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No prison system in the United States intentionally harms mentally ill prisoners through a policy of providing substandard care. Nevertheless, poor mental health treatment for mentally ill prisoners is a national reality. The government is responsible for protecting basic human rights, particularly those of the most vulnerable, and making wise use of limited criminal justice resources. Public officials must make the necessary improvements. Public support, particularly in times of tight budgets, is crucial to ensuring officials fulfill their responsibilities.

Prescriptions for quality mental health care in prisons are plentiful. They are found in the standards and guidelines of the American Correctional Association, the National Commission on Correctional Health Care (NCCHC), the Criminal Justice/Mental Health Consensus Project coordinated by the Council of State Governments, in court rulings, expert reports, and in a voluminous professional literature. Little would be served by repeating here all those recommendations. Our research suggests that what is lacking in prison mental health services is not knowledge about what is needed, but the resources and commitment to do it.

We therefore present here three sets of recommendations: one directed at the U.S. Congress specifically; one directed at public officials, community leaders and members of the general public; and one directed at prison officials and their staff.

Recommendations to the U.S. Congress

Human Rights Watch recommends that the U.S. Congress promptly:

1) Enact the Mentally Ill Offender Treatment and Crime Reduction Act

Currently pending before the U.S. Senate and House of Representatives is the Mentally Ill Offender Treatment and Crime Reduction Act introduced by Congressman Ted Strickland and Senator Mike DeWine. If enacted, the bill could catalyze significant reforms across the country in the way the criminal justice system responds to people with mental illness. The bill authorizes grants to help communities establish diversion programs (pre-booking, jail diversion, mental health courts) for mentally ill offenders, treatment programs for mentally ill offenders who are incarcerated, and transitional and discharge programs for mentally ill offenders who have completed their sentences. The grants program would be administered by the Department of Justice in consultation with the Department of Health and Human Services and could be used to help pay for mental health treatment services in addition to program planning and administration, education and training, and temporary housing.

2) Improve access to public benefits covering all needed mental health services.

Congress should tackle serious deficiencies in federal programs that fund mental health services, including problems of limited coverage and access that keep many mentally ill persons from being able to obtain the treatment they need. For offenders released from prisons, current law leads to long delays in the restoration of eligibility for benefits. Relatively simply changes in the rules governing Medicaid, Supplemental Security Income (SSI) and Social Security Disability Insurance (SSDI) would enable ex-offenders with mental illness to avoid those delays and to obtain quickly the ability to pay for needed medication and mental health services in the community and to ensure continuity of care. Rapid restoration of benefits to released offenders with mental illness not only helps them manage their illness; it also supports public safety by reducing the risk of new involvement with the criminal justice system.

3) Amend or repeal the Prison Litigation Reform Act (PLRA)

Human Rights Watch also urges Congress to amend or repeal the Prison Litigation Reform Act (PLRA) which severely hinders prisoners in their efforts to remedy unconstitutional conditions in state correctional facilities. We urge Congress to: 1) modify the excessively stringent exhaustion requirement in the PLRA that requires prisoners to comply with all internal prison grievance procedures and appeals before being allowed to bring a federal lawsuit which frustrates the prosecution of many meritorious prisoner lawsuits; 2) repeal the requirement that judicially enforceable consent decrees contain findings of federal law violations; 3) repeal the requirement that all judicial orders automatically terminate two years after they are issued; and 4) restore special masters’ and attorneys’ fees to reasonable levels.

Recommendations to Public Officials, Community Leaders and the General Public

Public officials — elected and appointed — must act decisively to improve mental health services in U.S. prisons. An ongoing concern should be reducing the population of prisoners who have severe mental illnesses. Second, public officials must develop standards, provide oversight mechanisms, and mobilize resources to ensure effective, quality mental health care in prisons.

1) Reduce the incarceration of persons with mental illness.

