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VI. SYSTEMS IN TRANSITION

U.S. prison systems, at present, face two key forces for change which are often at odds: on the one hand, litigation to induce reform of mental health services, which prison officials are otherwise slow to undertake; and on the other hand, funding pressures and cutbacks that make implementation of reforms more difficult.


Reform through Litigation

While it should not take the threat of a lawsuit to get correctional systems to improve their mental health services, in practice, litigation or the threat of it, is the prerequisite for systematic improvements in mental health services. The earlier lawsuits challenged the utter lack of mental health services in prisons. More recently, litigation has sought improvements in existing systems.

Class action lawsuits have led to improvements in prison mental health care in a number of states, including Alabama, Arizona, California, Florida, Indiana, Iowa, Louisiana, Michigan, New Mexico, New Jersey, New York, Ohio, Texas, Vermont, Washington, and Wisconsin. Lawsuits have led to consent decrees and court orders instituting reforms and the court appointment of masters and monitors to oversee compliance. Considering the needs of today’s mentally ill prisoners, the progress to date is far from enough. Viewed from the perspective of where prison mental health was two decades ago, the progress has been momentous.

  • In Ohio, for example, Dr. Reginald Wilkinson, the director of the Ohio Department of Rehabilitation and Correction, was confronted with a devastating expert assessment of Ohio’s mental health services developed after prisoners brought suit in 1993 claiming the services were so poor as to be unconstitutional. After receiving this assessment, Wilkinson engaged in a remarkable collaboration with correctional mental health experts, plaintiffs’ attorneys, and other stakeholders to develop the blueprint for a major overhaul of the state’s prison mental health services. The suit ended in a settlement without extensive adversarial proceedings, and the department has remained committed to providing quality mental health services. Within three years of the settlement, full-time equivalent staff providing psychiatric services increased from sixty-one to 284; the number of hospital beds had increased dramatically; and the percentage of prisoners on the psychiatric outpatient caseload had increased from 7.4 percent of the prison population to 12.2 percent.137

  • In California, for example, a class action brought on behalf of all prisoners in the state prison system who suffered a serious mental illness resulted in a comprehensive court order addressing the state’s grossly deficient mental health services, including lack of screening and inadequate staffing, personnel qualifications, access to care, supervision of psychotropic medication, use of restraints, medical records, and suicide prevention efforts.138 Numerous changes were instituted in California prisons as a result of the litigation, including the establishment of Enhanced Outpatient Programs offering intensive mental health programming and monitoring, in separate housing units, for the most seriously mentally ill prisoners in thirteen prisons; and enhanced access to evaluation and services for thousands of less severely ill prisoners living in general population.

  • In 1999,New Jersey settled a class action lawsuit brought by mentally ill prisoners and agreed to invest an additional $18 million a year to improve the state’s correctional mental health services.139 The settlement followed in the wake of a report prepared by correctional mental health expert Dr. Dennis Koson, who found:

The treatment of mentally ill inmates in the [New Jersey Department of Corrections to be] among the worst I have seen…. The extensive shortcomings identified in mental health treatment services, the lack of any special facilities for mentally ill inmates, and the harsh disciplinary practices have the net effect of causing significant injury to seriously mentally ill inmates.140

Among other provisions of the settlement, New Jersey agreed to higher staffing levels, improved staff-patient ratios, better training for staff, and the provision of more specialized services.141

Successful litigation does not necessarily translate quickly into actual improvement. Some directors of correctional agencies accepted on-paper compliance with court decrees as a substitute for real, durable reforms. Faced with court orders or consent decrees mandating improved mental health services, some correctional authorities resist putting reforms in place. The reluctance can stem from institutional inertia, bureaucratic obstacles, failure to understand the importance of adequate mental health services, or the lack of funding. For example:

  • Nineteen years after a federal court ordered major improvements in mental health services in Texas prisons, the court, “was deeply disconcerted by the inadequate and negligence [sic] medical and psychiatric treatment” that still existed.142 The court found that the Texas prisons’ psychiatric care systems were, “frequently grossly wanting, and that plaintiffs may have in fact shown deliberate indifference in individual cases or institutions.”143

