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Cripa Oahu Corr Ctr Hi Investigation Findings 3-14-07

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U.S. Department of Justice
Civil Rights Division

Assistant Attorney General
950 Pennsylvania Avenue, NW - RFK
Washington, DC 20530

March 14, 2007
The Honorable Linda Lingle
Governor of Hawaii
State Capitol
Honolulu, Hawaii 96813
Re:

Oahu Community Correctional Center

Dear Governor Lingle:
I am writing to report the findings of the Civil Rights
Division’s investigation of conditions and practices of mental
health care at the Oahu Community Correctional Center (“OCCC” or
“Jail”) in Honolulu, Hawaii. On June 16, 2005, we notified you
of our intent to investigate conditions of mental health care
provided to detainees and inmates at OCCC pursuant to the Civil
Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C.
§ 1997. CRIPA gives the Department of Justice authority to seek
remedies for any pattern or practice conduct that violates the
constitutional rights of persons with mental illness who are
detained in public institutions. We focused our investigation on
the nature of services to detainees1 at OCCC with mental illness.
On October 11 - 14, 2005, we conducted an on-site inspection
of OCCC with experts in the field of correctional mental health
care. While on-site, we interviewed administrative and security
staff, mental health care providers, and detainees. We also
reviewed a large number of documents, including policies and
procedures, incident reports, internal communication logs and
medical records. In keeping with our pledge to share information
and to provide technical assistance where appropriate regarding
our investigatory findings, at the close of our tour, we met with
several state and OCCC officials and discussed the preliminary
findings of our tour. Among others, present at this meeting were

1

OCCC houses mainly pre-trial detainees. However, the
facility also houses post-adjudication inmates. For the purpose
of this letter, both groups will be referred to as detainees.
Further, all examples noted in this letter refer to detainees
housed on OCCC’s mental health modules.
1


the Attorney General, Mark Bennett; Interim Director of the
Department of Public Safety, Frank Lopez; OCCC Warden Nolan
Espinola; other counsel for Hawaii, and OCCC mental health staff.
We appreciate the full cooperation we received from OCCC and
state officials throughout our investigation. We also wish to
extend our appreciation to the staff and administrators at OCCC
for their professional conduct and timely response to our
document requests.
Having completed our investigation of OCCC, and consistent
with our statutory obligations under CRIPA, I write to advise you
formally of the findings of our investigation, the facts
supporting them, and the minimal remedial measures that are
necessary to ensure that OCCC meets minimal federal
constitutional standards. 42 U.S.C. § 1997b(a). Specifically,
we conclude that certain conditions at the Jail violate the
constitutional rights of the detainees confined there and subject
those detainees to harm and risk of harm. As detailed below, we
find that OCCC: (1) subjects detainees with mental illness to
harmful methods of isolation, seclusion and restraint, including
a procedure referred to as “therapeutic lockdown;” (2) fails to
provide adequate treatment or therapy programs and services;
(3) fails to monitor adequately detainees while isolated or
secluded, including while on suicide watch; (4) fails to employ
sufficient mental health staff and clinical structures to care
adequately for detainees; (5) fails to have adequate policies,
procedures, and quality assurance structures in place to direct
the delivery of mental health services; and (6) fails to ensure
adequate planning is done upon detainees’ discharge from OCCC.
These deficiencies expose detainees to the risk of serious harm
and have, in some cases, resulted in actual harm to detainees.
I. BACKGROUND
A. Description of OCCC
OCCC is the largest jail in Hawaii and is operated by the
Hawaii Department of Public Safety (“DPS”). OCCC has a design
capacity of 628 and an operational capacity of 954. On the first
day of our October tour, OCCC had a population of 1164, with just
under 1000 male and just over 100 female detainees. OCCC is the
reception center for Hawaii’s jail and prison system. The
facility is comprised of several “modules,” two-tiered pods
surrounding a day room. The Jail also has a 36-cell holding area
that serves as OCCC’s lockdown unit.

2


Modules 3 and 4 house male detainees with the most serious
mental illness.2 Many of the detainees are doubled-celled. At
the time of our visit, there were approximately 56 and 40
detainees residing in these modules, respectively.
Female detainees with the most serious mental illness are
housed in Module 8. Female detainees who exhibit suicidal or
threatening behavior are transferred to the state’s prison for
females, the Women’s Community Correctional Center (“WCCC”).
B. Legal Framework
CRIPA authorizes the Attorney General to investigate and
take appropriate action to enforce the constitutional rights of
detainees. 42 U.S.C. § 1997a. The Fourteenth Amendment Due
Process clause protects pre-trial detainees from being punished
or exposed to conditions or practices not reasonably related to
the legitimate governmental objectives of safety, order, and
security. Bell v. Wolfish, 441 U.S. 520, 535-36, 560-61 (1979).
Pre-trial detainees "retain at least those constitutional rights
. . . enjoyed by convicted prisoners [under the Eighth
Amendment]." Id. at 545. The Eighth Amendment’s prohibition
against cruel and unusual punishment also places an affirmative
duty on prison officials to provide humane conditions of
confinement, including access to adequate medical care. See
Farmer v. Brennan, 511 U.S. 825, 832 (1994); Estelle v. Gamble,
429 U.S. 97, 102-03 (1976). The Eighth Amendment is violated
when prison officials demonstrate “deliberate indifference to
serious medical needs.” Jackson v. McIntosh, 90 F.3d 330, 332
(9th Cir. 1996). Adequate medical care includes a duty to
provide adequate mental health care. Doty v. County of Lassen,
37 F.3d 540, 546 (9th Cir. 1994) (holding that “requirements for
mental health care are the same as those for physical health care
needs"); Hoptowit v. Ray 682 F.2d 1237, 1253 (9th Cir.
1982)(analyzing mental health care requirements as part of
analysis of general health care requirements).
Constitutional questions regarding the conditions of
confinement of pre-trial detainees are properly addressed under
the Due Process clause of the Fourteenth Amendment, rather than
under the Eighth Amendment's protection against cruel and unusual
2

