Controversy in Utah Over Jail Deaths and Secret Jail Operating Standards
by Matt Clarke
In Utah’s local jails, a record number of deaths in 2016 caused both civil liberties groups and state legislators to question the standards under which the facilities operate. But there are no jail standards under state law, and the standards adopted by counties are kept secret by the company that developed them – a business founded by Gary DeLand, a former director of the Utah Department of Corrections (DOC), who claims the standards and results of compliance audits are his firm’s work product and thus exempt from public disclosure.
DeLand ran the Utah DOC from 1985 to 1992. During his tenure he supported radical measures such as using a hitching post on prisoners who refused to work. The DOC was known as a tough place to do time under DeLand, with numerous reports of abuse.
Lane McCotter succeeded DeLand as Utah’s prison director. They both later worked together in 2003 as paid consultants in the retrofitting of the Abu Ghraib prison in Iraq, also training its staff. Afterwards, the U.S. military became involved in an infamous prisoner abuse scandal at Abu Ghraib when photos of prisoners being tortured and humiliated were released. DeLand and McCotter were investigated but not charged with any crime. [See: PLN, May 2006, p.14; Nov. 2004, p.36; Sept. 2004, p.1; July 2004, p.1].
During his term as director of the DOC, DeLand was involved in writing policies for state prisons. In 1993, Iron County, Utah offered him $90,000 to draft policies and train staff for its jail. Soon, the nonprofit Utah Sheriffs’ Association asked DeLand to write policies for all of the 26 county jails in the state. Using the policies he created for the DOC, DeLand developed and copyrighted standards for Utah county jails in 1995.
DeLand was named in hundreds of lawsuits both when he was director of the DOC and when he ran the Salt Lake County jail. The standards that he created are designed to protect county jails from similar lawsuits; he has kept them secret, including the original standards he wrote for Iron County.
“No one ever saw the policy that he was writing for the jail out there,” stated Mike Carter, a former reporter for the Salt Lake Tribune. “He just assured everybody that it was fine. And from what I understand, that’s what he’s saying now.”
DeLand, who is currently a director with the Utah Sheriffs’ Association, saw a business opportunity. He sold his jail standards and training materials around the country, promoting himself as a consultant and potential defense expert witness in the event of lawsuits against corrections agencies.
“I ran the Department of Corrections and a jail, and right now I oversee about 26 jails,” DeLand stated. “I’ve got a fair grasp of what goes on.”
DeLand uses that “fair grasp” as an expert witness when he testifies on behalf of prisons and jails, including those sued by Prison Legal News over their censorship policies.
The Utah Sheriffs’ Association reportedly pays DeLand $15,000 a year to serve as its jail operations director. But the bulk of his income comes from jails in at least 19 states – such as Alabama, Arizona, Colorado, Hawaii and Oregon – that use the standards and training materials he sells through the National Institute for Jail Operations (NIJO), a company run by Lane McCotter’s son, Tate McCotter. DeLand is listed as an NIJO executive board member and senior instructor on Linkedin.com; he also runs his own business, DeLand and Associates.
NIJO says it exists “to serve those that operate jails, detention and correctional facilities,” and to help “proactively defend against frivolous litigation and protect against adverse publicity and liability.” It does not claim to ensure that prisoners are held under conditions that pass constitutional muster. At one point, NIJO accredited a jail in Indiana after inspecting it for compliance with DeLand’s nearly 600 “legal-based” standards.
One of the problems with the standards is that they apparently are not protecting the lives of prisoners. With at least 19 prisoner deaths, Utah had the highest local jail mortality rate in the nation in 2014. Eleven prisoners died in 2015 and 25 in 2016. Though the number of deaths dropped to seven last year, state lawmakers and advocacy groups remain concerned about the secretive jail standards with respect to suicide prevention and medical care.
“We are hopeful that there have been some improvements,” said Leah Farrell, staff attorney for the ACLU of Utah. “From our perspective, there is just so much to know and understand, and transparency is needed.”
Utah state Senator Todd Weiler, who said he is supportive of DeLand, wondered why he could obtain a copy of the standards used by the federal Bureau of Prisons but not for local jails in his own state.
“So I don’t understand if the federal government can be open and transparent, why we can’t be like that on the state level,” he said.
The Missouri-based Wrongful Death & Injury Institute also tried without success to obtain a copy of Utah jail standards from DeLand.
