X. INSUFFICIENT PROVISION OF SPECIALIZED FACILITIES FOR SERIOUSLY ILL PRISONERS
Prison mental health services typically includes at least three general levels. Acute care or round-the-clock hospital level service is for prisoners whose symptoms of psychosis, suicide risk, or dangerousness justify intensive care and even intrusive measures such as forced medication. Sub-acute care is typically provided outside of hospital settings for prisoners suffering from severe and chronic conditions that require intensive case management, psychosocial interventions, crisis management, and psychopharmacology in a safe and contained environment. Outpatient care is provided in the general population for prisoners who can function relatively normally. It can involve medication, psychotherapy, supportive counseling, and other interventions for prisoners whose illness is either not very severe or for chronically mentally ill prisoners whose symptoms are either under control or have gone into remission and they are essentially asymptomatic.
Most prisoners who receive mental health treatment live in the prison system's general population. As Ohio Department of Rehabilitation and Correction Director Dr. Reginald Wilkinson told Human Rights Watch, "general population is to prison what the community is to a community mental health system." That is, in Ohio, as in many other states, the goal of the prison mental health staff is to enable prisoners with mental illness to live in the general population. In Ohio, for example, 80 percent of prisoners on the mental health caseload live in general population facilities. The rest are in residential treatment units, special crisis units or a psychiatric hospital.
Our research suggests that, as a general rule, prison systems lack sufficient "beds" or places for mentally ill prisoners other than in the general population. There is a shortage of acute care and hospital beds as well as long-term intermediate care. As a result, prisoners are often removed from acute care settings simply to free up beds for other prisoners, not because they no longer need intensive services. Moreover, many states lack intermediate care facilities - long-term residential facilities that provide more extensive mental health and social services - to house prisoners who cannot cope in the general prison population. Where intermediate care facilities exist, they typically only serve a fraction of the population who could benefit from settings that provide a full menu of therapeutic and rehabilitative services.
Short-term crisis care is essential in a prison setting. Most prisons have either an acute-care facility or the option of sending prisoners to a psychiatric hospital or forensic center. Once the prisoners are stabilized, they are returned to the general population. Correctional and mental health experts across the country have told Human Rights Watch that in-patient beds and acute care facilities are too few in number for the prisoners who need them. Prisoners cycle repeatedly back and forth between prisons, where they do not receive sufficient treatment, and inpatient facilities, where they are permitted to stay for only a short while. Once returned to regular prison setting, as Dr. Jeffrey Metzner told Human Rights Watch, such prisoners frequently "decompensate or clinically deteriorate."
·In New York State, the Central New York Psychiatric Center (CNYPC) is a 206-bed maximum-security hospital that provides the only in-patient psychiatric beds for a prison system with sixty-six thousand prisoners. According to the Correctional Association of New York, the facility is bright, clean, orderly, and calm. There are no cells or bars, even for prisoners who have been brought there from disciplinary lockdown. The facility offers extensive treatment services and therapeutic activities. Throughout the 1990s, New York mental health officials believed that CNYPC should be expanded, noting in 1997 that the facility had not increased its capacity since 1981, even though the prisoner population in New York had more than doubled. Although New York had a lower number of in-patient beds per capita than other states of comparable or smaller size, the facility was never expanded. Instead, New York developed and expanded its Residential Crisis Treatment Programs (RCTPs), which are now located in the Mental Health Satellite Units of twelve maximum-security prisons. These RCTPs contain observation cells for prisoners on suicide watch and between six and ten dormitory beds.
Disability Advocates Inc., a New York protection and advocacy agency, has filed a lawsuit on behalf of prisoners with mental illness in New York State that alleges that there are insufficient treatment opportunities and access to programs for the state's prisoners with mental illness. Among the claims in its complaint are that the number of in-patient beds at CNYPC are insufficient; that prisoners are frequently held in observation cells while they wait for days or even weeks to be admitted to CNYPC; and that the lack of in-patient beds has been so "severe that at times CNYPC has operated at or above capacity on a 'one-for-one' basis, wherein a facility must take a prisoner back from CNYPC in order to send one in." Disability Advocates also alleges that many prisoners with mental illness are returned prematurely from CNYPC, even though they have a continuing need of inpatient care to stabilize their illness and to ensure they remain stabilized. It also claims that:
Acute care is rarely offered to prisoners with mental illness unless they are deemed to be an imminent danger to self or others. Severely disabled prisoners may be gravely ill and suffering, exhibiting extreme paranoia, experiencing depression or delusions, but until they actively engage in behavior to injure themselves or pose an imminent threat to others, they often are not even evaluated for admission to CNYPC or are denied admission despite their serious medical need.
