Gordon J. Campbell, Chair Members of the Board NYC Board of Correction 51 Chambers Street, Room 923 New York, NY December 19, 2014

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1 Natalie M. Chin Assistant Professor of Clinical Law Director Michael F. Higgins Clinical Instructor of Law Staff Attorney Advocates for Adults with Intellectual and Developmental Disabilities Clinic Gordon J. Campbell, Chair Members of the Board NYC Board of Correction 51 Chambers Street, Room 923 New York, NY December 19, 2014 Testimony of the Advocates for Adults with Intellectual and Developmental Disabilities ( AAIDD ) Clinic at Brooklyn Law School in Response to the Board of Correction Proposed Rule to Create an Enhanced Supervision Housing Unit in New York City Jails. The Advocates for Adults with Intellectual and Developmental Disabilities ( AAIDD ) Clinic is a legal clinic at Brooklyn Law School where students and attorney faculty members represent low-income New Yorkers, and their families in a variety of civil legal matters that impact adults with intellectual and developmental disabilities. Our work includes representation and advocacy in areas including Prisoners Rights, Housing, Public Benefits, Access to Health Care, Special Education, Parental Rights, 17-A Guardianship and Discrimination in Access to Programs and Services. The AAIDD Clinic offers this testimony in support of our mission to serve New Yorkers with intellectual and developmental disabilities and to ensure that the Board of Correction considers the unique needs of persons with intellectual and developmental disabilities who are in the custody of the Department of Correction. Introduction The Advocates for Adults with Intellectual and Developmental Disabilities Clinic opposes the proposed change to the Jail Minimum Standards that would permit implementation of an Enhanced Supervision Housing Unit (ESH) and continue the harmful solitary confinement practices in New York City Jails. The Board should categorically bar inmates with intellectual or developmental disabilities from punitive segregation and ESH as they formulate changes to the Jail Minimum Standards. The proposed creation of a highly restrictive segregated unit for those designated by the Department of Correction as the most violent inmates fails to take into consideration the vulnerable population of inmates who have intellectual or developmental disabilities, placing this population at a greater risk of harm and victimization while failing to address their treatment needs. 1 Boerum Place Brooklyn, NY p: f: clinics@brooklaw.edu

2 According to the American Association of Intellectual and Developmental Disabilities, [d]evelopmental [d]isabilities is an umbrella term that includes intellectual disability but also includes other disabilities that are apparent during childhood. 1 Developmental disabilities are a group of conditions that result in the impairment in physical, learning, language, or behavior areas. 2 The conditions generally begin during the developmental period, before the age of 22, and may impact day-to-day functioning, and usually lasts throughout a person s lifetime. 3 Intellectual disability encompasses the cognitive aspect of a developmental disability, generally affecting the thought processes. 4 It is characterized by [s]ignificantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the development. 5 Inmates with Intellectual and Developmental Disabilities Due to the limited research and inadequate screening methods by the Department of Correction for the inmate population with intellectual and developmental disabilities, it is difficult to quantify this vulnerable population. In 1991, the New York State Legislature requested that the Commission on Quality of Care for the Mentally Disabled 6 conduct a study to determine the number of individuals with developmental disabilities in the state prison system, while also evaluating current practices for identifying such inmates and meeting their needs. 7 This 23-year-old study concluded that between one and three percent of the state prison population included inmates with developmental disabilities, but stressed that a comparable study... is needed related to local jails[,] recognizing that there are both more persons with developmental disabilities incarcerated in local jails and that in these settings there are far fewer protections for vulnerable persons. 8 No such study was ever conducted, and the 1991 study reflects the only available research quantifying the New York State inmate population with developmental disabilities. There are reported estimates that the number of inmates with intellectual disabilities falls between 3% and 10% 9 with [i]ndividuals with intellectual disability... overrepresented in the criminal justice system. 10 There is a high correlation among offenders with intellectual disability with psychosocial disadvantage[,] 1 American Association of Intellectual and Development Disabilities, Frequently Asked Question on Intellectual Disability, 2 Centers for Disease Control and Prevention, Facts About Developmental Disabilties, 3 Id. 4 See supra n Hall v. Florida, 134 S.Ct at 1994 (2014) (citing Atkins v. Virginia, 536 U.S. 304 at 308, n. 3 (2002)). 6 The Commission on Quality of Care for the Mentally Disabled has since been succeeded by the New York State Commission on Quality of Care and Advocacy for Persons with Disabilities, which is an independent New York State government agency charged with improving the quality of life for New Yorkers with disabilities and protecting their rights by funding statewide protection. 7 Inmates with Developmental Disabilities in New York State Correctional Facilities (March 1991), available at the Commission on Quality Care Archives, 8 Id. at vi. 9 Loberg, Margaret E., Victimization of Inmates with Intellectual Disability: A Qualitative Study (Doctoral dissertation, Pacific University), 13 (April 25, 2009), 10 Id. at of 5

