DRO asks Legislature to limit isolation of prisoners with mental illness

The following text is written testimony provided by DRO to the Senate Committee on Human Services and Early Childhood on April 7, 2015, during the 2015 Regular Session of the Oregon Legislature.

As the federally designated Protection and Advocacy for Oregon, Disability Rights Oregon is charged with protecting the legal rights of individuals with disabilities in our state. That responsibility includes investigating complaints of abuse and neglect.

In the spring of 2014, DRO received several complaints of abuse and neglect of prisoners with serious mental illness in the Behavioral Health Unit (BHU) at the Oregon State Penitentiary.  The BHU was originally designed to provide intensive mental health treatment to individuals who, due to serious mental illness, are not able to conform their behavior to prison rules and are not responsive to the system of graduated privileges and deterrents employed in disciplinary segregation units.  We investigated, and the results of that investigation prompted SB 739. [Text of the bill available here: Senate Bill 739, 2015]

To complete our investigation, we relied on the following sources of information:

  • interviews of 19 BHU prisoners,
  • approximately 4,500 pages medical, mental health and disciplinary records,
  • video footage of seven “suit ups” or cell extractions involving anticipated use of force,
  • Unusual Incident Reports (UIRs),
  • written DOC policies, emails and memoranda relating to BHU procedures,
  • records and logs that document BHU practices,
  • confidential interviews with 9 current and former members of the BHU mental health staff.

Our investigation revealed that prisoners in the BHU spend months and sometimes years in 6 x 10 foot cells, with no natural light, no access to the outdoors or fresh air, and only rare opportunities to speak with another person.  Most are in their cells for 23 hours a day and very few shower or take recreation regularly even though DOC policies require that they be offered those opportunities daily.

In addition to showers and recreation periods, BHU prisoners are theoretically provided with regular out-of-cell programing that includes:

  • one hour per week of Dialectical Behavior Therapy during which the prisoners are lined up in cages the size of telephone booths,
  • one session per week with a counselor, and
  • for the few who have graduated to a “level C,” one hour per week of “day room,” during which a prisoner is allowed to sit on a plastic chair outside of his cell. We learned that usually only one or two prisoners is actually able to access “day room” in a given week.

Beyond these meager possibilities, the men in the BHU have literally nothing to do.  Personal property, such as books, radios, or art supplies is tightly regulated to the extent emails from BHU management discussed whether it would be reasonable to allow BHU prisoners to possess a single crayon.

Despite the BHU’s original purpose of providing robust mental health treatment, access to crisis and routine mental health care has dwindled in recent years.

 

Former and current mental health staff complained to us that corrections staff now dominate treatment team decisions and impede their access to clients, sometimes through excuses and foot dragging (a practice universally referred to as “slow-playing”) and sometimes by refusing to buzz them into the building.

In the absence of mental health staff influence and presence, it is corrections officers who  respond to BHU prisoners’ mental health crises and their primary tools are limited to riot gear, tasers, pepper spray, and a restraint chair.  We reviewed numerous incidents in which there was no crisis counseling available to prevent self-harm.  Once the harm occurred – often swallowing a dangerous item, cutting oneself, or head-banging; the routine approach was to tase or pepper spray the prisoner, strip him and place him in a restraint chair, sometimes for long periods of time. These incidents were frequently followed by the imposition of suicide precautions.  Mental health staff report pressure from correctional officers to impose those precautions punitively rather than protectively.

Medications are administered under threat of tasing and forcible cell extractions are a regular occurrence.  This level of violence causes lasting damage for the prisoners. It also creates a cycle of where avoidable escalation triggers lashing out that exposes correctional officers to considerable risks.  Life in the BHU is eerily similar to what is seen across the country wherever individuals with Serious Mental Illness live in solitary confinement: men in cages pace incessantly; they pound the walls, mutter to themselves, and scream incessantly. Horrific levels of self-harm are a regular occurrence.

For individuals with Serious Mental Illness (SMI), solitary confinement is now well understood as a sure way to promote decompensation and in many cases, cause or exacerbate dangerous behavior. It is for those reasons that the American Bar Association[1], the American Psychiatric Association[2], and the United Nations[3] all oppose solitary confinement for people with mental illness.

U.S. courts have also begun to recognize the profound impact of solitary confinement on mental health.[4]  When applied to prisoners who already suffer from serious mental illness, one federal judge compared solitary confinement to putting an asthmatic in place with little air to breathe.[5]

This problem is not unique to Oregon.  In fact, Senate Bill 739 is modeled after a recent consent decree entered into by the state of Arizona in response to a class action lawsuit by the ACLU of Arizona Foundation.

Senate Bill 739 breaks the destructive cycle of punishment and psychological decompensation through two key provisions:

  1. It moves prisoners with serious mental illness out of their cells by mandating that they receive five hours of structured therapeutic activities and two hours of unstructured activities per day; and
  2. In non-emergency situations, SB 739 requires a “cooling off” period prior to the planned use of force against a prisoner with SMI. During the cooling off period, it further requires that a trained mental health professional will be brought in to attempt to verbally deescalate a prisoner or otherwise gain compliance.  SB 739 prohibits the use of pepper spray, tasers, and the restraint chair as the default tools that are currently used to address  mental health crises and difficult behavior.

We are happy to answer your questions about the bill or the investigation that prompted it and thank you for your consideration.

Bob Joondeph                                   Joel Greenberg                                 Sarah Radcliffe

Executive Director                           Staff Attorney                                   Staff Attorney

 

FOOTNOTES:

[1] ABA STANDARDS FOR CRIMINAL JUSTICE: TREATMENT OF PRISONERS No. 23-2.8(a) (2010) (“No prisoner diagnosed with serious mental illness should be placed in long-term segregated housing”)

[2] See American Psychiatric Association, Position Statement on Segregation of Prisoners with Mental Illness (2012) (“Prolonged segregation of adult inmates, with rare exception, should be avoided due to the potential for harm to such inmates.  If an inmate with serious mental illness is placed in segregation, out-of-cell structured therapeutic activities (i.e., mental health/psychiatric treatment) in appropriate programming space and adequate unstructured out-of-cell time should be permitted.”)

[3] See, e.g., Interim Rep. of the Spec. Rapporteur of the Human Rights Council on Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, U.N. Doc A/66/268 at 221 (Aug. 5, 2011) (“given their diminished capacity and that solitary confinement often results in severe exacerbation of a previously existing mental condition . . . its imposition, of any duration, on person with mental disabilities if cruel, inhuman or degrading treatment”).

[4]  See e.g., In re Medley, 134 U.S. 160, 180 (1890); Davenport v. DeRobertis, 844 F.2d 1310, 1313 (7th Cir. 1988); Joes’El v. Berge, 164 F. Supp. 2d 1096, 1125-26 (W.D. Wis. 2001); Gates v. Cook, 376 F.3d 323, 342 (5th Cir. 2004)

[5] Madrid v. Gomez, 889 F. Supp 1146, 1261 (N.D. Cal 1995).

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