Revision: Jan. 25, 2017, 2:27 p.m.
HB 613-FN - AS INTRODUCED
HOUSE BILL 613-FN
SPONSORS: Rep. E. Edwards, Hills. 11; Rep. Myler, Merr. 10; Rep. Bartlett, Merr. 19; Rep. Luneau, Merr. 10; Rep. Heath, Hills. 14; Rep. Backus, Hills. 19; Rep. H. Marsh, Rock. 22; Rep. Schleien, Hills. 37; Rep. Murray, Rock. 24
COMMITTEE: Criminal Justice and Public Safety
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Seventeen
Be it Enacted by the Senate and House of Representatives in General Court convened:
Long-Term Isolated Confinement
622:59 Definitions. In this subdivision:
I. "Commissioner" means the commissioner of the department of corrections.
II. "Department" means the department of corrections.
III. "Isolated confinement" means prolonged cell confinement (22 hours or more per day) with limited out-of-cell time and severely restricted activity, movement, and social interaction, whether pursuant to disciplinary, administrative, or classification action. Such housing may be referred to "disciplinary segregation," "administrative segregation," "solitary confinement," "punitive segregation," or "special housing unit."
IV. "Long-term isolated confinement" means any confinement that is expected to extend or does extend for a period of time exceeding 30 days. A long-term confined inmate, upon good behavior for a period of 14 days, shall have a day suspended from his or her long-term confinement of 30 days or less.
V. "Mental health clinician" means a psychiatrist, psychologist, social worker, or nurse practitioner, who is licensed by the applicable New Hampshire licensing board.
VI. "Mental health and special needs step down units" means residential, therapeutic units, such as the special psychiatric unit (SPU), that provide clinically appropriate and rehabilitative programming to inmates with severe mental illness or other significant mental impairment in lieu of housing in administrative or disciplinary segregated units.
VII.(a) "Serious mental illness and other significant mental impairment" means substantial disorder of thought or mood of a person that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope with the ordinary demands of life, including individuals found to be have current symptoms or who are currently receiving treatment for the following, according to the Diagnostic and Statistical Manual IV (DSM-IV) Axis I diagnosis:
(1) Schizophrenia and all sub types.
(2) Delusional disorder.
(3) Schizophreniform disorder.
(4) Schizoaffective disorder.
(5) Brief psychotic disorder.
(6) Substance-induced psychotic disorder (excluding intoxication and withdrawal).
(7) Psychotic disorder not otherwise specified.
(8) Major depressive disorders.
(9) Bipolar disorder I and II.
(b) "Serious mental illness and other significant mental impairment" shall also include:
(1) Persons diagnosed with a mental disorder that includes being actively suicidal.
(2) Persons diagnosed with a serious mental illness that is frequently characterized by breaks with reality, or perceptions of reality that leads the individual to significant functional impairment.
(3) Persons diagnosed with organic brain syndrome, which results in a significant functional impairment if not treated.
(4) Persons diagnosed with a severe personality disorder that is manifested by frequent episodes of psychosis or depression, and results in functional impairment.
(5) Persons diagnosed with mental retardation with significant functional impairment.
I. No inmate with serious mental illness or other significant mental impairment shall be housed in a long-term isolated confinement, nor shall such inmates currently subject to such confinement be permitted to stay there.
II. Prior to being placed in a long-term isolated confinement for either a disciplinary infraction or other non-punitive reason, a mental health clinician shall determine if the inmate is seriously mentally ill or has another significant mental impairment as defined in this subdivision. If the mental health clinician makes such a finding, the inmate shall be diverted from a long-term confinement to a mental health step-down unit, a prison mental health accredited forensic hospital, or other appropriate housing that is not long-term isolated confinement.