·According to Roderick Hall, director of mental health at the Florida Department of Corrections, the entire prison system of 75,210 prisoners has only fifty-one acute care beds for those whom a court has ordered to be hospitalized; 184 crisis stabilization beds for decompensating prisoners; and 323 "intermediate care" beds. None of these beds are intended to be long-term housing options.
·Mississippi sends its most acutely psychotic prisoners to the privately run prison of East Mississippi Correctional Facility. However, for the three thousand remaining mentally ill prisoners on the state system's mental health roster, the state has only fourteen suicide-watch/acute care beds at Parchman, and a six-bed crisis-stabilization infirmary at the Central Mississippi Penitentiary. Human Rights Watch contacted East Mississippi Correctional Facility, run by the private corporation of Wackenhut, to obtain information on its staffing levels and acute-care services. Wackenhut representatives declined to provide any information.
Specialized Intermediate Care Units
Some states have created specialized assisted living units for seriously mentally ill prisoners who do not need acute care services but, who cannot function in the general population. By creating such units, "80 percent of their mental health problem is solved," Dr. Jeffrey Metzner told Human Rights Watch. "It's a crucial component. These housing units can provide more of a therapeutic milieu. When you mix the non-mentally ill and the mentally ill you don't get a therapeutic milieu; you frequently get an abusive milieu." The specialized units also, "attract correctional officers with a particular interest in working with the mentally ill." Unfortunately, too few states have invested adequately in this aspect of their correctional mental health systems. Those who have such units do not have enough relative to the need; others do not have any at all.
Texas, for example, has allocated approximately 1,500 acute care beds for mentally ill prisoners who have become psychotic or otherwise entered into crisis. "Frankly, it's probably more than enough. It has more than average beds per capita for in-patient care," attorney Donna Brorby told Human Rights Watch. But, Brorby continued, the Texas Department of Criminal Justice has failed to invest in sub-acute care long-term residential units. "There is little to no sub-acute care," she stated. Because of the lack of sub-acute care residential units, many seriously mentally ill prisoners end up spending much of their sentences in administrative segregation units because they prove so difficult to control in general population. "If a system doesn't have mental health care, where you find the seriously mentally ill is in segregation."
Dr. Jeffrey Metzner told Human Rights Watch that he believes California, Michigan, Ohio, Georgia, New York, Vermont, New Jersey, Puerto Rico, Colorado, and Kansas have all taken steps towards creating networks of sub-acute care facilities. Washington State has also created an innovative intermediate-care facility at the McNeil Island prison. A study published in 2001 by the National Institute of Corrections found that while thirty-three states operated separate long-term housing units of one sort or another for seriously mentally ill prisoners, most of these were designed only to house psychotic prisoners. Only five states provided units that provided what the NIC termed "'sheltered,' 'supportive,' 'partial care,' or 'assisted housing,' for mentally ill inmates who need it."
In 1995, in Coleman v. Wilson, the court agreed with prisoners that California's prison mental health services were unconstitutionally deficient. The decision prompted dramatic changes and improvements, including the development of the Enhanced Outpatient Program (EOP), a specialized intermediate care program for mentally ill prisoners. Coleman "drove a lot of the funding," Mule Creek prison warden Mike Knowles told Human Rights Watch. "It happened quicker. It probably would have evolved anyway as a need. The numbers had grown. But Coleman assisted us in getting the staffing we needed." The EOPs, which operate in thirteen prisons statewide, provide comprehensive psychiatric and counseling services to between one and two percent of the total state prison population. The EOPs are intended to provide intensive and extensive mental health resources for the most needy sub-acute cases (those needing intensive intervention but not hospitalization) within the prison system. Prisoners in the EOPs are supposed to have round-the-clock access to mental health staff. They should be seen by psychiatrists and psychologists on a regular basis; staff are to develop an individualized treatment plan for each prisoner; and a broad array of group therapy and programming options should be available.