The male detainees with the most serious mental illness
are housed in Module 4. Module 3 serves as a step-down unit for
detainees with less serious mental illness or a less-acute
status.

3

punishment, but the guarantees of the Eighth Amendment provide a
minimum standard of care for determining their rights, including
the rights to medical and psychiatric care. Gibson v. County of
Washoe, Nevada, 290 F.3d 1175, 1187 (9th. Cir. 2002); Carnell v.
Grimm, 74 F.3d 977, 979 (9th Cir. 1996); Jones v. Johnson, 781
F.2d 769, 771 (9th Cir. 1986). In addressing the
constitutionally minimal standards for mental health care in a
prison, the district court in Coleman v. Wilson, 912 F. Supp.
1282, 1298 n.10 (E.D. Cal. 1995), held that prisons must have:
(1) a systematic program for screening and
evaluating inmates to identify those in need
of mental health care; (2) a treatment
program that involves more than segregation
and close supervision of mentally ill
inmates; (3) employment of a sufficient
number of trained mental health
professionals; (4) maintenance of accurate,
complete and confidential mental health
treatment records; (5) administration of
psychotropic medication only with appropriate
supervision and periodic evaluation; and
(6) a basic program to identify, treat, and
supervise inmates at risk for suicide.
As discussed below, the State frequently acts at odds with
these legal standards.
II. FINDINGS
A. 	 OCCC subjects detainees with mental illness to harmful
methods of isolation, seclusion, and restraint.
Jail officials violate the constitutional rights of
detainees when officials exhibit deliberate indifference to the
serious medical needs, including mental health needs, of
detainees. Doty, 37 F.3d at 546; Hoptowit, 682 F.2d at 1253. In
the absence of adequate mental health treatments to control the
psychosis-related behavior of detainees, OCCC improperly relies
on a practice it defines as "therapeutic lockdown" ("TLD"). In
essence, TLD is the unorthodox use of long-term seclusion in
which a detainee is isolated in his or her cell and denied any
staff interaction, including contact with mental health staff.
The use of lockdown as an alternative to mental health care
constitutes deliberate indifference to the serious mental health
needs of detainees. See also Arnold on Behalf of H.B. v. Lewis,
803 F. Supp. 246, 255-8 (D. Ariz. 1992), rev’d on other grounds
4


Lewis v. Casey, 518 U.S. 343 (1996).
OCCC’s policy calls for the use of TLD whenever a detainee
becomes “consistently disruptive to their housing environment or
become[s] a physical threat to others...”3 Not only is a
detainee isolated while on TLD, but a detainee on TLD is also
denied potentially helpful interventions or contacts. For
example, according to OCCC’s policy, the detainee “will be
allowed no privileges (e.g., reading materials, cigarettes or
social interaction with staff or detainees) while on TLD.”
Mental illness often manifests itself in disruptive
behaviors and/or the inability to maintain appropriate behavior.
Mental illness-induced behaviors can escalate to the point where
the behaviors pose a threat to the individual and to others
around the person. Because we focused our tour on the units
housing individuals with mental illness, the detainees subjected
to TLD noted in this letter were detainees with mental illness.4
Thus, detainees on TLD, in accordance with facility policy,
are denied a constitutionally mandated right: access to mental
health care and staff. Further, TLD is used without the proper
safeguards normally associated with the use of seclusion, such as
intensive monitoring of the individual while in seclusion.
There is nothing "therapeutic" about OCCC’s use of
“therapeutic lock-down.” OCCC’s use of TLD harms detainees in
that it often exacerbates the effects of detainees’ illnesses.
Casey, 834. F. Supp. at 1548-9. In part, because of the risks
associated with secluding an individual with mental illness,
seclusion is not recognized as a treatment intervention.5

3

DPS Policy No. COR. 10D.27.