III. Inmates with serious mental illness or other significant mental health impairment may be subject to discipline, but the discipline shall be handled in collaboration with mental health clinicians, or other required medical health staff and custodial staff in a mental health or special needs step-down unit. Any punishment shall be consistent with the individual's mental health or rehabilitative treatment plan. The mental health or rehabilitative treatment plan shall be developed by a mental health clinician or other medical staff in accordance with best practices and shall be explained to the inmate by the mental health and medical clinicians. The mental health or rehabilitative treatment plan shall be updated immediately after the inmate is placed in a mental health or special or special needs step-down unit and at least every 14 days thereafter by a mental health clinician and other pertinent mental health or medical staff.
IV. A mental health step-down unit shall be physically separate from any long-term isolated confinement unit and shall not be operated as a disciplinary housing unit. Decisions about treatment and conditions of confinement shall be made based upon a clinical assessment of the therapeutic and rehabilitative needs of the inmate and maintenance of adequate safety and security on the unit. Inmates in the mental step-down unit and the special needs step-down unit shall be offered at least 4 hours per day of structured, out-of-cell therapeutic programming or mental health treatment, except on weekends or holidays, when such programming or treatment may be limited to 2 hours per day. Inmates in these units shall also be given a minimum of one hour per day out-of-cell exercise, including access to outdoor recreation, weather permitting, in addition to other out-of-cell daily exercise consistent with mental health and rehabilitative needs. Every 14 days, inmates who have maintained good behavior shall be given 24 hours out of segregated housing, which days shall be counted towards the number of days sentenced to the segregated housing unit.
V. Inmates shall also receive clinical visits by mental health clinicians and rehabilitative medical personnel as a part of their treatment program in mental health and special needs step down unit. These visits shall be conducted in a clinical environment that ensures privacy, except in situations where the clinician determines, in consultation with corrections officer assigned to a unit in which the inmate is housed, that security is needed in the place where the visit occurs. Every effort shall be made to insure that privacy is paramount, even in situations that a corrections officer may hear the discussion between the clinician and the inmate. These visits shall never be conducted at the cell front.
VI. Inmates in mental health and special needs step-down units shall not be subject to disciplinary reports for refusing treatment or medications or for engaging in self-harming behavior and threats of self-harming behavior, including related charges for the same behaviors, such as destruction of state or county property, except in exceptional circumstances where a corrections committee in a New Hampshire prison or jail determines in writing that the safety and security of the institution was compromised by the inmate's actions and the inmate showed malicious intent. The inmate code of conduct shall not apply to violations by inmates, whose behaviors stemming from his or her mental illness or mental impairments.
VII. Inmates in a mental health or special needs step-down unit shall receive property, privileges, and services similar to inmates confined to general population, provided however, that the department may impose limitations more restrictive than those imposed on the general population for security reasons in the following areas based on the quantity and the type of property inmates in the mental health or step-down units are permitted to have in their cells or inmates' access to programs. In consultation with a mental health clinician or other medical staff, the department may impose restrictions on an individual inmate's property, services, or privileges for therapeutic or security reasons, which are not inconsistent with the inmate's mental health or rehabilitative needs. If such restrictions are imposed on a particular inmate they shall be documented in writing and shall be reviewed by the mental health clinician or medical staff not less than 30 days after the restriction is imposed or continued. The review shall be for the purpose of eliminating the restriction as soon as clinically appropriate.
VIII. Within 30 days of an inmate's placement in a mental or step-down unit and 30 days thereafter or sooner if deemed necessary, a joint case-management committee shall meet and review the inmate's placement in the unit and the inmate's progress in the unit's programs and what adjustments to the programming may be needed to assist an inmate in making progress, and to decide whether continued placement in the unit is warranted, whether additional programs additional privileges may be granted to an inmate while in the unit, or whether an inmate should be moved to a less restrictive housing unit. If the committee decides to keep the inmate's placement, it shall make specific written findings as to why the placement shall be continued and what the inmate needs to do in order to be granted additional privileges and movement out of the mental health or special needs step-down unit. These findings shall be given to inmates and explained so that the inmate understands them. A joint case management committee shall be composed of a mental health and/or rehabilitative clinician, a unit staff person, the prison warden or designee, and a designee of the department of health and human services.