  • In 1990, a prisoner filed a lawsuit alleging constitutional violations in connection with conditions at Iowa State Penitentiary (ISP), particularly with regard to disciplinary practices. The case became a class action in 1995. In 1997, a federal district court ruled certain practices at the prison were unconstitutional. The court’s 118-page order describes shocking conditions, including prisoners sentenced arbitrarily to egregiously long sentences in lock-up cell houses from which they were unable to extricate themselves, the lack of evaluation for mental illness after the initial intake screening, the failure to consider mental illness in the determination of punishment for infractions, and the confinement of mentally ill prisoners in segregated disciplinary housing — a unit described as pandemonium and bedlam — where they received almost no treatment at all for their illnesses. The court ordered the Iowa Department of Corrections (IDOC) to develop a plan to remedy the constitutional violations.144 It took two years (and four tries) for the Iowa Department of Corrections to come up with a plan that was acceptable to the court and to obtain funding from the Iowa legislature to pay for it. Among the IDOC plans the court approved in August, 1999, was the construction of a new two hundred-bed special needs unit at ISP for the mentally ill. The IDOC represented to the court that architectural plans were being drawn and that construction was scheduled to begin in late 1999 and operation expected in late 2000. The court accepted the new two hundred-bed unit as “virtually fait accomplit.” The court also ordered the IDOC to maintain funding for three psychologists, including one doctorate level psychologist, and gave the IDOC until December to fill all those positions.145 At oral argument in 2000 during an appeal of the district court’s decision, IDOC officials assured the appellate court they were moving forward with the new unit which currently consisted of a “hole in the ground.”146 Nevertheless, in October 15, 2001, the district court issued an unpublished opinion in which the judge noted that completion of the new special needs unit had been delayed until August 2002, that instead of 200 beds, the unit would initially consist of only forty; additional beds up to 200 would be constructed at a later time.147

  • A federal court in 1977 found that a grossly inadequate system of medical care, including psychiatric care (no psychiatrists or psychologists were employed nor was there any prearrangement to provide psychiatric treatment for prisoners who needed it), was part of unconstitutional conditions at the Rhode Island Adult Correctional Institutions.148 Nine years later, in 1986, the court found, among many remaining problems, that the psychiatric staffing remained insufficient, there was inadequate monitoring of prisoners on psychotropic medications, and deficient suicide prevention practices.149


The Problem of Funding Mental Health Services in Prisons

One of the major impediments to adequate mental health services in prison is, quite simply, their cost — providing mental health care is expensive. For example, in Pennsylvania, the average prisoner costs $80 per day to incarcerate. Yet if an prisoner is mentally ill, the added costs of mental health services, medications, and additional correctional staff boost the average daily cost to $140.150 We have not been able to find figures for total national expenditures on prison mental health services.151 Many individual prison systems Human Rights Watch contacted indicated they were unable to calculate the portion of their medical budgets devoted to mental health services. Nevertheless, data on prison mental health services budgets from some states illustrate the sums involved, as well as reveal significant differences in the resources allocated to mental health. The differences reflect both decisions on quantity and quality of care to provide as well as regional differences in salaries for mental health professionals.

Table 2: Fiscal Year 2003-2004 Mental Health Care Budgets in State Departments of Corrections (DOC)152

State DOC

Budgeted Amount in Dollars

Prison Population153

Per Capita Expenditure in Dollars

California154**

245,598,000

162,317

1513

Georgia155**

24,956,358

47,445

526

Michigan156

83,992,600

50,591

1660

Minnesota157

4,719,000

7,129

662

New Jersey158**

23,651,000

27,891

848

Rhode Island159**

974,231

3,520

277

Texas160**

67,156,018

162,003

415

Washington161**

14,935,244

16,062

930

** Includes amounts budgeted for contracted out mental health services.

The fiscal crisis currently gripping the fifty U.S. states has led to financial belt-tightening and budget cut-backs, including in prison budgets. Prison mental health services have not been spared. In Georgia, for example, the most recent mission statement published by the Office of Health Services boasts of having “reduced psychiatrists and psychologists staffing by 30% with significant budget savings.” The same report declares that, despite the risk of “moderate to significant medical and legal risk,” the department has decided, as a money-saving gesture, to abandon a plan to open a psychiatric unit at Johnson State Prison, even though this “will limit options for referrals of inmates in mental health crisis and inmates will have to be transported greater distances to access beds.” The department also decided to fill only 85 percent of vacant mental health counseling positions.162

