Originally published in: Criminal Justice and Behavior, vol. 35, no. 8, August 2008, 1079-1087.
Disturbed and Disturbing Prisoners
A Few Words about Stereotypes and Labels
Rules and Rule Breakers
Penal Isolation, aka Solitary Confinement
A Human Rights Perspective
Human Rights and Supermaximun Security Confinement
What Can be Done?
References
He is too modest to acknowledge it, but this issue of Criminal Justice and Behavior is not just edited by Hans Toch. It is a celebration of the profound influence he has had on the conceptualization of prisons and the fit or misfit with the persons they confine. The misfit depicted in this issue revolves around the mutual inability of mentally disordered prisoners and prison officials to cope with each other, an inability that takes on ever greater significance as the absolute as well as proportionate number of mentally troubled men and women in U.S. prisons continues to surge. I want to use this opportunity to underscore several of the themes that cut across the articles and then add my own thoughts regarding the use of a human rights framework to assess the conundrums limned in these pages.
Disturbed and Disturbing Prisoners
In all of his writing, Toch has put people front and center-disturbed and disturbing people; miserable people expert at making others miserable as well; lost, benighted, annoying, frightening, vulnerable, and afflicted people. But he never has let us forget that for all their mental health, behavioral, and even moral disorders, they are humans nonetheless. He gives them names, he gives them histories, he does not hide them behind the categories and abstractions dear to many academics.
The pages in this special issue also are filled with examples of such inept, habitually maladaptive, and self-destructive people, for example, Mr. Abbot, Mr. Baker, and others named and unnamed. They also include Miriam and Violet, because as Elaine Lord reminds us, women are the fastest growing segment of the prison population, and a much higher proportion of them have mental health problems than men.[1]At Bedford Hills, the maximum security prison for women in New York that Ms. Lord ran for many years, half of the prisoners were on the mental health caseload, and 80% of all unusual incidents involved mentally ill women (Lord, 2008 [this issue]).
Male or female, prisoners with mental illnesses and disorders often try the patience and goodwill of staff as well as other inmates, often past the breaking point. They come to prison with long-standing patterns of behavior and thinking; dysfunctional as they were in the free world, they are even more so behind bars. As Toch and the other authors in this issue reveal, however, these prisoners' problematic lives behind bars testify as much to the failure of prison rules and environments as to the prisoners' deficiencies.
Prison authorities confronting persons with serious mental disorders keep trying to fit these square pegs into the round holes of standard prison policies and procedures. Not surprisingly, the effort fails. The culture of control that operates in prisons is transformed into a "culture of harm" and then into an "ecology of cruelty" (Haney, 2008 [this issue]). A new way of doing business is needed to work successfully with disturbed prisoners who, as Lovell (2008 [this issue]) reminds us, encompass far more than those with an Axis I diagnosis. The starting point must be the recognition that the way prisons are operated can contribute to the behavioral difficulties of disturbed prisoners.
The need to look at how prisons contribute to the very problems they ostensibly seek to solve-that is, interpersonal violence-is a message that Toch and many of those he has mentored have been insisting on for decades. Yet it is a message that has scarcely penetrated corrections. Whether lacking the time or inclination to think beyond day-to-day management, whether too invested in the way things are done or simply too skeptical of the notions of people who are not running institutions, prison officials have been singularly reluctant to examine-much less change-their ways (unless forced to do so by the courts). They are as much prisoners of the prevailing prison culture as the inmates.
The Scottish prison described by Cooke, Wozniak, and Johnstone (2008 [this issue]), Washington state's "John Larson" (Lovell, 2008), and Elaine Lord when she was superintendent at Bedford Hills-these are rare institutions and officials in the world of corrections. Their stories show the importance of reconceptualizing prisons and prisoners, and of acknowledging the diverse and difficult mental issues prisoners have. But as the authors in this issue remind us, there are too few corrections officials who put clear-thinking, pragmatism, and flexibility ahead of blind adherence to the way things have always been done. Most officials will not or cannot take a fresh look at why inmates misbehave, will not ask how the prison regime itself contributes to their conduct, and will not question the efficacy of punishment to quell misbehavior.