622:61 Training of Correctional Officers and Staff. The commissioner shall ensure that the curriculum for new corrections officers and other new department staff who will regularly work in programs providing mental health treatment for inmates, shall include at least eight hours training about the types and symptoms of mental illnesses and other significant mental impairments, recognition of adverse reactions to psychotropic medication, recognition of mental health emergencies and specific instructions on contacting the appropriate professional care provider and taking the appropriate action, suicide potential and prevention, precise instructions on procedures for mental health and other medical referrals, the goals of mental health and rehabilitative treatment, training on how to effectively and safely manage inmates with mental illness or with other mental impairments, and any other training deemed to be appropriate. Any department staff working in mental health and special needs step-down units shall be screened to determine appropriateness of the placement and shall receive special training referenced above and a minimum of 40 hours of additional training, plus 12 hours of annual training as long as they are working in such a unit. Such assigned corrections staff shall demonstrate on-the-job competency in using skills and knowledge to work successfully with mentally ill or mentally challenged inmates. The commissioner shall provide additional training on correctional care and custody of inmates with mental illness and other mental impairments and related topics on an ongoing basis as community standards of care change or otherwise deemed appropriate.
622:62 Restrictions on Use of Long-Term Confinement.
I. Long-term housing shall not be used as a form of housing inmates under the age of 18 years old or subject to "protective custody," "administrative segregation," or other forms of non-punitive housing. If the safety of and security of an inmate requires greater cell confinement than is typical for inmates in general population housing, then the restrictions to which such inmates are subject shall be the least restrictive to maintain the safety of the inmates and the staff. At a minimum, such inmates shall be offered access to educational and programming opportunities consistent with inmate safety and security, and at least 4 hours a day out-of-cell time, including a minimum of one hour of out-of-cell exercise time, including access to outside recreation when the weather permits, access to personal property, including TV and radio, access to books, magazines, and other printed materials, access to daily showers, and access to the same number of visits and phone calls allowed for the general inmate population.
II. Any time an inmate is classified, assigned, or subject to long-term isolation, there shall be stated, legitimate purpose for such placement in writing. An inmate may only be subject to a long-term isolated confinement if that inmate is determined, pursuant to the process set forth in this subdivision, to have committed one or more of the following acts:
(a) An act of violence that either resulted in or was likely to result in serious injury or death to another, or occurred in connection with any act of non-consensual sex.
(b) Two or more discrete acts which caused serious disruption of prison operations.
(c) An escape, attempted escape, or conspiracy to escape from within a security perimeter or custody or both.
III. Prior to being classified, assigned, or subject to a long-term isolation, an inmate shall be entitled to a hearing, unless the commissioner certifies in writing, that providing a hearing prior to transfer will pose an imminent threat to the safety and security of the prison where the inmate is currently housed. If such a certification is made, the hearing will be conducted within 5 business days of the commencement of the isolation. At the hearing, the department shall have the burden of proving that the requirements set forth in this subdivision are satisfied. The burden shall be a preponderance of the evidence and these minimal procedures shall apply.
(a) The inmates shall receive written and effective notice at least 48 hours before the hearing that such a placement is being considered, the facts upon which the consideration is based, and the inmate's rights under this subdivision and any regulations or policies promulgated under this subdivision.
(b) The inmate shall have the right to personally appear before the committee making the placement decision.
(c) The inmate shall have the right to submit documentary evidence.
(d) The inmate shall have the right to call witnesses, unless there is a specific, written finding by the committee that calling or cross-examining specific witness will jeopardize the safety and the security of the institution; if such finding is made, then the inmate shall be able to propound questions to be relayed to the witness or witnesses.
