Written Testimony on Jail Safety and Oversight

Transcription

1 LYNDON B. JOHNSON SCHOOL OF PUBLIC AFFAIRS THE UNIVERSITY OF TEXAS AT AUSTIN P. O. Box Y Austin, Texas (512) FAX (512) Michele Deitch (512) michele.deitch@austin.utexas.edu Written Testimony on Jail Safety and Oversight Michele Deitch, J.D., M.Sc. Senior Lecturer Lyndon B. Johnson School of Public Affairs and The School of Law The University of Texas at Austin Chairman Coleman and Committee Members, Thank you for the opportunity to testify before you once again regarding possible improvements to the state s criminal justice system. I will limit my remarks primarily to issues related to jail safety and oversight, touching only briefly on issues this Committee has already discussed in depth regarding pretrial detention and bail reform. As this Committee may recall from my prior testimony, I am a Senior Lecturer at the University of Texas with a joint appointment in the LBJ School of Public Affairs and the School of Law and I have extensive professional experience working as a consultant with jails and prisons around the country on safety issues. I have also been a federal court-appointed monitor of prison conditions and an expert witness in lawsuits involving deaths in custody. And I was the drafter of the American Bar Association s Standards on the Treatment of Prisoners, which are based on best practices around the country. General Comments about Jail Safety Issues In the 10-year period from , there were 1,111 deaths in custody in Texas county jails. 1 Approximately 300 of those were suicides. 2 Although there were some improved intake screening measures put in place in the year since the Committee has been examining the issue of jail suicide, we should not get complacent about the effectiveness of these measures. 1 Texas Justice Initiative database, last accessed November 15, Id.

2 2 Bexar County, for example, had four suicides in the space of one month this past July. 3 the improved screening process was ineffective at preventing these deaths and more comprehensive suicide prevention strategies are necessary. Clearly, While this Committee s interim charge was instigated by Sandra Bland s suicide in the Waller County Jail, it is worth noting that jail safety issues are not limited to suicide prevention or even to deaths in custody. News stories in Texas just in the last few months have highlighted medical neglect of inmates resulting in severe physical harm 4 5 6, brutality resulting in physical injuries to inmates 7 8, understaffing, and allegations of staff cheating on inmate welfare checks and falsification of records. 9 3 Michael Barajas, Four Suicides in Four Weeks at the Bexar County Jail, San Antonio Current, July 22, 2016, 4 Andrew Kraigie, Ex-inmate says medical care withheld at Waller County Jail where Sandra Bland died, Houston Chronicle, August 30, 2016, 5 Ryan J. Reilly, Texas s Largest Jail Hasn t Learned Much Since Sandra Bland s Death, The Huffington Post, September 1, 2016, (highlighting that inmates in the Harris County Jail die at a higher rate per capita than in other jails around the country, and that 12 inmates died in the year since Bland s death, many of them from medical problems and suicide). 6 Alysia Santo, When an Old Law Makes it Hard to Fix a Troubled Jail, The Marshall Project, September 13, 2016, jail?utm_medium= &utm_campaign=newsletter&utm_source=openingstatement&utm_term=newsletter #.rkws9syus (noting that since 2009, 19 people have died in the Harris County Jail from medical neglect, inadequate medical care, or staff misconduct for conditions that were treatable). 7 James Pinkerton and Anita Hasan, Jailhouse Jeopardy: Guards often brutalize and neglect inmates in Harris County Jail, records show, Houston Chronicle, October 3, 2015, (finding disciplinary reports substantiating excessive force used against inmates at the Harris County Jail in 120 cases in period from 2009 to 2015, as well as high levels of violence at the jail). 8 St. John Barned-Smith, Lawsuit says Texas man beaten unconscious in jail, held on misdemeanor, mysanantonio.com, May 27, 2016, (severe injuries to an inmate in the Harris County Jail held on misdemeanor charges). 9 Tim Gerber, Current, former detention officers voice concerns about Bexar County Jail, KSAT, September 21, 2016, (highlighting four suicides at the Jail in July 2016, significant understaffing, and allegations of staff cheating on monitoring of inmates and falsification of records).

