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XV. LEGAL STANDARDS

Under international human rights law, prisoners should not be confined in conditions that constitute torture or that are cruel, inhuman, or degrading. This right includes the right to proper medical care and treatment for mental illness. International human rights law also affirms the separate right to health, which requires appropriate mental health care, to the extent feasible, for all people, regardless of whether they are incarcerated. International standards include detailed provisions on the treatment of prisoners, including mentally ill prisoners — a resource and set of benchmarks, that, if adhered to, would address many of the deficiencies identified in this report.

The ineffective application of international laws and standards within the United States lies not in their substantive shortcomings, but rather in the failure of U.S. authorities to implement them properly, if at all. International human rights standards are little known and almost never directly applied in the United States. International bodies, including those monitoring compliance with international treaties to which the United States is a party, are typically not heeded in the United States when they issue analyses and recommendations. By focusing on the federal and state constitutions as the sources of rights, the U.S. government has ignored the development of international legal standards that go beyond constitutionally protected rights.

The U.S. Constitution prohibits cruel and unusual punishment, which the courts have interpreted as requiring prisons to provide mental health treatment to prisoners who have serious mental illness. But the constitution is not violated by malpractice or negligent care. The Eighth Amendment is only violated when prison officials are “deliberately indifferent” to an prisoners need for treatment, not when they provide negligent care or engage in what would otherwise be deemed malpractice. Elected officials — executive and legislative — do not effectively use their respective powers to ensure prison officials provide adequate care, or even meet constitutional requirements. Constitutional standards are primarily enforced through prisoner litigation — litigation which faces enormous procedural as well as substantive obstacles.725

While correctional officials acknowledge — as they must — their constitutional obligation to provide mental health care, they have insisted they meet that obligation even when the care was plainly substandard, if not atrocious. To some extent, their position reflects their awareness that conceding constitutional infirmities would either prompt litigation or would lead to verdicts against them in ongoing litigation. Nevertheless our research suggests a disquieting willingness to accept the minimum level of care required by the constitution as the maximum required, and to press for a “minimum” level that is as low as possible. Few express the admirable aspiration of the director of the Ohio Department of Rehabilitation and Correction, Dr. Reginald Wilkinson, who told Human Rights Watch “if you are going to have a mental health system [in prisons], we want the best one possible, even if the constitution does not require it.”726


International Protections

International human rights law is a vibrant and evolving body of law that protects all persons, including prisoners with mental illness. Its touchstone is the dignity of each human being. Recognition of that dignity requires respect for numerous other rights articulated in the Universal Declaration of Human Rights and such international treaties as the International Covenant on Civil and Political Rights (ICCPR),727 the Covenant on Economic, Social and Cultural Rights,728 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).729 Recognition of the unique problems and special abuses faced by persons with mental illness has also led to the development of international instruments providing specific protections for them.

The Rights of Prisoners to be Free of Abuse

The ICCPR is the most comprehensive international human rights treaty the United States has ratified and it includes provisions explicitly intended to protect prisoners from abuse or mistreatment. Under ICCPR article 7, no one “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition against such abusive treatment applies to prison authorities, governing both actions against individual prisoners as well as the overall conditions of confinement in which prisoners live.730 The ICCPR does not, however, simply set guidelines for what prison officials and other authorities should not do; it also imposes positive obligations on them. Article 10 states that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”731

Various documents developed within the United Nations flesh out the human rights of persons deprived of liberty and provide guidance as to how governments may comply with their international legal obligations. These documents include the United Nations Standard Minimum Rules for the Treatment of Prisoners732 (Standard Minimum Rules) adopted by the Economic and Social Council in 1957; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,733 adopted by the General Assembly in 1988; and the Basic Principles for the Treatment of Prisoners,734 adopted by the General Assembly in 1990. While these instruments are not treaties, they constitute authoritative guides to the content of binding treaty standards and customary international law.

The Basic Principles for the Treatment of Prisoners establishes prisoners’ entitlement to a quality of health care comparable to that available in the outside community.735 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment establishes the obligation of authorities to ensure prisoners are given medical screening upon admission and provided appropriate medical care and treatment as necessary and free of charge.736 The most detailed provisions regarding mental health care for prisoners are contained in the Standard Minimum Rules. According to the guiding principles of the Standard Minimum Rules, the purpose of a sentence of imprisonment is to protect society against crime, a purpose which can only be achieved, “if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life….”737 Appropriate medical and mental health services are integral to a properly run prison and to the goal of rehabilitation: “The medical services…shall seek to detect and shall treat any…mental illnesses or defects which may hamper a prisoner’s rehabilitation. All necessary…psychiatric services shall be provided to that end.”738

