Part III of an excellent series on why we should abolish these
kinds of prisons in particular...don't think this doesn't go down in
Arizona, either. The abuse of the mentally ill and the conditions in
solitary confinement are why the ACLU has a class action lawsuit, Parsons v Ryan, in the works against the AZ Department of Corrections right now.
Support the campaign to stop the building of more supermax beds in our state here:
ACLU-AZ Action Center
Supermax: The Constitution and Mentally Ill Prisoners
The Atlantic: June 20, 2012
By Andrew Cohen
The Eighth Amendment prohibits the "cruel and unusual punishment"
of inmates. So how will the Bureau of Prisons defend itself at
The first two parts of this series begin to tell the tale of the way
a handful of mentally ill prisoners allege they are being treated at
ADX-Florence, widely known as "Supermax" and commonly perceived as the
most secure federal prison facility in America. So far, officially, the
story is just a series of dramatic prisoner allegations of abuse,
cruelty, and torture against prison officials and medical personnel.
Soon, the Justice Department, on behalf of the Bureau of Prisons, will
answer the long complaint filed Monday
by five inmates at the southern Colorado prison.
Allegations are not evidence. But in this case, they raise
profound questions about how the famous facility is run and whether it
is wise as a matter of law and policy to have ceded so much power to the
Bureau of Prisons, which controls, in near absolute terms, the
treatment of the nation's federal prisoners. The lawsuit seeks no money
damages but instead aims to require federal officials to treat mentally
ill inmates in accordance with existing law. The case demands a measure
of accountability from a sprawling bureaucracy that seems to answer to
The plaintiffs and others named in the lawsuit -- there are 11
men in all and more will likely be added -- live in a world recognizable
more from the work of Kafka
than from modern American life. In the name of prison safety, or in the
name of nothing at all, they are often treated like animals and, when
they complain, they are punished. The Eighth Amendment prohibits "cruel
and unusual punishment," and it's hard to imagine anything more cruel
than punishing a mentally ill person for the manifestations of his
illness. Yet this allegedly occurs regularly at the ADX/Supermax
Indeed, one of the fundamental concepts in American law is
that we generally do not criminalize conduct by people whose minds do
not have the requisite "criminal intent" at the time of the commission
of the crime. This is why we don't prosecute people who are adjudged to
be mentally incompetent -- think Jared Loughner
the Tucson shooter -- and why "legal insanity" has for centuries been
an affirmative defense to criminal conduct. A significantly mentally ill
person, almost per se
, cannot have the requisite intent to be culpable in any justifiable legal or moral sense.
The lawsuit is worthy of particular notice in part because it was spearheaded by serious attorneys like Ed Aro
-- a partner at a law firm, Arnold & Porter, that has a long and admirable
tradition of pro bono
work on behalf of the voiceless. Also filing the pleading was Deb
Golden and the Washington Lawyers' Committee for Civil Rights and Urban
Affairs, another organization with a long history
of groundbreaking reform litigation. Dozens of other earnest,
well-meaning women and men have devoted a great deal of time and effort
to serve as a tribune for the Supermax prisoners.
Nor should the timing of the case be underestimated. It comes at a
time when more participants in the criminal justice system, and
especially the nation's penal systems, are questioning the wisdom of
America's current obsession with the concept of "solitary confinement"
and other harsh punitive measures. Yesterday, for example
Senator Richard Durbin (D-Ill.) held an important Senate Judiciary
Committee subcommittee hearing on the topic. Here's how the senator's
office framed the issue in a press release before the event:
The hearing will focus on the human rights, fiscal
and public safety consequences of solitary confinement in U.S. prisons,
jails, and detention centers. During the last several decades, the
United States has witnessed an explosion in the use of solitary
confinement for federal, state, and local prisoners and detainees. The
hearing will explore the psychological and psychiatric impact on inmates
during and after their imprisonment, fiscal savings associated with
reduced use of solitary housing units, the human rights issues
surrounding the use of isolation, and successful state reforms in this
Good questions, indeed. Our prison policies have evolved from
generation to generation, but the law (and legal protections) don't
appear to have caught up. Here is a link
from the Innocence Project
detailing the Capitol Hill testimony of six people who were wrongly
convicted and spent time in solitary confinement. And here is how
Charlie Samuels, the director of the Bureau of Prisons, opened his
remarks to the subcommittee:
Inmate safety and well being is of the utmost importance
to the bureau, as is the safety of our staff and the community at large.
