CONCORD - There is a federal "law enforcement proceeding" going on at the Secure Psychiatric Unit at the men's prison, but state officials have not said what it involves or whether they know about it.
The revelation was made in a federal response to Rep. Renny Cushing's Freedom of Information Act request that he filed in May seeking information about a complaint he lodged two years ago alleging federal civil rights violations at the Secure Psychiatric Unit.
The letter to Cushing, a Hampton Democrat who has been demanding change at the controversial unit for years, was from Tink Cooper, acting chief of the Freedom of Information/Privacy Acts Branch in the U.S. Department of Justice's Civil Rights Division.
"The records you have requested pertain to an ongoing law enforcement proceeding," Cooper wrote in the letter dated Nov. 21. "After consideration of the responsive records, I have determined that access to the documents should be denied..., since disclosure thereof could reasonably be expected to interfere with law enforcement proceedings."
Attorney General Gordon MacDonald has not responded to requests for more information, and Corrections Commissioner Helen Hanks declined to comment, referring questions to the Attorney General's Office. Gov. Chris Sununu also didn't respond to a request for details about the law enforcement proceeding.
Cushing was surprised by the federal disclosure.
"So, we filed a complaint with the Civil Rights Division about the SPU, hear nothing from the Department of Justice for two years, and then when I file a request to know what is being done, I am denied my Freedom of Information Act request because there is an 'ongoing law enforcement proceeding' and telling me what is being done in response to our complaint could 'reasonably be expected to interfere with law enforcement proceedings.'"
Cushing has long opposed the state's policy of locking up mentally ill people who haven't committed a crime in the state prison's Secure Psychiatric Unit because they are deemed too dangerous to themselves or others to be housed at the state's psychiatric hospital.
Beatrice Coulter, who co-founded with Wanda Duryea the group Advocates for Ethical Mental Health Treatment, said the need for a sea change in policy and culture at the Department of Corrections is long overdue.
"This is a significant development. Such information should serve as a
call to action by both the legislature and Gov. Sununu. DOC
needs to be subject to stringent oversight and accountability," Coulter said.
Cushing coincidentally received a ltetter last week from John M. Gore, acting assistant attorney general in the U.S. Civil Rights Division to U.S. Rep. Carol Shea-Porter who had sought information for Cushing about his civil rights complaint.
Gore told Shea-Porter that his department is actively participating in the class action lawsuit Amanda D. v. Sununu; United States v. New Hampshire.
According to the settlement agreement in that case, "the state is to provide intensive community services through mobile crisis and assertive community treatment teams to help de-escalate crises and to address individualized needs onsite in community settings, without the need to transfer people to the New Hampshire Hospital or the Secure Psychiatric Unit," Gore wrote.
Charles Mealer died at the age of 47 on June 15, 2015, while a patient at the Secure Psychiatric Unit.
Mealer committed suicide by hording medication he was prescribed while he was a patient, according to Manchester Attorney Larry Vogelman.
Vogelman, who represented Mealer's family, said the state settled a lawsuit he filed on behalf of Mealer's estate a few months ago without admitting fault.
Vogelman said he wasn't immediately sure of the amount of the financial settlement, but said the state agreed to the changes he proposed to formalize changes in how medication is dispensed at the unit. The state didn't respond to requests for the settlement amount.
"One of the major (contentions) in the Mealer case is the state was alleging (the Secure Psychiatric Unit) is a prison so they don't have to do what hospitals do, but when they testify in front of the legislature, they say it is a hospital, not a prison," Vogelman said.
"They never formally admitted it, but it was was our contention that he horded the medication and that's how he killed himself," Vogelman said. "Factually they have to admit it was medication that he was prescribed because the autopsy showed that was what killed him."
The lawsuit claimed Mealer's death was caused by "acute amitriptyline intoxication," a drug he was being prescribed at the time. The medication procedures the state adopted in the settlement include having someone watch the patient take and swallow the medicine, and have the same person who sorts the medication also deliver it to the patient, Vogelman said.
Vogelman also represents the estate of Phillip Borcuk, who was 34 when he died at the Residential Treatment Unit, which is upstairs from the Secure Psychiatric Unit at the men's prison.
The Residential Treatment Unit is described as a specialized unit for inmates with mental illness who are unable to function in the general inmate population.
A news release last year from the Department of Corrections said Borcuk was mentally ill and died Dec. 6, 2017 alone in his cell due to self-injurious behavior. The state has not released the cause of his death.
Vogelman said he is still gathering information in Borcuk's lawsuit. The Disability Rights Center opened an investigation into Borcuk's death and filed in federal court earlier this year seeking timely release of information about his death from the Department of Corrections.
The attorney involved in that case, Andrew Milne, couldn't be reached for comment on Tuesday.
Nancy West of InDepthNH.org covers statewide issues for The Rochester Voice.