4

As noted earlier, because we focused our review on
detainees with mental illness, we are offer no opinion on the use
of TLD as a potential disciplinary mechanism for detainees who do
not have a mental illness.
5

See e.g., October 29, 2002 Statement of the National
Association of State Mental Health Program Directors (“NASMHPD”).
NASMHPD is an organization made up of directors of state public
mental healths systems. The Statement contains the following:
“Because restraints and seclusion always carry significant risk
of injury - both physical and psychological - we . . . emphasize
that such interventions, on the rare occasions they are used,
must be terminated as soon as possible.” Further, the Statement
5


TLD, as used at OCCC, without privileges and social contacts
for the detainees, can exacerbate a detainee’s symptoms and
impede a detainee’s recovery from his or her mental illness.
There was simply no discernable treatment provided to detainees
on TLD except for psychotropic medications.
Detainees on TLD were reportedly on TLD for days to weeks at
a time. We reviewed the records of numerous male and female
detainees with mental illness who had been placed on TLD in the
months preceding our tour. Detainees were often placed on TLD
without adequate justification and often in contradiction to
their clinical status. This practice is problematic because to
take an individual suffering from depression and then seclude and
isolate that person would almost guarantee an increase and
worsening of depressive symptomatology.
The following examples illustrate how OCCC uses TLD on
detainees with mental illness in harmful and potentially harmful
ways.
‚ Detainee 16 - This 41-year-old man had a history of
schizophrenia, with multiple hospitalizations and a suicide
attempt. He had been on TLD for approximately 10 days at the
time of our tour. He was still actively psychotic when we
interviewed him. This detainee was not receiving
constitutionally required treatment because, despite his obvious
need for treatment, this detainee had been locked down in his
cell (on TLD) for an extended period of time without any type of
psychosocial rehabilitation interventions or regular assessments
by mental health staff.
Ë Detainee 2 - This 45-year-old man had a history of
post-traumatic stress disorder related to childhood sexual abuse.
He had also been reporting auditory hallucinations and was taking
anti-depressant medications. During his incarceration, he had
been placed on TLD and suicide watch. During the approximately
two weeks the detainee was on TLD, there was no evidence he was

also refers to the position taken by NASMHPD in 1999 declaring
that restraint and seclusion “are safety interventions of last
resort and are not treatment interventions.”
6

Throughout this letter, when referring to a specific
detainee, we use the term “Detainee” followed by a number to
protect the identity of the detainees. We will provide to the
State, under separate cover, a key to identify the detainees
referenced in this letter.
6


seen by a mental health professional. It is our expert's opinion
that the use of TLD on this detainee likely exacerbated the
effects of his mental illness and increased his depression and
aggression.
Ë Detainee 3 - This 29-year-old man had been at OCCC for
approximately six months at the time of our tour. He had a
history of schizophrenia and reported feeling depressed and
suffering from auditory hallucinations. He had been placed on
TLD several times during his incarceration. Our review of his
records indicate that his only form of treatment was medication
management. This detainee was in need of a more comprehensive
therapeutic treatment approach than mere medication. Moreover,
his placement on TLD likely contributed to the exacerbation of
his psychotic symptoms.
Ë Detainee 4 - This female detainee had multiple
incarcerations at OCCC with intermittent transfers to WCCC and a
history of inpatient psychiatric hospitalization. She had a
further history of significant psychiatric symptoms, including
auditory hallucinations and delusional thinking. She had been
placed in TLD while at OCCC. The use of TLD harmed this detainee
by placing her in seclusion without adequate monitoring or
therapeutic contact.
Ë Detainee 5 - This female detainee had multiple
incarcerations at OCCC. She was diagnosed with a possible
delusional disorder and a seizure disorder. She also exhibited
signs of paranoia, and had a history of altercations with staff
and other detainees. Additionally, she frequently would not take
her medication, the possible result of her paranoia. She was
subjected to TLD by OCCC. Inadequate care resulted in her
increased psychosis, and OCCC’s response to this detainee’s
worsening condition was to seclude her by placing her in TLD,
again without adequate monitoring or therapeutic contact by
staff.
Ë Detainee 6 - This female detainee had been exhibiting
delusional thinking, auditory hallucinations, and hostile
behavior towards staff. She had been placed on TLD for over
three weeks. She was transferred to WCCC with suicidal ideation
and paranoia. She was returned to OCCC only two days later and
continued to exhibit disorganized behavior and hostility toward
others. She was again placed in seclusion, where she became more
withdrawn and noncompliant. At OCCC, she remained psychotic and
her condition decompensated. According to our consultants, the
effects of her mental illness were exacerbated by OCCC’s use of
seclusion and TLD because she was not monitored adequately, not
7