As such, we do all that we can to ensure that we provide outstanding
care, treatment and programming to federal inmates, giving them the best
opportunity for successful reentry to their communities...
When inmates are placed in restrictive housing there are varieties of
significant safeguards in place to ensure inmates' due process rights
are protected. Additionally, inmates' mental health is always a factor
in decisions regarding segregated housing. Bureau psychologists are
integrally involved in the restrictive housing placement process, and
all staff who work in these units receive training and input from
psychology services above and beyond our general staff training.
Samuels still has to answer for Supermax. And Senator Durbin need
look no further than to the Florence, Colorado, federal prison for some
of the answers to his questions. The Supermax lawsuit, styled Bacote v. Federal Bureau of Prisons
suggests that America is failing to adequately treat its mentally ill
prisoners and, worse, that the punitive prison methods employed at
ADX/Supermax are actually making previously sane inmates mentally ill. Part I
of this series focused upon just such a story, about Jack Powers, whom
the Bureau of Prisons essentially turned mad and now won't treat.
THE BUREAU OF PRISONS
Go to the Bureau of Prisons' website
and it tells you immediately that the goal of the massive federal
bureaucracy is "Protecting Society and Reducing Crime." Yet, as the
lawsuit suggests, Supermax practices do neither. "Society" is left
unprotected because the prison doesn't adequately treat even those
mentally ill prisoners who soon will be released back into the public.
One of the named plaintiffs, John Narducci, is scheduled to be released
in 2015, and another, Ernest Norman Shaifer in 2014.
From the website, here is how the Bureau of Prisons wants the world to perceive the core of its work:
The Federal Bureau of Prisons was established in 1930 to provide more progressive and humane care for Federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of the 11 Federal prisons in operation at the time.
Today, the Bureau consists of 117 institutions, 6 regional offices, a
Central Office (headquarters), 2 staff training centers, and 22
community corrections offices. The regional offices and Central Office
provide administrative oversight and support to Bureau facilities and
community corrections offices. In turn, community corrections offices
oversee residential reentry centers and home confinement programs.
The Bureau is responsible for the custody and care of approximately
217,000 Federal offenders. Approximately 82 percent of these inmates are
confined in Bureau-operated facilities, while the balance is confined
in secure privately managed or community-based facilities and local
The Bureau protects public safety by ensuring that Federal offenders
serve their sentences of imprisonment in facilities that are safe, humane, cost-efficient, and appropriately secure. The Bureau helps reduce the potential for future criminal activity by encouraging inmates to participate in a range of programs that have been proven to reduce recidivism. Approximately 38,000 BOP employees ensure the security of Federal prisons, provide inmates with needed programs and services, and model mainstream values.
I added the italics to illustrate how vast the gulf is between
rhetoric and reality when it comes to Supermax's mentally ill prisoners.
The Bureau isn't candidly telling Americans that it often treats some
of its mentally ill prisoners like animals. Instead, even as prison
officials "four point
such prisoners in their cells or deprive them of needed medicine or
treatment, the Bureau is telling us that it is treating the men with
"humane care." This is not a new hypocrisy but rather an eternal truth
of civilized life on this planet; prisons are always worse than the
officials who run them say they are.
But websites are for marketers, not lawmakers, so we need to
look further to identify relevant Bureau of Prisons policies with
respect to mentally ill prisoners. In the Bacote
complaint, the plaintiffs cite, among other Bureau regulations, BOP Program Statement 5100.08
(chapter 7, page 18). It states that prisoners within the federal
system "currently diagnosed as suffering from serious psychiatric
illnesses should not be referred to placement at ... [ADX/Supermax]."
