Consultants Response to the Response from the NYC Office of the Mayor, the Department of Corrections, and the

Department of Health and Mental Hygiene from September 23, 2013

October 3, 2013

James Gilligan, MD, and Bandy Lee, MD We feel that a response to the Response from the NYC Office of the Mayor, the Department of Corrections, and the Department of Health and Mental Hygiene (hitherto simply the Response) was necessary, given some misunderstandings of our report and the need to clarify these misunderstandings. Re: 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. The Response states that our assertion that DOCs use of prolonged punitive segregation of the mentally ill violates the Mental Health Standards is erroneous because 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 outlined in the beginning of our report, the proportion of mentally ill inmates in the New York City jail population is larger than ever before and growing, to the point where mentally ill inmates constitute almost half, or very likely over half including undetected cases. The principal point of our report was that the independently authorized practice with clearance from health care providers becomes less possible due to the sheer number of mentally ill inmates. We have outlined in our report that 41% of the inmates housed in the Central Punitive Segregation Unit (CPSU) were found to be mentally ill, and on August 1, 2013, 26 women out of 31 (84%) who were in punitive segregation or MHAUII at RMSC were mentally ill; there is simply not enough housing to manage them appropriately, and clearance from health care providers is obviously not possible to adhere to, physicians cannot possibly have absolute veto power, and longstanding practice cannot physically meet the BOC standards any longer. The current reality is that correctional institutions are in a position to have to change drasticallybecause of social conditions not of their own making, but of which they have become responsible (due in part to the proportion of funding and public support they receive, as well as the sevenfold increase in the correctional population nationwide over four decades).

The Response states that the BOC standards 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. While some mentally ill inmates might be able to tolerate isolation without deleterious effects (all mental illnesses are different), a vast majority of those with mental illness worsen, and even those who are previously free of mental illness are highly prone to developing symptoms, increasing in suicidal behaviors, and otherwise experiencing damage to their mental health, according to the most comprehensive literature review available to date, spanning more than 150 years across two continents (Smith 2006). Therefore, if done correctly, one may need to account for proper, alternative management of more than the total mentally ill population in solitary confinement, not less. The Responses strictly legal analysis of the practice ignores the actual and changing conditions of the prison system, and just because the practice adheres to the literal wording of the law does not mean that it adheres to the spirit of the law. The law may permit Rikers Island staff to put certain inmates in solitary confinement, but it does not require it. The purpose of using solitary confinement, for such period as may be necessary for maintenance of order or discipline, from a strictly correctional perspective, when applied to mentally ill individuals, can be counterproductive in the maintenance of order or discipline when the inmate cannot understand what is happening or if the intervention actually worsens the symptoms that caused the behavioral disruption in the first place. All this was outlined in our report. Re: 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. We were trying to keep the report short, legible, and accessible by being less academic, but given the request for citations, a small selection outlining the general adverse effects is given at the end of this response (the literature that documents the damaging effects of social and sensory deprivation is quite sizeable, too numerous to be all-inclusive in a report like this one, while those showing no or beneficial effect are very few; whether and how isolation damages individuals mental health depends on duration, circumstances, and personal characteristics, but for many the effects are substantial, and for some, even after short periods of confinement).

The Response added: 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 NYCs detention standards for both punitive and administrative segregation. We would warn against making such a distinction. Numerous sensory deprivation and perceptual deprivation studies revealed that isolating people and severely restricting sensory stimulation can provoke drastic reactions and symptomseven after a duration of hours or daysincluding, for example, hallucinations, confusion, lethargy, anxiety, panic, time distortions, impaired memory, and psychotic behavior (Zuckerman et al. 1962; Brownfield 1965; Schultz 1965; Vernon 1965; Rasmussen 1973; Zubek 1973; Andersen 1992; Haney and Lynch 1997). Depending on individual characteristics and circumstances, deleterious effects are possible after short-term confinement, and that they are more common after prolonged administrative segregation should only point to the harmfulness of the practice, regardless of degree or duration. The Response advocates for greater input of correction professionals, but we are stating that it is precisely this misunderstanding of human psychology and behavior, and misapplying a purely correctional perspective, that has led to the problems that many facilities are facing. As we noted, the nations jails and prisons have become de facto mental hospitals over the past halfcentury, and they cannot continue to ignore the psychological influences of their practices. We would like to acknowledge the substantial efforts on the part of the Department of Corrections to train staff to treat inmates with respect, especially those diagnosed with mental illness, and to raise the level of professionalism of the facilities. We are aware that substantial improvements have been made. We were merely suggesting that further education and training was necessary, based on direct observations, such as in the incident below, which we cited in our report: One incident we observed while visiting the adolescent Restrictive Housing Unit (RHU) was a youth banging on the door of his cell, which grew increasingly louder over twenty minutes or so. One could hear that he was initially using his arms and legs but later his whole body, while personnel walked by him, ignoring him. When he failed to gain attention, we observed him tearing his sheet into strips, wrapping it around his arms and legs, and then his neck (as if preparing to hang himself). When we told the staff what he was doing, they did not call the mental health staff (even though this was supposedly occurring in a mental health-oriented RHU) but security. The security staffs first response was to arrive as a group and to tell us to step back, as they were going to spray him, and they proceeded to pull out a can of Mace. We insisted that this was not necessary and requested that they call mental health staff, at which time the inmate was asked if he wished to see the psychologist, to which he nodded yes.

