Preet Bharara - Rikers Report III: Solitary Confinement lyrics

VI. EXCESSIVE AND INAPPROPRIATE USE OF PROLONGED PUNITIVE SEGREGATION Adolescents involved in use of force incidents and inmate-on-inmate fights, as well as adolescents charged with committing non-violent rule violations, are placed in punitive segregation for extended periods of time. The Department improperly relies on punitive segregation as a way to manage and control disruptive adolescents, placing them in what amounts to solitary confinement at an alarming rate and for excessive periods of time. The Department's extensive use of prolonged punitive segregation for adolescents, including inmates with mental illnesses, exposes them to a risk of serious harm. The manner in which DOC uses segregation to punish adolescents and the conditions of that segregation raise constitutional concerns, as well as concerns under Title II of the Americans with Disabilities Act, which prohibits under certain circumstances isolating adolescents with mental impairments in punitive segregation due to disability-related behaviors, and thereby denying them the opportunity to participate in correctional services, programs, and activities.40 On any given day in 2013, approximately 15-25 percent of the adolescent population was in punitive segregation, with sentences ranging up to several months. For instance, on July 23, 2013, 140 adolescents (or 25.7% of the adolescent population) were in some form of punitive segregation housing, and 102 (or 73%) of those inmates were diagnosed as seriously or moderately mentally ill. James Gilligan, M.D et al., Report to the New York City Board of Correction (“Gilligan Report”), at 3 (Sept. 5, 2013). The excessive use of punitive segregation can cause significant, psychological, physical, and developmental harm to adolescents. Solitary confinement can have a particularly profound impact on youth due to their stage of growth and development. The American Academy of Child and Adolescent Psychiatry has found that “due to their developmental vulnerability juvenile offenders are at particular risk” of possible adverse psychiatric consequences from “prolonged solitary confinement.”. Youth may experience symptoms such as paranoia, anxiety, and depression after being isolated for only a fairly short period. This potential harm can be even greater for youth with disabilities or histories of trauma and abuse, which constitute a significant portion of the Rikers adolescent population. Solitary confinement may have a long-lasting impact on adolescents who suffer from mental illnesses, and could result in self-harm or even suicide. The Attorney General's National Task Force on Children Exposed to Violence recently concluded that “[n]owhere is the damaging impact of incarceration on vulnerable children more obvious than when it involves solitary confinement.” Robert L. Listenbee, Jr., Report of the Attorney General's National Task Force on Children Exposed to Violence at 178 (Dec. 12, 2012). In addition, under the juvenile detention facility standards issued by the Juvenile Detention Alternatives Initiative of The Annie E. Casey Foundation, room or cell confinement may be used only as “a temporary response to behavior that threatens immediate harm to the youth or others” and may never be used as a form of discipline or punishment. See A Guide to Juvenile Detention Reform: Juvenile Facility Assessment at 177 (2014). Our consultant has concluded that the Department has created a vicious cycle that serves to perpetuate rather than curb adolescent violence. Troubled youth who exhibit violent or disruptive behavior are placed in punitive segregation for clearly excessive periods, where they reportedly too often do not receive the mental health services they need. Adolescents have a greater tendency to react to adverse conditions with anger and violence, and often act out, as illustrated by the high frequency of reported uses of force in punitive segregation areas. Facing weeks and often months of segregation time, they have little incentive to modify their behavior because the chance of returning to the general population prior to their release or transfer to another correctional facility is minimal. They often receive additional infractions while in punitive segregation, which further extends their time there. The effects of solitary confinement also may make these adolescents more prone to unstable and violent behavior, and exacerbate the mental health issues prevalent among the Rikers adolescent population. A. Adolescent Punitive Segregation Units41 Youth in punitive segregation are confined in six-by-eight-foot single cells for 23 hours each day, with one hour of recreation and access to a daily shower.42 Recreational time is spent in individual chain-link cages, and many inmates choose to remain in their cells due to depression or because they do not want to submit to being searched and shackled just to be outside in a cage. Inmates are denied access to most programming and privileges available to the general adolescent population, and receive meals through slots on the cell doors. They are not allowed to attend school, and are instead given schoolwork on worksheets and are offered educational services telephonically.43 The majority of male adolescent inmates who commit infractions are placed in the general population punitive segregation units at RNDC (“RNDC Bing”), which have 64 beds, or the CPSU, which has 50 adolescent beds. In 2012, the Department began a**igning certain infracted adolescents with mental health needs to the RNDC Restrictive Housing Unit (“RHU”) (30 beds), a program jointly administered by DOC and DOHMH that offers individual behavioral and group therapy. The RHU utilizes