Managing risk associated with video in today’s jails
While video is key in enhancing facility security, it also carries risks that must be addressed to reduce liability for the agency and its officers
Video is extremely prevalent in today’s jails. Most facilities have a host of internal and external fixed cameras, while some correctional personnel also wear body cameras.
In some facilities, supervisors can record using cell phone video, although the use is often highly restricted. And in certain situations, such as a cell extraction or other planned use of force, video recording is required.
All video footage carries both opportunity and risk. For example, video can be extremely helpful in resolving allegations of abuse or other complaints. But it also creates challenges such as retention and ensuring compliance with Health Insurance Portability and Accountability Act (HIPAA) and Prison Rape Elimination Act (PREA) regulations.
The Role of Video in Facility Security
Cameras play a key role in ensuring security within the jail, providing remote monitoring where you might not have staff stationed, and where you do, monitoring your staff to help keep them safe. Cameras are also invaluable in assisting with inmates on suicide watch or in restrictive housing. However: Nothing can replace onsite correctional staff monitoring inmates on suicide watch; cameras should only be used to supplement, not replace, observation of suicidal inmates.
But it’s important to think about how video footage contributes to the security of your facility beyond real-time monitoring.
Correctional staff should have access to video when writing reports. The details a video provides can enrich the report and verify the officer’s actions.
Inmates may also request to use video as evidence in disciplinary hearings. Sometimes the footage exonerates them and other times it doesn’t work in their favor, but either way, it lends credibility and fairness to the process, which will in turn create a more secure facility. When your inmates know video footage is accessible (whether to back up or refute their accounts), they will be less likely to make frivolous complaints and more likely to report serious complaints about what activities need to be addressed to improve jail conditions.
Privacy Concerns Related to Jail Video Footage
While video is key in enhancing facility security, it also carries risks that must be addressed to reduce liability for the agency and its officers. One major area of risk involves privacy.
As jails are not considered private places, inmates can expect to be filmed at nearly any time. Privacy concerns usually arise when releasing video to the public. A facility may do so proactively, in response to a Freedom of Information Act (FOIA) request or pursuant to a subpoena or court order. In all cases, careful consideration must be given to the privacy interests of all those involved.
With video footage involving inmates, two areas of concern include HIPAA and PREA regulations. While HIPAA concerns can largely be addressed with the redaction of video footage, PREA guidelines require additional action.
HIPAA concerns: Obtaining medical information on video occurs more than you may realize, especially in medical treatment or exam areas. For example, best practices suggest planned use of force events be recorded prior to, during and after the incident, including the rendering of medical treatment. This encounter may involve the inmate divulging medical history, which then creates the need for redaction in compliance with HIPAA.
Additionally, an essential part of the booking process is discussing medical issues, such as a medical questionnaire screening. If you have audio-enabled cameras in this area, the medical information disclosed may be HIPAA-protected and you must consider redaction when releasing the video footage.
PREA concerns: The challenge in every jail is the need to balance the competing interests of safety vs. privacy. Correctional facilities want to have eyes everywhere, but PREA forbids voyeurism, which includes the recording through video footage of certain body parts or actions. You can address these issues through careful positioning of cameras and/or electronic blurring when capturing prohibited footage, such as toilet and shower areas or the removal of clothing by inmates on suicide watch.
Another “hot spot” to consider is strip search areas. Your policies should indicate that strip searches can only be observed by those authorized to conduct the search, but care must also be taken in the placement of cameras in these areas and who can observe the video feed. Don’t allow staff to freelance and use areas with fixed cameras for strip searches.
Jail Video Footage as an Evidentiary Tool
Jail footage certainly comes into play with lawsuits, especially civil liability issues such as Section 1983 allegations – excessive use of force, deliberate indifference to one’s medical needs and violation of the First Amendment right to exercise religion. In some cases, these suits are filed but the legal proceedings don’t begin until years after the incident. The problem: Most video surveillance systems have technology that automatically records over prior footage every 30 to 90 days. Also, jail footage can be exceptionally helpful during the prosecution of crimes committed within a facility.
Inadvertent deletion of footage is becoming a problem for jail supervisors. Federal courts, judges and juries hearing these cases expect jail officials to store video footage for these ongoing cases, and when applicable footage isn’t retained, courts sometimes impose sanctions.
Courts are now essentially requiring jails to retain video footage of incidents when “litigation is reasonably anticipated.” Although there are no bright-line rules to define reasonable anticipation or when to preserve footage, guidelines include incidents involving in-custody deaths or serious injury to an inmate, potential situations liable for PREA complaints (not just incidents), and footage of litigious or “frequent filing” inmates (those with a history of filing petitions with the courts). Train your staff to store footage in a safe place, such as a hard drive, when a serious incident occurs so it is not unintentionally erased.
Learn more about the risks and opportunities associated with the rapidly evolving area of jail video footage in this on-demand webinar: Jail Video Footage: Risks & Opportunities.