3 3 Therefore, in addition to addressing concerns about suicide, it is critical that the Legislature address other critical jail safety issues. The Legislature must ensure that jail inmates receive adequate medical care for their chronic and urgent medical conditions, that they can access mental health care to avoid unnecessary suffering and the potential for suicide attempts, that they can withdraw safely from drug or alcohol intoxication, that they are not physically or sexually assaulted by other inmates or by staff, that there is no excessive or unnecessary use of force used against inmates, and that inmates are not subjected to overcrowding or other dangerous living conditions. The U.S. Constitution requires that jail officials protect inmates from harm and that they provide medical care (including mental health care) to meet inmates serious medical needs. The recommendations below will help Texas jails meet their constitutional obligations, and will help jails avoid liability, since lawsuits often result in millions of dollars in damages or settlements at great expense to local taxpayers. Recommended Reforms for Legislative Consideration (1) Strengthen the role of the Texas Commission on Jail Standards The Texas Commission on Jail Standards (TCJS) provides an extremely important regulatory role for county jails in the state, by ensuring that all jails meet minimum standards. The TCJS staff take their responsibility very seriously and have helped professionalize and improve the operations of jails in the state. However, TCJS s effectiveness is hampered by insufficient resources: the staff includes only four inspectors for the entire state, and one of those positions is vacant. Funding for additional staff would allow for more frequent and robust unannounced and follow-up inspections, and for more technical assistance activities. Additionally, there are several important subjects on which the Standards are silent or where the provisions are either outdated or lacking in detail. For example, in addition to the lack of protocols on detoxification as noted earlier, there are no Standards with regard to use of force or sexual assault. There are numerous national standards that can be used as models for Texas, including standards of the American Correctional Association and the American Bar Association. The Commission should incorporate the new U.S. Department of Justice s Prison Rape Elimination Act (PREA) Standards into its own standards, and should audit each county jail s compliance with those standards. This would have the added benefit of saving each county the cost of paying for an auditor every three years as required by federal law. Increase funding for the Texas Commission on Jail Standards to hire additional jail inspectors and provide additional technical assistance on suicide prevention. Direct TCJS to develop Standards on use of force, sexual assault, and detoxification. Direct TCJS to ensure that the PREA Standards are incorporated into its own Standards and that TCJS staff are certified as PREA auditors.

4 4 Direct TCJS to develop more detailed Standards on what Jails plans for medical care, mental health care, and suicide prevention should include. Require TCJS to collect from jails around the state all serious incident reports and to prepare publicly-available aggregated statistical reports about the nature of these incidents. (2) Enhance other forms of oversight of county jails in Texas While TCJS regulates jails and inspects them for compliance with minimum standards, there are two critical oversight functions that are unfilled in Texas. First, there is no external entity that responds to and investigates inmates complaints and ensures that they receive needed services and are kept safe. For example, if an inmate is unable to obtain treatment for a particular medical condition or is concerned for his safety due to threats by his cellmate, that is outside the scope of TCJS s mandate. Similarly, TCJS does not assess the culture of the jail, assess the nature of inmate grievances, or develop recommendations to improve the dynamic between staff and inmates in a particular facility. Texas has had a very positive experience with conducting this type of oversight of juvenile facilities, through its use of an Independent Ombudsman who monitors the care of youth in state-run and county-run facilities. 10 Second, there is no independent investigation of deaths in custody in Texas. Under current state law, operators of each jail investigate deaths that occur in that jail. Their reports are filed with TCJS and with the Texas Attorney General. TCJS s role is limited to assessing whether there were any breaches of jail policy or minimum standards, and the Attorney General simply collects the information with no separate investigation or follow-up. Thus, the Sheriff is typically in charge of the investigation of a death in his or her jail. That lack of independence can lead to biased and unreliable investigations, and inadequate reporting. Investigations should be conducted by a law enforcement agency with no connections to the jail staff involved in the incident. Moreover, deaths in custody, as well as other incidents such as serious suicide attempts, should be reviewed by an external entity with an eye towards assessing the quality of care the inmate received prior to death and learning lessons from these incidents. In England, for example, every death in custody is investigated by an Independent Ombudsman, who assesses these incidents and develops recommendations for how to prevent such harm in the future. This also helps provide explanations and insight to the bereaved family of the inmate who died. Expand the role of the Independent Ombudsman in Texas to include oversight of county jails and the protection, safety, and treatment of jail inmates. Provide the Ombudsman with sufficient resources to fulfill that role and ensure that the Ombudsman has complete access to all jails in the state, confidential access to inmates, and unfettered access to documentation in order to conduct its work. 10 Independent Ombudsman for the Texas Juvenile Justice Department,