The Standard Minimum Rules recognize the need to vary the housing, supervision, and care of offenders with mental disorders according to the degree of their illness: those who are psychotic or acutely ill should be placed in mental institutions; those who suffer from “other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management”; while in a prison, such prisoners “shall be placed under the special supervision of a medical officer.” Prison mental health staff should provide for the psychiatric treatment of all other prisoners who need it.739

The Standard Minimum Rules recognize that prisons must have sufficient numbers of appropriately qualified competent health care staff to meet their human rights obligations. Medical services should include “a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.”740 To the extent possible, prison staff should also include specialists in addition to psychiatrists, including psychologists, and social workers.741 Standards of care should not be lowered because those needing medical treatment are prisoners. “Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standards as is afforded to those who are not imprisoned or detained.”742 Clinical medical decisions should be governed by medical criteria. International principles of medical ethics require prison medical staff to provide “the best possible health care for those who are incarcerated,” with decisions regarding their care and treatment based on the prisoners’ health needs, which should take priority over any non-medical matters.743

Proper psychiatric treatment in prison as in the community should be based on a treatment plan drawn up for each patient. The plan should consist of more than just medication.

It should involve a wide range of rehabilitative and therapeutic activities, including access to occupational therapy, group therapy, individual psychotherapy, art, drama, music and sports. Patients should have regular access to suitably-equipped recreation rooms and have the possibility to take outdoor exercise on a daily basis; it is also desirable for them to be offered education and suitable work.744

The Right to the Highest Attainable Standard of Health

The International Covenant on Economic, Social and Cultural Rights (ICESCR), in article 12, provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The United States, as a signatory but not a party to the ICESCR, is obliged to refrain from acts that would defeat the object and purpose of the treaty.745 This right has been interpreted as an obligation on governments to take specific steps to protect and promote health — both by instituting measures to maximize health and by protecting people from unhealthy or dangerous conditions.746 The right to the highest attainable standard of mental health under Article 12 includes a right to services that are available, accessible, acceptable, and of appropriate and good quality, provided by trained medical and professional personnel.747 Persons who are imprisoned retain this right, and they are entitled to a standard of medical care, including mental health care, equivalent to that available in the wider community.

While under the ICESCR everyone has a claim to some degree of mental health care, prisoners have special claims upon the government for mental health treatment. Incarcerated persons become dependent on the state to provide for their medical services; the state thus has the responsibility to protect their health both in terms of the conditions of confinement and the individual medical treatment they require.748 Because imprisonment by its nature can damage the mental well being of prisoners, correctional authorities have a responsibility not only to provide appropriate mental health treatment, but to establish conditions consistent with mental health.

In 1991, the United Nations General Assembly adopted the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles).749 These principles are “the most complete standards for the protection of the rights of persons with mental disability at the international level.”750 They were developed because of the growing recognition internationally that persons with mental illness often faced unique difficulties in ensuring respect for their basic human rights, both in the community and within mental institutions.751 Most international and non-governmental organization (NGO) attention to the human rights of the mentally ill has focused on discrimination and the absence of adequate legal protections against improper and abusive treatment. The principles thus address such issues as consent to treatment and medication, loss of legal capacity, discrimination, and rights and conditions in mental health facilities. According to Principle 20, the principles also apply to persons with mental illness serving sentences of imprisonment “with only such limited modifications and exceptions as are necessary in the circumstances.” Principle 20 also affirms that all incarcerated persons with mental illness “should receive the best available mental health care.”752


The United States and International Human Rights Law

The United States has ratified a number of international human rights treaties and instruments but has invested little energy or resources into ensuring they are known and implemented throughout the country. Few prison officials interviewed by Human Rights Watch realize that their work is subject to international human rights standards in addition to constitutional requirements. Few state or even federal officials realize that their responsibilities include ensuring the protection of and respect for human rights under international law, including the rights of prisoners. They are either unaware of [or ignore pronouncements of international treaty bodies and other international entities.

The United States is a party to the International Covenant on Civil and Political Rights and the Convention against Torture. However, it attached limiting reservations, declarations, and understandings to its ratification of these treaties that work both substantively, by restricting the scope of the treaties, and procedurally, by restricting their usefulness in court proceedings.753

The principal means by which the United States sought to limit the domestic impact of signing the ICCPR and the CAT was by declaring both treaties to be “non-self-executing.” That is, without enabling legislation they cannot be relied upon to enforce rights in U.S. courts, and no such legislation has ever been enacted. The United States asserts that existing state and federal laws adequately protect against violations of the treaty. Yet despite many congruencies with the U.S. Constitution, the ICCPR and the Convention against Torture offer additional rights and protections for individuals than has been found under the U.S. Constitution. By declaring the treaties non-self-executing, the United States has left without judicial recourse individuals whose rights under the treaties are being violated.