The relatively small number of EOPs, however, does not meet the demand. As a result, the programs are seriously overcrowded. According to internally generated California DOC data, as of July 2002 the EOP system, which was designed to hold 2,481 prisoners, was catering to 3,179. In some prisons, the overcrowding within EOP programs is particularly severe. San Quentin's EOP is operating at 385 percent of its design capacity, the EOP at Valley State Prison for Women is at 156 percent. In Mule Creek, the EOP is funded for 180 prisoners, yet has 230. Prisons without EOPs are supposed to transfer prisoners deemed to need intensive services into an EOP program within thirty days of the mental health staff having recommended a transfer. But, because of the shortage of EOP bedspace and the slow pace of administrative decision-implementation most administrators acknowledge transfers can be delayed far longer than thirty days. The warden at Mule Creek also told Human Rights Watch the problem of overcrowding is compounded by the fact that psychiatric social workers and psychologists at the prison are paid lower salaries than correctional officers; the low pay for mental health staff makes it harder to recruit and retain them.
In Washington State, the large McNeil Island prison includes a seventy-five bed medium-security living unit as well as over twenty segregation beds for seriously mentally ill prisoners. Within this facility, mentally ill prisoners have daily access to an array of mental health staff and psycho-educational classes ranging from anger management to relapse prevention. University of Washington researchers brought into the prison to monitor the success of the facility have found that "participants were substantially less symptomatic when they left the program than when they entered." Human Rights Watch visited McNeil Island in the summer of 2002 and found that staff and prisoners appeared to have a far less antagonistic relationship than was the case in most prisons we have visited.
New York State has eleven Intermediate Care Programs (ICPs) located in maximum security prisons. The ICPs are residential treatment units for prisoners who have significant psychiatric histories who are victim-prone or unable to cope with life in the general population. According to the Correctional Association of New York:
ICPs provide intensive therapeutic care in a safe and structured environment. Inmates reside in cell blocks with programming, recreation and therapeutic areas that are separated from the rest of the correctional facility. They also have their own staff of correctional and mental health professionals as well as energetic Inmate Program Assistants who help organize activities and serve as big brothers and mentors to the inmates with mental illness. While some of the men reside on the unit and work in programs with general population inmates, one step away from integrating back into the large prison community, others spend their time solely on the unit, participating in programs such as daily living skills, personal hygiene and medication compliance. ICP inmates pass through four functional levels to complete the program and some may transfer back to the prison "community." The average length of stay in an ICP is approximately two years.
Through surveys and interviews with prisoners, staff, and corrections officers, the Correctional Association found that the ICPs offered therapeutic safe environments and provided prisoners with access to a range of mental health services and intensive treatment programs. The staff was reportedly compassionate, committed, and enthusiastic.
Although placement in an ICP is supposed to be temporary (the Correctional Association reports an average stay of twenty-six months) staff acknowledge that some residents will never be able to go back into the general prison population.
The existing ICP units are, however, insufficient for the number of mentally ill prisoners who might benefit from the protection, treatment, and care they provide. According to the Correctional Association, the 518 ICP beds can only accommodate one-third of the prisoners who have been classified as being the most severely mentally ill in the system, and clinicians, superintendents, correctional officers, and prisoners have emphasized the need for more ICP beds. In addition, the ICPs choose to exclude certain mentally ill prisoners, typically those who have engaged in predatory behavior, who have anger/impulse control disorders, anti-social personality disorder or borderline personality disorders. These prisoners remain in the general population, typically end up in punitive segregation, and receive adequate mental health treatment only if they decompensate and end up being sent to the forensic mental health hospital.