(e) The inmate shall have the right of an interpreter, if necessary for the inmate to understand or participate in the proceedings.
(f) The inmate shall have the right to retain a lawyer at his or her own expense to represent him or her at the hearing.
(g) If the committee determines the inmate is unable to prepare and present evidence and arguments effectively on the inmate's behalf, or if the inmate makes a request, a counselor or other appropriate advocate for the inmate shall be appointed.
(h) The hearing shall be recorded by audio, digital recording, or videotape, and such recordings shall be reserved until 120 days after the release of the inmate from long-term isolation.
(i) The committee shall issue a written decision setting forth the evidence relied upon and the reasons for its decision within 5 business days of the hearing.
(j) The inmate shall have the right of prompt review of the committee's decision by the superintendent of the correctional facility, who shall respond to any appeal of a committee's decision in writing within 14 business days of the date the appeal is submitted by the inmate.
IV. Determinate sentencing to long-term isolation shall not be allowed. The department shall institute a program that allows an inmate subject to long-term isolation to earn his or her way out of such housing through positive behavior. The direction for inmates to earn their out way out of such housing shall be graduated and shall be less than 18 months.
V.(a) Within 30 days of an inmate's placement in a long-term isolation pursuant to the requirements of this subdivision, the commissioner shall develop an individualized plan for the inmate.
(b) The plan shall include an assessment of the inmate's needs, a strategy for correctional authorities to assist the inmate in meeting those needs, and a statement of the expectations for the inmate to progress towards fewer restrictions and eventually back to general population housing based on the inmate's behavior, including specific privileges which shall be allowed the inmate once that inmate meets certain benchmarks in their individual plan.
(c) Correctional authorities shall provide the plan or a summary of it to the inmate and explain it, so that the inmate can understand such expectations; an intervals not to exceed 30 days. In addition, correctional authorities should conduct and document an evaluation of each inmate's progress under the individualized plan required in this section. The evaluation shall consider the state of the inmate's mental health, address the extent to which the individual's behavior, measured against the plan, justifies the need to maintain, increase, or decrease the level of controls, and restrictions in place at the time of the evaluation, and recommend whether the inmate should be returned to a lower-level custody or removed from long-term isolation.
VI. After not more than 90 days, the commissioner shall conduct a full classification review involving a meeting with the inmate, and a classification review committee to determine the inmate's progress towards compliance with the individual plan required by this subdivision, or if other circumstances warrants a reduction of isolation and/or return to lower level of custody. If the inmate has met all the terms of the plan, he or she will be released from long-term isolation. A decision to maintain the inmate in long-term isolation shall be in the purview of the classification review committee, which shall set forth its facts for its decision. The commissioner shall approve this decision.
VII. No inmate shall be subjected to long-term isolation for more than one year unless the commissioner conducts a hearing in which he or she establishes by a preponderance of evidence that the inmate within the previous year has committed a act which resulted in or was likely to result in serious injury of death to another; or by clear and convincing evidence that there is significant risk that the inmate will cause physical injury to prison staff, other inmates, or members of the public, if removed from long-term isolation. Association with an inmate gang or security threat group alone shall not be sufficient to meet this burden. Inmates who are or may be subjected to retention in a long-term isolated confinement over one year will be provided with the same process and protections set forth in paragraph III. If a decision is made to house an inmate in long-term confinement for longer than one year pursuant to this section, the commissioner shall set forth in writing all other alternatives that were considered and why those alternatives were rejected, and also set forth a plan for transitioning the inmate out of long-term isolation. Any inmate subject to long-term isolation longer than one year shall be entitled to another hearing at least every 6 months.
VIII. Inmates who are housed in long-term isolation shall be evaluated by a mental health clinician at least every 30 days. Such evaluations will be confidential and conducted in-person, not through a cell door or through a glass wall or window, and shall include an assessment of current mental status and condition, an assessment of current risk of suicide or other self-harming behavior, and a review of available mental health records at the initial and any subsequent evaluation. Any inmate who is determined at such an evaluation to have a serious mental illness or to suffer from another significant mental impairment shall be removed from long-term isolation as directed by the mental health clinician, but in any case, within 48 hours of such determination.