Under the U.S. Constitution, international treaties are part of the supreme law of the land.754 Regardless of whether a treaty is self-executing, the president or executive branch remains obligated to ensure they are executed faithfully. At a minimum, the U.S. government should prevent and remedy violations of the internationally recognized human rights of prisoners; should revise existing federal laws to facilitate compliance with treaty obligations; should encourage state correctional authorities to comply with the treaties and should monitor that compliance, and should use all federal powers — including litigation — to make sure prison authorities comply. Although the fifty states are not themselves parties to the treaties, they are obliged to obey federal law, which includes international treaties ratified by the U.S. Senate.

The United States also sought to limit the domestic impact of the ICCPR and Conventional against Torture by limiting the scope of the substantive rights they acknowledged. For example, in its reservation to Article 7 of the ICCPR prohibiting torture or cruel, inhuman or degrading treatment, the United States stated that it “considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”755 The United States has acknowledged that the extent of those constitutional provisions “is arguably narrower in some respects” than the scope of article 7.756 For example, as discussed below, the mistreatment of prisoners through substandard medical care will not be a violation of the Eighth Amendment unless prison officials acted with deliberate indifference. Article 7 of the ICCPR does not contain this stringent intent requirement. Prolonged solitary confinement with limited or no human interaction and no opportunity for work, educational, or other activities may violate Article 7 and Article 10.757 But the Eighth amendment does not give prisoners the right to recreational, vocational, or rehabilitative programs and except with regard to mentally ill prisoners, most U.S. courts have upheld the constitutionality of segregated prison housing in which prisoners are kept, locked up around the clock in small isolated cells, for years at a time.758

In 1995, the U.N. Human Rights Committee, which is charged with monitoring the implementation of the ICCPR, found the U.S. reservation to Article 7 of that instrument to be incompatible with the treaty’s object and purpose.759 Human Rights Watch agrees with this analysis, finding that the U.S. attempt to narrow the treaty’s coverage is incompatible with its goal of preventing a wide range of human rights abuses. We therefore hold the United States to the full scope of the prohibition on torture and other ill treatment contained in the ICCPR and the Convention against Torture.


Constitutional Protections for Prisoners with Mental Illness

Unlike the ICCPR, the U.S. Constitution does not expressly require federal and state governments to respect the basic dignity of all prisoners nor does it have any provisions that expressly refer to their treatment. The principal constitutional protection for prisoners is the Eighth Amendment’s prohibition of “cruel and unusual punishments.” It is well acknowledged within U.S. constitutional jurisprudence that the Eighth Amendment requires prison officials to provide prisoners with such basic human needs as adequate food and water, shelter, clothing, sanitation, personal safety, and medical care, including mental health treatment. The courts have acknowledged that when people are incarcerated by the state and as a consequence unable to care for themselves, the U.S. Constitution imposes a duty on the state to assume responsibility for their safety and general well being. “[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid,” society may not look away and let “the state of nature takes its course.”760

Yet, despite these constitutional guarantees, endemic problems remain. Prisoners are not a politically powerful constituency; prisoners with mental illness even less so. Governors and state legislatures are reluctant to make the financial commitments needed to ensure prisons are humane and that they provide appropriate mental health services. Correctional authorities may lack the commitment, energy, tenacity, and creativity to change long-established ways of doing business. As a result, it has taken litigation — and the threat of litigation — raising constitutional challenges to generate most of the improvements in U.S. prisons over the past three decades.

The U.S. Department of Justice is authorized by statute to bring criminal charges or civil suits against state authorities for violating prisoners’ rights under the U.S. Constitution. It has instituted investigations under the Civil Rights of Institutionalized Persons Act into conditions in a number of jails and prisons that resulted, in findings, among other problems, that mental health services were inadequate, and has secured agreements with the responsible agencies to make improvements.761 Prisoners, however, have brought most of the suits initiated to reform prison practices and to redress prison abuses. This is also true with regards to cases addressing the treatment of prisoners with serious mental illness. Beginning in the 1970s, and continuing to the present day, prisoners have brought a series of court cases challenging the constitutional adequacy of the care of and mental health services for prisoners with mental illness. Representing mentally ill prisoners, the National Prison Project of the American Civil Liberties Union has, for example, litigated at least sixty-five cases over the past two decades. State and local public legal services organizations have brought many others, in addition to countless suits brought by prisoners representing themselves.

Court rulings or consent decrees have established important benchmarks for the treatment of mentally ill prisoners and mandated major revisions in the ways correctional authorities provided mental health services.762 Discovery in those cases, as well as court orders, have revealed publicly the appalling conditions under which thousands of mentally ill prisoners have been confined.