provided necessary treatment, or assessed adequately for suicide
risk. This is also an example of a detainee who needed a level
of intensive psychiatric care not available at OCCC.
OCCC’s use of TLD on detainees with mental illness amounts
to punishment and is therefore unconstitutional. Bell, 441 U.S.
at 535-37, 560-61. In fact, we found evidence of staff
threatening detainees with the use of TLD.
For example, in an internal communication log-book
maintained by OCCC staff, a notation indicates that a detainee
was “warned to behave or he would be placed on TLD.” At best,
this indicates a fundamental failure to understand that an
individual with mental illness often lacks the capacity to be
able to chose to “behave.” At worst, it indicates a punitive use
of TLD. In another incident it was noted that a detainee “took
an attitude so [we] placed him in TLD.” Another detainee who was
obstructing a security camera was also “warned” about being
placed on TLD. Still another notation read: “[w]e have TLD and
4 point [the practice of physically restraining a person to a bed
and securing them to the bed, usually at the ankles and wrists]
orders on them in case they act up.” (Emphasis added) OCCC is
using a practice identified as “therapeutic” lockdown as
punishment. Using lockdown as punishment for actions that are
often the result of mental illness violates the constitutional
rights of detainees. Casey, 834 F. Supp. at 1549-50; Arnold on
Behalf of H.B. v. Lewis, 803 F. Supp. at 257-58.
OCCC also employs harmful and professionally unjustifiable
seclusion on detainees by the manner in which the facility places
and maintains detainees on “suicide watch.” Suicide watch at
OCCC involves placing a detainee isolated and alone in a single
cell. This use of TLD violates the constitutional rights of OCCC
detainees in two ways. First, all detainees placed on suicide
watch are isolated without adequate supervision and monitoring.
Second, for those detainees with a mental illness who are
isolated in this manner, the detainee’s mental health status is
not timely assessed and reassessed by a mental health clinician
or other provider of mental health services. This form of
isolation often leads to a worsening of a detainee’s mental
illness. Constitutionally minimum standards require jails to
have a program to “identify, treat, and supervise” detainees at
risk of suicide. Coleman, 912 F. Supp. at 1298 n. 10. OCCC’s
use of TLD does not provide for the “treatment” or “supervision”
required by the Coleman standards.
For example, we reviewed the records of a 34-year-old male
detainee who was transferred to OCCC from another Hawaii
correctional facility. He was placed on suicide watch after he
attempted suicide by cutting his throat. He was noted to be
8


depressed and only partially compliant with his medications.
This detainee was still on suicide watch during our expert’s
interview, a period of 16 days after placement. During the
interview, the detainee was depressed and spent most of his time
wrapped in a blanket. Isolating and secluding this depressed
detainee for such a length of time, and without adequate contact
from therapy staff, was detrimental to the detainee’s mental
health and was likely exacerbating his depression. In addition,
our review of this detainee’s records revealed a delay in
initiating his needed medication – a further factor in his
decline.
Similarly, we assessed the appropriateness of OCCC isolating
another detainee – by admitting him directly to suicide watch
upon arrival to the facility. This detainee had several previous
admissions to OCCC, yet there was no explanation or written
justification in the detainee’s record as to why he was
immediately isolated and why there had not yet been an evaluation
of him at the time our expert interviewed him approximately 48
hours after he was placed on suicide watch.
OCCC’s policy concerning detainees on suicide watch states
that detainees “shall be assessed daily by a facility
‘provider.’” This “provider,” according to OCCC’s policy, must
be a psychiatrist, psychologist or medical doctor. However, our
records review and interviews with detainees demonstrated that
the providers were not following this policy and were not
assessing and monitoring suicide watch detainees in a timely
manner. While in isolation and on suicide watch, detainees do
not have sufficient contact with security and mental health staff
to provide constitutionally-required care.
For example, we evaluated one male detainee who had a
history of schizophrenia requiring in-patient hospitalization.
Upon a recent prior admission to OCCC, he was described as
“completely incoherent.” He was released less than two weeks
later, only to be re-incarcerated shortly before our tour. He
was placed on suicide watch, where he was at the time of our
tour. There was no justification recorded as to why he was on
suicide watch and no progress notes had been made during that
time. During our tour, one of our experts interviewed this
detainee. At that time, the detainee was still obviously
seriously mentally ill. Secluding and isolating this detainee 23
hours a day was worsening his condition. This detainee is also
another example of an individual who needed a more intensive
level of psychiatric care than is available at OCCC.
Once on suicide watch, detainees are locked in their cells
23 hours out of the day until released by either a psychiatrist
or psychologist. We found individuals who have languished in
9


this status for days without even a rudimentary reevaluation
suicidal ideation or intent.
Generally accepted correctional practice requires adequate
monitoring of suicidal detainees.7 However, OCCC detainees are
not monitored adequately while they are on suicide watch. We
reviewed numerous instances where detainees, both on TLD and
suicide watch, injured themselves due to psychosis-related
behavior while isolated and secluded. For example, a detainee on
suicide watch was “using his head to pound on the door w/sudden
delusional excitement.” Another inmate on suicide watch was
using his blanket “as a cushion when he slams into the door.”
OCCC’s response to this incident was to take the detainee’s
blanket away. Another detainee on TLD was described as
“pounding, banging his door ... both feet appear to be very
swollen.”
Further, OCCC admitted that the facility does not follow its
own policy regarding physician assessments that are supposed to
occur when a detainee is placed into restraints. We found that
physicians do not provide appropriate guidelines for releasing
detainees from restraint and often wrote orders that called for
restraint on an “as needed” basis, which is a substantial
departure from accepted clinical practice. The monitoring of
detainees while in restraint was also inadequate. For example, a
female detainee who had been incarcerated multiple times at OCCC
and suffered from severe psychosis, was both restrained and
isolated at various times without adequate clinical monitoring
(e.g., range of motion, toileting) or clinical contact, which
resulted in a worsening of her psychotic symptoms. We also came
across examples of inmates harming themselves while in restraint,
such as a notation that a detainee was "banging [his] head
violently" while in restraints.
B. 	 OCCC fails to provide detainees with constitutionally
adequate mental health treatment or therapy programs
and services.
Jails such as OCCC are constitutionally required to provide
mental health services to detainees. Madrid v. Gomez, et al.,
889 F.Supp. 1146, 1255-6 (N.D. Cal. 1995). Timely mental health
treatment is essential to minimize decompensation and to ensure
that adequate services are provided. Detainees with mental
7

