BY ETHAN FRENCHMAN
The goals of a zealous criminal defense are well known: to get one’s client out of jail and achieve the best possible outcome for the case. Attorneys have honed the skills to achieve these goals—creative arguments, effective cross-examination, motions practice, and communicating to a court or jury that one’s client is more than what may have occurred on one of the worst days of their life.
However, the past year has brought into even greater focus that these goals and the traditional tools of courtroom lawyering used to achieve them are insufficient to address the many problems our clients face when they are incarcerated pretrial.
Since 2016, Disability Rights Washington11 Disability Rights Washington (DRW) is a private, nonprofit advocacy organization that is federally mandated to provide protection and advocacy services to individuals with disabilities in Washington. DRW’s AVID Program focuses on improving the conditions of incarcerated people with disabilities in our state’s jails and prisons. has monitored nearly all of our state’s 58 city, county, and regional jails. We have found that people in jail are commonly placed in solitary confinement, denied adequate medical and mental health care, and have limited ability to communicate with people outside while awaiting trial.22 www.disabilityrightswa.org/reports/cruel-not-unusual/.
The reach of these harms is staggering. The average total daily population of all of Washington’s 58 jails is greater than 12,000 people.33 www.prisonpolicy.org/blog/2019/09/18/state-jail-bookings/. Because jail stays typically last for a period of months or weeks, this large number hides an even darker reality: According to one estimate, no fewer than 98,000 people are booked into Washington jails each year.44 Id.
As those of us who have practiced in Washington’s criminal courts know all too well, people in jail are typically there because they are too poor to pay bail. They disproportionately identify as a racial minority, and they are more likely to be in need of medical care, social services, or other assistance. The U.S. Department of Justice has estimated that approximately 40 percent of people in jail self-identify as having at least one disability.55 https://bjs.ojp.gov/library/publications/disabilities-among-prison-and-jail-inmates-2011-12. People in jail are also commonly sick and living with serious underlying medical conditions,66 Laura M. Maruschak, Bureau of Justice Statistics, NCJ 210696, Medical Problems of Jail Inmates, 2006. https://bjs.ojp.gov/content/pub/pdf/mpji.pdf. and have mental health needs.77 KiDeuk Kim, Miriam Becker-Cohen, & Maria Serakos, The Urban Institute, The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System (2015). www.urban.org/research/publication/processing-and-treatment-mentally-ill-persons-criminal-justice-system/view/full_report. When they arrive in jail, they have often gone without treatment for a substantial period of time.88 Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, NCJ 213600, Mental Health Problems of Prison and Jail Inmates, 2006. https://bjs.ojp.gov/content/pub/pdf/mhppji.pdf.
Unfortunately, jails and the staff that run them have little incentive, on their own, to care for people in custody. Strapped county budgets and the federal Medicaid inmate exclusion policy99 The Social Security Act (42 U.S. Code § 1396d(a)(A)) prohibits the use of federal Medicaid funds from being used to pay for services for people incarcerated in jails and prisons, even if they are eligible for or enrolled in Medicaid during their incarceration. mean that there is little money available for care. Notwithstanding state and federal laws that require jails to provide necessary medical treatment and accommodations, DRW has found through its monitoring that jails in Washington, like jails across the country, commonly fail to provide such care.1010 E.g., www.disabilityrightswa.org/reports/prescription-change; www.newyorker.com/magazine/2019/03/04/the-jail-health-care-crisis. And because Washington has no standards or effective oversight bodies to make jails accountable, incarcerated people often have no place to turn for help.
Given this hard reality, criminal defense attorneys have a critical role to play in helping their clients receive better treatment in jail during the pendency of their criminal case by educating them on how they can advocate for themselves and, in some cases, stepping in to advocate for their clients with jail staff and administrators. Doing so may also help a client be released from jail, if the jail cannot meet their needs, and may improve case outcomes by facilitating the client’s participation in their criminal case and furthering the attorney-client relationship.