Litigation has also enabled prison officials to undertake reforms that politics and lack of resources prevented them from doing. Human Rights Watch interviewed a number of correctional mental health officials who acknowledged that litigation was often the only way they could obtain the financial resources as well as support from elected officials to do what they knew needed to be done. As the mental health director at the Vermont Department of Corrections told us:

While lawsuits are stressful and time-consuming and, by definition, contentious, they do often expose systems’ deficiencies and serve as a spotlight on these areas for a broader audience. This audience would include legislators, high-level managers, the judiciary and executive staff who might be in a position to consider resource allocation needs accordingly.763

Similarly, the superintendent of the Washington Correctional Center for Women told us that: “Sometimes lawsuits are useful. It’s our aim not to have them. But a part of what got us the resources we have now is Hallett v. Payne [class action lawsuit challenging treatment of women prisoners]. We got resources as a result to do it better.”764

The Right to Mental Health Treatment

In the landmark case of Estelle v. Gamble, the U.S. Supreme Court enunciated the legal standard for evaluating medical claims under the Eighth Amendment. Medical care, or the lack there of, is unconstitutional when it involves the “unnecessary and wanton infliction of pain”765 and because of correctional officials’ “deliberate indifference to serious medical needs of prisoners.”766 This standard has been extended to the treatment of mental illness. An prisoner is:

entitled to psychological or psychiatric treatment if a physician or other health care provider, exercising skill and care at the time of observation, concludes with reasonable medical certainty (1) that the prisoner’s symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of care would be substantial.767

Substandard quality of care, negligence, or even malpractice does not suffice to establish a constitutional violation.768 To prove an Eighth Amendment violation, prisoners must show both an objective and serious injury, either physical or psychological, and a culpable subjective intent on the part of the prison authorities. The culpable mental state that must be proven is that of “deliberate indifference,” meaning that the defendant actually knew of and yet disregarded an excessive risk to prisoner health. Accidental or inadvertent failure to provide adequate care does not suffice. In Farmer v. Brennan, the Supreme Court ruled that officials could not be found to be deliberately indifferent based on what they should have known, as opposed to what they actually knew.769 It stated that:

prison official[s] may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.770

That is, the officials must have “consciously disregard[ed] a substantial risk of serious harm” to the prisoners.771

The requirement of proof of “deliberate indifference” has significantly limited court findings of constitutional violations with regard to mental health services and thus, of course, their ability to order improvements in those services. For example, according to a federal court, plaintiffs’ experts in a long-running class action lawsuit against the Texas Department of Criminal Justice (TDCJ) found system-wide deficiencies in the mental health care system, including “not recognizing or minimizing symptoms indicative of major mental illnesses;” underdiagnosis of mental illnesses, inadequate access to psychiatric assessments, and inadequate treatment of those found to be mentally ill; and “wholly inadequate” staffing.772 However, while the court concluded that the psychiatric care system of TDCJ was “grossly wanting” it was unable to find constitutional violations because of absence of proof that TDCJ officials were “systemically and deliberately indifferent” to prisoners’ psychiatric needs.773 The court stated that it hoped the U.S. Supreme Court would eventually modify its contemporary standards for cruel and unusual punishment regarding medical treatment for prison prisoners. “As the law stands today, the standards permit inhumane treatment of inmates. In this court's opinion, inhumane treatment should be found to be unconstitutional treatment.”774

There is no clear definition of, or consensus about, what constitutes a sufficiently serious mental health condition to implicate the Eighth Amendment. Reviewing the case law, one of the country’s leading experts on legal issues concerning prisoners with mental disorders concluded:

[T]here is not one clear definition or predictive certainty as to what is or is not a serious mental disorder. [But] schizophrenia, bipolar disorders, and clinically significant depression that causes relative inability to function will all clearly qualify as serious.775

In the context of a class action lawsuit in Wisconsin — Jones 'El v. Berge —challenging the placement of prisoners with serious mental illnesses in high-security isolated confinement, a federal judge recently approved a definition of “seriously mentally ill inmates” as those who have been:

Diagnosed with specific conditions such as schizophrenia, delusional disorder, schizophreniform disorder, schizoaffective disorder, brief psychotic disorder, substance-induced psychotic disorder, other psychotic disorders not otherwise specified, major depressive disorders, bipolar disorder I and II.

Diagnosed with a mental disorder that includes being actively suicidal.

Diagnosed with an organic brain syndrome that will significantly impair functioning if not treated.

Diagnosed with a severe personality disorder that results in significant functional impairment.