See e.g., the American Psychiatric Association
standards of mental health services in jails which require
adequate monitoring of suicidal detainees. American Psychiatric
Association, Psychiatric Services in Jails and Prisons, 2nd
Edition, Part 1, VIII at 14-15.
10


illness at OCCC do not receive adequate levels of mental health
care. There are significant deficiencies in the mental health
treatment programs and services for OCCC detainees. Detainees
are not provided treatment programs or the range of treatment
modalities, including psycho-social rehabilitation services,
needed to address their illnesses. As a result of not providing
access to needed levels of care, and as noted above, OCCC resorts
to the harmful use of seclusion to address detainees’
psychosis-induced behavior. OCCC also fails to provide adequate
discharge services to detainees, increasing the detainee’s risk
of re-incarceration.
1. 	 OCCC does not adequately assess or address detainee’s
mental health needs.
Along with assessing the manner in which OCCC treated its
detainees with mental illness, we also examined the facility’s
ability to assess detainees with potential mental illnesses.
Assessment is a critical component of a constitutionally-adequate
mental health program. Coleman, 912 F. Supp. at 1298 n. 10. In
general, we found that OCCC usually was able to identify
detainees who may have mental health issues, however, we did note
gaps in OCCC’s ability to consistently do so. Upon entering
OCCC, detainees are assessed by health care staff via video
monitors. This system, however, has inherent weaknesses. We
observed the assessment process at work. We also interviewed
detainees who had potential mental health concerns that the OCCC
video system failed to identify. For example, upon admission to
OCCC, one detainee was experiencing serious hand tremors.8
However, the staff member who assessed this detainee via the
monitors was unable to see the detainee’s hands and therefore
missed this potentially serious issue. Further, when detainees
are interviewed by staff, the physical layout of the facility
does not provide auditory privacy. Thus, it is possible that
detainees may not reveal critical information about their mental
health history because of the lack of privacy.
Further, we found no detainee medical record with an
adequate description of what and how mental health treatment
services were to be provided for any OCCC detainee. In the
absence of sufficient documentation, OCCC providers are left
without an adequate understanding of a detainee’s course of
treatment or clinical response to treatment. Also, detainees are
not routinely followed by the psychiatric social workers

8

Hand tremors could be the result of a variety of
serious health issues, including potential substance abuse and
the possible reaction of an individual’s not receiving a needed
medication.
11


responsible for monitoring their treatment. OCCC’s systemic
failure to follow and monitor detainees with a mental illness is
contrary to generally accepted correctional practice. As a
result, we encountered detainees who were in need of treatment
but who were essentially untreated.
2. OCCC does not provide detainees with an adequate scope or
needed intensity of treatment therapies or services.
Constitutional deficiencies exist where pre-trial detainees
are provided insufficient mental health programming. Casey, 834
F. Supp. at 1548, 1550. Treatment modalities at OCCC are very
limited. There was no group therapy taking place. Individual
counseling was an exception rather than a rule. Other treatment
modalities were limited to little more than observation and
monitoring. These non-medication treatment therapies are
essential in the treatment of mental illness because medication
therapy alone is professionally recognized as not being
sufficient as the only treatment modality for persons with
serious mental illnesses. For example, the American Psychiatric
Association practice guideline for the treatment of schizophrenia
recommends treatment that includes both psychotropic medication
and psychosocial and rehabilitative interventions. OCCC does not
provide these needed treatments to detainees with schizophrenia
or other serious mental illnesses.
The Ninth Circuit has ruled that, if a facility can not meet
the needs of detainees, then the facility must refer the detainee
to an another source of care. Hoptowit, 682 F.2d at 1253;
Casey, 834 F. Supp. at 1550. We noted that there were very few
instances of OCCC transferring seriously mentally ill detainees
who needed more intensive mental health services than that
available at OCCC from OCCC to the state’s inpatient facility,
the Hawaii State Hospital (“HSH”). Given the limited health
services provided at OCCC, it is essential that detainees have
access to more intensive mental health services as needed. This
inability to access intensive psychiatric care was particularly
problematic for women detainees.
The following examples are illustrative of the detrimental
effects of OCCC’s lack of effective treatment and limited range
of therapy services.
Ë Detainee 7 - This is a female detainee who was
incarcerated most recently at OCCC one month prior to our tour.
She was diagnosed with schizophrenia and obsessive compulsive
disorder and had a history of inpatient hospitalizations,
including a recent escape from the HSH. She was transferred to
the State’s women’s prison, the Women’s Community Correctional
Center (“WCCC”), a few days later, after she verbalized suicidal
12