622:63 Re-socialization of Inmates.
I. Inmates subject to isolated confinement will require a re-socialization process before they are released back into the community. Such a re-socialization program shall take place in phases, starting at least 6 months before the end of the inmate's criminal sentence.
II. All inmates held in isolated confinement shall be included in this re-socialization program without exception.
III. The re-socialization program shall include medical and mental health staff, including but not limited to mental health clinicians, social workers, education and rehabilitation staff to provide counseling and life skills to prepare the inmate for safe release into the community.
622:64 Reporting and Oversight Board.
I. There shall be an oversight board established not more than 2 months after the effective date of this subdivision consisting of the following members:
(a) Two members appointed by the commissioner of the department of corrections.
(b) Two members appointed by the commissioner of the department of health and human services.
(c) One member appointed by the governor and council who shall serve as chairman of the oversight board.
(d) Two members, each of whom shall be a New Hampshire licensed psychiatrist, psychologist, psychiatric nurse practitioner, or other licensed practitioner in the mental health field, appointed by the governor and council.
II. The terms of the members in subparagraphs (a)-(b) shall be coterminous with their terms in office. The remaining members shall serve 4-year terms. Vacancies on the board shall be filled in the same manner as the original appointment. Members on the oversight board shall serve without compensation. The department shall provide administrative support to the oversight board as necessary.
III. The oversight board shall review the policies and standards and the treatment of inmates held in long-term isolated confinement, as well as the individual disciplinary records, to determine the effectiveness of those policies and standards and the degree to which the treatment of the inmates held in such confinement complies with this subdivision.
IV. Beginning November 1, 2017, and annually thereafter, the oversight board shall submit a report to the house criminal justice and public safety committee and the senate judiciary committee.
622:65 Inspection of Mental Health and Rehabilitative Care.
I. The department of health and human services shall monitor the quality of mental health and rehabilitative care provided to the inmates pursuant to this subdivision. The department of health and human services shall designate inspectors, who shall have direct, unannounced, and immediate access to all areas where inmates are housed in mental health step-down units, including the special psychiatric unit or any long-term isolated confinement housing, and shall have access to the department of correction's records relating to such inmates, including but not limited to medical and mental health records, disciplinary records, and any other department of corrections records germane to the enforcement of the policies of this subdivision. The records of the inmates being inspected shall remain confidential.
II. The department of health and human services shall appoint an advisory committee on correctional mental health care, which shall be composed of independent mental health experts and mental health advocates, and may include family members of former inmates with serious mental health illness or other significant mental health impairments. Such committee shall advise the department of health and human services on its oversight responsibilities pursuant to this section. The advisory committee shall annually conduct an audit of the department of corrections long-term isolation system. This audit shall include, but not be limited to, the following:
(a) The number of inmates in long-term confinement.
(b) The infractions that caused each inmate to be sentenced to long-term confinement.
(c) The length of time each inmate served in long-term confinement.
(d) The occurrence of any "sentinel events" or adverse events, such as self-injury that occurred to an inmate in long-term confinement.
(e) The psychiatric diagnosis of any inmate prior to being sentence to long-term confinement.
(f) The psychiatric diagnosis of any inmate while serving in long-term confinement.
(g) The use of psychotropic medications or any other mood altering medicine.
(h) The antecedent effects on an inmate who have spent time in long-term confinement.
III. The annual audit shall be available to the public. The committee may also make recommendations to the department of health and human services regarding improvements to prison-based mental health care, the mental health and special needs step-down units, the mental health monitoring of inmates held in long-term isolated confinement and any policies relating to ensuring that inmates with mental illness or other significant mental health requirements are not subject to long-term isolated confinement.
