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 Consultants 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 DOCs 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.).

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 BOCs Health Standard 3-02 (j) similarly requires that a physician approve any inmates placement into punitive segregation and may order the inmates 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.

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.

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) model should be rejected because it is a form of punishment categorically prohibited by the Boards 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 Reports 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 supermax facilities --, the extreme conditions associated with long-term administrative segregation in any case bear little relationship to NYCs 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 NYCs 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.

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.

Additionally, the advice and input of correction professionals are crucial to this assessment. The Board should confer with experts in the field of Corrections and become familiar with the fields what works body of research. If there are practical models that allow for a facility to be operated safely without punishment for violations of the rules -- including acts of violence against staff and other inmates they should be cited and discussed at length. Otherwise, it should be noted that currently such models have yet to be developed or proven effective in a correctional setting. The Report makes broad conclusions about conditions in New York City jails without adequate support. A good deal of the Report is dedicated to criticisms that New York City jails are inappropriate facilities, not conducive to appropriate mental health treatment. (Report, pp. 1417) While any service provided will always have room for improvement, we would note at the same time that substantial efforts are already dedicated to training staff to maintain an appropriate level of respect for inmates, especially those diagnosed with mental illness, and to maintaining the cleanliness of facilities and raising the professionalism of our jails. These efforts have not been acknowledged in the Report, nor, to our knowledge, was any relevant inquiry made by the authors. Our understanding is that the authors spent less than three days since their retention by the Board on inspections of facilities at Rikers Island, with virtually no time devoted to inquiries into relevant policies, training and practices, such as might have been provided by Department staff. Whatever time and effort was devoted to observations and inquiries of the Departments of Correction and Health and Mental Hygiene should be indicated in the Report. Issue 3 The Report does not adequately address the proposed reforms to punitive segregation for inmates with mental illness and makes erroneous conclusions about their likely impact. Several years ago, the Departments of Correction and Health and Mental Hygiene began planning alternatives to existing punitive segregation practices, which has led to the opening of the Restricted Housing Units (RHUs) and the Clinical Alternative to Punitive Segregation (CAPS) units.3 These units will soon replace the current MHAUII units (which have been used for punitive segregation for inmates with mental illness). The Report's call for a substantial expansion of CAPS and other therapeutic non-punitive housing programs in lieu of punitive segregation for anyone with any degree of mental illness is unsupported.4 The CAPS units are designed specifically for a subset of mentally-ill inmates who have serious mental illness such as schizophrenia and other Axis I disorders; the units are managed by clinical staff and are tailored to respond to patients with very high needs. The agencies believe
3

A number of related reforms were begun at that time as well and include the development of sentencing guidelines, the reversal in longstanding practices regarding conditional discharge, historical time owed, and concurrent sentencing, and the introduction of non-punitive interventions. 4 We appreciate the Report's support for the concept of the CAPS unit. The first unit at RMSC opened in August 2013 and the second unit, at AMKC, is planned to open next month at the beginning of October.

that inmates with other forms of mental illness, such as behavior disorders, can successfully receive a combination of clinical services and behavioral modification in the RHUs. Further, the Report's conclusion that RHU should be eliminated for people with mental illness is misguided. The RHUs are behavior modification units that use a combination rewards and punishments (including time alone in cells) as part of the behavioral modification program. While there is a need to provide appropriate settings for inmates with mental illness, there is also a need to limit acts of violence and other violations of rules in the jail. This requires enforcement of rules, which in turn requires the employment of proven methodologies such as behavioral modification, for those inmates who violate rules. Overall, the RHU model strikes a balance between the need to redirect inmates who violate jail rules and the need to address these same behavioral problems in a clinical context. The Reports conclusion that clinicians' rely exclusively on DBT is incorrect. The consultants brief sessions on the RHUs may not have afforded them exposure to the full range of therapeutic interventions employed there. In addition to the DBT programming utilized on these units, clinical staff also rely on individual talk therapy, pharmacologic therapy (when indicated), art therapy and activities therapy. Focus groups regarding general health practices and education have also been introduced. The DBT programming in the RHUs was developed in collaboration with Professor Andre Ivanoff from Columbia University. Dr. Ivanoff is a worldrenowned expert in the use of various cognitive behavioral therapies in forensic settings and her ongoing guidance in the RHUs and direct sessions with staff are used to improve all aspects of the clinical approach. While the setting of jail, and the physical plant settings in which the RHUs are located, create some barriers to engagement, we are working continuously on these issues. Finally, we agree that partnering with academic institutions is important and note that it is already a key feature of the design and implementation of all of our clinical practices. In addition to the longstanding role of Dr. Ivanoff in the RHU model, both the medical and mental health services rely on clinical expertise from numerous academic partnerships, including the Albert Einstein and NYU/Bellevue psychiatry and clinical psychology faculty and the Montefiore medical faculty. Conclusion In short, we have serious concerns about the approach and the conclusions of the consultants' Report, and we urge further careful review before the Board of Correction acts on its unsubstantiated recommendations. The intent of the citys correction and health care standards is to advance the conditions of detention for all inmates in the departments custody and under its care. No change to the current parameters of punitive segregation should be pursued without first also carefully considering its intended and unintended impact on the safety and well-being of the vast majority of inmates who adhere to agency rules, and to the workforce, correctional and health care alike, who provide for inmates safety and well-being. 5