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Gibbs Response 9-23-13

Gibbs Response 9-23-13

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Published by Gotham Gazette
Combined Response from the NYC Office of the Mayor, the Department of Corrections, and the Department of Health and Mental Hygiene to the September 5, 2013 Consultant’s Report to the Board of Correction
September 23, 2013

The Report's principal conclusion, that the current practice of using punitive segregation on inmates with any mental illness in NYC jails violates BOC Standards, is based on a flawed legal interpretation of the Standards and is incorrect.
Combined Response from the NYC Office of the Mayor, the Department of Corrections, and the Department of Health and Mental Hygiene to the September 5, 2013 Consultant’s Report to the Board of Correction
September 23, 2013

The Report's principal conclusion, that the current practice of using punitive segregation on inmates with any mental illness in NYC jails violates BOC Standards, is based on a flawed legal interpretation of the Standards and is incorrect.

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Published by: Gotham Gazette on Nov 18, 2013
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1
Combined Response from the NYC Office of the Mayor, the Department of Corrections, and the Department of Health and Mental Hygiene to the
September 5, 2013 Consultant’s Report to the Board of Correction
 
September 23, 2013 Issue 1 The Report's principal conclusion, that the current practice of using punitive segregation on inmates with any mental illness in NYC jails violates BOC Standards, is based on a flawed legal interpretation of the Standards and is incorrect.
In their introduction to the Report, Drs. Gilligan and Lee note that they had been asked by the
Board of Correction to “assess whether the City is in compliance with several sections of the Mental Health Minimum Standards.” Their principal finding then follows that
 
“DOC’s use of
prolonged punitive segregation of the mentally ill violates the Mental Health Standards
,”
because punitive segregation is not conducted according to the BOC Standards for seclusion. However, various authorities and longstanding practice makes it clear that punitive segregation is not governed by the standards for seclusion, but is an independently authorized practice that can be applied to inmates with a history of mental illness with clearance from health care providers. As explained in more detail below, therefore, their legal analysis and conclusion are flawed and should be rejected by the Board. First, both the Minimum Standards and general psychiatric and correctional practice clearly differentiate between
punitive segregation
 
and “seclusion.” “Seclusion” is a short term
therapeutic measure for immediate response to a psychotic episode which, according to the BOC Standards, should be ordered by a psychiatrist only after all of the standards and procedures set forth in Standard 2-06(c) have been met, including a professional conclusion
that “(i) the inmate presents an
immediate danger of injury 
 to self or others; (ii) the
 potential  for violence is the result of a mental health disorder 
 for which the inmate is receiving treatment; (iii)these measures are
absolutely necessary 
 to avert the danger and will be therapeutically beneficial; and (iv)
all other available alternatives are ineffective
in preventing
injury.”
(Emphasis supplied.) Punitive segregation, in contrast, is the segregation of an inmate as a punitive measure, imposed after hearing and other due process, for violation of the rules of the jail, including but not limited to violent offenses (See DOC Inmate Rules, 39 RCNY 1-01 et seq.).
 
 
2
While there is every reason to maintain strict observation and limitations on a practice designed for an inmate in the midst of a psychotic episode, i.e, seclusion, such requirements do not apply to the use of punitive segregation as a form of discipline on an inmate with a history of mental illness. The current Mental Health Standards, Section 2-08(b), under the heading
“Discipline” provide that “… mental health services shall be informed whenever an inmate in a
special housing area for mental observation is charged with an infraction, and to be permitted
to participate in the infraction hearing and to review any punitive measures to be undertaken,”
and further clearly provides that,
 Any inmate to be placed in punitive segregation who has a history of mental or emotional disorders
 shall be seen by mental health services before being
moved to punitive segregation….The Mental Health Standards thus clearly
provide for the process by which some inmates with degrees of mental illness may be placed into punitive segregation.
The BOC’s Health Standard 3
-
02 (j) similarly requires that a physician approve any inmate’s placement into punitive segregation and may order the inmate’s removal at an
y time. By long practice and written procedures (codified in Departmental Directive 4501), these requirements have been interpreted by DOC to give physicians an absolute veto power over any placement of any inmate into punitive segregation. Again however, they do not prohibit such placements for any inmate with any history of any kind of mental disorder. These practices have long been known to and recognized by the Board of Correction.
 