EDUCATE AND ENCOURAGE SELF-ADVOCACY
Most jails in Washington operate complicated internal administrative systems for people in custody to make requests and file complaints about their treatment. These systems are often daunting and inaccessible to people with disabilities. People in jail may also be afraid that speaking up could result in retaliation or make them a target for harassment or violence from other people in custody or from staff. Attorneys can educate and encourage their clients on how they can advocate for themselves in jail. A lawyer who is well-versed in a jail’s administrative processes can provide tailored advice to such clients.
The simplest advice clients in jail may need to hear is encouragement to speak up and raise an issue with staff. Depending on the facility and the nature of the problem, an informal request to an officer on the individual’s unit, or medical staff during pill line (where individuals wait in line to receive their medications) or a visit to a clinic, may be enough to resolve the client’s issue. Because such requests are not documented, however, they cannot be used to substantiate subsequent allegations of mistreatment. On the other hand, and for the same reason, such informal requests create less risk of retaliation.
Clients can also be encouraged to submit a “kite.” A kite is a fast, formal method for incarcerated people to make written requests. They are also used to share information and ask questions. While some jails have single kites, other jails—for example, King County Correctional Facility—use different kites in a complex array of colors to ensure that the individual’s concern is directed to the appropriate staff.
If a kite does not resolve the issue, an incarcerated person can typically also submit a formal grievance. A grievance is a written complaint about one’s treatment, conditions in the jail, or staff actions. Grievances are often reviewed by more senior staff or leadership. A client who is interested in writing a grievance should be advised to complain about only a single issue. To the best of their ability they should prepare a short, concise statement that identifies the problem they are having, the steps they have taken to resolve the issue, any witnesses or necessary information, and a proposed remedy.
For example, if a client reports that they are not receiving their psychiatric medication, an attorney can encourage the client to use the kite system to report to jail health staff their diagnosis, the contact information for their provider or pharmacy (if any), any prior prescriptions, their symptoms, and, if they have never received medication before, why they think medication may be beneficial. If this kite is ignored or results in an inadequate response, the attorney can encourage the client to write a grievance describing when they wrote their kite, what information they included in their kite, why the response was inadequate, and the remedy sought (such as psychiatric medication).
Some jails also operate an administrative appeals process through which an incarcerated person can appeal the jail’s response to a formal grievance. Where they exist, appeals are typically reviewed by senior jail leadership under strict timeframes. As with grievances, people in jail should be encouraged to appeal grievance responses with which they disagree, explaining the specific problem with the response and their proposed solution.
Exhausting a jail’s administrative remedies, including grievances and appeals, is typically a prerequisite for filing a lawsuit against a jail regarding a person’s conditions or treatment. Failure to exhaust an available administrative remedy is grounds for dismissal under the federal Prison Litigation Reform Act. 42 U.S.C. §1997e(a)). Clients and attorneys should also keep in mind that not all issues—for example, matters beyond the control of the jail, issues affecting other people, and issues for which there is a separate appeals process—can be raised via the jail grievance process.
WHEN ATTORNEYS SHOULD CONTACT JAILS
Some clients face emergent and potentially life-threatening issues in jail. Others may not have access to a jail administrative process because they are in solitary confinement, are in the middle of an acute psychiatric crisis, or are unable to use the process for other disability-related reasons. For still others, the jail may simply be refusing to solve a client’s problem after the person has exhausted the jail’s administrative process. For such people, the defense attorney is in the best position to reach out to the jail and advocate for the client’s needs.
There are several steps that defense attorneys can take to effectively advocate for their client in jail. Sometimes a problem can be resolved with a simple telephone call with jail leadership or medical staff. An attorney may express concerns based on the client’s report of their treatment or conditions and propose a solution or remedy. While discussing the issue over the phone, an attorney should request the contact information, including email address, of the person to whom they are speaking and promptly follow up with an email documenting the conversation. Even if the jail refuses to take further action, such an email could prove to be a valuable record as proof that the jail was notified of a concern.