ideations and cut her arm. She was returned from WCCC the
following day, still experiencing psychotic symptoms, including
auditory hallucinations. Throughout her stay at OCCC, this
detainee continued to exhibit active and serious psychotic
symptoms. According to our expert, this detainee clearly needed
more aggressive mental health therapies than she was receiving
from OCCC. The lack of these services resulted in the detainee's
continued suffering the effects of her mental illness. This
detainee could have also benefitted from placement in an
inpatient psychiatric setting. This detainee was among a number
of detainees, particularly females, who appeared to need an
inpatient level of care that was not being provided.
Ë Detainee 8 - This female detainee had been at OCCC for
approximately one week prior to our tour. During intake, she was
unable to be interviewed because she was experiencing
disorganized thinking, lability (a physical or chemical
breakdown), and auditory hallucinations. She was also having
suicidal thoughts. During our interview with her, she was
overtly psychotic and was reported by OCCC staff to have
occasional suicidal ideations, pressured speech and marked
lability. These symptoms suggested an inadequately treated
psychosis. According to our expert, the treatment provided to
this detainee was not adequate because there was inadequate
assessment of her suicide risk and she was in need of more
intense psychiatric care, including possible inpatient treatment,
than she was receiving. These deficiencies resulted in her
exacerbated psychotic symptoms and recurrent suicidal ideations.
Ë Detainee 9 - This female detainee, diagnosed with bipolar
disorder, has had multiple incarcerations at OCCC, and a history
of inpatient hospitalizations as well. During her earlier
admissions to OCCC (two in 2005), she had been involuntarily
medicated and restrained. At the time of our tour, she had been
at OCCC just under a week. She was hostile, agitated, psychotic,
destructive, and was transferred back and forth from WCCC for
suicide watch. This detainee was not treated or monitored
adequately despite her dangerous and threatening behaviors. She
was placed in restraints pursuant to a physician’s order that
gave discretion to security staff as to when to place the
detainee in restraints. In our experts’ view this represents a
substantial departure from generally accepted corrections
practice and standards. Generally accepted professional
standards of care require that restraints be applied only under
specific circumstances of risk to self or others. There was
inadequate clinical justification for the use of restraint and
seclusion, and inadequate monitoring while she was in restraints.
This situation also represents a case of OCCC’s not providing
adequate discharge planning during her previous stays. She

13


needed an intensive level of post-release services that might
have prevented her re-incarceration.
Ë Detainee 10 - This detainee was also admitted directly to
suicide watch upon admittance to OCCC (a week prior to our tour).
He’d had five prior admissions to the facility, including a oneweek stay a few months earlier. There was no explanation or
written justification in the detainee’s record as to why he was
immediately isolated and there had not yet been an evaluation of
him at the time our expert interviewed him. It is a serious
violation of professional standards to subject detainees to
isolation without adequately recording the detainees progress or
conducting at least daily evaluations.
In the absence of adequate non-medication therapies, OCCC
relies on psychotropic medication as its primary treatment
intervention. The Coleman standard requires psychotropic
medication be used with “appropriate supervision.” We uncovered
numerous and repeated instances of psychotropic medications being
used, not as a part of a treatment plan addressing a detainee’s
mental illness, but as chemical restraints to control a
detainee’s unruly behavior. For example, in one instance, a
detainee with mental illness began “pounding on his door, [and]
disturbing the whole module.” The staff’s response was to call
the Health Care Unit and a nurse came to the module and gave the
detainee “an injection.” In another incident, a detainee was
given Haldol (a powerful psychotropic medication). It was noted
the detainee “appears agitated.” Another detainee was given “a
shot to calm him down.” We came across other examples of
detainees being medicated after they became “agitated.” Such use
of psychotropic medication constitutes chemical restraint, and is
a violation of detainees’ constitutional rights.
We also found evidence that psychotropic medications were
being used as punishment. For example, we found the following
notation in the staff’s communication book:
“Notified [Health Care Unit] of [detainee] and his
total disregard for other inmates. Has order for a
cocktail shot,9 but nurse wants to be nice and give
[detainee] some Tylenol. Anymore outbursts - he’ll
definitely get a shot.”

9

During our investigation of OCCC, we were told that the
phrase “cocktail shot” is a local euphemism for an injection of a
combination of psychotropic medications intended for use as a
chemical restraint.
14