“First of all, a lot of sheriffs didn’t want standards,” DeLand replied. “Because they said as soon as you have standards, even though they’re technically not legally binding, attorneys, media, and others would say, oh you violated this one, you violated that one. And we don’t want that.”
But jails “are a government service agency. Everybody that’s in here is at the expense of the taxpayers,” countered retired Utah jail administrator Don Leach. “Shouldn’t the community paying for it know what they are paying for?”
And, of course, if the jails are following the standards, they should have nothing to hide; if they aren’t, that is something the public should know.
Such secrecy is not the norm in other states. Texas formed a commission to promulgate and enforce jail standards in 1975 – the Texas Commission on Jail Standards. The standards and inspection reports are public records. Pennsylvania, Tennessee and other states have similar public statewide standards. DeLand remains unbowed.
“If we were forced to share these reports and standards, then there wouldn’t be a sheriff with any intelligence at all who isn’t going to opt out of the system,” he claimed, adding that his competitors would also gain an advantage should he be forced to disclose the standards.
A redacted version of the jail standards was released to the public in March 2018, scrubbed of the parts that explain the legal rationale for each section. The Utah Sheriffs’ Association, which published the redacted version, said its goal was to ensure that prisoners’ “basic needs are met” while trying “to use tax dollars wisely as well.”
That same month, a committee was formed to draft new standards for the Utah DOC, according to spokeswoman Maria Peterson. However, she said the committee has no deadline to finish that project, nor any timetable for doing so. DeLand will not be involved in developing the new standards, according to then-DOC Director Rollin Cook, who stepped down in May 2018. Cook also said the standards would be made public.
“Transparency is essential to building trust in our corrections system,” he noted.
Salt Lake County has reported the most jail deaths since 2014, including the death of Lisa Marie Ostler. Before a battle with Crohn’s disease left her drug dependent, the 37-year-old mother of three had been a bank manager. She had gastric surgery just before arriving at the county jail on drug charges in April 2016; four days later she died due to a ruptured abdominal lining. Her cries and the pleas of other prisoners to help her were ignored by guards who assumed she was going through withdrawal, according to a federal civil rights lawsuit filed against the county by her parents in March 2018.
“Our daughter died a very painful death from a medical cause that was not related to drugs. And they couldn’t get beyond looking at it as a drug event to get her any kind of help,” said her father, Calvin Ostler.
Drug withdrawal claimed the life of Marion Herrera, 40, one of three deaths reported at the Weber County, Utah jail in 2016. Arrested on a check-forging charge, Herrera told jail staff upon intake that she was a heroin addict. They placed her in a detox cell, where she was found dead early the next morning.
After five people died at the Davis County jail in 2016, DOC inspectors cited the facility for noncompliance with minimum jail standards. Davis County Sheriff Todd Richardson said he then reassigned and retrained his staff – yet he refused to explain the nature of the deficiencies, citing the proprietary nature of the standards.
“What is the purpose of having standards if we don’t know if they’re being met?” asked ACLU of Utah legislative and policy counsel Mariana Lowe.
A sixth prisoner death in Davis County was later discovered by the Ogden Standard-Examiner, which found the death hadn’t been reported because it occurred at a hospital and not at the county jail. In March 2018, the Utah legislature passed a law requiring jails to report all prisoner deaths, even those that occur at hospitals. Reports from the counties to the DOC listing all deaths in custody are due August 1 of each year.
In April 2018, an appeal filed by the Disability Law Center challenging Sheriff Richardson’s refusal to release his jail’s operational standards was voted down by the State Records Committee, which found the county was not the owner of the standards. Rather, they were owned by DeLand’s company.
DeLand insists that it would be a mistake to release the unredacted standards, or even the results of voluntary audits that county jails undergo to determine their compliance. His company also sells software to conduct the audit inspections.
“[Releasing the inspection reports] would likely kill the self-audit program in Utah,” he argued.
“Audits and standards that a public institution uses should be made public,” countered the ACLU’s Farrell. “They’re held in this kind of black-box way that can’t be how public institutions are run.”
The Disability Law Center and the ACLU of Utah filed suit against Davis County under the state’s open records law on May 21, 2018, asking a court to force the county to publicly release its jail operating standards.
“The fact that these jail standards were purchased with taxpayer money and are being used to operate a county jail staffed by public employees and housing hundreds of Utah residents makes them public records by definition,” said David Reymann, one of the attorneys in the open records case, which remains pending.
Sources: www.standard.net, www.kuer.org, www.kslnewsradio.com, www.deseretnews.com, www.sltrib.com, www.npr.org