The importance of language in policy writing
Writing good policies and procedures for a correctional operation is not easy. It takes a lot of time and effort to do it right, so that the final product meets professional standards. Policies and procedures should reflect current legal requirements and standards, should be congruent with actual practices in the facility to the maximum possible extent and should be written in such a way that the users of the policy manual will be able to understand them.
The other key purpose for policies and procedures is to serve as a tool for liability risk management. If there is a lawsuit, lawyers for both sides may use policies and procedures to try to make their case — that is, plaintiff’s attorneys will try to show that policies were either non-existent or deficient, or that they existed but staff members did not follow them, and defense attorneys will try to show that policies existed and were good and that staff members followed them.
It is for both of these reasons that it is very important to write policies carefully. One of the key ways to write policies carefully is to try to distinguish between two categories of “duties” that staff members perform — ministerial duties and discretionary duties. Basically, a ministerial duty is one that staff members have to do, and do not have a choice about doing. That is, they do not have the authority to exercise their discretion in regard to that particular task. A discretionary duty, on the other hand, is one in which they do have the ability to exercise options.
In every correctional operation, some things are ministerial and some things are discretionary. It is important to try to make this distinction in written policies.
To illustrate, here are some examples of possible policy statements that involve ministerial duties:
• Inmates shall not be subject to corporal punishment.
• Officers will not withhold food from inmates as a form of discipline.
• All cell extractions shall be videotaped.
• Officers will wait for backup of at least one other officer before entering cells to intervene in apparent suicide attempts.
• Staff members will immediately cut down all inmates who have made apparent hanging attempts, even when it appears that the inmate is dead, and will immediately call for medical assistance.
• There must be prior supervisory authorization for placement of any inmate in administrative segregation.
In each of these examples, the policy statement is written in such a way as to make clear that staff members are expected to do something or not do something, and they have a choice about that. If there is a cell extraction, for example, the policy statement indicates that it will be videotaped. If an officer thinks that an inmate needs to go into administrative segregation, the policy statement indicates that the officer must get authorization from a supervisor first. Officers don’t have the authority to exercise discretion as to whether to withhold food from inmates as a form of discipline; it’s simply not allowed.
On the other hand, here are some examples of policy statements that involve discretionary duties:
• Jail staff may videotape a cell extraction if they feel that there is reason to do so, based on the totality of the circumstances.
• The Correctional Emergency Response Team (CERT) leader is authorized to determine whether or not to videotape any cell extraction or other use of force situation, based upon his or her assessment of the situation.
• In response to apparent minor violations of jail rules, officers may either issue a verbal or written reprimand to inmates or initiate short-term (24 hours or less) restriction of privileges or short-term disciplinary segregation.
• Any correctional officer may place an inmate in administrative segregation if the officer determines that the inmate’s continued presence in general population would jeopardize security, safety, order or control.
• Supervisors are authorized to grant or deny an inmate’s verbal or written request for a special visit (one outside of normal visiting hours).
Managers have the proactive responsibility of trying to be sure that policies and procedures accurately and thoroughly direct staff members in the performance of their duties. Thus, in writing policies and procedures, managers must be as careful as possible to use language that means what they want it to mean, in terms of distinguishing between ministerial duties and discretionary duties. So if a manager wants a task to be ministerial, he or she should use words like those in the examples of ministerial duties listed above: "will,"
"shall," "must" and so on.
For example, if a manager has a policy that all cell extractions are to be videotaped, the language about that must be clear to everyone who may be involved in such extractions: "All cell extractions shall be videotaped." If the statement says "Cell extractions may be videotaped," or "Cell extractions should be videotaped," then it is an entirely different statement of policy. "May" and "should" imply the ability to make a choice. They are very different words from "will" or "shall," which do not authorize use of discretion.
If a manager is casual or careless about using language correctly in policies and procedures, the likelihood of misinterpretations and inconsistency is inevitably greater. It is almost certain that different staff members will interpret the statement differently. To use the example above, suppose there is a policy statement that says "Cell extractions should be videotaped." What will happen? Some staff members will reasonably interpret that to mean that videotaping cell extractions is a good idea, but they don’t have to do it. It’s more of a suggestion than it is an absolute directive, because of the word “should.” If that is what management in fact intends — to suggest but not require videotaping — then it is a good statement because it accurately reflects management’s policy. But if management really wants all cell extractions to be videotaped, it’s a poor statement because it doesn’t accurately reflect management’s intent.
Does it take a lot of time and effort to be sure that the language of policies and procedures are correctly conveying management's intent? Absolutely. There are no short cuts. But is it worth that time and effort so as to try to be sure that people know what they are expected to do and to try to ensure maximum consistency in the correctional operation? Absolutely.
From a liability risk management perspective, distinguishing between ministerial and discretionary duties, in written policies and procedures, is very important. If there is a clearly-established ministerial duty and an employee violates that duty, he or she can be held responsible for that violation, in civil litigation. For example, this was one of the examples cited above of a statement reflecting a ministerial duty:
Staff members will immediately cut down all inmates who have made apparent hanging attempts, even when it appears that the inmate is dead, and will immediately call for medical assistance.
Again, this policy statement is clear and unambiguous. It allows no room for discretion. So, if an officer responded to an inmate hanging in a cell or room and didn’t cut the inmate down and summon medical assistance because he thought the inmate was dead, that officer may have violated a ministerial duty. He would have been acting outside of policy, and could be liable in the event of civil litigation on the wrongful death of an inmate. An officer could also be disciplined internally, or even terminated, for violating a significant ministerial duty.
However, an employee is usually entitled to qualified immunity from damages for exercising discretion when authorized to do so, even if he or she makes a poor decision. For example, suppose that the above example read as follows:
Staff members will immediately cut down all inmates who have made apparent hanging attempts even when it appears that the inmate is dead, and will call for medical assistance if that seems to be warranted based on the inmate's condition.
Now the policy statement is still partly ministerial (all inmates are to be immediately cut down) and partly discretionary (call for medical assistance if you think it is warranted). If an officer determined that medical assistance was not warranted and therefore did not call for such assistance, he would have been acting within policy. His decision to not call for medical assistance might be questioned, and a supervisor might even read him the riot act for making that decision, but it was a decision that policy authorized him to make and thus he cannot be held legally liable for exercising such discretion, if he made the decision in good faith.
Of course, just because an officer uses discretion that he or she is authorized to use does not mean that the officer might not be liable for actions taken based on that discretion. For example, an officer might use discretion to determine that use of force is needed to control an inmate, which is appropriate, but then that officer might use excessive force, which is certainly not appropriate.
Policies and procedures should, as noted, reflect provisions of state statutes and/or administrative rules. Thus, violations of policy can also involve violations of statutes or administrative rules. An officer might, for example, violate internal policy by failing to provide proper medical or crisis intervention assistance for an inmate and, by that same action, also be in violation of a state law that requires officers to render aid to people. Or, an officer might deliver contraband to an inmate, which would almost certainly be a violation both of internal policy and of state law.
As always, it is critically important that there is congruence between policies and training. To cite one of the examples above, if there is a policy provision that officers must wait for backup of at least one other officer before entering the cell of an apparent hanging victim, then that is exactly what they should learn and understand during in-house training. If there are discrepancies between policy provisions and training content, that is a potential problem both in regard to correctional operations and to liability risk management.
In conclusion, it is important, for several reasons, to be as careful as possible about distinguishing between ministerial and discretionary duties in written policies and procedures.