A Few Words about Stereotypes and Labels
All of the authors in this issue are singularly conscious of the way stereotypes and labels in prison have a way of perpetuating and reinforcing themselves. As Haney emphasizes, both staff and inmates view each other through prisms of preconceived and simplistic images, which become self-fulfilling prophecies. As prisons (and particularly supermaximum security prisons) are currently operated, neither group has much opportunity to view the other as full human beings. With formal power and control in the hands of staff, the brunt of the harm from misconstructions and limited vision falls on prisoners.
The labels applied by custodial staff and mental health workers influence their interpretation of, as well as response to, the behavior of difficult inmates. Prisoners who cause trouble get labeled as troublemakers, regardless of the role mental illness may play in their conduct. And those labels can last for a long time. Reputations can be earned quickly but take a long time to fade. Senior officials and even line officers will disregard current conduct and continue to respond to an inmate on the basis of a reputation originally acquired years or even decades earlier.
Some of the mental health labels that are prevalent in prison actually remove highly disturbed prisoners from the realm of the "mentally ill." If mental health staff make a diagnosis of "personality disorder," as they are wont to do with inmates who are particularly difficult and obnoxious, they are passing what is essentially a character judgment under the guise of a clinical one. They are also, not coincidentally, washing their hands of the inmate (Lord, 2008). If "deconstructed," the personality disorder label says that the prisoner is untreatable- that he does not have a "serious" mental illness which the Constitution requires corrections agencies to treat, that he is "bad" not "mad," and that it makes sense for custodial staff to consider the prisoner's misconduct his "fault" and to respond with punishment. Whatever its clinical merit in individual cases (which may be scant), the label of personality disorder reinforces custodial staff views about bad actors and the moral as well as operational imperative of punishing them. The fact that a person with a personality disorder may be causing pain to himself as well as others and might benefit from professional help is of no moment.
Similarly, consider the label of "malingering." It is a concept that may say more about the failures of the clinicians than of the individual prisoner. If a prisoner is "malingering" she doesn't deserve or need mental health services-she is faking her problems to get something she wants. But as Kupers (2008 [this issue]) points out, having an ulterior motive and being ill are not mutually exclusive. A prisoner can both exaggerate her symptoms and need help; she may desperately try to get attention, for example, through self-mutilation, because she is desperate to get out of solitary confinement. In these cases, punishing the "malingering" behavior becomes yet another example of a prison response that is futile as well as harmful.
Prison workers-whether custodial or mental health-have to work hard to keep their sense of self-respect under extraordinarily frustrating conditions. Diagnoses of malingering (as well as of personality disorders) help relieve mental health staff of what must be unbearable professional as well as personal frustration from daily confronting human needs they cannot meet because the demand for mental health services so greatly exceeds the supply.
Mental health staff in prisons live the contradiction between the de facto current role of prisons as the nation's largest mental health institutions and the unwillingness of elected officials to provide the resources that role requires (Adams & Ferrandino, 2008 [this issue]). Legislators have been willing to pass mandatory sentencing laws that sweep low level offenders into prison, but they have not been willing to increase corrections budgets to meet the medical as well as mental health needs of the growing and increasingly troubled prison population. Of course, if states had been willing to fund community-based health services in the first place, following deinstitutionalization, prison officials today might still be running prisons and not facilities for the mentally ill. Be that as it may, prisoners are constitutionally entitled to medical and mental health care, but those who control prison purse strings do not take this constitutional obligation seriously unless and until forced to by court orders.
Rules and Rule Breakers
The surge in prisoners with acute mental health needs not only challenges mental health resources but also challenges the very precepts that govern incarceration. Prisons are run on hierarchical, militaristic models of strict obedience to rules governing every aspect of behavior. Breaking the rules warrants punishment. Punishment will deter the punished inmate from future misconduct and will deter others as well. Without such certainty and clarity of cause and consequences, disorder and danger would reign. As the authors in this issue emphasize, the logic of punishment and deterrence fails when an untreated prisoner cannot consistently and/or meaningfully control his behavior because of mental disorders, whether because of a serious mental illness or organic brain damage.