Using psychotropic medication as punishment is unconstitutional.
Bell, 441 U.S. at 535-37, 560-61.
3. 	 OCCC fails to employ sufficient mental health staff,
provide adequate supervision for its staff and operate
in accordance with current policies and procedures.
Jails such as OCCC must employ a sufficient number of
trained mental health professionals to ensure the presence of an
adequate mental health delivery system. Casey 834 F. Supp 1548
(citing Hoptowit, 682 F.2d at 1253); Coleman, 912 F. Supp. at
1298 n.10. A significant reason for many of the failures in
OCCC’s mental health service delivery system is the fact that the
Jail does not employ a sufficient number of adequately qualified
mental health staff to meet the needs of detainees. At the time
of our tour, there were two psychiatrists serving OCCC. However,
one was at the facility only half-time, the other less than that,
equaling less than one full-time equivalent psychiatrist serving
the Jail.
According to the APA guidelines, the recommended staffing
for psychiatrists in jails that serve between 75 and 100
detainees with serious mental illness who are receiving
psychotropic medication is one-full time psychiatrist or the
equivalent. OCCC nursing staff reported to us that 217 detainees
were receiving psychotropic medications and the OCCC units
housing the detainees with the most serious mental illnesses
averaged a population of over 110 during the time of our tour.
Thus, OCCC employs only half of the APA-recommended number of
psychiatrists to serve its detainees with mental illness.
The lack of sufficient staff appears to be one reason that
detainees spend an inordinate amount of time restricted to their
cells. According to OCCC’s own documents, detainees often have to
remain in “lockdown” because there is not sufficient mental
health or correctional staff (Adult Correctional Officer - “ACO”)
to provide adequate supervision if the detainees were released
from their cells.
For example, we found repeated references in OCCC’s own
documents that the mental health units often operate on a status
known as “modified lockdown” due to an ACO shortages.10 At other
times a unit would simply be in "lockdown," again due to shortage

10

DPS Policy No. 7.08.79 - “Module Lockdown” - defines
“Modified Lockdown” as the lockdown of a module that affects up
to half of the module population. The policy allows Modified
Lockdown to be used when “sufficient staffing is not
available . . .”
15


of correctional staff. For example, there are notations in an
OCCC communication book stating that Module 4 is in “‘lockdown’
at this time due to short[age] of staff.” Similarly, we found
references to modules having to “run slow” as a result of lack of
staff. State representatives told us “run slow” refers to
adjusting a module away from normal practice because of the lack
of adequate staffing. Thus, the modules would not be able to
provide whatever otherwise limited activities that might have
been available to detainees with mental illness. Therefore, in
these instances, detainees are subjected to seclusion and/or
denied treatment opportunities as a result of OCCC’s lack of
adequate mental health and correctional staff.
Another major reason for the deficiencies in mental health
care at OCCC is that there are not adequate clinical leadership
or organizational structures in place at OCCC. For example, at
the time of our tour, there was no designated person in charge of
mental health services at OCCC. All mental health staff we spoke
with confirmed that the organizational structure of mental health
services was confusing and inconsistent. The person who was
serving as the Clinical Section Administrator did so only in an
administrative capacity. On our tour, we were told that DPS had
appointed an individual as Chief Psychiatrist for DPS. However,
this was a recent development and it was unclear how this change
would impact OCCC.
As a result of the absence of clinical leadership, a quality
assurance or quality improvement program at OCCC was essentially
nonexistent. Many of the issues we identified on our tour might
have been addressed and remedied had OCCC had adequate clinical
leadership and policies and procedures in place to identify and
correct gaps in services.
Further, OCCC’s policies and procedures relevant to mental
health services are either outdated or are not being followed.
For example, OCCC was violating its policy governing mental
health services (DPS Policy No. 10D.04 - “Mental Health
Services”) in a number of key ways. The policy requires the
development of “individual treatment programs with the goal of
stabilizing and achieving an optimal level of functioning” for
detainees in controlled or therapeutic housing. Our review of
OCCC records revealed that OCCC was not following its policy
regarding treatment plans as they are virtually nonexistent at
the Jail. Additionally, OCCC policies call for collaboration
between the psychiatrist and psychologist in the development of
mental health treatment services. This collaboration was not
being done.

16


C. 	 OCCC fails to provide detainees adequate discharge
services, increasing the likelihood of detainees being
re-incarcerated.
As a matter of technical assistance only, we want to raise a
concern regarding the manner in which some mentally ill detainees
leave OCCC. With few exceptions, discharge services, (e.g.,
discharge medications, linkage with community mental health
providers, initiating entitlements, housing, etc.), are not
provided for detainees upon discharge from OCCC.
According to the American Psychiatric Association,
professional standards and practice require that inmates in need
of mental health care at the time of release “be made known to
appropriate mental health service providers.”11 We were told
that OCCC was beginning to work with the State’s Adult Mental
Health Division (“AMHD”) to inform AMHD when detainees with
mental health issues are being released from OCCC. It is hoped
this coordination will assist detainees with accessing
post-release services.
As noted from the detainee examples set forth above, we
reviewed several detainee records of individuals with mental
illness who were incarcerated following a previous discharge, and
sometimes multiple discharges, from OCCC. Adequate links to
post-OCCC mental health services could serve to avoid future
incarcerations and provide for increased continuity of care.
We urge the State, AMHD and OCCC to consider and continue
their work to coordinate efforts to assist detainees in need of
mental health services to be able to access such services upon
discharge from the Jail.
III. RECOMMENDED REMEDIAL MEASURES
In order to address the constitutional deficiencies
identified above and protect the constitutional rights of
detainees, OCCC should implement, at a minimum, the following
measures:

11

American Psychiatric Association, Psychiatric Services
in Jails and Prisons, 2nd Edition, Part 2, II.C at 38. Further,
at least one federal court has noted the need for discharge
services. In Foster v. Fulton County, 223 F. Supp.2d 1301, 1310
(N.D.Ga. 2002) the court wrote that “without adequate planning
and medication upon their release from jail, mentally ill inmates
are more likely to be rearrested and reincarcerated within a
short period of time, usually on minor offenses such as criminal
trespass or public intoxication.”
17


1. Ensure that detainees are not placed in isolation or
seclusion in a manner that would pose an undue risk to the
detainee’s health and safety. Accordingly, OCCC should:
a. 	 cease the use of “therapeutic lockdown” as the practice
was employed during the time of our October 2005,
visit;
b. 	 ensure that any “lockdown” procedures are not used as
punishment for psychosis-related behavior or in lieu of
treatment or therapy;
c. 	 ensure that detainees placed on suicide watch are
assessed adequately, monitored appropriately to ensure
their health and safety, and released from suicide
watch as their clinical condition indicates according
to professional standards of care;
d. 	 ensure that any use of seclusion or restraint is only
used in accordance with generally accepted standards of
professional practice and that any seclusion or
restraint is adequately justified and documented; and
e.	

ensure detainees in seclusion or restraint are assessed
and monitored adequately and that restraint and
seclusion are not used as punishment or for convenience
of staff or in lieu of adequate staff availability.

2. Ensure that detainees are assessed adequately for mental
health needs and provided, where consistent with legitimate
security concerns, an appropriate, confidential environment for
assessment and counseling.
3. Develop and implement a mental health service program
that includes an adequate range of services, and ensures that
such services are monitored and revised as needed.
4. Ensure that detainees whose serious mental health needs
require more intensive mental health treatment than available at
OCCC are provided timely and appropriate access to either
inpatient hospitalization, or a service providing a similar level
of care.
5. Ensure that psychotropic medications are used only in
accordance with accepted professional judgment and standards, and
that medication is not used in lieu of lesser-intrusive

18


therapies, for the convenience of staff or as punishment, or as a
substitute for adequate staff.
6. Ensure the presence of an adequate number of mental
health professionals, including psychiatrists, psychologists,
psychiatrist social workers, and counselors, to meet adequately
the needs of detainees with serious mental illness, and to:
a. 	 ensure the presence of adequate clinical leadership
and supervision; and
b. 	 develop and adopt policies and procedures
and implement quality assurances measures to ensure
that the delivery of mental health services
comports with current standards of practice.
7. Ensure the presence of an adequate number of
correctional staff so that mental health services are not
negatively impacted by the lack of correctional staff to provide
security and supervision of mentally ill detainees.
8. Finally, as a matter of technical assistance, we ask the
State to consider, as appropriate and possible, providing
detainees with discharge plans and services that link detainees
to post-OCCC mental health services that could serve to avoid
future incarcerations and provide for appropriate continuity of
care should a detainee be re-admitted to OCCC.
During our exit conference, we were pleased that State
officials recognized many of the problems discussed in this
letter. In fact, on November 11, 2005, the State wrote to us and
set forth measures the State intended to take to address the
deficiencies at OCCC. Among other things, the State wrote it
would be developing an “action plan” to address the issues we
raised at the close of our tour. The letter also reported that
the State would be seeking funds from the legislature to provide
for additional mental health staff at OCCC. We commend the
State’s commitment to begin remedial efforts at OCCC on an
expedited basis.
In anticipation of continuing cooperation toward a shared
goal of achieving compliance with constitutional requirements, we
forwarded you our experts’ joint report on July 11, 2006.
Although the report is the experts’ work and does not necessarily
reflect the official conclusions of the Department of Justice,
their observations, analyses, and recommendations provide further
elaboration of the issues discussed above, and offer practical
assistance in addressing them.
19


Please note that this findings letter is a public document.
It will be posted on the Civil Rights Division’s website. While
we will provide a copy of this letter to any individual or entity
upon request, as a matter of courtesy, we will not post this
letter on the Civil Rights Division’s website until 10 calendar
days from the date of this letter.
In the unexpected event that the parties are unable to reach
a resolution regarding our concerns, we are obligated to advise
you that 49 days after receipt of this letter, the Attorney
General may institute a lawsuit pursuant to CRIPA to correct the
noted deficiencies. 42 U.S.C. § 1997b(a)(1). We have every
confidence that we will be able to reach an adequate resolution
to this case. The lawyers assigned to this matter will be
contacting your attorneys to discuss this matter in further
detail. If you have any questions regarding this letter, please
call Shanetta Y. Cutlar, Chief of the Civil Rights Division’s
Special Litigation Section, at (202) 514-0195.
Sincerely,

/s/ Wan J. Kim
Wan J. Kim
Assistant Attorney General
cc: Honorable Mark Bennett, Esq.
Attorney General
State of Hawaii
Nolan Espinola
Warden
Oahu Community Correctional Center
Frank Lopez
Interim Director
Department of Public Safety
Ed Kubo, Esq.
United States Attorney
District of Hawaii

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