There can be many more skills and methods made available, which staff with correctional training will not fully be able to grasp after only brief, supplemental training. This is why we believe that partnering with academic institutions, not only as consultants but as service providers, can be extremely helpful. In order to assure adequate staffing, training, and mental health care for the extraordinary volume of mental illness in the City jail system, we have recommended that the DOHMH and DOC explore contracting with a NYC medical school and HHC to allow for this level of close collaboration. The Response stated: Our understanding is that the authors spent less than three days since their retention by the Board on inspections of facilities at Rikers Island. As noted in our report, in addition to these three days, we made visits and talked with the staff of the Bellevue Prison Ward and Kirby Hospital, and the junior author worked on Rikers Island as a staff psychiatrist from 2007 to 2008. Extensive time was spent outside of these visits in meetings and discussions with the DOC Commissioner Dora Schriro, the DOHMH Commissioner Thomas Farley, MD, MPH; Deputy Commissioner Amanda Parsons, MD, MBA; Assistant Commissioner Homer Venters, MD, MS, Executive Director of Mental Health Daniel Selling, Psy.D., and residents and staff psychiatrists who have worked on the Bellevue Ward as well as in Rikers Island.

Re: 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. As the Response states, we support the concept of the CAPS unit and laud its inception. On the other hand, we do not believe that the majority of inmates with mental illness can successfully receive a combination of clinical services and behavioral modification in the RHUs. The RHU model weighs heavily toward punishing inmates who violate jail rules and mimics punitive segregation for the most part. Initially, at Intake Level, total lock-in time was 22 hours per day for at least the first week, and inmates could be held at this level indefinitely if they were unable to participate in group sessions or other aspects of RHU programming, or if they were not cleared from suicide watch. Level 1, the soonest of which could happen a week after admission, consisted merely of one more hour of out-of-cell time. We understand that these rules have been modified at the urging of the BOC. However, the overly correctional focus at the onset reveals that much more is necessary to facilitate a balance between the need to redirect inmates and the need to address these same behavioral problems in a clinical context. The Response also states: The consultants brief sessions on the RHUs may not have afforded them exposure to the full range of therapeutic interventions employed there. What we were referring to was not so much the scope of therapeutic interventions but the manner in which DBT was offered, with inmates handcuffed and sitting on a bench attached to the wall, and a therapist disinterestedly reading from a book, which not many participants seemed to understand. On another occasion, the therapist did not even show, and we waited in vain to 4

observe, without any information as to if and when the therapist would reschedule. While we are familiar with Dr. Andr Ivanoffs work and the growing popularity of DBT in correctional settings, true therapeutic effectiveness depends more on the alliance one builds with the therapist and the therapeutic qualities of the milieu than on a particular school of thought. Based on the frequency and intensity of the therapy we observed, not much treatment was likely to happen, and likely not enough to offset the deleterious effects of isolation. Conclusion Our general feeling from the Response was a resistance to any change, despite the fact that there is a real controversy, and actual grounds for change from the status quo. A general lack of understanding about mental illness and what constitutes adequate treatment, as well as an acceptance of inadequate training on the part of the staff, continue to be of serious concern. Solitary confinement, while it may not cause irreparable damage to everyone, is nevertheless a risk factor, just like cigarette smoking: not all who smoke develop lung cancer, but a large proportion do. Casual acceptance of this inevitable proportion and the mental suffering that can ensue is unacceptable, and we urge that the DOC reconsider its approach. For the lay observer, even the inmates themselves, the prospect of solitary confinement can seem benign in comparison to the risks of exposure to other inmates. However, all accounts of human psychology will attest to the crucial role of social engagement in emotional well-being and subsequent behavioral control, and it is not a matter that should be considered on purely correctional grounds. Human contact, like food, is not something we think much about in its steady presence; however, its absence can be devastating, especially for those pathological enough to deny its importance.

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