Saturday, December 28, 2019

TX county jails seek to avoid, fail to cooperate with investigations into medical deaths, says Jail Standards Commission's Sunset 'self evaluation'

Grits took time this morning to read through the Texas Commission on Jail Standards' self evaluation created as part of the "Sunset" process, through which the Texas Legislature evaluates agencies' functions every few years. For my own purposes, I took a few notes. Here are the highlights:

For starters, jail capacity in Texas has increased more than five-fold over the last 36 years, during which time the state's population didn't quite double: "From 1983 to date, the number of county jail beds has increased from 19,000 to 96,578." About 2/3 of those beds are full at any point in time.

Evading death investigations through creative, post-hoc dismissals
TCJS identified a recurring pattern where some counties claim someone who died in their custody had been released in order to avoid an outside investigation. The problem arises when:
the county claims they have released from custody because a judge has dismissed the charges. While the inmate technically may no longer be in custody, there is a very real possibility that the events that contributed to their death occurred while they were in custody and preceded their PR Bond or transfer to the hospital. By not reporting the death, the jail avoids the required criminal investigation. This could be viewed as circumventing the intent of the legislature and existing statutes.
The agency has requested an Attorney General's opinion to clarify the issue, but that "does not guarantee a solution."

'Several times per year' jails seek to conceal medical records from TCJS death investigators
Some local jails, particularly those who contract out medical care, have sought to prevent TCJS from accessing inmate medical records as part of death investigations. Because part of their role is determining whether jail staff followed physician's orders, this would keep them from providing meaningful oversight in such cases. From the report:
Several times per year, the agency will encounter opposition when requesting inmate medical records. This most often occurs when dealing with a facility that utilizes a contract medical provider. Other situations in which this has been an issue is when a facility is using a contract provider for mental health services. When this occurs, the provider most often cites HIPAA as the reason for their reluctance or refusal to provide access. In other cases, the provider will claim that the creation of these records are “proprietary” and not subject to disclosure. When either of these situations is encountered, it slows down the process of trying to determine if there were any violations of minimum standards in an extremely important area. Failure to provide adequate healthcare can have dire consequences, up to and including death. Unfortunately, we have determined on several occasions that jails have failed to follow physician’s orders, and being able to identify and correct this issue is extremely important. Current state law and the federal act regarding disclosure of medical records provides an exemption that we have been able to utilize in the past when this issue arises. However, there is still opposition as entities misinterpret (intentionally or due to lack of knowledge) this exemption and slow down the resolution of complaints and investigations. (emphasis added)
Dealing with rulebreakers more quickly
The agency tends to focus on administering technical assistance to jails that violate rules as opposed to using punishments to provide incentives. "Over the past decade, the agency has expanded the amount of technical assistance provided to jails to reduce potential areas of non‐compliance. This approach has been well received by county officials and has allowed staff to focus on larger issues while correcting minor ones at the time of inspection." (See here for examples of inspection reports.) But as a result of recent legislation, counties will be expected to regain compliance more quickly following rules violations:
When first created, the agency’s enabling statute allowed a county up to one year to regain compliance. This provision has recently come under criticism as being too long. One of the bills from the 86th Legislative session now requires facilities that are operated by a private vendor and fail an inspection to appear before our board at the next regularly scheduled meeting. These meetings take place on a quarterly basis, which significantly reduces the amount of time we would expect a facility to remain in non‐compliance.
How other states handle jail oversight
The report includes an excellent, three-page table (pp. 6-8 in the paginated document; pp. 8-10 of the pdf) describing how other states handle oversight of local jails. It's a very nice little compendium of the agencies, enabling statutes, and basic jail oversight functions across states.