Prisons can be difficult for anyone, but they are particularly difficult places for prisoners with mental disorders that limit their ability to navigate. The mentally ill are as ill-equipped to be prisoners as prison officials are to handle them (Fellner & Abramsky, 2003). Not surprisingly, mentally troubled inmates break the rules at higher rates than other prisoners, and they are often victims of inmate as well as staff violence as well.
But the paradigm governing the prison culture does not permit custodial staff or prison management the luxury of asking, "Why is this inmate acting this way?" Indeed, as a practical matter, they are not trained to understand the nature of mental illness and its behavioral impact; they typically cannot distinguish between a disgruntled inmate who "acts out" and one whose "acting out" reflects illness. Confronted with misconduct, prison staff react no differently than most people do outside prison walls-they confuse effect with intent, they assume behavior reflects deliberate choices, and they believe punishment will deter poor choices in the future.
In short, prison officials keep insisting that prisoners who cannot follow the rules are prisoners who will not follow the rules. Under the operative model of individual responsibility and accountability, they keep imposing punishment. Not surprisingly, the punishment does not prevent future misconduct. Ultimately, the "mad" like the "bad" are combined into the "worst of the worst" and sent-through disciplinary or administrative segregation mechanisms-to penal isolation.
Penal Isolation, aka Solitary Confinement
The eloquence of the contributors to this issue who address the causes, nature, and consequences of prolonged solitary confinement conveys its horror and the pain and suffering it causes. These authors also convey its futility, its contribution to repeating cycles of misconduct/punishment, and its particularly cruel impact on prisoners already so vulnerable because of mental illness.
Much of the long-term solitary confinement in U.S. prisons occurs in supermaximum security prisons. Confronting increased prison violence in the 1980s, officials concluded that the problem was worse prisoners, rather than overcrowding, the dismantling of educational and rehabilitative programs, or other institutional factors. Prison officials absolved themselves of any responsibility for the violence, put it all squarely on the shoulders of particularly troublesome prisoners, and looked for new ways to control and punish those prisoners. Supermax[2]prisons (i.e., prisons within prisons) proliferated like poison mushrooms across the country. A high proportion of the prisoners enduring their toxic effects have serious mental health issues (Fellner & Abramsky, 2003; Lovell, 2008).
Supermax regimes of round-the-clock isolation, extensive surveillance, and high security provide limited to no meaningful activities for prisoners, limited to no therapeutic or vocational programs, limited to no normal human interaction, limited to no genuine recreation, and limited to no access to nature (Fellner & Mariner, 1997). Prisoners in a super-max can and do spend years without seeing a tree, without shooting the breeze with some friends, without being able throw an arm around a shoulder or embrace a family member. Horrifying as these conditions are, in some facilities the extent of the restrictions exceeds the fathomable. In Pennsylvania's most restrictive units, prisoners have all the usual super-max deprivations plus some that can only be considered gratuitously cruel: no photographs of family; no newspapers or magazines (unless religious); and, perhaps needless to say, no radio or television (Cohen, 2008 [this issue]).
The contradiction between the paradigm of security in prisons and mental health considerations reaches its apogee in supermax settings. Most independent psychiatric experts believe that prolonged confinement in supermax conditions is psychologically destructive, with the extent of destructiveness depending on each prisoner's prior psychological strengths and weaknesses. Some prisoners kept in supermax may develop clinically identifiable symptoms consistent with what has been called "SHU syndrome" (Adams & Ferrandino, 2008; Haney, 2008; Kupers, 2008). As a federal judge observed, supermax confinement "may press the outer bounds of what most humans can psychologically tolerate."[3] The conditions of isolation, idleness, and deprivation are particularly harmful for prisoners who already have serious mental illnesses. Indeed, although federal courts have been loathe to rule prolonged penal isolation as such violates the Eighth Amendment's ban on cruel and unusual punishments, in every class action challenging the placement of mentally ill inmates in supermax, plaintiffs have either won a court order or obtained a settlement prohibiting or greatly limiting such confinement for them.
