Examining the liability trends of custodial suicides

Introduction
Given the diversity of the prisoner population in confinement facilities and their medical and psychological backgrounds, a death while incarcerated should not be unexpected, although a rare occurrence (Kelly and Linthicum, 2006; Raba, 1998; Rold, 1998; Ross, 2001). Some prisoners of this population periodically attempt or commit suicide while confined in a jail or police lockup, and/or in prison. Momola (2005) reported that jail suicide rates have steadily declined from 129 per 100,000 prisoners in 1983 to 47 per 100,000 in 2002, a decline of 64 percent. Moreover, he reported that suicide rates in State prisons fell from 34 per 100,000 prisoners in 1980 to 16 per 100,000 in 1990 and have since stabilized through 2002, a decline of 53 percent. In 2007, Mumola reported that a custodial suicide in prison accounted for 6 percent of the deaths from 2001 to 2004. Of the ten leading causes of death in confinement facilities, suicides rank fifth (Mumola, 2007).

A suicide in custody will most assuredly generate a civil lawsuit. Correctional officials are not absolute guarantors of the safety of prisoners, but cannot ignore obvious or known risks or dangers to prisoners in their custody. Before liability will attach the official must be aware of the facts from which the inference could be drawn that a serious risk of harm existed. This study is the first to perform a liability analysis of published §1983 prisoner suicide litigation between incidents occurring in jails, police lockups, and prisons. It was theorized that the Farmer v. Brennan (1994) decision has made it more difficult for a plaintiff to prevail in a civil lawsuit. While suicides in jail occur with more frequency than in a prison or lock-up, it is theorized that liability will more likely be incurred in a police lock-up facility.

The United States Supreme Court further elaborated on the standard of deliberate indifference in their decision in Farmer. While Farmer did not specifically address custodial suicides the Court’s expansion of deliberate indifference has been applied to custodial suicides by the lower courts. Under Farmer, the plaintiff must show that the defendant officials possessed “actual knowledge,” in accordance with: (1) must be aware of the facts from which the inference could be drawn that a substantial risk of serious harm existed, and he drew such inference; (2) when awareness can be inferred from circumstantial evidence, especially when the risk is obvious, the trier of fact can conclude that the official “must have known” of the danger; and (3) while ignorance of obvious risks will remain a defense, the official would not escape liability if evidence showed he merely refused to verify underlying facts that he strongly suspected to be true or declined to confirm inferences of risk that he strongly suspected to exist. The plaintiff must establish that the defendant displayed deliberate indifference to a “strong likelihood” of suicide rather than a mere possibility.

Methodology
The full case decisions of 2,079 published §1983 cases were analyzed by using the LexisNexis data base. Cases from 1980 to 2008 were analyzed emerging from county jails, city lockups, and prisons. From 1980 to 2007, the average daily population in jail, lockups, and prison was approximately 2.1 million prisoners (Sabol and Minton, 2008). In 2006, there were 3,061 county jails, 1,975 police lockups, and all 50 states operated prison facilities (Hickman and Reeves, 2006). City lockups are confinement facilities which generally hold detainees from 20 to 72 hours; jails are operated by the county and confine pre-trial detainees and sentenced individuals from 24 hours to two years in some jurisdictions; and prisons confine sentenced prisoners generally for more than one year. A more complete analysis was published in the March/April 2010 edition of the American Jails Magazine.

Prevailing Party
Table one illustrates prevailing party trends and that prisoners have a low probability of winning a claim associated with a custodial suicide. Prevailing party means that a jury found in favor of correctional personnel, or that the court found sufficient evidence to warrant a jury’s judgment in the case, or that the court awarded summary judgment without the case progressing to trial. Jails comprised 75 percent (n=1,158) of the litigation while lockups accounted for 16 percent (n=336), and prisons accounted for 9 percent (n=185). Prior to the Farmer decision prisoners prevailed in 32 percent of the litigation. In the pre-Farmer period, custodial personnel in lockups and prisons collectively prevailed in 61 percent of the litigation, 14 percent below the prevailing rates of jails. Overall, prevailing percentages in jails were the highest of the three agencies but experienced the lowest percentage increase, 9 percent.

Correctional personnel prevailed by a 3 to 1 ratio over the study period, 76 percent to 24 percent. Since the Farmer decision correctional personnel prevailed in 83 percent of the litigation, or about a 4 to 1 ratio. Comparing the two time periods, police lock-ups were less likely to prevail than prisons and jails, but made the largest gain in prevailing patterns, netting a 20-percent increase since the Farmer decision. Further, since Farmer, prisoners in state prison prevailing rates were cut in over half of the published decisions (32% to 15%). Over the study period, the total prisoner prevailing rate decreased by almost half, from 32 percent to 17 percent.

Prevailing Party Trends by Common Category of Claim
Table two shows seven categories of claims in which a plaintiff will generally submit an allegation. All lawsuits filed included multiple claims against the confinement agency and the total will not add up to 100 percent. The underlying component of the plaintiff’s complaint will attempt to prove that each type of claim illustrates that the agency was deliberately indifferent to the needs of the deceased prisoner and the policies of the agency were unconstitutional.

Failure to Protect
Claims in this category comprise 55 percent of the allegations and assert that correctional personnel failed to implement measures which would reduce the degree of self-harm to the prisoner, failed to recognize behaviors which may be associated with suicide, failed to recognize a prisoner’s suicidal tendencies, or that there was a pattern of past suicides which demonstrate deliberate indifference; that the correctional agency lacked the resources necessary to protect the prisoner from harm; or that officials failed to take precautionary measures which would reduce the risk of suicide.