Diagnosed with any other serious mental illness that would be worsened by confinement at Supermax.776

Constitutionally Required Components of Mental Health Services

The basic components of what is needed for correctional mental health services to pass constitutional muster were outlined in the landmark case of Ruiz v. Estelle. Filed in 1972, what became the longest prison-related lawsuit in U.S. history challenged the overcrowding, violence, arbitrary punishments, and grossly inadequate medical care in Texas’ sprawling prison system. In his landmark 1980 ruling, Judge William Wayne Justice, chief judge of the U.S. District Court for the Eastern District of Texas, described an unconstitutional mental health services system in which “treatment” consisted almost exclusively of the administration of dangerous medications, prisoners with mental disorders were ignored until their conditions became extremely serious, and acutely ill prisoners were warehoused in an overcrowded special treatment facility with few mental health professionals.777 He ruled that prison mental health services must include the following:

First, there must be a systematic program for screening and evaluating inmates in order to identify those who require mental health treatment… Second…treatment must entail more than segregation and close supervision of the inmate patients…. Third, treatment requires the participation of trained mental health professionals, who must be employed in sufficient numbers to identify and treat in an individualized manner those treatable inmates suffering from serious mental disorders…. Fourth, accurate, complete, and confidential records of the mental health treatment process must be maintained. Fifth, prescription and administration of behavior-altering medications in dangerous amounts, by dangerous methods, or without appropriate supervision and periodic evaluations, is an unacceptable method of treatment. Sixth, a basic program for the identification, treatment, and supervision of inmates with suicidal tendencies is a necessary component of any mental health treatment program.778

These six components continue to form the basic outline by which courts assess whether mental health services are adequate. At least two additional components have emerged in the case law. The first is access—the process by which prisoners get to mental health services—and the second is physical resources—whether adequate facilities and equipment are available to meet prisoners’ treatment needs.779


Americans With Disabilities Act

In recent years, the Americans with Disabilities Act of 1990 has opened up a new avenue for legal challenges to the failure to provide proper treatment for incarcerated persons with mental illness.780 The act bans discrimination against the disabled, a category that includes persons disabled by mental illness. In 1996, a class action was brought on behalf of prisoners with mental illness in New Jersey alleging that inadequate mental health services in the state’s prisons constituted both unconstitutional cruel and unusual punishment and also a violation of the Americans with Disabilities Act. The case was settled in 1999.781 That same year, attorneys in Illinois filed suit against the Supermax prison at Tamms, also alleging violations of the Americans with Disabilities Act as well as unconstitutionally cruel and unusual punishment.782 In May 2002, Disability Advocates Inc., filed a class action lawsuit against the New York State Department of Correctional Services and the New York State Office of Mental Health. One of the allegations in the lawsuit, which has not yet been decided, was that the state violated the Americans with Disabilities Act by housing mentally ill prisoners in Special Housing Units — disciplinary facilities in which the prisoners are kept in their cells twenty four hours a day except for brief periods of exercise a few times a week and in which they have little or no access to meaningful activities and little mental health treatment.783 Plaintiffs claim the state prison system should “provide alternative punishments as a reasonable accommodation [to the disability of mental illness] so that punishments which exacerbate mental illnesses are not imposed.”784


Prison Litigation Reform Act

In 1996, federal legislation was enacted that has severely curtailed the ability of prisoners to seek judicial relief for violations of their constitutional rights. Supporters of the Prison Litigation Reform Act (PLRA) insisted it was necessary to curtail frivolous prisoner lawsuits. But its impact — and perhaps its real underlying intent — has been much broader. Prisoners with legitimate and serious complaints are far less likely to be able to have their day in court than they did prior to enactment of the law. A comprehensive set of constraints on prison litigation, the PLRA requires prisoners to exhaust their administrative remedies before they can file a lawsuit. This means they must satisfy all the requirements of prison grievance processes — filing grievances in a correct and timely manner, pursuing their administrative appeals also in a correct and timely manner (the deadlines are typically quite short) — no matter how futile the process may be (prisons rarely recognize the merit of prisoner grievances), no matter how meritorious their claims or how legitimate their reasons for failing to follow the administrative process to the letter. The exhaustion requirement applies even if the remedy being sought is not available through the grievance system and even if a prisoner faces an immediate threat to health or safety. The exhaustion requirement is particularly onerous in class action cases, in which all the named plaintiffs must have complied with their prison internal grievance procedures.

The PLRA also: 1) invalidates all settlements that do not include explicit findings that the challenged conditions violate federal law or the constitution, thereby discouraging amicable negotiated settlements, 2) requires that prospective relief in prison conditions suits, such as consent decrees, be “narrowly drawn,” 3) arbitrarily terminates court orders against unlawful prison conditions after two years, regardless of the prison authorities’ degree of compliance with the orders, and 4) restricts the grant of attorneys’ fees for successful prison conditions suits, severely reducing the financial viability of even the most sorely-needed prison reform efforts. Other objectionable provisions of the act limit prisoners’ access to the courts by imposing court filing fees on certain indigent prisoners and bar the recovery of damages for pain and suffering not accompanied by physical injury. In short, without explicitly cutting back on prisoners’ constitutionally protected rights, the PLRA has created formidable obstacles to judicial protection and enforcement of those rights.

