LD 1611, Bill, “An Act To Ensure Humane Treatment for Special Management Prisoners
The Nutting/Schatz Alternative report (Minority report 2)

COMMITTEE AMENDMENT to LD 1611 “An Act To Ensure Humane Treatment for Special Management Prisoners"

34-A § l406. Minimum standards governing the humane treatment of special management prisoners

1. Definitions
2. Special management unit criteria for prisoners with serious mental illness.
3. Limitation on confinement; rights to a hearing
4. Other disciplining restrictions.
5. Listing of special management prisoners.
6. Annual review.
7. Summary

LD 1611 Minority Report #2

1 L.D. 1611
2 Date: (Filing No. 1-1- )
3 CRIMINAL JUSTICE AND PUBLIC SAFETY
4 Reproduced and distributed under the direction of the Clerk ofthe House.
5 STATE OF MAINE
6 HOUSE OF REPRESENTATIVES
7 124TH LEGISLATURE
8 SECOND REGULAR SESSION A

9 . Committee Amendment to H.P. 1139, LD 1611, Bill, “An Act To
10 Ensure Humane Treatment for Special Management Prisoners"

11 Amend the bill by striking out all of section 1 and inserting the following:
12 Sec 1. 34-A MRSA §1406 is enacted to read: .

font size=+1>13 § l406. Minimum standards governing the humane treatment of special
14 management prisoners
15 The Commissioner shall ensure mat special management prisoners are treated in -
16 accordance with the minimum standards for humane treatment established in this section.

17 1. Definitions. As used in this section, unless the context otherwise indicates, the
18 following terms have the following meanings
19 A. "Serious mental illness" means schizophrenia, bipolar disorder, schizoaffective
20 disorder, major depression or any other psychiatric condition that in recognized by a
21 statewide association of psychiatric physicians that would tend to cause a prisoners
22 emotional stability to deteriorate if confined in a special management unit for an
23 extended period.
24 B. "Special management prisoner" means a prisoner housed in a special management 25 unit.
26 C. "Special management unit" means a high-security unit within a prison facility that
27 houses a prisoner assigned by the commissioner to a high-risk management status, an
28 'administration segregation status or a disciplinary segregation status.

29 2. Special management unit criteria for prisoners with serious mental illness. A
30 prisoner determined to be suffering from a serious mental illness may not be confined in a
31 special management unit. Prisoners confined in a special management unit must be
32 evaluated by a licensed mental health professional in private within 48 hours of
33 placement and at least every 7 days thereafter. Such evaluations must be conducted in
34 person, not through a cell door, with audio privacy and must assess the current mental
35 status and condition of the prisoner and the current risk of suicide or other self-harming

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COMMITTEE AMENDMENT to HP. 1139, LD.1611
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1 behavior and include a review of the prisoner‘s inpatient and outpatient treatment history.
2 A prisoner determined to suffer from a serious mental illness at the time of an evaluation
3 must be removed from the special management unit within 7 days. lf the prisoner is
4 subsequently transferred to a psychiatric or mental health unit or a hospital, the
5 commissioner shall ensure that the prisoner is held in conditions that do not violate this ·
6 section.

7 3. Limitation on confinement; rights to a hearing. A prisoner may not remain
8 confined in a special management unit for more than 45 consecutive calendar days unless
9 it is determined by a hearing that within the previous 45 days the prisoner has committed
10 or attempted to commit a sexual assault, an escape from confinement or an act of serious
11 physical violence or that housing the prisoner in the general population of a correctional
12 facility would pose an immediate and unacceptable risk to the safety of staff or other
13 prisoners. The hearing must be conducted by a panel of at least 3 persons appointed by
14 the commissioner, one of whom must be a clinician representing the mental health staff at
15 the facility; in which the prisoner is housed. At such hearings, the; department has the
16 burden of proof by a _preponderance of the evidence. The following provisions apply to a
17 hearing conducted under this subsection:

18 A. The commissioner shall provide written notice to the prisoner at least 72 hours
19 before the hearing. That written notice must set forth the factual basis for the
20 coming placement in the special management unit and must provide notice that the
21 prisoner has the right to appear in person at the hearing, the right to submit evidence
22 in the prisoner's defense, the right to call relevant witnesses and the right to be
23 represented at the hearing by an attorney if secured and paid for by the prisoner;

24 B. The commissioner shall make an audiovisual recording of the hearing and shall
25 maintain all records of the hearing, including the audiovisual record and all written
26 records, until at least 120 days after the release of the prisoner from incarceration

27 C. The panel conduction the hearing shall issue a written decision within 5 days after
28 the hearing and provide a copy of that decision to the prisoner, including the reasons
29 for the decision.

