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Steve J. Martin Testimony Day 3 and Joy Jay Testimony

Continuation of cross examination of S.J. Martin

Martin was questioned by the defendant’s attorney:

Q: Compared with the risk of harming self with knife, the gas is the lesser of two evils, isn’t it?

Yes, but the question is why did they wait 3.5 hours to ameliorate the risk?

Martin continued to emphasize that he is not against the use of gas by saying, “On the record, I have not criticized the need to use in this particular case some level of force; what I’m critical about is the amount of chemical agent deployed.”

The Defense countered that even more had been used on others with no effect.

Regarding Martin’s concerns about use of the restraint chair, he was adamant about the fact that it should only be used for the least amount of time to obtain control, and said that the “primary issue is that it was used as a rule for a minimum of four hours or more -- that and it was used in the spread eagle position.”

The defense countered by asking “if there is some degree of risk of harm the lesser of the two evils is to keep the inmate in the chair longer than letting go too soon.”

Martin answered that was true, but when asked if he sees the crucifix position at other institutions, he answered no.

When asked whether it presented a lesser risk of harm to use gas or the restraint chair than to allow the inmate to continue to cut or harm himself, Martin replied, “Am I to take that as the only two options? I don’t believe that is appropriate to state it that way.”

He stated that “When you are analyzing use of force, that is the dilemma – not reducing it to the lesser of two evils… that is not the appropriate analysis.

He continued, “That analysis starts with whether alternate measures could be employed; then if there is a need to use any force and would proceed from that point through what the minimum amount of force would be.”

1)      Mentally ill inmates – by definition and class – you need to gauge effectiveness of spray on the inmate; it might be contraindicated or ineffective because he is psychotic.

2)      It is pedestrian thinking to say “if a little didn’t work, more must be better.”

3)      These are all tactical weapons intended to incapacitate aggression – intervention is to neutralize the behavior; not to cause pain or punish.

Regarding the extremely large doses of OC spray used in the SCDC, Martin testified that according to the N.C. Medical Journal, “Dangers caused it to cease to be used in training programs”

He stated that he took exception to the defense characterization of the spray as “mild,” because it can cause ocular damage; pulmonary edema and other medical issues. It “increases risk substantially to be exposed to OC spray,” Martin said. He also said it concerned him that the studies being used to justify the spray were based on applications that he says are far removed from the amounts used by SCDC.

When asked “Have you ever seen the use of OC spray to the extent you have seen used in your visits to other states as you have in S.C., he replied, “I know of no instance that I recall when they used more than a third or fourth half-second application of a burst. In New York, where OC spray was frequently used, I don’t recall a case of more than 1 or 2 ounces used (the equivalent of 56 grams).

Data supplied by the SCDC, evaluated by Martin through records and video, showed amounts between 200 and 400 grams used, which he said were far over recommended amounts.

He also found instances where SCDC “records were tampered with and falsified; which makes it questionable."

Martin indicated that a lack of charges of excessive force was a “red flag” that something is wrong systemically at SCDC.

“A system of this size (mid-size setting with 23K inmates)  even with a well-trained and supervised staff, you will have instances of excessive force – it is the nature of the beast  - we are humans and they occur; you cannot find a system that does not have a few,” he said. “It is a huge red flag when reports contain no cases of use of excessive force.

He said it is a “huge consideration if the instances where the parties were excessive and they were left untended and not sent for review or action, then the risk is substantial for abuse [because] in every instance identified pattern and practices of use of excessive force – that fact is confirmed – practices that have been left unchecked and uninvestigated and unmanaged whether through a culture of silence or a culture of understanding – there are clear cases where excessive force are left unattended.

“The cases I selected were fair representations of cases – I did not cherry-pick these examples. Counsel had access to the documents – in fact, they provided the documents.”

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Afternoon session: Ms. Joy Jay, M.Ed., Executive Director of the S.C. Chapter of Mental Health America will testify for the plaintiffs.

Ms. Jay has a special education bachelors’ degree and an M.Ed. in counseling; much training and experience in the mental health field (34 years). Started in 1978 in children’s’ programs; later worked with chronically mentally ill adults.

Joy Jay describes the many challenges mentally ill individuals face on a daily basis.

She described what she does to try to assess their illness; what type; how symptomatic; medications; their understanding of medications; if they are compliant; where they were before jail in order to make best placement when they come out.

Jay interviewed 50-60 inmates at Perry and Graham to determine what services they receive. She noted that many of the clients that used to be served outside are now in prisons.

She assessed:

1 – If they could name their illness; what meds they were on for their illness;

2 - If they had been treated for mental illness before prison;

3 - What kind of individual or group therapy they were receiving in prison;

4 - Symptoms of their illness; and

5 - How they felt prison was affecting their illness.

Jay said “We would talk to the inmate at length about what they thought their treatment had been and what they were getting or not getting for treatment. Always the goal is to do a treatment plan for that client; and have it written up that he understands and is a part of it, so you can successfully treat someone with mental illness.”

She said “All but two felt they did not have access to their counselor; they felt as if there was little or no privacy with their counselors; that there was lots of turnover in staff; and were no counselors at Perry for a time. Group counseling was rarely offered, which I think is critical in this setting. I felt there was very poor discharge planning; the treatment planning was the most outrageous.”

She said these clients could not follow their treatment plan because they didn’t know they had one. She said “When someone is openly psychotic, they are not getting what they need as far as treatment. Delusions and voices indicate one is not in touch with reality. Those people need immediate services; sometimes hospitalization. I felt as if they were getting little or no counseling services; based on their lack of knowledge of mental health - even basic knowledge.”

Jay said when she asked one social worker about her client’s discharge plan, she said “we’ll just not worry about it; we’ll call his daughter when he’s ready to get out.”

Jay said she was concerned because of the inmate’s anxiety disorder. Jay testified that she herself got him into a hospital upon discharge – felt as if he’d be returned to prison if he didn’t have support; It was setting him up to fail. Jay went to the prison and picked him up and took him herself to the hospital, and noted he is now a member of the community. Jay recommended that counselors should start calling to set things up six months in advance.

She said she had gotten a grant that offered support for those services to SCDC staff, but no one took advantage and the grant funding expired.