What is a Consent Decree?
After working for 25 years in the prison systems of New Mexico and Arizona, as a senior prison administrator, it is with a high probability that Arizona legislators will soon be facing a Federal Court consent decree that will deploy numerous court monitors into their statewide prison operation. It is without any doubt that court-mandated inspectors will begin an independent review of all prison operational systems including the mental health and medical services bureaus as related to the pending consent decree.
What is a Consent Decree? A consent decree is an agreement or legal settlement reached between parties that allow for a dispute to be resolved without liability or an admission of guilt. In the criminal justice system, they can be used to settle a class action suit against a correctional system by a group of inmates and are most often about abridgment of civil rights.
If the Ryan vs. Parsons lawsuit is not met to a satisfactory level, a consent decree is the next order of business by those attorneys representing the inmates. At the moment private prisons are not included in the current lawsuit. The court may or may not order private prisons to be included but regardless of scope in the order, many significant changes will be directed to be done. If included, the costs will multiply exponentially for the taxpayers.
Prison officials and legislators will have to lay out additional costs for these court-appointed monitors, not employed by the state, to review documentation and practices on every specific flaw or deficiency discovered in the Ryan vs. Parsons lawsuit and it will also include all state-related lawsuit settlements to be included in the evaluations and checklists.
This will not only incur a very heavy operational burden on the labor of the state but on the finances of the state budget as well. The state budget is already the largest of the state and will soon grow exponentially to meet federal demands of the state prison administration to come into compliance of the order. This order is a living order, it will change based on findings and does not just address operational or procedural matters, but staffing, physical plant and other logistic improvements including computer use of databases and inmate programs.
The state can expect court monitors to particularly pay close attention to the existing protocols and verify that all documentation required is done in a legitimate verifiable manner.
Correctional officers and employees who work in the statewide prison system will be subject to training and remedial training as findings are disclosed. The same applies to nursing and mental health staff who will be drawn away from their primary care responsibilities and spent most of their time focusing on the legal environment rather than the custodial care standards. That is certainly the case when it comes to consent decrees. These legal injunctions can involve any area of incarceration with a primary focus on standards of delivery services related to mental health and medical health care.
To be sure legislators and taxpayers understand the consequences of a federal court order, they must prepare to carry additional financial and logistical burdens, not in the present budget. The chain of events is both laborious and complex. Attorneys will demand access to many areas of the consent decree with permission of the court to conduct inspections.
Court monitors are appointed by the presiding judge and are usually national experts in the area they will review. Because consent decrees often involve a wide array of processes and functions in a facility, there is usually a team of monitors appointed in a settlement. Sometimes lawyers for the plaintiff will accompany the monitors during the visit.
Monitors periodically survey care delivery to determine that the stipulations of the decree are being met. They will likely review written documentation and take actions such as:
a. Examine, review and amend Director Instructions, Institutional policies, and procedures, post orders
b. Recommend Inmate Programs for higher quality inmate improvement activities
c. Inspect mental and medical records (current and closed)
d. Inspect and review legal access
e. Administrative Segregation
f. PREA assault/ physical and mental abuse records
g. Review due process of the disciplinary systems and inmate grievances
h. They will also interview managers and frontline staff about current and past processes.
i. Inspect living conditions including sanitation, temperature controls, repair orders and other function related to occupational building codes and standards
j. Visitation and legal visits, phone calls
k. General inspections of Classification and placements
l. Food service, nutrition, hydration
m. Library access (non-legal), mail and recreation / exercise
n. Not limited to these areas above as any finding can change the course of action to be taken and correct the procedure immediately
Expect frequent unannounced tours of housing and medical units and inmates questioned about current security practices related to their availability to quality improvement activities and health care processes such as how they request to see a health care provider and whether security (custodial) system are user-friendly to such arrangements or appointments.
During tours, officers may be questioned about every aspect of their post assignments including suicide precautions or emergency medical procedures. If suicide or inmate safety is at issue, housing areas may be viewed for structural conditions that could be unsafe. Under a consent decree, expect physical plant changes to be made to comply with the standard or court-ordered expectation.
Once a site visit is completed, monitors report to the court on compliance or improvement toward compliance for the specifics of the consent decree to the judge. This may be in the form of a verbal report but most definitely in writing. Continued compliance will lead to the lifting of judicial oversight.
However, history shows that such lifting of oversight does not occur for many years and often with many additional modification and changes ordered to be covered by the state. It took the State of New Mexico to get out from under the Duran Consent Decree for more than 12 years. Cook County Jail was released from federal oversight after 40 years of monitoring and changes.
The Arizona Department of Corrections will lose all control of local and statewide functions under a consent decree. Simply states, the department is expected to do their job to the best of their ability and abide by court-ordered changes or modifications. Although you will hear a theme that monitors, and administrators are on the same team, they are not. It is a silent competition to either comply or defend with existing practices. This results in a structured procedure that will include but not limit to:
- To review policies and procedures to be sure staff is correctly following them. Changes will be made to address findings.
- Do ensure valid documentation is kept and maintained with good supporting documentation available for submission to the courts.
- Mandate additional or special any staff training that may occur in preparation for a monitor visit.
- Expect staff to honestly answer any questions from a monitor team member.
- Look for documentation consistency and determine if there are falsified or altered documentation. This includes deadlines and other specific policy related standards.
As legislators and gatekeepers to the budget, it is in your best interest to get involved in the litigation process before Arizona is engaged and ordered into a consent decree. The expense, burdens, and liabilities are endless when you submit the entire corrections system to the oversight of a court, judge, and monitors who get paid for finding faults with your systems.
Respectfully,
Carl ToersBijns