21 Information contained in chart produced by the Health Care Services Division of the California Department of Corrections titled: “Combined Mental Health Population Per Institution.” The figures were last updated July 25, 2002. According to the Monthly Report of Population for July 2002, the total California Department of Corrections population was 157,514. State of California, Department of Corrections, Data Analysis Unit, “Monthly Report of Population,” July 31, 2002, accessed from http://www.cdc.state.ca.us/OffenderInfoServices/Reports/Monthly/TPOP1A/TPOP1Ad0207.pdf, on June 18, 2003.

Research Brief, Occasional Paper Series, no. 1 (New York: The Open Society Institute, November 1996), accessed online at: http://www.soros.org/crime/research_brief__1.html, on June 10, 2003.

In the nigh on to nine years that have elapsed since the publication of Palmigiano there has been an endless stream of motions and hearings; virtually all have concerned the state's failure to comply with the 1977 Order. The repetitive lament offered by the state was its inability to accomplish the ordered changes within the established time frames. And with patient confidence the Court bowed, with the same leitmotiv, continuing the matter to another day.

Palmigiano, 639 F. Supp. at 246.

no evidence that any of the aspects of hospital-level care…are provided…. There is no assessment (admission or otherwise) by a multidisciplinary team, and no multidisciplinary treatment plan which defines the inmate’s problems, the planned interventions, the staff responsible, or the goals to be achieved. Treatment consists of brief, non-confidential interactions with the psychologist, irregular participation in limited group sessions, and infrequent psychiatric interaction. The primary mode of treatment is medication for which consent is neither sought nor granted. Inmates are very often prescribed long-acting injectable antipsychotic medications [which are] contraindicated for management of acute psychiatric illness due to their long duration of action.

Kilby lacks twenty-four hour, seven-day-a-week psychiatric nursing, “a benchmark for hospital care.” After discussing many other problems at Kilby, the experts conclude, that the “end result is that the ADOC effectively denies access to inpatient treatment for inmates with acute and serious mental illness…the ‘treatment provided on the Kilby MHU consists of little more than seclusion, increased correctional supervision, and coerced psychotropic medication.” Ibid., pp. 73-77.

type of what goes by the name “treatment” or “treatment unit” is seriously deficient in some critical aspect. Rounds that are designed to assess inmates and provide inmates with access are rapid “drive-throughs.” Brief encounters at the cell or in a “pill line” are termed “psychotherapy.” Inmates with serious mental illness are locked-down under primitive conditions, and, if thought suicidal, are stripped and made to sleep on the floor on a thin plastic mat. Medications are distributed in an unprofessional and dangerous fashion…the ‘treatment plans’ that exist do not meet the most basic requirements for such plans….

Ibid., p. 88

Thinly staffed, overcrowded, and impoverished facilities breed tension and violence, particularly where prison management has not placed a high priority on promoting staff-inmate and inmate-inmate relations predicated on mutual respect. Many corrections authorities have turned to prolonged supermax confinement in an effort to increase their control over prisoners. They believe that if they can confine all the most dangerous or disruptive inmates in facilities designed specifically for that purpose, they will be able to increase safety and security in other prisons…. A significant impetus for supermax confinement also comes from politicians. Crime and punishment have been central issues in American politics for over two decades, and advocating harsh punitive policies for criminal offenders remains a politically popular position. Elected officials advancing tough-on-crime policies have promoted large supermax prisons for their symbolic message, regardless of actual need. Fearful of being accused of ‘coddling inmates’ or being ‘soft on crime,’ few politicians have been willing to publicly challenge supermaxes on human rights grounds.



725 The role of federal courts in protecting prisoners from mistreatment, and the difficulties inmates face in bringing litigation to vindicate their rights, including the impact of the Prison Litigation Reform Act, are discussed in Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, 2001).

726 Human Rights Watch telephone interview with Dr. Reginald Wilkinson, director, Ohio Department of Rehabilitation and Correction, July 3, 2003.

727 International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

728 International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (no. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.

729 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46 [annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.

730 The Convention against Torture also prohibits torture and cruel, inhuman, or degrading treatment.

731 ICCPR, art. 10 (1). Paragraph 3 of article 10 also states the “essential aim” of prison systems is the “reformation and social rehabilitation” of prisoners. The United States, in ratifying the ICCPR, issued an understanding stating that art. 10(3) “does not diminish the goals of punishment, deterrence and incapacitation as additional legitimate purposes for a penitentiary system.” While violations of article 7 will also violate article 10, the reverse is not necessarily the case. The criteria by which the Human Rights Committee has concluded certain prisons conditions violated article 10(1) and not article 7 can be difficult to discern. See Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford: Clarendon Press, 1999), pp. 286-292.

732 Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (no. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (no. 1) at 35, U.N. Doc. E/5988 (1977).

733 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, annex, 43 U.N. GAOR Supp. (no. 49) at 298, U.N. Doc. A/43/49 (1988).