Agency as 'referee'
State government regulates jail conditions, but local Sheriffs operate the jails and county commissioners courts provide their funding. This disconnect among responsibilities can inject the jail standards commission into local political fights:
County jails are rarely a priority for local government but represent one of the largest liabilities for them. This can create friction at the local level and prevent effective and constructive communication between the sheriff, who is responsible for the jail’s operation, and the Commissioner’s court, which is responsible for funding it. These are local issues created by local decisions, but they directly impact the effectiveness of the program. With a goal of having all jails operate in compliance, the agency is sometimes placed in the unenviable position of referee in our attempts to meet our goal.
Training new Sheriffs a particular problem
From the agency's perspective, every newly elected Sheriff amounts to a role of the dice. They all run on a "keep us safe" political platform that pretends they're out leading posses chasing bad guys and barely mentions the jail management function which, for most of them, is the most significant and time consuming part of their job. From the report:
Every four years, there is approximately 33% turnover of the sheriffs from the previous cycle who are taking office for the first time. Depending upon their background and previous experience, their understanding of jail operations and the role of the agency varies greatly. Early outreach and education occasionally alleviate some of the issues but not always and not with all the issues.
Shift to electronic reporting despite county opposition
The agency will finally stop receiving paper reports that have to be re-typed into spreadsheets and have counties begin providing statutorily required data electronically.
With the passage of HB3440 (86R) by Caprigilone, over the next two‐year cycle, the agency will be phasing in electronic reporting. This will consist of counties submitting to the agency each month a “locked” excel spreadsheet containing the statutorily mandated data. Prior attempts had been met with resistance from counties, but it is no longer feasible or even responsible to have one FTE assigned to nothing but data entry in 2019. By having the counties submit this data electronically, the FTE previously assigned will now perform quality control checks and simply import the data into the agency database. From there, the data can be used to run multiple reports that we are required to create. It is anticipated that the FTE previously assigned can now assist with other duties and functions of the agency as assigned.
Disconnected county computer networks prevent real-time data analysis
The agency is frustrated that legislators expect them to be more closely tracking data from local jails than they are technically able to at the moment, not just because of statutory reasons but because of technical issues related to linking disparate computer networks:
Efforts to educate members of the legislature about our ability to carry out certain tasks they would like accomplished are sometimes met with “dismissiveness.” Most of this is related to data collection and information submitted by the counties. At this time, there is no central database or portal into which counties can enter and submit information “real time.” The monthly population reports are simply a snap‐shot of the inmate population on the first of the month. The other reports required by statute are daily counts but deal with specific segments of the inmate population not the entire population. Part of the issue with this inability to tie the 240 county jails into a network is that each county has purchased or developed their own software with varying levels of compatibility and capability.
Low jailer pay degrades professionalism
The report directly linked a lack of professionalism among county jail guards to low pay.
With each county jail owned, funded, and operated by local government, they are the ones that decide how much to allocate for jail staff salaries. In an overwhelming majority of counties, the starting pay is a major drawback and jails have a difficult time recruiting and retaining qualified staff. This is an underlying factor in almost every instance of non‐compliance and makes it difficult for Jail Administrators to manage and operate a jail. This results in a wide range of professionalism amongst the jails that we regulate. This in turn requires agency staff to provide additional technical assistance to county jails to assist them in operating safe and secure facilities.
How 'jails have become mental hospitals, and jailers have become social workers'
The agency suggests additional training for local jailers on mental health, especially in rural counties, but they recognize the mental-health problem is bigger, more structural, and fundamentally budget-based than a training-only response can solve:
One area that we are exploring for possible expansion is mental health training. Interaction with an individual with mental illness is challenging even in the best of circumstances. Once a person with a mental illness enters the criminal justice system, that challenge is exacerbated by a factor that is simply hard to quantify. With insufficient mental health providers to service the general public, the need in jails is even greater. With an estimated 30% of the inmate population either diagnosed or exhibiting signs of mental illness, the demand far exceeds supply. By default, the result is that our county jails have become mental hospitals, and jailers have become social workers. Neither the facilities nor the staff that operate them are properly equipped to handle this continuing issue, and no long‐term solution is in sight.
"Difficult and unpopular would be the two most accurate words to describe any possible solution" to overuse of jails for mental health purposes, the report opined.

Administering "Prisoner Safety Fund" now a key agency function
In addition to its traditional functions, the agency now lists as one of its six key functions the administration of the "Prisoner Safety Fund," which state Rep. Garnet Coleman created under the Sandra Bland Act in 2017. That fund had its authority expanded earlier this year. Here's what it does:
Prisoner Safety Fund. The 85th Legislature created the Prisoner Safety Fund as part of SB1849(85R). The original purpose of the fund was to assist counties that operate a jail with a capacity of 96 beds or less with meeting the technology requirements set forth in the bill. There were two areas specifically targeted. The first was the ability to verify observation checks of the inmates by staff in high‐risk areas by an electronic means. This can be accomplished via camera or electronic sensor. The second was the provision to allow access to mental health services 24 hours a day via tele‐mental health services. The 86th Legislature amended the criteria in HB4468(86R) and increased the number of counties eligible to those that operate a facility with a capacity of 288 beds or less.
So the Legislature has created a fund specifically to prevent jail suicides and facilitate provision of mental health services. That could afford some interesting opportunities going forward, although each new funding battle will be a struggle. Certainly the problem hasn't been solved yet, as an AP report emphasized recently. See a detailed discussion of the (relatively modest) grant program beginning on page 71 of the pdf.) Most of the money in the fund has not been spent yet.