5 5 Change state law to require that all deaths in custody be investigated by a law enforcement agency independent of the agency where the death occurred. Direct the Ombudsman to review all reported deaths in jail custody; examine whether any changes in operational methods, policy, or practice would have prevented the deaths; and make relevant recommendations for the jail agency and for other jails across the state. (3) Reduce the number of inmates held in county jails Jail safety is compromised by crowding, and jails operate better and safer when there are fewer inmates taxing the available services and programs. Most inmates admitted to jail are charged with very minor offenses and most are released fairly quickly, raising questions about why they need to be admitted in the first place. With additional tools, law enforcement can avoid bringing low-level defendants to the jail and instead focus arrests on more serious offenders. For those arrestees brought to the jail, many low-risk and low-level defendants can be released on personal bonds, avoiding the need for them to languish in jail due to an inability to raise bail money. More detailed information about pretrial detention and bail reforms may be found in the policy brief Risk, Not Resources: Improving the Pretrial Release Process in Texas, written by two of my students under my supervision, which is provided to the Committee as a resource. 11 Prohibit arrests for Class C misdemeanors. Broaden the use of cite and release by law enforcement officers for Class A and B misdemeanors. Allow Class A and B defendants to be automatically released on personal bonds. Prohibit use of bond schedules for felonies and mandate use of risk assessment instruments to allow for individualized consideration of each arrestee s circumstances. Develop pretrial supervision programs that allow more risky defendants to be released on personal bonds with conditions. (4) Divert low-risk inmates with mental health impairments and those who are intoxicated to community-based treatment programs Jails are highly inappropriate and unsafe places for inmates who have serious mental health impairments and those who are intoxicated on drugs or alcohol. There need to be community-based options for these individuals where they can get access to treatment and 11 Nathan Fennel and Meridith Prescott, Risk, Not Resources: Improving the Pretrial Release Process in Texas, Lyndon B. Johnson School of Public Affairs, June 2016, %20Improving%20the%20Pretrial%20Release%20Process%20in%20Texas--FINAL.pdf

6 6 services under the supervision of specially-trained staff. The policy brief Prioritizing Treatment Over Punishment: An Overview of Mental Health Diversion from Jail in Texas, written by two of my students under my supervision and provided to the Committee as a resource, includes many more details on best practices for diverting this population using the Sequential Intercept Model. 12 An average of 10 jail inmates per year die of drug and alcohol intoxication because of a prevailing but mistaken belief that they can just sleep it off or withdraw cold turkey. However, alcohol and drug withdrawal is a serious medical issue demanding an appropriate medical response. If the jail does not have a detoxification protocol in place that includes assessment and monitoring by health care professionals, and the transfer of severe cases to a licensed acute care facility, then intoxicated inmates should be diverted to a community-based detox center. Commit additional funding for community-based mental health services Provide grant funding to counties that wish to develop Crisis Intervention Teams (CITs) to respond to offenders who present mental health impairments, in order to de-escalate incidents and divert individuals to treatment centers rather than the jail. Provide grant funding to counties that wish to develop detox centers as an alternative to incarceration for low-level offenders (e.g., those arrested on public intoxication charges). Develop post-arrest diversion strategies, including funding for public defenders with mental health training to improve advocacy for individuals with mental illness. (5) Strengthen suicide prevention through enhanced staff training, improved identification of at-risk inmates, proper response to identified inmates, and more effective suicide prevention protocols Best practices and national standards highlight the importance of ensuring that all jail staff are trained about mental health issues and suicide prevention. Staff who conduct intake screening must receive supplemental training beyond that available to other jail staff so that they can immediately identify incoming inmates with suicidal risks, as well as those in need of medical and mental health assessments. Ideally, the intake screening process should be conducted by someone with medical training. 13 It is concerning that only 11 percent of Texas 12 Rachel Gandy and Erin Smith, Prioritizing Treatment Over Punishment: An Overview of Mental Health Diversion from Jail in Texas, Lyndon B. Johnson School of Public Affairs, June 2016, %20FINAL.pdf 13 Standard J-E-02, Standards for Health Services in Jails, National Commission on Correctional Health Care, 2014.