3 [with] offenders [] more likely to be uneducated, unemployed, poor, have deficits in social and communication skills, and suffer from behavioral or psychiatric disorders. 11 Texas has already recognized the need for enhanced due process protections for this vulnerable population in disciplinary proceedings. The Texas Department of Criminal Justice requires the appointment of a representative in disciplinary proceedings where an inmate has been diagnosed with a developmental disability. 12 This representative advocates on behalf of the inmate and keeps related records of the proceeding. 13 Inmates with Intellectual and Developmental Disabilities Are Targets of Victimization The Board must consider the intellectual and developmental impairments of inmates when considering revisions to the Jail Minimum Standards. The United States Supreme Court has recognized the mitigating factors that the criminal justice system must consider in the punitive treatment of prisoners with intellectual impairments. In Atkins v. Virginia, the Supreme Court held that the use of capital punishment on prisoners with intellectual disabilities violated the Eighth Amendment prohibition against cruel and unusual punishment. The Court reasoned that [b]ecause of their impairments [] by definition [prisoners with intellectual disability] have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. 14 The Court continued,... in group settings they are followers rather than leaders. Their deficiencies... diminish their personal culpability. 15 The ability of inmates with intellectual and developmental disabilities to remain safe and exert their right to personal decision-making may be compromised as a result of their disability, making this population a vulnerable target for solitary confinement and ESH. Some common responses that may affect the ability of inmates with intellectual and developmental disabilities to protect their rights include the following: inability to understand explanations of custody procedures or disciplinary hearings difficulty establishing and maintaining positive relationships vulnerability to sexual predators, manipulation by other inmates, and/or recruited for gang activities waiving rights without understanding difficulty accessing inmate resources difficulty learning and following a schedule difficulty resolving problems or seeking assistance when needed Id. 12 Texas Department of Criminal Justice, Correctional Institutions Division, Disciplinary Rules and Procedures for Offenders, 11 (April 2012), 13 Id. 14 Atkins, 536 U.S. at Id. 16 See California Department of Corrections, Clark v. California Remedial Plan, 6-7 (March 1, 2002), 3 of 5

4 Further, individuals with intellectual disabilities in the general population are more likely to be maltreated (i.e., psychologically or physically abused)... and at great risk for personal (or violent) crimes. 17 The Board must reject ESH and use the rulemaking process to strengthen the Jail Minimum Standards to ensure the health, safety and security of incarcerated persons with intellectual and developmental disabilities. The Board should reform standards to limit the use of harmful solitary confinement in punitive segregation, protect vulnerable populations by excluding them from punitive segregation and ESH, implement needed habilitation and treatment for incarcerated persons with intellectual and developmental disabilities, strengthen the training and screening process to identify this vulnerable population and provide for adequate due process. The Board should consider the following proposals as they formulate changes to the Jail Minimum Standards: 1. Exclude vulnerable populations from solitary confinement and from ESH Incarcerated individuals with intellectual or developmental disabilities; persons who are receiving education services under the Individual with Disabilities Education Act ( IDEA ); and individuals with a documented history of receiving an Individualized Education Plan under the IDEA, other special education services from the Department of Education or services from the Office for People with Developmental Disabilities, or other similar state or local agency, should not be placed in solitary confinement or ESH. 2. Implement stronger safeguards to ensure that persons with intellectual and developmental disabilities are housed in a setting that best ensures their safety and security Implement habilitation services for persons with intellectual and developmental disabilities Treatment and habilitative training for persons with intellectual and developmental disabilities to develop the maximum independence and self-determination in activities of daily living as an alternative to punitive segregated placement. 17 See supra n. 9 at See New York City, N.Y. Rules, Tit. 40, 2-04(6)(i)-(ii). Inmates identified as developmentally disabled shall be evaluated within seventy-two hours and mental health services staff shall make a recommendation to the Department of Correction as to whether such developmental disability makes it necessary for the inmate to be placed in special housing or otherwise separated from the general inmate population: (i) inmates who suffer from developmental disabilities shall be housed in areas sufficient to ensure their safety; (ii) if it is determined by mental health services that an inmate s developmental disability makes it clinically contraindicated that the inmate be housed in a correctional facility, then the Department of Correction shall immediately notify the court and a written notice shall be filed in the inmate s court papers. 4 of 5

5 4. Strengthen Department of Correction the training and screening process for persons with intellectual and developmental disabilities. 19 Strengthen the training, screening and assessment processes to include intellectual and developmental disabilities and clarify the meaning of indications of gross mental retardation to ensure that persons are properly identified and directed to appropriate individualized services in the safest and least restrictive environment while incarcerated. 20 Ensure that all inmates, once identified with an intellectual or developmental disability, are provided a continuity of services during re-entry planning and upon return to the community. 5. Improve due process requirements Eliminate any requirement that a hearing must be requested in writing to ensure that those with limited intellectual or developmental functioning are not denied the right to a hearing before placement in solitary confinement or ESH. Before a person can be placed in solitary confinement or ESH, there should be a hearing conducted by non-doc staff at which the accused person has representation and an opportunity to present evidence and to call and crossexamine witnesses. If there is evidence of an intellectual or developmental impairment, the Department of Correction must provide a non-doc mental health professional to be present during the disciplinary process, including any related meetings. There should also be procedures through which an individual can be released from ESH and moved back into the general population. Please do not hesitate to reach out to me at natalie.chin@brooklaw.edu or if you would like to speak further. Sincerely, Natalie M. Chin Director Michael F. Higgins Staff Attorney 19 See New York City, N.Y. Rules, Tit. 40, 2-02(b). 20 See New York City, N.Y. Rules, Tit. 40, 2-02(3). 5 of 5