a three-tiered reward system designed to create incentives for good behavior. Upon being admitted to RHU, inmates start at level zero and are locked in their cells 23 hours a day. As inmates move towards achieving the program's goals, including good behavior and active participation in therapy sessions, they may earn additional out-of-cell time for programming and leisure activities. Inmates with non-violent Grade II and III infractions who successfully complete the program—which takes approximately eight weeks—can earn up to a 50% reduction in their segregation time. Those who do not comply with the program or engage in violence or anti-social behavior may be transferred out of the RHU into the general population punitive segregation units. Although DOC executive staff are quick to point to the RHU as a significant accomplishment, the program has met with little success. As of October 1, 2013, only 29 of the hundreds of inmates placed at the RHU had “graduated” from the program and received a sentence reduction. DOC transfers adolescents out of the program well before it has any realistic chance of having a substantial positive impact. Commonly identified reasons for discharge include that the inmate was “clinically inappropriate,” engaged in “excessive misbehavior,” or was “deemed inappropriate.” The correction officers a**igned to the RHU lack sufficient training in mental health issues, such as suicide watch, according to the DOHMH doctor who oversees the program. The now former RNDC Warden noted that the program was not working when interviewed by our consultant. During our tour of the RHU, we encountered an extremely troubling incident. We observed what appeared to be a suicide attempt by an inmate who had tied a ligature around his neck. The inmate was on the floor and unresponsive. Staff did not immediately enter the cell to cut the ligature and determine whether CPR was necessary, and it took an unreasonable amount of time for an emergency response team to arrive with a gurney and provide treatment to the inmate. During his tours, our consultant heard a number of comments from uniformed staff about inmates using suicide attempts to manipulate the officers and that the attempts therefore did not need to be taken seriously. Although DOC's effort to offer some alternative for infracted adolescents with mental health needs may be well-intentioned, at its core, the RHU is still a punitive segregation setting where inmates are confined in single-occupancy cells for prolonged periods. Even inmates who progress to Level 3 of the program can earn only up to three hours of lock-out time. While our investigation did not focus on mental health care provided to adolescent inmates, we note that the authors of a report to the Board of Correction recently concluded that the RHU “should be eliminated because it is a punitive rather than a therapeutic setting for people with mental illness.” Gilligan Report, at 10. In addition, DOC has not developed an effective strategy for how to manage the adolescent population previously placed in MHAUII—inmates with mental illnesses who commit serious rule infractions and are not eligible for the RHU, such as adolescents who a**ault correction officers.44 B. Excessive Punitive Segregation Periods Based on our review of Department data, it is clear that adolescents at Rikers receive infractions at an extraordinarily high rate and spend an exorbitant amount of time in punitive segregation. During the 21-month period from March 2012 through November 2013, a total of 3,158 adolescent inmates were infracted, or an average of more than 150 inmates each month. These 3,158 inmates received a total of 8,130 infractions, resulting in a total of 143,823 sentence days. Several of the most common infractions were for non-violent conduct, such as failure to obey orders from staff (1,671 infractions), verbally hara**ing or abusing staff (561 infractions), failure to obey orders promptly and entirely (713 infractions), and shouting abusive-offensive words (392 infractions). Outside of a correctional facility, such conduct is often viewed as characteristic adolescent behavior. At Rikers, this behavior can lead to substantial time in solitary confinement.45 Census data for adolescent punitive segregation units reveal that adolescents are routinely placed in punitive segregation for months at a time. Of the 57 adolescents a**igned to the RNDC Bing on February 1, 2013, 36 had punitive segregation sentences of 60 or more days. (12 had sentences between 60 and 89 days, 22 had sentences between 90 and 188 days, and two had sentences exceeding 200 days.) Of the 26 adolescents a**igned to RHU on March 1, 2013, 22 had punitive segregation sentences of 60 or more days. (Six had sentences between 60 and 89 days, 10 had sentences between 90 and 197 days, and six had sentences exceeding 200 days.) Of the 25 adolescents a**igned to MHAUII on April 3, 2013, 23 had punitive segregation sentences (including time accrued while in segregation) of 90 or more days (15 had between 90 and 194 days still owed, and eight had more than 200 days still owed.) Inmates accrue additional segregation time for offenses committed while in punitive segregation. For instance, one mentally ill adolescent our consultant interviewed owed 374 days upon his admission to MHAUII, and then accrued an additional 1,002 days for infractions committed while there. During our meetings, Department management highlighted its effort to address the overuse of punitive segregation through the use of the “temporary cell restriction” (“TCR”) option, which was introduced in October 2012. Unfortunately, this initiative had a minimal impact and was short-lived. TCR was supposed to be used as an alternative