It is curious that supermax regimes were developed even though the often disastrous mental health consequences of prolonged isolation had been extensively documented and were apparent in the 19th century (Haney, 2008; Scharff Smith, 2008 [this issue]). Obviously, mental health professionals were not consulted in their design. Perhaps those who developed supermax regimes did not care about the psychological impact or turned a blind eye to it in their quest for total control. Or perhaps they thought solitary confinement today would be different because new supermax prisons are brightly lit, clean, and high-tech-unlike the dark, dank dungeons of old. But if this is what they thought, they failed to understand that the lessons of history were about human nature, not architecture. People suffer grievously in prolonged solitary confinement because human beings are social animals whose well-being requires interaction and connection with others as well as mental, physical, and environmental stimulation.
The high proportion of mentally troubled men in prolonged penal isolation reflects the inability of prison officials to respond constructively to the challenges these inmates pose. But it also reflects the more general inability of officials to question their assumptions, their lack of imagination, and what can only be considered a hardening of their hearts-an occupational hazard-which makes them inured to misery and pain.[4] Supermax confinement can be seen as the ultimate reflection of a prison culture that, although by and large eschewing the beatings and whippings of old, continues to rely on sticks (albeit ever more sophisticated ones) rather than carrots, on pain and deprivation rather than positive strategies of progressive encouragement for responsible choice, personal development, and self improvement.
Why is it that in Scotland, the same recalcitrant, destructive, violent, and mentally disordered prisoners are housed in cells with large windows, have access to exercise equipments, can walk unchained to exercise yards, can banter with officers, have many personal possessions, can have contact visits, and can meet in conference rooms with mental health and other staff? The articles by Toch and by Cooke, Wozniak, and Johnstone (2008 [this issue]) reveal that Scottish prison staff take their corrections mission seriously. They assume that prisoners have the capacity to change, that they can eventually outgrow and discard destructive personas, and that it is the job of prison officials to help them to do so. The description of Scottish staff reveal people who show remarkable forbearance, creativity, and perseverance, a staff willing to offer prisoners the experiences and second chances that might encourage gradual change.
A Human Rights Perspective
The Scottish prison system also would appear to be one that, whether explicitly or implicitly, tries to operate within a human rights framework. The starting point for human rights is recognition of the inherent dignity of every human being. In the prison context, human rights law not only prohibits mistreatment, it also mandates a humanistic vision.
Thus Article 7 of the International Convention on Civil and Political Rights (ICCPR; 1966), to which the United States is a party, states, that no one "shall be subjected to torture or to other cruel, inhuman or degrading treatment or punishment." But the ICCPR also requires officials to treat prisoners "with humanity and with respect for the inherent dignity of the human person" and mandates that the "penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation" (ICCPR, Article 10).
The differences between the ICCPR and U.S. constitutional law with respect to prisoners are significant. Under U.S. jurisprudence, the dignity of prisoners is supposed to be protected by the Eighth Amendment, but that amendment only prohibits conduct deemed to fall below an ever-lowering minimum for what constitutes cruelty. Operating within progressively cramped constitutional confines, the courts require prison officials to provide no more than the conditions one would find in a well-run zoo (Cohen, 2008).