In Ohio, as part of the dramatic reconstruction of correctional mental health services that began after the class action lawsuit Dunn v. Voinovich was filed in 1993,the state has developed a series of residential treatment units (RTUs) for prisoners with serious mental illness who do not require hospitalization but who are not able to be maintained in the general population. The goal of the RTUs is to treat and stabilize those with mental illness sufficiently so that they can eventually move back into the general population. The RTUs have a level system built into them based on mental health considerations. As prisoners move up the levels, they have increased out of cell time in which they interact with other prisoners and engage extensive programmed activities as developed by the mental health staff. The treatment teams at the RTUs include the case manager, psychiatrist, psychologist, nurse, and correctional officers. Prisoners are supposed to participate in the development of their treatment plans and decision regarding changes in the plan. By participating in treatment team sessions, each prisoner has a voice in his fate. Our research suggests that this is an extremely rare example of prisoners being able to participate actively in decisions concerning their treatment.
Expansion of Specialized Care Facilities
States that have created intermediate care facilities view them as temporary steps on the way to returning prisoners to the general prison population. As mentioned above, the prevailing correctional view is that the general population is seen as the "community," in which prisoners with mental illness should be housed whenever possible. But this use of the rationale of deinstitutionalization and the community mental health model is somewhat problematic in the prison context. One obvious difference is that, unlike mentally ill persons in the community, prisoners have already lost their liberty by virtue of their conviction and prison sentence; correctional authorities have nearly unlimited authority to determine how and where prisoners will be confined. It may be that more prisoners with serious mental illness should spend more of their prison time in intermediate care units (except when hospitalization is needed). If they did so, those prisoners, as well as prisoners without mental illness, staff, and prison systems as a whole might well benefit.
There seems little doubt that prisoners with serious mental illness would benefit from longer-term access to the array of mental health and rehabilitative services provided in such units. The data are not available to determine whether prisoners with mental illness who have been in intermediate care facilities are able to sustain the benefits of that experience over time in the general prison population or whether they are better able to protect themselves from victimization.
Not surprisingly, seriously mentally ill prisoners seem to prefer living in intermediate facilities or even forensic mental health hospitals. Prisoners typically have more freedom, programming, and human interaction in such facilities than in the segregation facilities. What may be treated as an infraction or rule violation in prison can be seen as acting out behavior in therapeutic settings that is not responded to within a punitive framework. As Fred Cohen pointed out during his testimony as a witness for the Department of Rehabilitation and Correction in a class action lawsuit against Ohio's supermaximum security prison, hospitals "can be a fairly comfortable place for some inmates…it becomes a complicated jousting sometimes between inmates who really need it and inmates who don't really need it but want to stay there." Also perhaps not surprisingly, infraction rates and misbehavior by mentally ill prisoners seem to decline in hospital or intermediate care settings. For example, the Correctional Association of New York found that the prisoners had considerably lower rates of infractions overall and rates of violent infractions dropped considerably when they were in the ICP compared to rates prior to ICP admission. The lower rates of infractions may reflect the availability of more extensive treatment services and more programming options, the greater respect with which prisoners are treated, the development of better prisoner-staff relations, the availability of more social and sociable interactions with other prisoners, and/or a staff practice of not using the prison disciplinary system to respond to misconduct.
One of the arguments for trying to "mainstream" mentally ill prisoners in the general prison population is that there is more access to educational, vocational, and recreational programs there and the mentally ill will better prepared for the outside world upon release. But prisoners in intermediate care units who have higher levels of functioning could access general population programs while remaining in the units, as in New York's ICPs.
There are other arguments in favor of expanding the number of specialized living facilities for long-term housing of the seriously mentally ill prisoners. Such a policy would allow prisons to concentrate their mental health resources in a more rational manner. Specialized facilities can be operated to minimize the typical conflict between security and mental health considerations in general population prisons, by, for example, bringing correctional officers into individual treatment teams. Such facilities can be operated to maximize mental health treatment and social rehabilitation skills. Correctional staff who work in such facilities can be specially trained and chosen for the unique nature of the facility. Finally, longer-term use of special facilities would reduce the current pattern in which mentally ill prisoners repeatedly cycle between general population settings in which they decompensate and crisis units in which they are housed temporarily while they are being stabilized.
 BJS, Mental Health Treatment in State Prisons, 2000, 2001, p. 4.