734 Basic Principles for the Treatment of Prisoners, G.A. res. 45/111, annex, 45 U.N. GAOR Supp. (no. 49A) at 200, U.N. Doc. A/45/49 (1990).

735 Basic Principles for the Treatment of Prisoners, Principle 9 which states: “Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.” See also, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), The CPT Standards, regarding health care services in prisons. “…[P]risoners are entitled to the same level of medical care as persons living in the community at large. This principle is inherent in the fundamental rights of the individual.” Ibid., section IV, para. 31.

736 Basic Principles for the Treatment of Prisoners, Principle 24.

737 Standard Minimum Rules, paras. 58-59.

738 Standard Minimum Rules, para. 62.

739 Standard Minimum Rules, para. 82. The Committee for the Prevention of Torture, a body which monitors prisons of countries party to the European Convention of Human Rights also recognizes that inmates whose illness dictates the need for hospitalization should be transferred from prisons to mental health hospitals. According to the CPT, “a mentally ill prisoner should be kept in a hospital facility which is adequately equipped and possesses appropriately trained staff whether a civil mental hospital or a specially equipped psychiatric facility within the prison system.” CPT Standards, para. 43.

740 Standard Minimum Rules, Rule 22.

741 Standard Minimum Rules, Rule 49.

742 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 37/194 (1982), Principle 1.

743 International Council of Prison Medical Services, The Oath of Athens, approved in 1979, quoted in Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff (London: University of London. International Centre for Prison Studies, 2002), p. 56.

744 CPT Standards, Section VI, para. 37. This standard for psychiatric treatment applies to forensic as well as non-forensic mental health facilities.

745 Vienna Convention on Consular Relations, article 18, U.N.T.S. Nos. 8638-8640, vol. 596 (April 24, 1963), pp. 262-512.

746 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health.

747 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health, para. 12.

748 See, e.g., Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff (London: University of London. International Centre for Prison Studies, 2002). This excellent handbook translates internationally acknowledged human rights and standards relating to imprisonment into guidelines for good prison management.

749 Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. res. 46/119, 46 U.N. GAOR Supp. (No. 49) at 189, U.N. Doc. A/46/49 (1991). The MIPrinciples do not define “mental illness.” Principle 4(1) provides that “A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.”

750 The Case of Victor Rosario Congo, Case No. 11,427, Inter-Am C.H.R. Report 29/99, Ecuador, adopted in Sess. 1424, OEA/Ser/L.V/II., doc. 26, March 9, 1999, para. 54.

751 The United Nations has appointed three Special Rapporteurs on Human Rights and Disability. See Eric Rosenthal and Clarence J. Sundram, The Role of International Human Rights in Domestic Mental Health Legislation, submitted to the World Health Organization on March 31, 2002, and available online at: http://www.bazelon.org/legal/resources/internationallaw.pdf, accessed on July 1, 2003. Rosenthal is executive director of Mental Disability Rights International.

752 MI Principles, Principle 20.

753 The U.S. government attached three reservations, five understandings, and two declarations to its ratification of CAT. Five reservations, five understandings, and four declarations accompanied the ICCPR. The United States has not ratified the First Optional Protocol to the ICCPR and did not declare itself bound by article 22 of CAT. The First Optional Protocol and article 22 allow the committees responsible for monitoring compliance with the treaties to receive complaints from individuals and organizations, in addition to complaints from other governments. The effect of the U.S. positions, combined with inadequate enforcement at the state level of prohibitions on torture and cruel, inhuman, and degrading treatment, is to deny U.S. citizens and others who allege violations of such treaties any forum in which their grievances can be heard or resolved.

754 The U.S. Constitution’s Supremacy Clause, art. VI, cl. 2, establishes that treaties are the law of the land in the United States. As such, treaties have the status of law in the U.S. domestic legal system. The Supremacy Clause declares treaties to be the "supreme Law of the Land" and instructs the courts to give them effect. The Supreme Court has held that customary international law is also the law of the land to be enforced by U.S. courts. See The Paquete Habana, 175 U.S. 677 (1900).

755 Committee Against Torture, “Status of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and Reservations, Declarations and Objections under the Convention,” U.N. Doc. CAT/C/2/Rev5. Available online at: http://www.unhchr.ch/tbs/doc.nsf/0/fa6561b18d8a4767802565c30038c86a?OpenDocument&Highlight=0,CAT%2Fc%2F2%2Frev.5, accessed June 30, 2003.

756 U.N. Human Rights Committee, State Party Report (Initial reports of States parties due in 1993), United States of America 24/08/94, U.N. Doc. CCPR/C/81/Add.4 (1994), para. 176.

757 Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997); Human Rights Watch, "Out of Sight: Super-Maximum Security Confinement in the United States," A Human Rights Watch Report, vol. 12, no. 1(G), February 2000; Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford: Clarendon Press, 1999).

