Disability Rights Lawsuit Seeks Answers in N.H. Inmate's Death

Feb 21, 2018

New Hampshire State Prison, Department of Corrections
Credit NHPR File Photo

Late last year, a 34-year-old man died alone in his cell at the state prison for men in Concord. He was in the prison's residential treatment unit, which houses inmates with a mental illness who are unable to function in the general inmate population. Now the Disability Rights Center New Hampshire has filed a lawsuit in federal court trying to get access to Phillip Borcuk's records and documents related to the investigation into his death. 

DRC staff attorney Andrew Milne joins Peter Biello to talk about the case. 

(This transcript has been lightly edited.) 

 So what can you tell us about this man who died at the state prison in December?

Not much unfortunately, and that's part of what this suit is about. We know -everything we know came from a newspaper article that was published the day after he died, as you said, alone in his cell due to allegedly self injurious behavior. We know that he was 34 years old that he had he must have had a mental illness because he was housed in the Residential Treatment Unit of the state prison which is specifically for individuals with mental illness who are supposed to be receiving specialized treatment in that unit. And we as the Disability Rights Center have a federal obligation to investigate suspected abuse and neglect of individuals with mental illness. So when we read this article we decided that, or we determined that, there was probable cause to suspect neglect that his death resulted from neglect. So we let the Department of Corrections know in a letter that we made this determination we requested his records, including records of any investigations that they're doing. And the department has refused to produce any records and questioned our ability to make this determination, which is very clear, our determination to make under federal law.

Tell us why you need to know more. Why does Disability Rights Center New Hampshire need to know more about this man and how he died? 

Back in the 70s, Congress created the Protection and Advocacy System and the purpose was to establish in every state an organization such as the Disability Rights Center that would protect and advocate for individuals with disabilities. They found that individuals with disabilities are vulnerable to abuse and neglect and that state systems for ensuring compliance with their rights are often inadequate. So Congress established an independent organization in every state to monitor the rights and safety of individuals with disabilities. And they gave us a unique authority to access programs and facilities like a prison where individuals with disabilities are housed or receive services. And our role in this case is to investigate whether this death was the result of abuse or neglect.

And so you concluded that there was probable cause to suspect there may have been abuse or neglect? And so you said turn over these documents, and the Department of Corrections said, 'Actually we don't see probable cause.' Can they say that to you?

No, the case law is very clear that the production and advocacy system, such as the Disability Rights Center, is the final arbiter of probable cause, meaning that when we determine that there is probable cause to suspect abuse or neglect - that's it - the program or facility has to produce the records that we request. It's kind of like, imagine that DCYF determined there was reason to suspect that a foster home was subjecting kids to abuse and neglect. If DCYF went to try to investigate and the foster home could say, 'No, we disagree. We don't think you have reason to suspect abuse and neglect - go away.' You know, they can't do that. We wouldn't accept that. So it's not how investigations work.

Essentially, you're saying you can't allow the people who may be guilty of abuse and neglect to say that there is no abuse and neglect. You need some kind of outside check on that? 

Exactly.

I see. Do you have broader concerns about how people with mental health issues are being treated at the state prisons? 

Yes, jails and prisons are one of the biggest providers of mental health services but the services that they provide are often inadequate. And so we are often in prisons, and especially in the psychiatric units of New Hampshire State Prison, with concerns over the rights and safety of individuals there.

And has the Department of Corrections denied records requests from your organization before, as they're doing now?

Yes, I know it has happened in the past. However, we have had other recent requests that they have complied with. And so this came as a surprise, a bit of a change in course from recent experience. 

One of the reasons they gave for not disclosing was in part because the investigation wasn't quite over yet and you're not entitled to paperwork on an unfinished investigation. Did they give any indication of when it might be finished?

They indicated it would be at least 90 days from sometime in January. And that is a minimum. And so that's part of our concern. We are actually entitled under federal law to pending investigation records. We don't have to wait for the investigation to be completed. And we're also entitled to receive these records promptly, so that we can go in and investigate while the evidence is fresh, while witnesses' memory is fresh, while the records are still there, and while we may still have the best opportunity to help prevent something like this from happening again in the future.

(NHPR did call the Department of Corrections and a spokesman declined to comment. The department referred NHPR to the Attorney General's office. As of this broadcast, the AG's office had not responded.)