California prisons alter ‘use of force’ policies for mentally ill inmates

08/01/2014 4:49 PM

10/07/2014 8:48 PM

State prison officials unveiled new policies Friday that they characterized as a “sweeping culture change” aimed at limiting the use of pepper spray and other force against mentally ill inmates.

The policy changes, filed in Sacramento federal court as part of a long-running legal battle, essentially require prison guards to stop and consider alternatives to force as they get mentally ill inmates who are acting out to comply with commands.

The 69-page court filing also outlines new procedures for addressing disputes between guards and mental health professionals over how to resolve problems with mentally ill inmates.

“This is a great first step,” said inmate attorney Jeffrey Bornstein, who won his battle last year to have videos played in court of inmates being pepper-sprayed by guards. “This seems to mandate more of a collaborative approach.”

The new policy states that if there is disagreement between custody staff and mental health staffers over whether to use force, the issue must be elevated to higher-level officials on duty at a prison.

That change follows a Sacramento Bee report on the 2013 death of inmate Joseph Duran at Mule Creek State Prison in Ione after he was pepper-sprayed by guards.

Duran, who was mentally ill and breathed through a tube in his throat, was found dead Sept. 6 inside his cell seven hours after being pepper-sprayed.

The inmate had refused to let go of a food port in his cell door and was pepper-sprayed and left in his cell despite demands by medical staff that he be removed and decontaminated. Custody staff refused those demands, saying it was too dangerous to remove him, according to documents obtained by The Bee.

Duran’s parents are pursuing legal action over their son’s death. Meanwhile, corrections officials already have changed policies about how much pepper spray can be used against an inmate and have declared that holding a food port open does not automatically allow for the use of force.

Under the new policy released Friday, the dispute between custody staff and medical staff would have gone up the chain of command and been resolved with input from both sides.

The new policy also bans the use of chemical agents, such as pepper spray, inside mental health units during “controlled” uses of force, incidents in which authorities have time to warn an inmate about the potential for action against them if they do not comply with orders. The only exception allowed is if pepper spray is authorized by the warden, deputy warden or the top official on duty.

The department already has limited the use of pepper spray as a result of ongoing litigation that has challenged the use of the chemical agent.

U.S. District Judge Lawrence K. Karlton declared that videos viewed in court last year, in which mentally ill prisoners were seen howling in pain and fear as they were doused with large amounts of pepper spray, were “horrific.”

Karlton ruled in April that the use of force against mentally ill inmates in California prisons was unconstitutionally harsh and ordered changes.

Friday’s filing was the result of Karlton’s order, but Bornstein, the attorney for the inmates, noted that the corrections department already had begun to make changes as the litigation wore on and the videos were shown in court.

He credited Michael Stainer, the department’s director of adult institutions, with making changes even before the order came down from Karlton.

“I think Mike Stainer took very seriously not only what the court said in April but also from his own observation of the evidence that there was the need for reform,” Bornstein said.

The most powerful evidence came from the six videos shown in court that left some spectators gasping and Karlton at times holding his head in his hands.

“The court’s order made it clear, and those videotapes made it clear, that is not the way people are supposed to be treated, especially if they’re being treated that way only because of their mental illness,” Bornstein said. “It’s just wrong.”

About 28 percent of the state’s roughly 118,000 inmates are mentally ill, and their attorneys argued that in many instances they were subjected to force or pepper spray simply because they could not understand the orders they were being given.

The corrections policy unveiled Friday directs staffers to take into account whether an inmate has the ability to understand what they are being told, and it mandates that staffers work together to avoid force if possible and use a “cool-off period” to allow an inmate to be verbally persuaded to comply with orders.

The policy “represents a sweeping culture change for (the California Department of Corrections and Rehabilitation) as it expects staff to step back and evaluate the totality of the circumstances, whenever circumstances permit, before using force,” the court documents filed Friday state.

The department contends in its filing that some of the steps it is taking exceed what was ordered by the court and “will foster collaboration between custody and mental health, and provide for a strong sustainable process ensuring that mentally ill inmates will continue to receive quality, constitutionally adequate medical care.”

Bornstein said the new policies are a victory for the state’s mentally ill inmates, but only if corrections officials ensure the staff is properly trained to adhere to the new guidelines.

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