There are also federal rules that more broadly govern the
responsibility prison officials have to treat the mentally ill prisoners
in their care. There are rules that require prison officials to give
medicine to prisoners in their care -- yet the ADX prisoners claim they
often are not given their medicine or are given the wrong medicine.
There are rules for the formal way prison officials are supposed to
evaluate the mental health status of incoming prisoners -- the Supermax
prisoners allege these evaluations are a joke.
Moreover, many of the plaintiffs in the new lawsuit, as well as
the likely future plaintiffs, reside in Supermax's "Control Unit," its
most secure unit. This is partially because of the dangerous, violent
conduct the prisoners have exhibited in other prisons, or in other wings
of Supermax, as a result of their mental illnesses. But the Code of
Federal Regulation governing "institutional referrals" to federal prison
"Control Units" appears to directly prohibit this.
The "Judicial Administration" section of the Code of Federal Regulations states
that the "warden may not refer an inmate for placement in a control
unit ... if the inmate shows evidence of significant mental disorder or
major physical disabilities as documented in a mental health evaluation
or a physical examination." Is schizophrenia a "significant mental
disorder"? How about "delusional ideation" or post-traumatic stress
disorder? Is it "significant" when a prisoner mutilates himself or tries
to commit suicide?
Dostoevsky was right: How we treat our prisoners says more about us than it does about them
The Eighth Amendment to the Constitution prohibits the
government from inflicting "cruel and unusual punishment" upon its
citizens, even its convicted ones, and especially its mentally ill ones.
Over the decades, vast groves of trees have been sacrificed papering
prison-related litigation over the meaning of the phrase in the context
of medical and mental health care. Some of the lawsuits, filed by
inmates and others, has been frivolous. Many, however, have not. None
like the one filed Monday has reached a point in litigation where a
federal judge has issued a substantive ruling on its merits.
Much of this litigation has involved the conditions and lack of mental health care at state prisons. In Brown v. Plata
, for example, decided just last May
the United States Supreme Court narrowly affirmed a lower court order
that required California to release thousands of non-violent state
prisoners to reduce unconstitutional overcrowding in the Golden State's
prison system. The lawsuit was based upon the inability of state prison
officials to provide their prisoners with adequate medical and mental
health care and treatment.
In his 5-4 majority opinion, which infuriated his conservative
colleagues, here is how Justice Anthony Kennedy, the Reagan appointee,
described the case's mental health component:
Prisoners in California with serious mental illness
do not receive minimal, adequate care. Because of a shortage of
treatment beds, suicidal inmates may be held for prolonged periods in
telephone-booth sized cages without toilets. A psychiatric expert
reported observing an inmate who had been held in such a cage for nearly
24 hours, standing in a pool of his own urine, unresponsive and nearly
catatonic. Prison officials explained they had " 'no place to put him.' "
Other inmates awaiting care may be held for months in administrative
segregation, where they endure harsh and isolated conditions and receive
only limited mental health services. Wait times for mental health care
range as high as 12 months. In 2006, the suicide rate in California's
prisons was nearly 80% higher than the national average for prison
populations; and a court-appointed Special Master found that 72.1%
suicides involved "some measure of inadequate assessment, treatment, or
intervention, and were therefore most probably foreseeable and/or
preventable." (citations omitted by me).
From the high suicide rate to the inadequate "assessment, treatment,
or intervention," there are many similarities between the proven facts
that compelled Justice Kennedy to side with California's prisoners and
the facts alleged in the new complaint against ADX/Supermax. But still
we need to look a little further. The leading case in the area, the one
closer on point, perhaps, than even the Brown v. Plata
case, comes from litigation nearly two decades ago over California's Pelican Bay State Prison.
The case, styled Madrid v. Gomez
, represents what many consider to be the most comprehensive
of all modern prison mental health care rulings. In it, U.S. District Judge Thelton Henderson
(the first black judge to serve in the Justice Department's Civil
Rights Division) displayed another copious amount of courage for
skewering prison officials for the way in which they were treating
California prisoners. The gravamen of his order was that prison
officials are required by law to provide reasonably adequate mental
health care for inmates.