The Eighth Amendment also offers no protection against the infliction of mental misery. As Cohen and others in this issue have pointed out, the courts have refused to give constitutional significance to the suffering of inmates spending years in penal isolation unless they are diagnosed with a serious mental illness. Simple mental suffering, however intense and prolonged, does not count. Human rights law, on the other hand, recognizes the reality of psychological torture and cruelty even if it does not cause clinical illness.[5]
The definition of torture and other prohibited forms of cruelty under human rights law includes the fact that they are imposed for an official purpose.[6] The legitimacy or importance of that purpose, however, does not render the cruelty acceptable. The extreme deprivation inflicted for years on prisoners in Pennsylvania's most restrictive prison units (Cohen, 2008) is not saved from human rights condemnation just because it is (ostensibly) intended to promote better prisoner behavior. It is also irrelevant, from a human rights perspective, whether the officials think what they are doing is cruel (and no doubt they do not). Human rights violations are objectively determined; the rights of prisoners do not turn on the mind-set of officials. An official will be remiss in his or her obligations under Article 10 if he or she fails to provide appropriate mental health services, and the absence of such services may amount to treatment prohibited by Article 7, regardless of whether the official acts negligently, with "deliberate indifference," or with wanton sadism.[7]
By mandating humane treatment and the goal of rehabilitation, the ICCPR makes clear that honoring human dignity requires more than avoiding cruelty. Under the U.S. Constitution, officials are free to choose regimes of deprivation, idleness, and deterrence. Rehabilitation is an option that prison officials can adopt or discard as budgets, the political climate, and their own interests dictate.
Human Rights and Supermaximun Security Confinement
Cohen's (2008) suggestion that penal isolation be subject to the same principles that govern physical restraints is consistent with a human rights approach. Protecting the dignity of prisoners means that any measures restricting their rights and freedoms within prison should only be imposed when necessary, to the extent necessary, and only for so long as is necessary. Using this framework to assess supermax conditions requires consideration of the length of time they are imposed, the actual conditions, and the reasons for placing the prisoner in them (Fellner, 2000; Fellner & Mariner, 1997). For example, if used at all, solitary confinement should be used for as short a period as possible.[8] Harsh conditions that may be acceptable for 2 weeks become inhuman when imposed for years. If legitimate security or safety considerations dictate lengthy segregation, then officials must develop ways to ameliorate the isolation and deprivation.
The Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has criticized prison conditions in Europe akin to those in penal isolation in the United States, pointing out that "solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible."[9] It has also stated that "it is generally acknowledged that all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects resulting in deterioration of mental faculties and social abilities."[10] It has reminded European governments that "the principle of proportionality calls for a balance to be struck between the requirement of the situation and the imposition of a solitary confinement-type regime, which can have very harmful consequences for the person concerned."[11]
What Can be Done?
What will it take to replace the current punitive paradigm operating within prisons with a rehabilitation and therapeutic model-if not for all, then at least for the hundreds of thousands of prisoners who are mentally ill? What will it take to see a human rights perspective incorporated in prison policies and practices? This journal issue presents powerful and, frankly, irrefutable arguments for change. But are corrections officials and the elected officials to whom they respond listening?
Even without a new paradigm, much good would be accomplished simply by restoring prisons to their only legitimate purpose: to confine people who have committed such dangerous or serious crimes that prison is the only commensurate response. From a human rights perspective, the deprivation of liberty is justifiable only when it is used parsimoniously-imposed only when necessary and then only for as short a time as necessary.
If this approach were adopted, U.S. rates of incarceration-by far the highest in the world at 751 per 100,000 residents-would be greatly reduced. Imagine if the United States were to reduce its prison population to proportions equivalent to those prevailing in western Europe, that is, to one fifth or one sixth of what it is now.[12] The United States would no longer use jails and prisons as warehouses for poor, marginalized, substance abusing, and mentally ill men and women. It would have the resources to respond to those for whom imprisonment remains necessary. Furthermore, prison officials might have the time to cultivate the flexibility and creativity that are sorely lacking today, because-much as prison culture and norms dictate the current punitive paradigm-it is also true that the sheer scale of incarceration and the massive size of U.S. prisons preclude widespread adoption of a more pragmatic and individually tailored approach to difficult prisoners.
Indeed, if the purpose and use of incarceration were brought into line with genuine respect for human rights, prisons would no longer struggle with the impossible task of being mental health facilities, and the mentally disturbed would no longer struggle with the impossible role of being prisoners.
References
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. (1993, April 1). Report to the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 10 to 20 May 1992 (CPT/Inf (93) 8). Strasbourg, France.