to more formalized discipline. Correction officers could confine adolescents to their cells for up to two hours when they engaged in certain non-violent infractions, such as using obscene language or engaging in horseplay. However, staff were reluctant to use TCRs in lieu of the more formal disciplinary process. The TCR program was abandoned altogether in early 2014. In response to the recent increased scrutiny of its inmate disciplinary system, DOC implemented sentencing reforms in late 2013 that apply to the adult and adolescent population. First, sentences for multiple non-violent infractions are now generally supposed to run concurrently, as opposed to consecutively. Second, under the prior system inmates would “carry over” previously accumulated punitive segregation time upon their re-incarceration, but now such historical time may be expunged. Specifically, DOC expunges time owed for infractions committed after one year has elapsed, with the exception of a**aults on staff, inmate-on-inmate a**aults resulting in serious injuries, and incidents involving the use of weapons, which will be expunged only after two years. Third, inmates in general population punitive segregation units for non-violent infractions may earn a conditional discharge after completing 66% of their sentence if they commit no violations while in segregation. Fourth, the Department implemented certain changes to its sentencing guidelines in an attempt to reduce the amount of time inmates spend in punitive segregation.46 Although these reforms are positive steps, it is too early to a**ess their impact. As recently as December 5, 2013, 105 adolescents remained in punitive segregation. There continues to be a punitive segregation backlog due to the lack of available beds. In addition, adolescents are still subject to the same sentencing guidelines as adults, and receive lengthy sentences for rule violations. In November 2013 alone, 160 adolescents were served with a total of 406 infractions that resulted in punitive segregation sentences totaling 6,024 days. Despite the revisions to the sentencing guidelines, the most serious infractions can still result in up to 90 days in punitive segregation. In addition, adolescents who “verbally abuse or hara** staff members,” do not “obey” certain orders, or do not “follow facility rules and staff orders relating to movement inside and outside the facility,” can receive up to a 20-day sentence, and those who threaten staff members can receive up to a 30-day sentence. Notwithstanding DOC's claim that the sentencing changes have substantially reduced average sentences, as of December 16, 2013, 11 of the 27 inmates a**igned to one of the RNDC punitive segregation units had sentences of 60 or more days, 19 of the 27 inmates housed in the CPSU had sentences of 60 or more days, and 14 of the 22 inmates housed in the RHU had sentences of 60 or more days.47 ------------------------------------------------ Footnotes 40 Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 41 Shortly after our second site visit in April 2013, DOC made the long overdue decision to stop placing infracted mentally ill adolescents in MHAUII. MHAUII was an inappropriate setting for any inmate suffering from mental illness, particularly adolescents. The conditions were deplorable, the physical facilities were in disrepair, and adolescents were not separated by sight and sound from adult offenders as required by correctional standards. It was evident that the adolescents were at risk of psychologically decompensating due to the corrosive environment. Several of the most egregious use of force incidents occurred at MHAUII. At the end of 2013, DOC finally closed the entire unit. 42 Inmates may be permitted to attend visits, the law library, or religious services in addition to the one out-of-cell hour permitted for recreation. In addition, as discussed below, certain infracted inmates with mental illnesses are placed in RNDC's restrictive housing unit where they may earn additional out-of-cell time as they reach various goals. 43 During our investigation, we did not focus on the nature or quality of the educational services delivered to adolescents, including adolescents placed in segregation units. However, we are concerned that the educational services offered to youth in punitive segregation units may not comply with the requirements of the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq. (“IDEA”), and may look more closely at this issue in the future. 44 In late 2013, DOC opened the Clinical Alternative to Punitive Segregation (“CAPS”) unit as an alternative to punitive segregation for inmates deemed to be seriously mentally ill. When placed at CAPS, the inmate's infraction is set aside and he is a**igned to a secure setting for treatment for a period of time determined by clinical staff. Unfortunately, the unit has only 60 beds for adult and adolescent male inmates combined, far fewer than is needed to accommodate the high number of seriously mentally ill inmates who commit infractions. Very few adolescents have been placed in CAPS. Gilligan Report, at 8. 45 Our investigation has not focused on the quality or adequacy of the inmate disciplinary system. However, based on the volume of infractions, the pattern and practice of false use of force reporting, and inmate reports of staff pressuring them not to report incidents, we believe the Department should take steps to ensure the integrity of the disciplinary process. 46 DOC has indicated that it plans to implement additional reforms, including the use of intermediate sanctions in lieu of punitive segregation (e.g., in-school detention, probation). 47 Ten of the inmates housed in the RHU had sentences exceeding 100 days.