In Florida, mental health director Roderick Hall told Human Rights Watch that it was impossible to estimate the amount of money spent by the correctional system on mental health services because “it’s not tabulated that way. The state budgets money for health care. The accounting structure doesn’t break down between mental health, physical health, and dental health.”163 However, despite the lack of specific numbers, the evidence suggests that Florida’s mental health services have also been impacted by budget tightening: a March 2001 Correctional Medical Authority committee meeting detailed Florida’s plans to cuts dollars from its correctional mental health expenditures through “cost saving efforts with psychotropic medications including reduction in the use of liquid psychotropics and limitation of formulary SSRIs [selective serotonin reuptake inhibitors] to two drugs.” The meeting also detailed how medications would be distributed only “twice [per day] in most places where possible due to limited resources.”164

In Michigan, a state that in recent years has made dramatic improvements to its system of mental health service provision within prisons, budget cuts took $5 million from the $72 million-hospital and prison mental health services in 2002 and fifty mental health service positions were slashed.165 According to the Director of Bureau of Forensic Mental Health Services in the Department of Community Health, Roger Smith, this has resulted in the number of treatment hours per patient in the intensive residential treatment programs being reduced from approximately twenty to twenty-three per week, down to sixteen.166 Tony Rome, clinical director of the Michigan Bureau of Forensic Mental Health Services, asserted that so far basic outpatient programming in Michigan’s prisons has not been cut. But, Rome acknowledged, the system is tightening up it criteria for outpatient eligibility.167

In Iowa, the corrections budget for fiscal year 2003 was cut 4.2 percent with proportionate cuts befalling the already-strapped mental health services.168 Massachusetts has also recently implemented significant cuts in its mental health programs for incarcerated offenders.169 And in South Carolina, the Department of Mental Health, responsible for administering mental health services to the state’s prisoners, recently lost $31 million in state funds, and $20 million from the federal government, and is facing another 5 percent cut to its budget.170



137 Dunn v. Voinovich, C1-93-0166 (S.D. Ohio, July 10, 1995). A description of the process by which the consent decree was reached is provided by Fred Cohen and Sharon Aungst, “Prison Mental Health Care: Dispute Resolution and Monitoring in Ohio,” Criminal Law Bulletin, July-August 1997, pp. 299-327. Cohen served as an expert in the pre-settlement Dunn process and subsequently served as the court-appointed monitor.

138 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal., 1995).

139 D.M. v. Terhune, 67 F. Supp. 2d 401 (D.N.J., 1999).

140 New Jersey Prison System Report of Dr. Dennis Koson, C.F. v. Terhune, Civil Action No. 96-1840 (D.N.J., September 8, 1998), p. 4, on file at Human Rights Watch. Human Rights Watch successfully sued the New Jersey Department of Corrections to secure public release of the Koson report. The settlement is reported at: C.F. et al. v. Terhune et al., 67 F. Supp. 2d 401 (D. N.J., 1999).

141 D.M. et al v. Jack Terhune et al. 67 F. Supp. 2d 401 (D. N.J., 1999.) The voluntary settlement committed the New Jersey Department of Corrections (DOC) to seek $16 million per year in additional mental health funding, and $2 million in construction funds to pay for new mental health facilities. The agreement is to remain in place until such time as the DOC has been found to be compliant with the terms of the settlement for one full year. Because it is a voluntary settlement, rather than one imposed by a federal court, it is not subject to the limiting time-constraints imposed by the Prison Litigation Reform Act. Human Rights Watch was not able to obtain permission from New Jersey Department of Corrections to visit any of its facilities or to interview officials concerning mental health services.

142 Ruiz v. Johnson, 37 F. Supp. 2d at 907.

143 Ibid.

144 Goff v. Harper, Findings of Fact and Conclusions of Law, No. 4-90-CV-50365 (S.D. Iowa, June 5, 1997) (unpublished).

145 Goff v. Harper, 59 F. Supp. 2d 910 (S.D. Iowa, 1999).

146 Goff v. Harper, 235 F. 3d 410 (8th Cir., 2000).

147 Fred Cohen, “Iowa Struggles to Provide Constitutionally Acceptable Mental Health Care: Promises Made?” Correctional Mental Health Report, July/August 2003, p. 19.

148 Palmigiano v. Garrahy, 443 F. Supp. 956 (D.R.I., 1977), remanded on issue of deadlines, 599 F. 2d 17 (1st Cir. 1979); defendants found in contempt of court, 737 F. Supp. 1257 (D.R. I. 1990). The court ordered defendants to hire an adequate number of mental health professionals to diagnose, treat, and care for those prisoners who have mental health problems. It also ordered defendants to bring the health care delivery system into compliance within six months with the minimum standards of the American Public Health Association, the United States Public Health Service, and the Department of Health, State of Rhode Island.

149 Palmigiano v. Garrahy, 639 F. Supp. 244 (D.R.I., 1986). The court noted that:

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.