The Report's legal analysis also fails to consider the relevance of New York State law, which expressly authorizes both the punitive and administrative segregation of inmates. Specifically, section 137(6) of the Correction Law, made applicable to localities by Section 500-k, provides that,
The superintendent of a correctional facility may keep any inmate confined in a cell or room, apart from the accommodations provided for inmates who are participating in programs
of the facility, for such period as may be necessary for maintenance of order or discipline…”
subject to certain procedures designed to ensure the health and mental health of inmates. Among these conditions is a requirement that regular reports be made regarding
“any recommendation relative to mental health treatment or confinement of an inmate with a
serious
mental illness made by the mental health clinician” who is required to daily visit each
inmate in segregation.
1
 Correction Law Section 136(7)(f). State law thus clearly dictates that segregation is necessary for the safe administration of jails and expressly contemplates that, subject to appropriate safeguards; such segregation may include inmates with some degree of mental illness. As no Standard adopted by the Board may be effective in violation of State Law, the Board should seek legal advice and fully consider the impact of this statute in all of its deliberations.
1
 
As noted earlier, all inmates in punitive segregation in New York City must be seen daily by clinicians, and all recommendations with regard to their treatment
 –
 including, if indicated, an order that the inmate be removed from segregation
 –
 are followed automatically as a matter of policy. See Departmental Directive 4501.
 
3
Rejection of the authors’ legal analysis is of particular importance since the policy
recommendations that follow
 –
 urging, for example, that the Restricted Housing Unit
(“RHU”)
mo
del should be rejected because it is a form of “punishment” categorically prohibited by the Board’s Mental Health Standards (Report, pp. 10
-11) -- rest upon this foundation.
Issue 2 The Report's conclusions about the impact of discipline and punishment on human behavior are overbroad and not supported by citations to relevant evidence.
The Report contains only four citations to relevant authorities, one written by one of the
authors himself suggesting that “punishment” is a cause of “stimulating violence” (Report, p.
 6), and
three, including another by one of the Report’s authors, that support the supposition that
 
“disrespect” is a major factor in the “subculture of violence.” (Report, p. 14
.) The Report also lacks any citation for any studies which concern the effect of punitive segregation in jails. While there is evidence supporting the ill effects of prolonged administrative segregation-- the indefinite isolation of sentenced state
prisoners in “super
-
max” facilities
 --, the extreme conditions associated with long-term administrative segregation in any case bear little relationship to
NYC’s
detention standards for both punitive and administrative segregation
.
The authors’ findings prejudicially reflect a misapplication of
other
 jurisdictions’
long-term administrative segregation findings to short-term punitive segregation housing in NYC. NYC standards for inmates in punitive segregation provide for access to contact visits, congregate worship services, telephone calls, personal correspondence and other services typically not afforded to any inmates in punitive segregation in other jurisdictions. Best practices in the field of Corrections feature strategies that have proven highly effective at sustaining a safe and secure system. These strategies include behavioral programs provided along a continuum encompassing prevention and interventions and often, are continued in more restrictive settings as components of intermediate sanctions and punitive segregation as well as in non-punitive, secure clinical settings. These strategies also frequently feature a system of incentives and disincentives to convey the consequences of making good and bad choices.
2
 
NYC’s initiatives incorporate these components in its programs.
 The draft Report makes no reference to best practices in the field of Corrections. There is no citation to any supporting authority, nor any reference to any jail or correctional facility that has been operated according to the behavioral approach advocated by the authors. That many experts
disagree with the authors is well illustrated by the fact that the “Restrictive Housing Unit” or “RHU” model to which they strongly
object is expressly modeled after a similar practice in New York State prisons which was adopted, and enacted into statute, at the urging of advocacy groups after careful review by the Legislature in 2008.
2
 Both the Association of State Correctional Administrators and the National Institute of Justice (NIC) are
developing a considerable body of ‘what works’ research in this area. In fact, the NIC has funded NYC to evaluate
its punitive segregation reforms.

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