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Staff use of force in U.S. confinement settings: lawful control tactics versus corporal punishment.

Article Excerpt
Those who can make you believe absurdities can make you commit atrocities.--Voltaire

THE USE OF PHYSICAL FORCE TO CONTROL PRISONERS IS A LAMENTABLE BUT necessary and commonplace event in the day-to-day administration of U.S. prisons and jails. (1) Correctional staff are permitted by law to use force in many circumstances, including protecting themselves or others, protecting property, enforcing orders, preventing crimes and escapes, and maintaining the safety and security of their facilities (Collins, 1998: 34). These circumstances undeniably occur with some frequency in prisons and jails.

Because staff use of force is inherently dangerous to prisoners and staff due to the high risk of injury, especially when non-lethal weaponry such as stun guns, batons, chemical agents, and projectiles are employed, (2) nationally recognized standards and the courts place limitations on when force is appropriate, the amount of force employed, and when force must cease. Judicial standards prohibit the wanton infliction of pain. Professional standards clearly limit staff use of force to that which is necessary to control prisoner disorder. They do not permit force to control and punish, control and retaliate, control and deter, or control and inflict pain or injury (unless that pain and injury is a necessary result of lawfully applied control tactics). Moreover, it is not appropriate, even where force is justified for purposes of order and safety, to use tactics that needlessly involve a greater likelihood of physical injury and pain than is necessary to achieve control of the prisoner.

Corporal punishment is illegal in U.S. corrections. It was effectively banned in 1968 as a result of Jackson v. Bishop, in which Eighth Circuit Judge (later Supreme Court Justice) Harry Blackmun said that the practice of Arkansas prisons of whipping prisoners with a leather strap "offends contemporary concepts of decency and human dignity...." (3) The American Correctional Association, in its Manual of Correctional Standards (1966: 55), had earlier recommended that "corporal punishment in any form should never be permitted."

This essay does not focus on staff use of force employed for the singular purpose of punishment, reprisal, or retaliation. It is an unfortunate reality of confinement operations that rogue officers, rogue shifts, and rogue commands sometimes dispense outright corporal punishment on their charges. When such indefensible incidents come to light, they speak for themselves and hopefully trigger a series of remedial and disciplinary actions that prospectively eliminate or minimize such unlawful staff action.

The following pages focus instead on the more insidious pattern or practice of unlawful staff use of force that is cloaked with, or protected by, an air of legitimacy or facial validity. It is not uncommon for ostensibly lawful applications of physical force to mask the intentional infliction of punishment, retaliation, or reprisal on prisoners. Manufacturing or exaggerating the need to physically control a prisoner is one means by which staff use force as a pretext for inflicting punishment on a prisoner. To punish prisoners, correctional personnel may also pretextually use an application of force that is legitimately initiated, but needlessly escalates to a level disproportionate to the objective risks presented by the inmate. Force that is used to achieve total submission of a subject after necessary control has been achieved is tantamount to the gratuitous infliction of pain and is also prohibited. On occasions in which unnecessary or disproportionate force is applied for the primary purpose of inflicting punishment, retaliation, or reprisal rather than control, such an application of force constitutes de facto corporal punishment, regardless of its ostensible justification. Often, the subjects of such force are mentally ill offenders whose behavior, as viewed by inadequately trained officers, is to be punished rather than treated.

The temptation to engage in de facto corporal punishment is reinforced by the wide range of high-tech, non-lethal weaponry available to correctional personnel: electronic stunning devices (some of which are capable of delivering 50,000 volts and can be used with shields, darts, and...

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