. When the video gets reviewed, it gets even uglier.
If I were the lawyer for one of those pardoned political prisoners, I would start looking at:
- The general record of their incarceration, to include health care needs versus what was administered, the substance of their intake interview on arrival, and where they were housed in the jail versus the classification procedure common to that jail.
- If there were deviations from the normal standard, why? What was the justification?
- Were dietary and medical needs worked into the meal and medication schedules for the prisoners, to include those needing special diets?
- Were the prisoner’s classifications reviewed on the proper schedule, and were they re-evaluated for custody status? (If they were in segregation/lockdown, that should be specifically justified)
- If there were adverse actions taken against them (jail disciplinary), where are the records of the hearings, and what sanctions were imposed? And by whom?
- Were they assaulted by other staff or inmates? What reports were generated and what medical treatment, cell movements, or reclassifications resulted? Was follow-up medical care given?
- Were they kept under observation at the times and intervals that were proper? Where are the records?
- What injuries or medical conditions did they have at the time of release that they did not have at intake?
None of this even considers the degree to which falsified police reports, prosecutorial misconduct, poor legal representation, misconduct by judges, and a failure by arresting officers to properly document the use of force may have been factors before they even reached the jail.
These pardons hit it all like a tsunami. How well did they cover their tracks?
It’s possible that when the full story of the January 6th prisoners comes out, with the details of how they were treated and at whose orders, that this will be the single greatest incarceration scandal in U.S. history.
I would be surprised if the tentacles do not reach deeply into the DOJ and the FBI. Regardless, let the games begin. It’s their turn now.
Mark Deuce has had a life-long career in community law enforcement. He is the author of Deuces Wild for TTP.