Steps should be taken at the federal, state, and local levels to reduce the unnecessary and counterproductive incarceration of low-level nonviolent offenders with mental illness. Mandatory minimum sentencing laws should be revised to ensure prison is reserved for the most serious offenders (whether or not mentally ill) and prison sentences are not disproportionately harsh. Mental health courts, prosecutorial pretrial diversion, and other efforts should be supported which will divert mentally ill offenders from jails and into community based mental health treatment programs. Reducing the numbers of mentally ill offenders sent to prison will also free up prison resources to ensure appropriate mental health treatment for those men and women with mental illness who must, in fact, be incarcerated for reasons of public safety.

2) Set high standards for prison mental health services.

Public officials must not accept low quality mental health services for mentally ill prisoners. They should set standards higher than the constitutional minimum required under the Eighth Amendment, which permits malpractice even on a massive scale. International human rights standards require officials to ensure the highest attainable standard of mental health, including accessible, acceptable, and appropriate and good quality mental health services, provided by trained professionals. Officials should not tolerate the misery and pain of prisoners whose mental illness is left untreated or undertreated. Quality mental health services in prison will not only help prisoners, but will improve safety within prisons, benefiting others prisoners and staff. Good correctional mental health services will also increase the likelihood that prisoners will be able to return successfully to their communities following release.

3) Improve conditions of confinement.

Public officials must ensure that all prisoners are confined in conditions consistent with their human dignity. No prisoner should be confined in overcrowded, dangerous, filthy, vermin- or bug-ridden, or unbearably hot cells. Such conditions violate the rights of all prisoners, but they have an especially detrimental effect on prisoners with mental illness.

4) Establish effective performance reviews using independent experts.

Public officials cannot exercise their obligation to ensure appropriate mental health services for prisoners if they do not have objective information provided by independent and qualified experts. Correctional officials often do not have an adequate understanding of the limitations on mental health services provided in their prisons, and other elected officials often have even less understanding. Expert reports presented during litigation are often the only way light is shed on prison conditions. Public officials should not wait, however, until an inmate or family member brings a lawsuit. Existing prison accreditation mechanisms—by the American Correctional Association and the National Commission on Correctional Health Care (NCCHC)—focus primarily on the existence of appropriate policies; they do not assess their implementation or the quality of services actually provided. Experience reveals that implementation often lags far behind even the best of policies.

Each prison system should have performance evaluations of its mental health services by independent qualified professionals. The results of those evaluations should be public (with the names of prisoners kept confidential). To be able to undertake the evaluations, the experts should have unfettered access to medical records, staff, and prisoners. The experts should be charged with monitoring the ways in which prisons diagnose and treat prisoners; the availability of qualified staff in numbers adequate for prisoner mental health needs; the availability of appropriate facilities to provide different levels of care; the range of therapeutic interventions provided to prisoners and the extent to which prisoners have access to services, programs, and facilities; and policies and practices concerning the use of disciplinary measures such as administrative segregation and physical restraints to respond to inmates with serious mental illnesses.

5) Establish comprehensive internal quality review mechanisms for each prison system and prison.

Quality controls for mental health services are often rudimentary, ineffective, or nonexistent. Mental health staff often lack an effective opportunity to engage in candid self-criticism, gather data, identify and discuss shared problems, and work with senior corrections officials to develop solutions to problems in the delivery of mental health services. Establishment of internal quality review procedures and the commitment of prison officials and mental health staff to effectively implement those procedures will provide a vital and ongoing complement to external quality assurance audits.

6) Solicit and heed prisoners’ concerns.