 Human Rights Watch telephone interview with Dr. Reginald Wilkinson, July 3, 2003.
 Human Rights Watch telephone interview with Dr. Jeffrey Metzner, April 2, 2003.
 Correctional Association of New York, Mental Health in the House of Corrections, forthcoming report.
 Research by the Correctional Association of New York indicates that the RCTPs are "woefully lacking." As their report notes, "Despite the fact the RCTP's are designed to provide critical mental health evaluation and triage services within the prison system, it is…corrections officers who police the units and enforce their own rules. 'I've known officers who will give tickets to patients on suicide watch for behavior that is obviously related to their mental illness," says [a former mental health clinician]." Correctional Association of New York, Mental Health in the House of Corrections, forthcoming report.
Disability Advocates, Inc. v. New York State Office of Mental Health, Complaint, No. 02 CV 4002 (S.D. N.Y., May 28, 2002).
 Human Rights Watch telephone interview with Roderick Hall, director of mental health, Florida Department of Corrections, April 13, 2003; BJS, Prisoners in 2002, p. 3.
 Human Rights Watch telephone interview with Linda Powell, director of utilization review and case management, University of Mississippi Medical Center, May 1, 2003.
 Human Rights Watch telephone interview with Eastern Mississippi staff, May 1, 2003.
 Human Rights Watch telephone interview with Dr. Jeffrey Metzner, November 26, 2002.
 Ibid., April 2, 2003.
 Human Rights Watch telephone interview attorney Donna Brorby, August 5, 2002. Brorby was a lead attorney in the Ruiz v. Johnson litigation in Texas.
 Human Rights Watch telephone interview with Dr. Jeffrey Metzner, November 26, 2002.
 U.S. Department of Justice, National Institute of Corrections, Provision of Mental Health Care in Prisons, February 2001, p. 6. The report does not identify the states.
Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal., 1995), cert. denied, 520 U.S. 1230 (1997).
 Human Rights Watch interview with Mike Knowles, warden, Mule Creek State Prison, California, July 19, 2002.
 Prisons in California listed as having the capacity to house EOP inmates are: California Correctional Facility for Women (CCFW), California Institute for Women (CIW), California Medical Center (CMC), California Medical Facility (CMF), Corcoran (COR), Los Angeles County (LAC), Mule Creek State Prison (MCSP), Pelican Bay State Prison (PBSP), R. J. Donovan (RJD), California State Prison at Sacramento (CSP-SAC), San Quentin (SQ), Salinas Valley State Prison (SVSP), and Valley State Prison for Women (VSPW).
 California Department of Corrections, Health Care Placement Unit, "EOP Population by Security Level," population chart created on July 25, 2002; on file at Human Rights Watch.
 California Department of Corrections, Health Care Placement Unit, "Mental Health Adseg/SHU/PSU," population chart created on July 25, 2002.
 Human Rights Watch interviews, Mule Creek State Prison, California, July 19, 2002. Numbers provided by Warden Mike Knowles.
 David Lovell, David Allen, Clark Johnson (University of Washington) and Ron Jemelka (Texas Health Quality Alliance), "Evaluating the Effectiveness of Residential Treatment for Prisoners with Mental Illness," Criminal Justice and Behavior, vol. 28, no. 1, February 2001, pp. 83-104.
 Correctional Association of New York, Mental Health in the House of Corrections, forthcoming report.
 See, e.g., David Lovell, David Allen, Clark Johnson & Ron Jemelka, Evaluating the Effectiveness of Residential Treatment for Prisoners with Mental Illness, Criminal Justice and Behavior, vol. 28, no. 1 (American Association for Correctional Psychology, 2001).
 Testimony of Fred Cohen, Transcript of Proceedings before the Honorable James Gwin, Preliminary Injunction hearing, Austin v. Wilkinson, Case No. 4:01 CV 0071 (N.D. Ohio, September 24, 2001), pp. 34-35.
 Correctional Association of New York, Mental Health in the House of Corrections, forthcoming report. Rates of infractions dropped from 67 percent to 51 percent, and many of those were for smaller infractions such as smoking. Rates of infractions for violence dropped from 38 percent to 16 percent.