Perhaps the most efficient way to illustrate Judge Henderson's
meticulous analysis of the mental health care in those prisons is to
look merely at the outline of this section of his long ruling. Even in
just the titles and subtitles, you can see many of the same themes and
issues raised by the new Supermax lawsuit. The decision is laden with
the acknowledgement that prison officials simply fail or, worse, refuse
to treat mentally ill prisons in a way demanded by the Eighth Amendment.
C. Mental Health Care
POSTSCRIPT AND PREVIEW
1. The Need for Mental Health Services At Pelican Bay
2. Systemic Deficiencies In the Delivery of Mental Health Care
a. Staffing Levels
3. Defendants' State of Mind
b. Screening and Referrals
c. Psychiatric Records
d. Delays in Transfers for Inpatient and Outpatient Care
e. Lack of Procedures for Necessary Involuntary Psychiatric Treatment
f. Failure to Involve Mental Health Staff in Housing Decisions
g. Suicide Prevention
h. Quality Assurance
i. Treatment Provided
(Specific inmate cases were discussed here)
At the beginning of a lawsuit there are always more questions than answers. For example, how do law and policy
permit the Bureau of Prisons to routinely ignore the recommendations of
federal trial judges who, when sentencing mentally ill felons,
specifically direct prison officials to ensure that the men are to be
properly treated for their illness while in prison? The Bacote
complaint alleges no fewer than four examples (Jeremy Pinson, John W.
Naducci, Jr, William Concepcion Sablan, and David Shelby) where this
disconcerting practice allegedly occurred.
How does the Bureau of Prison justify the expense of its
punitive policies when compared to the cost of treating mentally ill
prisoners properly in the first place? The Bacote
filled with examples of crimes that could have been avoided had mentally
ill federal prisoners been given the right medication, in the right
form, with the right supervision by the prison medical staff? Do the
American people know how expensive it is to treat these mentally ill
inmates with such callous disregard?
How does the Bureau of Prisons justify the evident disconnect
between the diagnoses of the mentally ill prisoners made at other
federal prisons and the diagnoses offered at ADX/Supermax? The Bacote
complaint is filled with examples of prior diagnoses being disregarded
once an inmate arrives at ADX/Supermax. There are sound reasons why a
defendant must be deemed mentally competent to stand trial -- but why
does such a competency determination not impact the severity of an
It is hard to predict how this lawsuit will play out. Federal
judges are generally reluctant to force bureaucracies to justify their
conduct. First, the Bureau of Prisons likely will move to dismiss the
complaint on procedural grounds before prison officials are required to
provide the plaintiffs with access to internal case files. Then, federal
lawyers likely will argue over the scope of that discovery. If the case
ever makes it to trial, it will be years from now.
And through it all, through all the years of briefing and
hearings and argument ahead, the daily fate of Supermax's mentally ill
prisoners will continue to be at the whims and caprices of their
captors. It would be one thing if federal law and Bureau policy
explicitly permitted ADX officials to treat the mentally ill this way.
But of course the American people would not countenance such inhumane
treatment, even toward society's least loved segment. That's why Bureau
Director Samuels had to tell the Senate yesterday that his officials
give Supermax prisoners "outstanding care, treatment and programming."
Dostoevsky was right: How we treat our prisoners says more about
us than it does about them. Earlier this year, I read Pete Early's
bestselling book Crazy: A Father's Search Through America's Mental Health Madness
One of its many profound lessons is that America pays an enormous price
for trying to sweep its mentally ill prisoners under the rug. Win or
lose on the merits, the Bacote
case represents a vital new
opportunity to shed light on what is happening to these profoundly ill
men -- what is being done to them in our name.
This is the third in a three-part series about a new class-action
lawsuit filed Monday against the Bureau of Prison and the officials who
run ADX-Florence, the "Supermax" facility that houses some of the
nation's most dangerous criminals. Part I focused upon the complaint, which alleges torture, abuse, and neglect of the prison's mentally ill prisoners. The second part focused upon the plaintiffs and other prisoners named in the lawsuit.