758 See discussion of administrative and disciplinary segregation below, chapter XII.

759 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995). For further discussion of Human Rights Watch’s position on U.S. reservations to these treaties, see Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, 2001), pp. 58-59; and Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996), p. 47.

760 Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted).

761 The U.S. Department of Justice may criminally prosecute officials for violating a prisoner’s constitutional rights under sections 241 and 242 of Title 18 of the United States Code. It may also institute civil suits for violations of the civil rights of prisoners under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et seq. The investigative findings and settlements with Los Angeles County (regarding L.A. County Jail) and with the State of Wyoming (regarding Wyoming state prisons) are available online at: http://www.usdoj.gov/crt/split/index.html, accessed June 9, 2003.

762 See Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998); see also the 2000-2001 Supplement to the same volume for a review and analysis of these cases.

763 Human Rights Watch telephone interview with Tom Powell, director of mental health, Vermont Department of Corrections, April 23, 2003.

764 Human Rights Watch interview with Belinda Stewart, superintendent, Washington Correctional Center for Women, Tacoma, Washington, August 21, 2002.

765 Gregg v. Georgia, 428 U.S. 153, 173 (1976), quoted in Estelle v. Gamble, 429 U.S. 97, 104 (1976).

766 Estelle, 429 U.S. at 104.

767 Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir., 1977).

768 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998) provides a comprehensive and periodically updated analysis of legal developments, including how courts have interpreted “deliberate indifference.” Another useful source is the bimonthly Correctional Mental Health Report, also published by the Civic Research Institute and edited by Cohen, available online at: http://www.civicresearchinstitute.com/bh2.html, accessed July 1, 2003.

769 Farmer v. Brennan, 511 U.S. 825 (1994).

770 511 U.S. at 832.

771 511 U.S. at 839.

772 Ruiz v. Johnson, 37 F. Supp. 2d 855 (S.D. Texas, 1999), 902-907

773 Ruiz, 37 F. Supp. 2d. at 907.

774 Ibid.

775 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998), p. 4-33. The Mentally Disordered Inmate, which is periodically updated, provides a comprehensive review of legal developments.

776 The settlement agreement provides that “No seriously mentally ill prisoners will be sent to [the supermax] nor will seriously mentally ill prisoners at the facility be permitted to remain there.” The department of corrections sought to have serious mental illness be defined the same as the test for incompetence to stand trial. The court rejected this narrow definition and accepted the definition put forward by Dr. Terry Kupers, a psychiatric expert for the plaintiffs. The court ordered that inmates suffer from a serious mental illness are those who have current symptoms of or are receiving treatment for Axis I disorders; inmates diagnosed with a mental disorder that includes being actively suicidal; with a serious mental illness that is frequently characterized either by breaks with reality or by perceptions of reality that lead the individual to significant functional impairment; with an organic brain syndrome that results in a significant functional impairment if not treated; with a severe personality disorder that is manifested by frequent episodes of psychosis or depression and results in significant functional impairment; or with any other serious mental illness or disorder that is worsened by confinement at Supermax. Included in the settlement agreement between the parties approved by the court were the court’s definition of serious mental illness and the court ordered procedures for implementing the definition. As of June 2003, there was only one inmate who the DRC claimed should be held at the facility under this “dangerousness” exception. Jones ‘El v. Berge, Judgment in a Civil Case, Case No. 00-C-0421-C (W.D. Wisconsin, June 24, 2002) (unpublished). Human Rights Watch telephone interview with David Fathi, attorney with the ACLU’s National Prison Project, June 30, 2003.

777 Ruiz v. Estelle, 503 F. Supp. 1265, 1336 (S.D. Tex. 1980), aff’d in part, 679 F.2d 115 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).

778 503 F. Supp. at 1339. In 1999, in response to an effort by Texas to obtain termination of the court’s jurisdiction over the Texas prison system, Judge Justice found that Texas continued to violate inmate constitutional rights because of “inadequate and negligen[t] medical and psychiatric treatment.”

779 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998), p. 7-7. Cohen spells out a larger list of sixteen factors that he concluded are required for a legal and sound system of mental health services.

780 42 U.S.C. 12101 et. seq.

781 D.M. et al v. Jack Terhune et al. 67 F. Supp. 2d 401 (D. N.J., 1999).

782 Plaintiffs were not, however, able to get class certification for the case. Rasho v. Snyder, 2003 U.S. Dist. Lexis 2833, Feb. 28, 2003 (Denial of Plaintiffs’ Motion for Reconsideration of Order Denying Class Certification).

783 As noted below in chapter XII, the terminology for punitive, segregated prison units varies among the different prison systems.

784 Disability Advocates Inc. v. New York State Office of Mental Health. No. 02 CV 4002. (S.D.N.Y., May 28, 2002).


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October 2003