|
|
 |
|
February 9, 2010 |
|
|
|
|
| |
|
|
| January 15, 2009 |
By: John Pacenti |
|
ichael J. McKinney has spent more time in prison than on the outside.
Serving a life sentence for attempted murder, the 39-year-old inmate has a long history of mental illness, including self-mutilation and setting fire to his cell.
Essentially behind bars since he was 16, McKinney has been assessed as “pathological” with marginal intellectual function. Psychologists say he is almost impossible to handle because of violent tendencies. He has more than 320 disciplinary reports.
So guards at Florida State Prison in Starke turned to chemical agents such as pepper spray to subdue him 36 times.
“I can’t help myself,” McKinney told a prison psychologist.
Now a federal judge has ruled that the use of chemical agents against McKinney and another severely mentally ill inmate constitutes cruel and unusual punishment.
Advocates for mentally ill inmates hope the 75-page order by U.S. District Judge Timothy J. Corrigan will open up a dialogue with the state Department of Corrections to prevent the gassing of prisoners who are too ill to respond to negative reinforcement.
“This decision is very significant because it’s the first time a federal court in Florida has held that use of chemical agents, including pepper spray, on mentally ill inmates locked in their cells who are doing no harm to themselves or others violates the cruel and unusual punishment clause of the 8th and 14th amendments,” said Randy Berg, executive director of the Florida Justice Institute in Miami, who represented inmates in the case.
Leon Fresco, a Holland & Knight associate in Miami who worked on the case pro bono, said, “This is a decision that is going to have broad national impact. This is really ground-breaking.”
Other states have modified their use of pepper spray on inmates. Maryland prison officials toughened guidelines in 2004 after the death of an inmate who was subdued with three cans of pepper spray. The American Civil Liberties Union last year sued the Texas Youth Commission, alleging excessive use of pepper spray on inmates.
The solution in Florida would be to change prison policy to allow a mental health professional to evaluate disruptive inmates before gas is used, prisoner advocates say.
“We have been asking all along for intervention prior to the use of chemical agents,” Berg said. “See if the inmate understands what he is doing is wrong and if the application of chemical agents would serve any purpose.”
The Florida Justice Institute and the legal aid group Florida Institutional Legal Services in Gainesville spearheaded the lawsuit on behalf of 10 inmates. Four were dismissed from the litigation after being released, and the judge ruled against four others, finding prison officers did not have sufficient information about their mental illness before using chemical restraints.
Fresco said the court was aware of at least 10 other mentally ill inmates who were gassed but missed the deadline to join the case as plaintiffs.
The ruling will hopefully lead to meaningful reform for mentally ill inmates under Corrections Secretary Walter McNeil, who was appointed early last year, he said.
“We want to work with this new secretary,” Fresco said. “We want to work in a way that really improves mental health issues for inmates.”
Corrigan, who sits in Jacksonville, ordered the department and plaintiff attorneys to work together to come up with proposed terms by Feb. 10 for an injunction prohibiting officers from using chemical agents against plaintiffs Jeremiah Thomas and McKinney.
After four years of litigation and a five-day bench trial in September, the judge said in the decision handed down last Friday on how to subdue mentally ill inmates remains a conundrum.
“This case is a hard one,” he wrote in the order issued Friday.
Corrections houses 75,000 inmates in 60 institutions across the state. Psychological issues, not surprisingly, abound for convicts, and they are evaluated when they arrive and occasionally afterward.
“This case has shown that there is disagreement among both correctional and mental health professionals concerning the difficult issue of how mentally ill inmates can properly be disciplined,” Corrigan wrote. “There are those who think that DOC’s policies in this regard (even as recently reformed) are unenlightened; others view them as acceptable.”
The judge was forthright in stating it was not his function to determine the best correctional practices.
Attorneys for the state were closed-mouthed about whether they intend to seek an appeal, but corrections spokeswoman Jo Ellyn Rackleff reiterated the argument that pepper spray, tear gas or Mace is often the better choice.
“Our officers are trained to seek the least injurious way to control an inmate,” she said Tuesday. “There are times a judgment is made that using a chemical agent will cause less injury than physically restraining them.”
Chemical restraint is an alternative to the forced removal of inmates from cells, which often result in injuries.
Gassing of Florida inmates increased following the 1999 beating death of Frank Valdes during a cell extraction. Guards were acquitted of charges in Valdes’ death.
Attorneys for the state had no comment on the ruling, referring questions to Rackleff.
The department took the position that inmates were well aware they would be gassed if they did not cease their disruptive behavior — often screaming or pounding on the door of their 9-foot-by-7-foot cell.
In a failed motion for summary judgment, Corrections argued the inmates had no long-term physical harm.
The 2004 lawsuit claimed officers knew mentally ill inmates were not to be gassed but did it anyway. It also claimed the inmates were not properly decontaminated in a shower afterward. Photographs filed as exhibits in the case showed gas burns on inmates.
Corrigan was sympathetic to what prison guards face when dealing with psychotic prisoners but found they “acted with deliberate indifference to the severe risk of harm McKinney faced when officers repeatedly sprayed him with chemical agents at FSP for behaviors caused by his mental illness.”
Thomas, 36, is due for release in 2019 for being an accomplice in a fatal robbery. He has hallucinated that he has a daughter, and she visits him inside his cell. He has eaten his own feces and tried to cut off his genitals.
Attorneys for the plaintiffs said inmates like Thomas are impervious to gassing. They act out because of their illness and keep getting gassed.
Corrigan agreed.
Fresco said now is not the time for gloating but for reaching out to prison officials for solutions. Berg said he hoped the corrections secretary would see the ruling as an opportunity.
“This is the first time they had a federal judge tell them this type of activity constitutes cruel and unusual punishment,” Berg said. “Even though it applies to only two inmates, if I were the secretary, I would be open to discussing it.”
John Pacenti can be reached at (305) 347-6638.
|
Search the archive for more stories.
|
|
|
 |
|
lawjobs Featured Ad
Foreclosure Litigation Attorney Boca Raton office of expanding firm seeks an Experienced Litigator w/ min. 3 yrs. exp. Excellent salary and benefits package.
E-mail scleary@
logs.com |
|
|
|
|
|
|