Records maintained by the Jail Commission
For those seeking records from the agency, here's a good description of what they have:
The Assistant Director authenticates the reports and data submitted. The following is authenticated to ensure accurate reporting of measures:
(1) Agency Calendar. Each entry is  required to have an associated memorandum prepared by the staff member involved in the activity. The staff member submits these memorandums to the Assistant Director, who reviews each entry on the calendar to ensure that a memorandum is available.  
(2) Inspector Activity Log. Each inspector is required to submit a monthly activity report. The Assistant Director compiles these reports into the Inspector Activity Log and verifies them for accuracy by reviewing a master log maintained by the Assistant Director. Any discrepancies are checked against the county’s inspection files, which are maintained in the agency file room. 
(3) Planning and Construction Log. The planner submits a log. Any activity that is designated as a key measure is reviewed by the Assistant Director to verify that the activity is denoted on the calendar or monthly activity report and that a memorandum is available. 
The Planning and Construction Log is maintained by the Planning and Construction Division and provided to the Assistant Director no later than the fifth day of the following month. The Planning and Construction Division notes the following:
  1. Technical Assistance provided to counties on site. 
  2. Occupancy Inspections conducted (pass or fail should be noted).
  3. Special Inspections conducted. 
  4. Training Attended/Conducted. 
Memorandums are submitted in order to document activities designated as key measures.
On pages 16-17 of the pdf is a list of all the datasets maintained by the agency. (Many of these are available on their website.)

Also, some researchers may find it useful to see the information commissioners are given at their meetings:
For each Commission meeting, a reference book is created that includes information on any issue that comes before them. In addition, this book contains current financial statements, copies of any audits or reviews that are periodically conducted by outside entities, and a listing of staff activities during the previous three months. There is also a section that contains the compliance status of all jails under our purview, number of complaints received against jails under our purview, population trends, and construction projects.
Forgotten history
Texas law has mandated safe and suitable jails since the 1920s, but the state didn't begin inspecting jails until 1969. That year, the federal court intervened in "almost 20" local Texas jails because of poor conditions. The Legislature changed the law to allow inspections. (Really, they removed a prohibition on inspections.) After that, "inspections were conducted of all 254 county jails, [and] all but six were found to be in violation of state law."

In 1974,  a survey revealed that 68 percent of jails did not provide 24-hour supervision; 121 left prisoners alone at night; 40 percent "slept prisoners on the floor."

The Legislature formally established the commission in 1975. By 1978, "The Commission became mired in controversy regarding funding, conflict of interest, and agency abolishment." However, 1979 witnessed, "Acceptance of Texas Minimum Jail Standards by Federal Courts and drastic reduction in federal court intervention. The Commission issued the first notices of non‐compliance [later that year], marking the beginning of enforcement efforts."

Inmates from outside Texas
A few county jails house contract prisoners from other states, in particular, "New Mexico, Arkansas and Idaho." New Mexico and Arkansas Grits can perhaps understand as a function of convenience,  proximity, and the logic of rural resources. The Idaho inmates, though, constitute their own mostly forgotten story; they're housed in a privately run facility down in Eagle Pass and the contract has caused lots of problems.

In addition, a few counties contract with private-prison companies to manage immigration-and-other-federal cases:
several federal agencies such as the Bureau of Prisons, Bureau of Immigration and Customs Enforcement, and the United States Marshal’s Service, all contract for bed space that falls under the Commission’s regulatory authority and is subject to inspection. Included in this number are seven (7) privately operated facilities and the companies that operate them through inter‐governmental agreements between county and municipal governments.
Inmate and family complaint procedures
Starting at the bottom of page 47 of the pdf is a detailed discussions of procedures related to inmate an family complaints which may be useful to those who, you know, want to complain. However, one can't file a complaint with TCJS before first going through the local jail's grievance process. They're an oversight agency, not the first point of contact. (If you're going through this process, Grits would recommend contacting Diana Claitor at the Texas Jail Project, who has forgotten more about the subject of jail-grievance processes than Grits has ever known.)

AG punted authority to approve contract-inmate schemes to TCJS
Here's a weird tidbit about jail construction/finance I didn't know. Grits has covered numerous Texas county jails seeking to expand to house immigration detainees and other contract prisoners. But I was unaware that, in the early '90s, the Attorney General's Public Finance Division struggled with this question of
whether the financing of jails or detention facilities of substantial capacity intended to house inmates of governmental entities other than or in addition to those of the sponsoring entity meets the public purpose requirement for the issuance of bonds and other securities.
They decided to punt the issue to TCJS, requiring that the executive director provide a formal letter recommending construction. The commission grants these "if appropriate," but the report doesn't say how appropriateness is judged. It'd be an interesting project to gather all of these through open records to figure out how often speculative contract jails have been recommended and on what basis.


M.D. Cohen said...

Holy Shit. Wow. Thanks, Grits!

Steven Michael Seys said...