As consumers of mental health services, prisoners are singularly without power to protest poor treatment. They cannot switch to another provider, and their legitimate complaints and concerns are rarely acknowledged, much less responded to by corrections officials. Prisons should establish at an institutional as well as departmental level procedures by which prisoner perspectives about mental health services (indeed all medical services) are solicited and heeded. Prisoner views should be incorporated into the outside as well as internal quality review mechanisms recommended above. Special prisoner mental health grievance systems should be established predicated on recognition that prisoners are mental health service consumers and their concerns warrant prompt, careful responses. Current grievance mechanisms are difficult to comply with, rarely result in any meaningful response, and can prompt retaliation from staff. Mentally ill prisoners can have a particularly difficult time following the rules regarding grievances and meeting grievance procedure deadlines. If prison systems attended to prisoner concerns — at the very least communicating to them that they are being listened to — this could well have a beneficial impact on the prisoners’ adherence to treatment plans, medication compliance, and other measures critical to their health. If other prisoner-responsive quality control mechanisms are not available, we also recommend the creation of an impartial external entity (within individual prisons or system-wide) staffed with persons with mental health expertise to evaluate prisoner complaints regarding mental health care and treatment.

7) Support funding for appropriate prison mental health services.

We recognize that even corrections departments are not immune from the budget slashing occasioned by current fiscal crises. But even in the best of times, it is difficult to secure adequate funding for services and programs for prisoners. Improvements in mental health services in prison are, unfortunately, heavily dependent on financial resources. Qualified, competent staff cannot be hired and retained in sufficient numbers absent funding. Governors must support adequate funding levels for mental health services and permit corrections officials and mental health staff to argue forcefully, extensively, and publicly on behalf of such funding. They must present candid analyses to the public of existing problems with correctional mental health treatment, the consequences of those problems and the need for resources to address them. They should encourage legislators to reduce prison populations, by lowering unnecessarily harsh mandatory sentencing laws and by supporting alternatives to incarceration for low-level nonviolent offenders, rather than by cutting indispensable services for those prisoners who must be incarcerated.

Recommendations to Prison Officials and Staff

Correctional agencies need to act decisively to improve the delivery of mental health services in prisons and prison systems. We recommend they:

1) Provide sufficient numbers of qualified prison mental health staff.

  • Quality mental health services cannot be provided without sufficient numbers of qualified staff with different areas of expertise (from occupational therapists to psychiatrists). Determination of optimal staffing levels should be based on assessment of accurate data regarding prisoner demographics, mental health histories, and service utilization. Each prison system should have department-wide internal credential requirements for mental health staff, and effective mechanisms for monitoring mental health staff competency, performance, and compliance with official protocols and procedures. Mental health staff should be provided and encouraged to engage in ongoing professional education to keep up to date in their fields.

  • Recruiting qualified, competent mental health staff is often frustrated by salaries that are below community levels. Low pay also contributes to high rates of staff turnover, which diminishes the quality of care provided. Prison systems and agencies contracted to provide prison medical and mental health services should create employment incentives and introduce competitive pay rates comparable to those offered in community mental health settings, to reduce staff turnover. For prisons in out-of-the-way, undesirable locations, additional incentives ought to be provided to hire and retain quality staff.

2) Provide mental health training for correctional staff.

  • It is counterproductive and dangerous for correctional staff who have little or no training in mental illness to work in housing units, on the yards, and elsewhere in prison with prisoners who have serious mental illnesses. Effective training should be provided to all new officers in such areas as: signs of mental illness; different treatments for mental illnesses; side-effects of medications used for the treatment of mental illnesses; effective interaction with mentally ill prisoners; defusing potentially escalating situations; recognition of the signs of possible suicide attempts; and training on the safe use of physical and mechanical restraints for mentally ill offenders. Additional information pertinent to working with mentally ill prisoners should be provided during in-service training.

  • Staff should be trained to view suicide attempts and extreme acts of self-mutilation as probable signs of mental illness rather than as indications that prisoners are “malingering” or acting-out simply to gain attention or to be temporarily removed from their cell. Staff should be given guidance, working with mental health staff, to better distinguish between prisoners who deliberately and consciously break rules and undermine prison security, and prisoners whose conduct reflects a serious mental illness.