7 7 jails have a mental health professional assigned to the facility, making it especially urgent to ensure that contracted mental health professionals are available to inmates on both a routine and on an emergency basis. 14 At-risk inmates identified during the intake screening process must be referred for further assessments and must receive actual treatment for their medical and mental health impairments, not simply increased observation. The current Minimum Jail Standards are insufficient to ensure the safety of identified inmates. For example, the Standards require only 30-minute checks for inmates who are potentially suicidal. 15 This time frame is inadequate to protect inmate safety, as suicide attempts and deaths can occur well within a 30-minute period. Jails suicide prevention protocols should include the following: (1) Ensure differential responses based on an inmate s identified level of risk (i.e., actively suicidal versus nonacutely suicidal ). This status determines whether the inmate should be subject to constant observation (with checks no more than every five minutes) or frequent observations (with checks on a staggered basis with intervals not to exceed minutes); (2) Avoid seclusion of restraint of suicidal or mentally ill inmates, which increases their risk of suicide. 16 Instead of isolating these inmates, jail staff should seek to house them in the general population in a multi-occupancy cell, mental health unit, or medical infirmary, where they can be close to staff. 17 Housing assignments should be made that maximize the opportunity for staff and peer engagement and interaction with the inmate, not simply impersonal staff checks. Removal of an inmate s clothing, placement in restraints, and placement in a rubberized suicide cell should be a last resort for actively suicidal inmates until such time as they can be treated by a mental health professional. 18 (3) Provide suicide resistant cells that eliminate physical features that could facilitate suicide attempts. For example, these cells should avoid obvious protrusions that can be used to anchor a device for hanging. Light fixtures should be tamper-proof, and there should be nothing in the cell that can be used as a tool for self-harm, including plastic garbage bags. Most importantly, there should be full visibility into the cell, so staff can see the inmate at all times. Emergency equipment should also be readily available Daniel Dillon, A Portrait of Suicides in Texas Jails: Who is at Risk and How Do We Stop It?, LBJ Journal of Public Affairs, Fall 2013, p Texas Minimum Jail Standards, Rule Lindsay Hayes, Guide to Developing and Revising Suicide Prevention Protocols Within Jails and Prisons, National Center on Institutions and Alternatives, Id. 18 Id. 19 Id.

8 8 (4) Ensure that post-incident reviews are conducted not only for completed suicides but also for all serious suicide attempts. This review should provide a critical look at all circumstances surrounding the death or the attempted suicide, and should examine any policies or practices that may need to be changed as a result of the incident. (5) Ensure ongoing assessment of suicide risks, since an inmate s risk level can change over time or following certain incidents. Provisions should be made for referral to a mental health professional at any point in time that seems necessary. Require all jail staff to receive at least eight hours of initial suicide prevention training, with two hours of follow-up training annually, with supplemental training for intake staff on mental health issues. 20 Direct TCJS to develop Standards requiring jails to have clearly written arrangements with local mental health facilities to provide emergency mental health care as well as routine treatment services. Direct TCJS to develop more specific requirements for jails suicide prevention plans, based on the best practices highlighted above. Provide additional resources to TCJS to enable the agency to provide enhanced technical assistance to jails on suicide prevention issues. (6) Remove 17-year olds from county jails in Texas Youth are among the most vulnerable inmates in county jails, facing vastly higher rates of sexual assault and suicide than their counterparts held in juvenile facilities. The U.S. Department of Justice, in recognition of these risks, passed the Prison Rape Elimination Act (PREA) Standards, which among other provisions, requires youth under the age of 18 to be kept sight and sound separated from adult inmates. The problem is that most jails in Texas are illequipped architecturally to meet this requirement, and so many of the youth are either kept in solitary confinement or are mixed in with adult offenders. Harris County is considering shipping these youth to a private jail three hours away from Houston, where they will be far from their families and attorneys while awaiting trial. If jails are to comply with the PREA requirements, they will either have to undertake extremely expensive retrofitting of their facilities or expend significant costs in housing the youth in contract facilities. It will enhance the safety and improve outcomes for the youth and reduce costs, save space, and ease operations for the jails if 17-year old youth are removed from the jail. This can be accomplished by raising the age of criminal responsibility in Texas from 17 to 18, in keeping with 43 other states. While there are undeniable costs associated with keeping these youth in the county-level juvenile system, there are also substantial costs associated with the status quo. 20 Id.

9 9 Specific legislative proposal: Raise the age of criminal responsibility from 17 to 18, and provide state funding to counties to offset the increased costs to county-level juvenile probation departments Any of these recommendations could easily warrant much more detailed explanations. I would be happy to work with any of the Committee members or your staff to explore further any of these ideas. Thank you again for your interest in addressing these critical jail safety and oversight issues and for inviting me to testify.