622:66 Review by Commissioner. The commissioner within 90 days after the effective date of this subdivision shall review all the records of the inmates in long-term isolation confinement to determine what adjustments may be necessary to the terms of each inmate's sentence to long-term confinement in order to conform to the requirements set forth in this subdivision. Within 180 of the effective date of this subdivision, the commissioner shall report this evaluation and any adjustments made to the housing of such confined inmates to the house criminal justice and public safety committee and the senate judiciary committee.
622:67 Review of Existing Policies. The commissioner of shall review all departmental policies relating to inmates held in long-term confinement and revise those policies to conform to the provisions of this subdivision.
HB 613-FN- FISCAL NOTE
FISCAL IMPACT: [ X ] State [ ] County [ ] Local [ ] None
Estimated Increase / (Decrease)
[ X ] General [ ] Education [ ] Highway [ ] Other
This bill establishes new standards and procedures for the use of long-term isolation confinement in state correctional facilities. The new requirements included in this bill are expected to increase costs for the Department of Corrections (DOC) and Department of Health and Human Services (DHHS). DOC and DHHS estimate they will need five additional staff positions and an indeterminable amount of additional funding to implement the provisions of this bill as detailed in the subsequent paragraphs below.
Mental Health Training for Corrections Officers and Nurses. RSA 662:61 requires corrections officers and certain DOC staff to receive at least 8 hours of training on mental health illnesses. DOC assumes it would provide its 450 security staff and 48 non-security staff (nurses) with an initial 40 hour training session in FY 2018 and 12 hour annual sessions each year thereafter. DOC assumes it would need to pay the 498 employees overtime to attend the training sessions because staffing levels are not adequate to provide coverage. For FY 2019 the associated overtime costs are estimated to be approximately $977,000 and for each subsequent year about $292,000. DOC states it would need one additional Senior Psychiatric Social Worker (LG 26) to implement the required trainings at approximately $87,000 in FY 2018, $91,000 in FY 2019, $96,000 in FY 2020 and $100,000 in FY 2021.
Right to Hearing. RSA 622:62, III, entitles inmates to a hearing prior to being classified, assigned, or subject to long-term isolation. DOC estimates it would need one additional Senior Psychiatric Social Worker (LG 26) to administer the hearings at a cost of approximately $87,000 in FY 2018, $91,000 in FY 2019, $96,000 in FY 2020 and $100,000 in FY 2021.
Re-Socialization of Inmates. RSA 622:63 requires inmates subjected to isolated confinement to go through a re-socialization process before they are released back into the community. The DOC does not currently have such a program. DOC estimates the curriculum costs for such a program would be approximately $825 per inmate but cannot predict the number of inmates that would annually go through the program.
Joint Case Management Committee. RSA 622:60, VIII, requires DHHS to provide staffing for the joint case management committee. It is unclear how frequently this committee will meet or how many inmates will be placed in a mental health or specials needs step down unit. DHHS assumes it would need a Senior Psychiatric Social Worker to implement this provision which would cost approximately $85,000 in FY 2018, $84,000 in FY 2019, $88,000 in FY 2020 and $92,000 in FY 2021.
Inspections of Mental Health and Rehabilitative Care. RSA 622:65, I, requires DHHS to monitor the quality of mental health and rehabilitative care provided to inmates. DHHS states it would need two Licensing and Evaluation Coordinators (LG 20) to conduct the required inspections at an annual cost of approximately $168,000 in FY 2018, $160,000 in FY 2019, $164,000 in FY 2020 and $172,000 in FY 2021.
Advisory Committee. RSA 622:65, II, establishes a committee to advise DHHS on its oversight responsibilities and to conduct an annual audit of the long-term isolation system. DHHS assumes it would need to pay independent mental health experts about $250 per hour. DHHS cannot estimate how many hours would be required annually.
Department of Corrections and Department of Health and Human Services