  • Senior officials should carefully monitor the conduct of custodial staff, take seriously prisoner allegations of misconduct, and investigate individual cases as well as patterns of staff misconduct. Staff should be held individually accountable for mistreating prisoners. But prison officials should not rely solely on disciplinary mechanisms for individual staff. They should use their institutional authority to communicate forcefully that mistreatment will not be condoned, to reassign or more closely monitor problematic staff, and to provide better training.

3) Ensure sufficient specialized facilities for seriously mentally ill prisoners.

  • Corrections departments should ensure they have a sufficient number of hospital beds and acute care facilities to meet the needs of the prison population. Prisoners with serious mental health needs should not be removed from such facilities simply to free up space for others; nor should prisoners have to wait to be able get the services they need because of insufficient beds. Prisoners with mental illness who have been in acute care facilities should be placed in “step-down” or transitional programs before they are returned to the general prisoner population. Corrections departments should also establish additional intermediate care facilities to provide mentally ill prisoners who have sub-acute care needs with more intensive and long-term mental health services in a more supportive and structured setting than is available to the general population. While not all of those who are seriously mentally ill need to be, or should be, housed in separate facilities, states need to have sufficient specialized facility space available to accommodate those whom the mental health teams determine would benefit from such housing.

  • States should focus more resources on providing specialist mental health facilities for seriously mentally ill female prisoners. Since the absolute number of women prisoners is much smaller than that of male prisoners, states frequently lack comprehensive mental health facilities for their female prisoners.

4) Ensure mental health input and impact in disciplinary proceedings.

Prisoners with mental illness can have unique difficulties complying with prison rules and may engage in bizarre or disruptive behavior because of their illness. Punitive responses to such conduct do little to reduce or deter it. When prisoners who are on the mental health caseload violate rules, disciplinary procedures should require mental health input to the disciplinary officers regarding whether the prisoner’s behavior was connected to or caused by mental illness, and regarding what sanctions might be appropriate. In specialized units housing only mentally ill prisoners, corrections officials should work with mental health staff to determine whether the normal prison disciplinary system should be suspended, and mental health staff should determine appropriate responses to prisoner misconduct consistent with his or her mental diagnosis and treatment plan.

5) Exclude the seriously mentally ill from segregated confinement or supermax prisons.

Human Rights Watch opposes the prolonged and unnecessary incarceration of any prisoner in isolated segregation or supermaximum security units. Prisoners with serious mental illnesses, even if they are currently stabilized or asymptomatic, should never be confined for prolonged periods in the harsh isolation conditions typical of segregation or supermax prisons. There is an unacceptably high risk that the isolation, reduced mental stimulus, lack of structured activities, and the absence of social interaction will provoke a deterioration of their symptoms and increased suffering. We recognize there are some prisoners with mental illness who require extreme security precautions even when under mental health treatment. For these individuals, prisons should provide specialized secure units that ensure human interaction and purposeful activities in addition to mental health services.

Corrections officials should also make sure that all prisoners in segregated housing have their mental health monitored carefully and continually; that they be able to communicate confidentially with mental health staff; and that they have access to whatever services and therapeutic interventions mental health staff determine are necessary. To the extent that accommodating mental health needs requires changes in regular rules and protocols governing prisoners in isolation, the changes should be undertaken consistent with reasonable security requirements.

6) Develop and expand continuity-of-care protocols between prisons and the community.

Prisons and community mental health systems need to develop comprehensive continuity-of-care protocols and programs to break the cycle of release-recidivism-reincarceration. Prisoners that have serious mental illnesses should be released from prison with arrangements in place to provide them with access to medication and mental health services. Moving the prisoners prior to their release to prisons in or near the counties to which they will return will allow prison mental health staff and parole officers to liaise more effectively with local mental health service providers to guard against the prisoner falling through the cracks. Discharge planning efforts should begin months prior to a seriously mentally ill prisoner’s release. Corrections agencies should also establish procedures by which prisoners with mental illness will have access to Medicaid immediately upon release rather than having to wait for months to have the paperwork completed. States and counties should increase the number of programs providing housing and assisted living facilities for newly released prisoners with mental illness.

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October 2003