Attorneys can also perform short, simple investigations into their client’s conditions at the jail. This typically involves nothing more than having a client sign a release of information for the jail to share medical and custodial records with the attorney. Jail medical records must be provided under the Uniform Health Care Information Act (RCW 70.02), and custodial records must be provided under the Public Records Act (RCW 42.56) and the City and County Jails Act (RCW 70.48).
With this information, as well as a client’s own reports, attorneys can follow up with jail medical and custody staff as necessary, track jail efforts to improve their client’s treatment, or document a jail’s failure to provide appropriate care. In such cases, a defense attorney will have collected ample documentation to put before a court in support of a motion for bail modification that may result in the client’s release from jail.
ISSUES FACING PEOPLE WITH DISABILITIES IN JAIL
Under Title II of the Americans with Disabilities Act (ADA), “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Jails are subject to the ADA. Therefore, jails must not exclude people with disabilities from participation in jail programs, services, and activities. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998). That includes the ability to safely use hygiene services such as toilets and showers, to engage in exercise, and to use the mail, administrative kite and grievance program, and phones. Jails must also provide people with disabilities accommodations to ensure that they can participate in jail programs such as educational classes, religious services, and work assignments on the same basis as other people. See Pierce v. County of Orange, 526 F.3d 1190, 1214 (9th Cir. 2008) (citing Yeskey, 524 U.S. at 209-10 ); 28 C.F.R. § 35.152.
Disability Rights Washington has found that many jails across the state fall short of these ADA requirements.1111 E.g., www.disabilityrightswa.org/reports/wasted-time/. While jail is difficult for everyone, it is particularly challenging for people with disabilities. Jails often fail to provide people with disabilities even basic accommodations to ensure that they can properly communicate their needs to jail staff. Such people may require additional assistance from their defense attorney to receive necessary accommodations.
For example, jails should provide individualized accommodations to people who are blind or have low vision. These accommodations could include the guided “mapping,” or walk through, of their housing unit so that they can learn their space and not trip or fall. An individual may also require a cane, a lower bunk, and a shower chair. If the individual cannot read printed books, they will require accommodations for their personal reading, court papers, and law library access. Defense attorneys can take steps to ensure that the jail has provided their blind and low-vision clients with audio books, tape recorders, a Braille slate stylus, and other tools they may need. Attorneys may need to provide their low-vision clients with audio recordings of motions, discovery, and other court papers. Jails should provide such individuals with assistance in writing and reading mail, kites, grievances, and law library materials.
Jails should also provide accommodations to people who are deaf or hard of hearing. Some jails offer Video Relay Service, which is a video-enabled translation service for people who use American Sign Language to communicate. Jails must also provide hearing aids and assistive listening devices as necessary. Such tools are critical for people to communicate not only with defense counsel, but jail staff, medical providers, and the court.
Similarly, individuals with intellectual disabilities that impact their cognitive functioning and skills may be unable to use phones or jail kite and grievance systems. For such individuals, it is crucial that defense attorneys communicate with jails on their client’s behalf to explain their needs and advocate for them to receive appropriate accommodations, such as assistance in using phones and administrative processes.
UNIQUE PROBLEMS FOR TRANSGENDER PEOPLE IN JAIL
Transgender people face many of the same challenges as other people in jail, but often face additional and serious risks of harm due to prejudice or ignorance. Studies have shown that transgender people in correctional settings are at extraordinarily high risk for sexual abuse, assault, and self-harm.1212 See e.g., https://cpb-us-e2.wpmucdn.com/sites.uci.edu/dist/0/1149/files/2013/06/BulletinVol2Issue2.pdf.