Thanks for the link, Scott. Things have changed a lot since the '80s, sometimes for the better, sometimes the worse.

SOFAQ said...

I want you to know that my wife and I prayed for you together when I found out about your health problem. I promise to pray for you again and again with her. You are way too important for us all; to lose.

Matthew 18:20
“For where two or three are gathered together in my name, there am I in the midst of them.”

Linda Curtis said...

Scott, you are amazing and we all pray for you and Texas to listen and learn from you. Rep. Cyrier is my state rep. He is capable of getting it right leading Sunset this term. I'll be praying as much for him as for you. Thank you, so much, for your efforts.

Anonymous said...

Just putting it out there, 2019 was the safest year to be a police officer since 1968.

Anonymous said...

Intresting information on the data question.

For most of Texas jails (a very high percent) the inmate information is collected real time and used to drive the VINE network.

All of the technology is in place to pull the data from the VINE vendor and create real time reporting.

Contact the vine network vendor Appriss in Louisville KY they are expert in collecting jail data.

Anonymous said...

Using Harris County as an example, it being the largest county in the state, what results do you expect when the voters select sheriffs based on their political party affiliation more than anything else? Of the last three sheriffs, two elected and one appointed when one of those elected unsuccessfully ran to be mayor, none of them had any experience running a jail.
Adrian Garcia was a low level city cop that never bothered to promote, retired and successfully won a city council seat, and when he was term limited out of office was elected as sheriff. A quick search of Harris County's charges system showed he barely registered as a cop given how little police work he had done, apparently latching onto the coattails of others to ride them into office. Once elected as sheriff, most of his reforms were shown to be cobbled together suggestions by subordinates but the suicides continued, the lack of oversight continued, and frankly, he was wise to get out of the office before it fell down on him.
When Adrian quit to run as mayor, the then-Republican Commissioner's Court appointed a solid GOP constable by the name of Ron Hickman, a former HPD officer who left their employ when Police Chief Lee Brown was brought in by Kathy Whitmire. Ron eventually worked his way up the ranks of Pct 4 to be elected in 2000, several years later obtaining an online college degree and being best known for constant demands to commissioner's court for money to finance technology advances. The many scandals under his watch included the one discovered just after he left regarding how terrible Pct 4's evidence procedures were, Ron's near perfect scores given to the deputy he personally placed in charge of the process causing chaos for years. Ron, of course, had no expertise in running a jail either but I'm sure anyone reading this far knew that to be the case.
When Ron Hickman lost the general election, he was replaced by Ed Gonzalez, yet another HPD transplant who had left HPD to become a city councilman and then was term limited out. At least he promoted, if only once, in a competitive process which is something neither of the others had done, to the rank of sergeant, a first level supervisor position that typically oversees 6 officers. You might remember him as the one who retired but kept active homicide case files in his possession until years later when they were discovered as part of another scandal. He had a more traditionally earned bachelor's degree but like his two peers, no experience in running jails or mental health issues.

The common denominator here given the three came from both political parties, was the complete lack of experience running a jail and in two cases, almost no supervisory experience, the third better known for poor supervision and his crony antics in elected office. How much training would it take to bring any such people up to speed running one of the largest jail systems in the country? If that isn't a recipe for disaster, nothing is. I appreciate that voters want someone they can hold directly accountable when things go wrong but this is just crazy!

Anonymous said...

Anonymous @ 1/09/2020 04:03:00 AM, aka Ron Hickman. What is the problem can't sleep? Well, neither can the others that have had loved ones to die. At the same time, you were sheriff and suicides continued, excessive force in the jail continued, perfunctory IA investigations continued, the lack of oversight continued. I do agree that your political party should not determine if you are the best for the job, rather your commitment to running a safe jail that respects the constitutional rights of inmates. Each HC Sheriff has been 100% guilty of violating the rights of those held in the jail.

Anonymous said...

Anon 1/10/2020 10:22:00 AM, this is Anon 4:03 and I am not Ron Hickman. Even a casual reading of my grievances against the man in his capacity as constable or sheriff should clear that up promptly for someone that bothers to read my posting above. Otherwise, I'm agreeing with you post regarding the lack of change while he was in charge of the Harris County jails as that is the point being made. He lacked any expertise in the field and had no observable education in the complex world of running a jail yet he received hundreds of thousands of votes solely because of the political affiliation.

The power brokers in this area do not care one bit about those of us with loved ones who have died as a direct result of this process and are all too willing to allow such elected sheriffs to claim ignorance as they pass the buck to lower level subordinates, translating into none of them being held personally accountable for those alleged civil rights violations. To them, the elected sheriff need not be adequately trained and experienced in how to run a jail and consider these ill equipped losers the plausible deniability the courts lap up even when handing out great deals of taxpayer money to compensate for the loses.