With regard to the recent article about judges issuing court orders for medical treatments while in jail, I wanted to get a legal perspective, so asked my friend David Tatarsky, who is General Council for the South Carolina Department of Corrections, for his thoughts.

South Carolina Department of Corrections (Photo credit: Wikipedia)

Here is his response:

My thoughts   (all of which must be considered in light of the particular judge you are dealing with):

1.         You are exactly right about the major cause of this problem—–no one in the courtroom representing the interests of the jail/prison. The parties just want to get the plea completed and move on to the next case. Your solution is great if you can successfully develop the type of relationship you have created with the prosecutors.

2.         In some states, judges may be expressly prohibited from requiring particular medical treatment in a sentencing order.  Jails/prisons should check with Legal on this.  The analogous situation is when a judge sentences an inmate and requires the DOC to house the inmate in a particular prison.  In South Carolina, there is a state statute that says the DOC has the exclusive authority to determine where an inmate is housed:

(A) A person convicted of an offense against this State and sentenced to imprisonment for more than three months is in the custody of the South Carolina Department of Corrections, and the department shall designate the place of confinement where the sentence must be served.

Here is another one I use in South Carolina:

SECTION 24-1-130. Management and control of prison system.

The director shall be vested with the exclusive management and control of the prison system, and all properties belonging thereto, subject to the limitations of Sections 24-1-20 to 24-1-230 and 24-1-260 and shall be responsible for the management of the affairs of the prison system and for the proper care, treatment, feeding, clothing, and management of the prisoners confined therein. The director shall manage and control the prison system.

This is basically what attorneys call a “separation of powers” argument.  Managing inmates belongs to the DOC, a part of the Executive Branch of government.  A judge who tries to assume this power is going outside the power/authority of the Judicial Branch of government.

3.         Sometimes the problem can be solved via education.  Judges, like lawyers, have continuing education requirements.  See if you can get this issue addressed at a CLE for the judges.  My office does a lot of training for prosecutors, public defenders and (sometimes) judges on sentencing issues.  Maybe ask the legal office for the DOC in your state if they can help.

4.         Tied in with the education issue—many (most??) judges know little or nothing about how jails and prisons operate, because most attorneys, before they become judges, learn little or nothing about the corrections system.

5.         If your agency has in-house counsel, ask him/her to contact the judge when you get one of these orders.  What I sometimes do is write to the prosecutor and defense attorney, letting them know that the order is improper and asking them (nicely) to have it corrected.  If I get an unsatisfactory response, I sometimes contact the judge’s law clerk.  Judges do not want to look stupid.  If someone points out the issue to the judge (without embarrassing him/her), he/she may fix it.

6.         A “split the baby” approach is to have the judge “recommend” rather than order some form of treatment on the sentencing order.  Then you can just look at the medical issue when the inmate arrives and exercise your own professional judgment.

These are all excellent points.  I wonder how many other states have a “separation of powers” statute like South Carolina’s.  Mine does not (sadly).

I also like David’s idea of trying to get on the judge’s required Continuing Education schedule.  I intend to do this, myself.  If I am successful, I will write about the experience here.

Davis County Jail Success Story

Tied in with David’s thoughts, I especially liked James Ondracek’s comment about his experience:

I have been the Nursing Director at Davis County Jail for almost 20 years now. I have the e-mail addresses and phone numbers of every court clerk in Davis County. I contact them every time we have a medical issue that requires assistance from a judge. None of our current Judges will grant medical furloughs without contacting me first. I have inmates tell me all the time that they requested a medical furlough and the judge told them to talk to the jail medical staff first because he will not grant a furlough without receiving a recommendation from the jail. Likewise we do not currently, have a problem with judges ordering medications in the jail. It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. I have met with many of the judges in court chambers about specific inmate needs and discussed having the judge grant medical furloughs and releases from jail when appropriate. It is very worth it to build relationships and understanding with prosecutors, judges, and attorneys. You will not win every battle but from my experience, most judges are glad to contact the jail with a concern and glad to tell the inmate that the jail will take care of his medical needs and he is not qualified to make medical decisions as a judge. Incidentally, I have never had any of our doctors come to a meeting with a judge. I will occasionally ask him for a note to take with me to meet with a judge or the prosecutor but we have always been able to handle this with our in-house staff.

The key quote here is this: It has taken many years of working with judges and attending judge meetings and getting prosecutors to help reverse court orders in the past, but it has paid off in the long run. It takes time and effort to cultivate a close relationship with judges and prosecutors.  But it is well worth the effort.  Besides being a medical care issue, it is also a time-management issue.  I believe that if you spend the time and effort to cultivate these relationships now, you will spend much less time in the long run—by a substantial margin.

What About Defense Attorneys?

Besides prosecutors and judges, it may also be worthwhile to cultivate a relationship with the defense attorneys.  Here in my hometown, one local defense attorney (who happens to be a friend of mine) organized a tour of the jail for the County Bar Association.  It was surprisingly well attended by around 40 attorneys.  The 1 ½ hour program featured short presentations by sheriff and the jail commander who talked about jail procedures  and another by me about jail medical services.  The attorneys then took a tour of the jail.  The attorneys had lots of questions.  Basically, like David Tatarsky said above, the attorneys did not know much about how jails work.  It was quite eye-opening for most of them.

The feedback was overwhelmingly positive. As part of my presentation, I gave each of the attorneys my personal cell phone number and invited them to call me if they had any questions about the medical services their clients were receiving.  (I reminded them that they had to have a Release-of-Information form signed by the inmate before I could talk to them in detail).  As a result of this, I have received several phone calls in the last month.  But as I told the attorneys, inviting them to call me directly is a time management issue for me.  It takes much less of my time to talk to them directly than to answer their letters, requests for records, subpoenas, etc.

Have you ever invited the Bar Association to tour your facility?  Please comment!