Due to these risks, the federal Prison Rape Elimination Act and its implementing regulations require that transgender people be housed in correctional facilitates, including jails, according to the results of an individualized assessment of the person’s safety that includes input from the person.1313 Prison Rape Elimination Act (2012), www.prearesourcecenter.org/sites/default/files/content/prisonsandjailsfinalstandards_0.pdf. Jails violate federal law if they mechanically house transgender people according to their sex assigned at birth without assessment of their individual safety or medical needs.
Many transgender people experience gender dysphoria, which is distress caused by a discrepancy between a person’s gender identity and their sex assigned at birth. In 2019, the Ninth Circuit made clear that correctional facilities must provide medically necessary care for gender dysphoria in Edmo v. Corizon, Inc., 935 F.3d 757 (9th Cir. 2019). Many transgender people in the community are receiving feminizing or masculinizing hormone replacement therapy (HRT), which is a medically necessary intervention for gender dysphoria. Even brief interruptions to HRT can cause patients serious physical and mental health consequences. If a defense attorney knows that a transgender client is not receiving their HRT prescription, they should take steps to have the client’s doctor or pharmacy contact the jail and inform the jail of its legal obligations to provide gender-affirming care.
Finally, it is important for transgender people in jail to be assigned the proper name and gender marker. The person’s incarcerated name and gender marker will be used not only to identify the person in the jail, but in state prison if they are transferred. Defense attorneys are in a good position to assist transgender clients by providing documents to a jail of a person’s legal name change order from a county auditor’s office and government identification with their current gender marker. In addition, defense attorneys can take steps to have the criminal case caption amended so that the client’s case name reflects their current legal name. Steps like these can ensure that transgender clients are able to live with dignity and without the fear of having their transgender identity needlessly disclosed due to inaccurate and out-of-date jail and court paperwork that will follow the client for the rest of their life.
Investing the relatively small amount of time necessary to pursue the steps discussed in this article could have enormous benefits, both for the client and for the attorney-client relationship. For many clients, resolving an emergent medical or mental health issue can be lifesaving. For others, finding a solution to such issues, or a disability accommodation, is necessary to their participation in their own defense. Clients may need their attorney’s help to access treatment for an acute mental illness or to receive their court paperwork in an accessible format so they can get down to the work of assisting their attorney. Even documenting that a jail has failed to meet a client’s needs could result in an effective bail modification argument and the client’s release from pretrial detention. Advocating for a client’s treatment in jail will also build trust and strengthen the attorney client-relationship, improving the quality of communication and case outcomes. I have found that clients know that an attorney who fights for them with the jail will fight for them in their case, regardless of the outcome.
1. Disability Rights Washington (DRW) is a private, nonprofit advocacy organization that is federally mandated to provide protection and advocacy services to individuals with disabilities in Washington. DRW’s AVID Program focuses on improving the conditions of incarcerated people with disabilities in our state’s jails and prisons.
6. Laura M. Maruschak, Bureau of Justice Statistics, NCJ 210696, Medical Problems of Jail Inmates, 2006. https://bjs.ojp.gov/content/pub/pdf/mpji.pdf.
7. KiDeuk Kim, Miriam Becker-Cohen, & Maria Serakos, The Urban Institute, The Processing and Treatment of Mentally Ill Persons in the Criminal Justice System (2015). www.urban.org/research/publication/processing-and-treatment-mentally-ill-persons-criminal-justice-system/view/full_report.
8. Doris J. James & Lauren E. Glaze, Bureau of Justice Statistics, NCJ 213600, Mental Health Problems of Prison and Jail Inmates, 2006. https://bjs.ojp.gov/content/pub/pdf/mhppji.pdf.
9. The Social Security Act (42 U.S. Code § 1396d(a)(A)) prohibits the use of federal Medicaid funds from being used to pay for services for people incarcerated in jails and prisons, even if they are eligible for or enrolled in Medicaid during their incarceration.
13. Prison Rape Elimination Act (2012), www.prearesourcecenter.org/sites/default/files/content/prisonsandjailsfinalstandards_0.pdf.