30 D. If the panel authorizes the commissioner to continue holding the prisoner for
31 longer than 45 days in the special management unit based on a finding of one of the
32 conditions in this subsection, the decision of the panel must include guidance to the
33 prisoner as to what the prisoner must do to gain release from the special management
34 unit and inform the prisoner that the panel must review its decision every 30 days to
35 determine if the prjsoner should continue to be housed in the special management
36 unit and

37 E. A prisoner may appeal a decision of the panel under paragraph C to the chief
38 administrative officer after notice of the decision is received by the prisoner. The
39 chief administrative officer shall respond in writing to an appeal within 7 days. A
40 decision of the chief administrative officer on an appeal or a failure by the chief
41 administrative officer to issue a decision within 7 days is a final agency action as
42 defined in Title 5, section 8002, and the prisoner is entitled to judicial review of that
43 decision under the provisions of Title 5, chapter 375, subchapter 7.

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1. 4. Other disciplining restrictions. A special management prisoner's access to food,
2 medical or sanitary facilities, mail or legal assistance may not be restricted.

3 5. Listing of special management prisoners. The commissioner shall maintain a
4 current list of all special management prisoners that includes the date of confinement in
5 that special management unit, the date of the last review, the date of me last mental health
6 evaluation, the reasons for placement in that special management unit and, in cases when
7 the prisoner has been housed in that unit for more than 60 days, a written statement of the
8 criteria relied upon to support that extended confinement. The commissioner shall
9 provide the board of visitors for each correctional facility appointed under section
00 3001-A, the State Board of Corrections and the Joint standing Committee of the
11 Legislature having jurisdiction over corrections matters with a copy of that list on a
12 quarterly basis.

13 6. Annual review. The State Board of Corrections shall annually conduct a
14 comprehensive review of the policies, standard; and treatment of special management
15 prisoners to determining effectiveness of those policies and standards and the degree to `
16 which the treatment of special management prisoners complies with this section. The
17 State Board of Corrections shall include its findings under this subsection in the annual
18 · report to the joint standing committee of the Legislature having jurisdiction over
19 corrections matters required by Section 3001-A.

20. SUMMARY ·
21 This amendment is one of 2 committee minority amendments and establishes t_
22 minimum standards for the humane treatment of special management prisoners of the · .
23 Department of Corrections. As defined in this amendment, a "special management
24 prisoner" is a prisoner assigned to disciplinary, high-risk or administrative segregation _
25 and confined in a special management emit. The amendment amends the definition of
26 ”severe mental illness" to mean schizophrenia, bipolar disorder, schizoaffective disorder,
27 major depression or any other psychiatric condition that is recognized by a statewide .
28 - association of psychiatric physicians that would tend to cause the prisoner's emotional
29 stability to deteriorate if confined in a special management unit for an extended period.

30 The amendment amends the provision addressing special management unit criteria
31 for persons with serious mental illness by adding the requirement that evaluations must
32 be conducted with audio privacy.

33 The minimum standards established in the amendment include limiting a prisoners
34 confinement to a special management unit to 45 days unless it is determined at a hearing
35 that within the previous 45 days the prisoner has committed or attempted to commit a
36 sexual assault, an escape from confinement, an act of serious physical violence or that
37 l housing the prisoner in the general population of a correctional facility would pose an
38 immediate and unacceptable risk to the safety of staff or other prisoners. At hearings, the
39 department has the burden of proof by a preponderance of the evidence. The amendment
40 prohibits the confinement of prisoners with serious mental illness to a special
41 management unit and requires that a special management prisoner determined to be
42 suffering from serious mental illness be removed from the special management unit
43 within 7 days. The amendment strikes language that addresses corporal punishment and
44 restrictions on transferring prisoners out of state.

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l The amendment also authorizes the calling of relevant witnesses and having an
2 attomey at hearings, but requires that these be secured and paid for by the prisoner. The -
3 amendment requires panel review of a placement decision every 30 days instead of every
4 7 days and specifies that appeals are made to the chief administrative officer of the
5 facility and notto the Commissioner of Corrections. The amendment also clarifies that
6 holding a prisoner for more than 45 days must be based on a finding as outlined in the
7 Maine Revised Statutes, Title 34-A, section 1406, subsection 3.

8 The amendment also requires the Commissioner of Corrections to maintain a current
9 list of all special management prisoners and, when the prisoner has been retained for
l0 more than 60 days in one or more of the units of the special management unit, to also ·
11 retain a written statement of the criteria relied upon to support thatextended confinement.
12 The commissioner shall provide the boards of visitors, the State Board of Corrections and
13 the joint standing committee of the Legislature having jurisdiction over conections
14 matters with a copy of that list on a quarterly basis.

15 The amendment further requires the State Board of Corrections to annually conduct a
16 comprehensive review of the policies, standards and treatment of special management A
17 prisoners to determine the effectiveness of those policies and standards and the degree to
18 which the treatment of special management prisoners complies with the law. The State
19 of Corrections is required to include its innings in its annual report to the joint
20 standing committee of the Legislature having jurisdiction over corrections matters.

21 The amendment maintains the requirement of the bill that the Commissioner of
22 Conections review the status of all special management prisoners in the State to
23 determine whether prisoners confined to special management units should remain in
24 those units and to ensure that prisoners held in special management units more than 45
25 days receive a hearing. The commissioner is also required to review all policies in effect
26 on the effective date of the bill relating to special management prisoners and update those
27 A policies as necessary to conform to the law.

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