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. (1994, June 28). Report to theIcelandic Government on the visit to Iceland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 6 to 12 July 1993 (CPT/Inf (94) 8, p. 26). Strasbourg, France.
Fellner, J. (2000, February). Out of sight: Super-maximum security in the United States. New York: Human Rights Watch. Available from https://www.hrw.org/reports/2000/supermax/
Fellner, J., & Abramsky, S. (2003, September). Ill-equipped: U.S. prisons and offenders with mental illness. New York: Human Rights Watch. Available from https://www.hrw.org/reports/2003/usa1003/
Fellner, J., & Mariner, J. (1997, October). Cold storage: Super-maximum security confinement in Indiana. New York: Human Rights Watch. Retrieved from https://www.hrw.org/reports/1997/usind/
International Covenant on Civil and Political Rights. (1966/1976; ratified by U.S. Sept. 8, 1992). Available from http://www.unhchr.ch/html/menu3/b/a_ccpr.htm
James, D. J., & Glaze, L. E. (2006, September). Mental health problems of prison and jail inmates (Rep. No. NCJ 213600). Washington, DC: Bureau of Justice Statistics. Available from http://www.ojp.usdoj.gov/bjs/pub/pdf/mhppji.pdf
Lines, R. (2008). The right to health of prisoners in international human rights law. International Journal of Prisoner Health, 4(1), 3-53.
Madrid v. Gomez, 889 F. Supp. 1146, 1267 (1995).
Reyes, H. (2007). The worst scars are in the mind: Psychological torture. International Review of the Red Cross, 89(867), 591-617.
Walmsley, R. (2007). World prison population list (7th ed.). London: Home Office. Retrieved from http://www.kcl.ac.uk/depsta/rel/icps/world-prison-pop-seventh.pdf
Footnotes
[1] According to the Bureau of Justice Statistics, 73% of female state prisoners have signs of mental health problems, compared to 55% of male state prisoners (James & Glaze, 2006).
[2] Different states use different names-for example, intensive management unit, secure housing unit, special housing unit. The essential model is the same, regardless of the name.
[3] Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).
[4] Prison officials can demonstrate imagination in other ways. When I recently asked federal prison officials why there was no basketball hoop in the shiny walled, high-ceilinged, utterly barren indoor exercise room at the federal supermax in Colorado, a lieutenant told me that an inmate might be able to climb the walls and use the hoop to make shanks. Prisoners are remarkably resourceful at making shanks, but I am not aware that any of them are spidermen.
[5] "The prohibition in Article 7 [of the ICCPR] relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim" (Human Rights Committee, General Comment 20, 1992). For a recent discussion of psychological torture, see Reyes (2007).
[6] Article 1(1) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted. . . ." Cruel, inhuman and degrading treatment or punishment are acts which do not impose as severe pain as torture.
[7] Human rights law also acknowledges the right to health as a right of all persons, including prisoners. The right embraces the right to medical and mental health services as well as conditions of living conducive to health. See the International Covenant on Economic, Social and Cultural Rights. For a comprehensive overview of the right to health in the prison context, see Lines (2008).
[8] See, for example, the European Prison Rules: 60.5-"Solitary confinement shall be imposed as a punishment only in exceptional cases and for a specified period of time, which shall be as short as possible" (https://wcd.coe.int/ViewDoc .jsp?id=955747). Article 7 of the Basic Principles for the Treatment of Prisoners promulgated by the UN General Assembly in 1990 states, "Efforts addressed to the abolition of solitary confinement as a punishment, or to the restriction of its use, should be undertaken and encouraged."
[9] The Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) Standards, Imprisonment, paragraph 56. The CPT was created under the European Convention of the same name to monitor the treatment of prisoners in Council of Europe nations and to recommend measures to strengthen protections from torture or other inhuman or degrading treatment.
[10] CPT (1993).
[11] CPT (1994).
[12] Rates of incarceration worldwide can be found in Walmsley (2007).