150 U.S. Senate Judiciary Committee, Statement of Dr. Reginald Wilkinson, director, Ohio Department of Rehabilitation and Correction, “Mentally Ill Offender Treatment and Crime Reduction Act of 2003,” S. 1194, 108th Congress, July 30, 2003.

151 The average national daily cost per inmate for health care medical and mental health care in 2001 was $7.39. Camille G. Camp and Camp, George M., Corrections Yearbook 2001: Adult Systems (Connecticut: Criminal Justice Institute, 2002), p. 106. A breakdown for mental health services alone was not provided.

152 Caution must be used in comparing budgets because of differences in how state agencies calculate budgets.

153 BJS, Prisoners in 2002, table 3.

154 Human Rights Watch telephone interview with Terry Thornton, spokesperson, California Department of Corrections, June 16, 2003; California Legislative Analysts Office, Analysis of the 2000-2001 Budget Bill, accessed online at: http://www.lao.ca.gov/analysis%5F2000/crim%5Fjustice/cj%5F2%5Fcc%5Fmentally%5Fill%5Fanl00.htm. According to the analysis: “[t]he number of CDC inmates receiving such treatment has grown primarily because of court rulings requiring that the state to do a better job of identifying mentally ill offenders and a better job of providing services to those it has identified as needing treatment.”

155 Figures provided in electronic correspondence to Human Rights Watch from Peggy Chapman, public relations and information specialist, Georgia Department of Corrections, June 12, 2003 and from Georgia Health Services, Overview, Fiscal Year 2002. Although the amount budgeted rose from $24 million in 2001, the number of mentally ill prisoners increased by 500, resulting in a net decrease in the amount per prisoner. A portion of the state’s funding for mental health services comes from kickbacks from prisoners collect phone calls provided by the telephone service provider to the Department of Corrections. Human Rights Watch telephone interview, Bill Kissell, director of health services, Georgia Department of Corrections, February 5, 2003.

156 Human Rights Watch telephone interview with Tori Ellison, budget analyst, Michigan Department of Corrections, June 12, 2003.

157 Human Rights Watch telephone interview with John Calabrese, assistant finance director, Minnesota Department of Corrections, June 12, 2003.

158 Human Rights Watch telephone interview with Barbara Kutrzyba, manager II, Fiscal Resources, New Jersey Department of Corrections, June 12, 2003.

159 Electronic correspondence to Human Rights Watch from Richard Frechette, associate director/CFO, Rhode Island Department of Corrections, June 13, 2003.

160 Electronic correspondence to Human Rights Watch from Celeste Byrne, budget director, Texas Department of Criminal Justice, July 21, 2003; Human Rights Watch telephone interview with Celeste Byrne, August 18, 2003.

161 Electronic correspondence to Human Rights Watch from Trenton Howard, budget manager, Washington Department of Corrections, June 13, 2003.

162 In 2002, Georgia spent $9.60 per day per inmate on health services (mental and physical); Alabama spent $4.13. Data provided in Georgia Department of Corrections, Office of Health Services, Georgia Department of Corrections, Health Services Overview for 2002, available online at: http://www.dcor.state.ga.us/pdf/hsovrFY03.pdf, accessed on July 1, 2003. The numbers are from p. 9; the quote is from p. 40.

163 Human Rights Watch telephone interview with Roderick Hall, mental health director, Florida Department of Correction, April 14, 2003.

164 Minutes from Correctional Medical Authority Mental Health Committee Meeting, March 23, 2001.

165 Human Rights Watch telephone interview with Roger Smith and Tony Rome, director and clinical director, Michigan Bureau of Forensic Mental Health Services, June 19, 2002.

166 Human Rights Watch telephone interview with Tony Rome, clinical director, Michigan Bureau of Forensic Mental Health Services, June 19, 2002. In a subsequent telephone interview, February 10, 2003, Tony Rome told Human Rights Watch that the number of treatment hours per week was being cut to twelve hours.

167 Human Rights Watch telephone interview with Tony Rome, April 21, 2003.

168 Human Rights Watch telephone interview with Harbans Deol, medical director, Iowa Department of Corrections, April 2, 2003.

169 Human Rights Watch telephone interview with Dr. Thomas Conklin, medical director, Hampden County Jail, October 9, 2002. Hampden County Jail deals with low-level state prisoners as well as county inmates, ibid.

170 Editorial, “Deplorable Conditions,” Greenville News, December 8, 2002.


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October 2003