Failure to Provide Medical/Psychiatric Care
Assertions filed by a plaintiff in this category can include that: officers failed to recognize suicidal ideology which were so obvious that a lay person would recognize them, prompting an officer to seek medical care; that the agency failed to provide a health care system in the facility; that health care personnel ignored, denied, or delayed medical care when such care was obvious; failing to have health care workers assess the prisoner at intake or provide access to the prisoner during his confinement, and that health care personnel failed to provide adequate care during confinement.

Failure to Train
Section 1983 claims of this nature will focus on the United States Supreme Court case of City of Canton v. Harris (1989). The plaintiff generally alleges that the agency was deliberately indifferent by failing to train officers in recognition of suicide indicators, policy issues, monitoring procedures, and how to obtain medical or mental health care. Claims in this category represent 54 percent of all claims filed.

In examining claims for failure to train officers regarding issues of suicide awareness, a majority of courts are rejecting plaintiff’s claims if the defendants can show evidence of training and/or policies which direct officers in responding to detainees who exhibit a “strong likelihood” of suicide. Infrequently, the court further found that the officials’ alleged conduct as policymakers with respect to inadequate training to prevent suicide by pre-trial detainees was actionable under §1983.

Policy Issues
Slightly more than 50 percent of all claims allege unconstitutional policies. The plaintiff alleges that the confining agency violated the deceased prisoner’s constitutional rights to protection or medical care by maintaining a policy and custom of tolerating deliberate indifference to his needs. Such claims may include: failing to direct officers, a lack of written policies, constitutionally deficient policies, and a failure to follow or enforce agency policies. The plaintiff will allege that the policies of the agency were the “moving force” which directly led to the prisoner’s suicidal death.

Failure to Monitor
About 43 percent of the allegations claim a failure to monitor and can include assertions of: failing to make regularly scheduled security checks, or failing to use surveillance equipment to assist in monitoring suicidal risk prisoners. In Gray v. City of Detroit (2005), the court ruled that “pre-trial detainees do not have a constitutional right for cities to ensure, through supervision and discipline that every possible measure be taken to prevent their suicidal efforts.”

Facilities/Confinement Conditions
About 25 percent of the claims the plaintiff alleges that the agency was deliberately indifferent by failing to operate a safe facility and/or that the conditions were deplorable and dehumanizing. Common assertions include: inadequate staffing of the facility, unsanitary housing conditions, improperly placed a prisoner in an isolation cell, defective building, and the prisoner was exposed to materials in the facility which he used to commit suicide.

Failure in Booking/Classification
Finally, this category comprised about 21 percent of the allegations and can include: failing to ask medical and mental health background questions, failing to review medical records of the prisoner, failing to perform screening instruments to determine the risk of suicidal tendencies, failing to perform classification tasks, and making improper cell assignments.

Conclusion
The prevailing patterns of published custodial suicide litigation reveal that a prisoner plaintiff has a low a probability of prevailing. Although all confinement agencies have a high prevailing rate, police lock-ups prevail at a lower rate than jails or prisons.

The policy implications that emerge from the seven common categories reveal that neither an officer nor an administrator will incur liability for a custodial suicide if necessary precautions to prevent the suicide are in place and followed. Personnel working in confinement facilities are not absolute guarantors of health but they do owe a duty of care to arrestees in their custody who otherwise cannot care for themselves. An officer who fails to inquire about past suicide attempts equates to negligence and is not enough to establish deliberate indifference under Farmer.

Maintaining a system that addresses prisoners’ medical and mental health needs imbedded in policies and functional practices will most assuredly assist in defending against claims of deliberate indifference. Case analysis reveals that policies which address the following will typically rebuff a claim of deliberate indifference: (1) policy and procedures developed in line with state standards which describe suicide intervention strategies; (2) a training program for officers which integrates the policy and procedures; (3) booking, screening, and classification practices that are used with prisoners at reception; (4) documented protocols for placing prisoners on suicide watch embedded in monitoring procedures and practices; (5) search practices which remove dangerous items from prisoners, and inspections of the cells and the facility; and (6) maintaining a close working relationship with health care personnel in delivering and maintaining adequate health care services to prisoners. Regardless of the prevailing patterns administrators should review their current policies and practices against the seven common litigated areas, and revisions should be made accordingly.

References
Hickman, M. and Reeves, B. (2006). Law Enforcement Management and Administration Statistics. Bureau of Justice Statistics. U.S. Department of Justice, Washington, D.C.

Kelley, M. F. and G. Linthicum (2006). Mortality in jails and prisons. In (Ed.) M. Pursis (2nd ed.) Clinical Practice in Correctional Medicine, Mosby Publisher, Chicago, IL.

Momola, C.J. (2007). Medical causes of death in state prisons, 2001-2004. Bureau of Justice Statistics. U.S. Department of Justice, Washington, D.C.

Momola, C.J. (2005). Suicide and homicide in state prisons and local jails. Bureau of Justice Statistics. U.S. Department of Justice, Washington, D.C.

Raba, J. (1998). Mortality in prisons and jails. In (Ed.) M. Pulsi, Correctional Medicine, 301-313.

Rold, W. J. (1998). Legal considerations in the delivery of health care services in prisons and jails. In (Ed.) M. Pulsi, Correctional Medicine, 344-354.

Ross, D. L. (2001). Assessing in-custody deaths in jails. American Jails, November/December: 13-25.

Sabol, W.J. and Minton, T.E. (2008). Prisoner Populations at Midyear: 2007. Bureau of Justice Statistics. U.S. Department of Justice, Washington, D.C.

Cases Cited
City of Canton, OH v. Harris, 489 U.S. 378 (1989)

Farmer v. Brennan, 511 U.S. 285 (1994)

Gray v. City of Detroit, 399 F. 612 (6th Cir. 2005)