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VII. DIFFICULTIES MENTALLY ILL PRISONERS FACE COPING IN PRISON

Mental health experts have described prisons as a “toxic” environment for the seriously mentally ill.¹⁷¹ While prison is a challenging environment for all prisoners, it is even harder for those with serious mental illnesses. As psychology professor Hans Toch of the State University of New York, Albany, told Human Rights Watch, “Prisons are not set up for people who have coping competence as limited as it is for some of these folks.”¹⁷²They are tense and overcrowded places in which all prisoners struggle to maintain their self-respect and emotional equilibrium despite omnipresent violence, exploitation, and extortion; despite an utter lack of privacy; stark limitations on family and community contacts; and the paucity of opportunities for education, meaningful work, or other productive, purposeful activities. Prisoners with mental illness must survive as best they can in frequently brutal and brutalizing environments that they may be particularly ill-equipped to navigate. Even prisoners with chronic and severe impairments live under the same conditions and subject to the same stresses and rules as other prisoners.

The predominant goals of correctional authorities are ensuring security and safety. As in the outside society, offenders are deemed responsible for their actions, and the actions are assumed to be volitional. Compliance with the rules is achieved primarily through punishment and the deterrence that punishment is supposed to achieve. Few accommodations are made for the needs of mentally ill prisoners, whose symptoms often manifest themselves in violations of prison rules.

Physical Conditions

Except when transferred to acute care or hospital settings, prisoners who are mentally ill are typically confined in the same facilities as other prisoners. Because of the massive prison building campaign many states have undertaken over the past decades to keep up with the soaring prison population, and catalyzed by prisoner litigation challenging conditions of confinement, most prisoners in the United States are confined in at least minimally acceptable physical facilities. That is, by and large, they do not live in filthy, vermin-infested, decrepit and decaying buildings with inadequate sanitary facilities, ventilation, lighting, and water supplies, such as those at a Rhode Island prison which a court ruled were unfit for human habitation.¹⁷³

Nevertheless, thousands of prisoners, including mentally ill prisoners, do still live in greatly overcrowded, poorly ventilated, decrepit, dark, and/or dirty facilities. Severe overcrowding, for example, is a problem in many states.¹⁷⁴ For inmates with mental illness, the risks of serious psychological harm resulting from such conditions are particularly onerous. As an expert in a class action lawsuit alleging unconstitutional overcrowding in Alabama’s prisons for women noted:

The absence of privacy adds tension and stress to the daily existence of each inmate. Inmates with serious mental illness have fewer resources with which to cope with added turmoil. Anxious, depressed, psychotic suicidal and homicidal inmates are at increased risk of deteriorating emotionally and of having impaired judgment in such settings. Thus overcrowding ultimately results in a residential setting that puts mentally ill inmates at substantial risk of seriously harming themselves, seriously harming others and of being seriously harmed and/or killed.¹⁷⁵

• At Mississippi’s State Penitentiary at Parchman,mentally ill prisoners in need of water to cool themselves down during summer heat (which is particularly important for persons on psychotropic medications who can have severe, even deadly reactions to heat) reported having to drink from their toilet bowls because of a lack of enough drinking water. “The plumbing is dysfunctional throughout Unit 32,” states the complaint in a lawsuit filed on July 12, 2002, by six death row prisoners.

Almost every cell has a “ping-pong” toilet, which, when flushed, pushes excrement and waste into the bowl in the adjoining cell…. An overwhelmingly strong stench pervades the Unit, some of it from filth on the tier, some of it from a cesspool adjacent to the Unit, some of it from the defective plumbing and ping-pong toilets, some of it caused by flooding, which drenches inmates’ cells and soaks their mattresses and bedding with filthy water that is allowed to stand for days at a time. Severely mentally ill inmates throw food and excrement on the floor of their cells and the hallways, which prison staff allow to decompose for days or even weeks.¹⁷⁶

The lawsuit also alleges that mosquitoes, beetles, and other bugs swarm the prisoners’ cells in summer; that the Delta summers turn the tiny cells into “heat boxes” and that seriously mentally ill prisoners housed on the unit “express their suffering and hallucinations in ceaseless raving, screaming, cursing, animal noises, moans, and shrieks….”¹⁷⁷

A federal district court ruled that these conditions were unconstitutional and ordered extensive remedial actions.¹⁷⁸ During the litigation, the prison cleaned up its cells in preparation for an effort to obtain accreditation from the American Correctional Association. The court found, however that the evidence showed that prior to the cleanup:

[I]nmates on Unit 32-C were subjected to cells that were extremely filthy with chipped, peeling paint, dried fecal matter and food encrusted on the walls, ceilings, and bars, as well as water from flooded toilets and rain leaks… that inmates are routinely moved from cell to cell and are forced to clean their new cells that may have been left in horrendous sanitation by the prior occupants, especially if the occupant were mentally ill. Furthermore, adequate cleaning supplies and equipment are not routinely made available for inmates to clean their cells. Several inmates testified they clean their cells with their shower soap, towels and tee shirts. These filthy conditions contribute to the infestation of pests and play a role in the mental well-being of inmates.¹⁷⁹

The court found that the cells were unreasonably hot during summer months and that “inadequate screening on the cell windows causes the inmates to choose between suffering from the heat or increasing the mosquitoes in their cells” if they open their windows in an effort to cool down. Regarding the “ping-pong” toilets, the court insisted the problem be eliminated: “no one in a civilized society should be forced to live under conditions that force exposure to another person's bodily wastes. No matter how heinous the crime committed, there is no excuse for such living conditions.”¹⁸⁰ The court found that the lighting in the cells was “grossly inadequate.”¹⁸¹

• One correctional expert concluded that the receiving unit at the Holman Correctional Facility in Alabama was so cramped, unventilated, unlit, unsanitary as to “make some men mad and mad men madder.”¹⁸² An experts’ report prepared in connection with litigation about mental health services in Alabama prisons, noted that the receiving unit was, “medieval,” that the cells were “dungeon-like and filthy…. Even with both doors open, there was little illumination within a cell.” It was their opinion, “that no person — whether mentally ill or not — should be required to live in the conditions of the receiving unit.”¹⁸³ Holman is not a specialized mental health facility, but many of its prisoners have serious mental illnesses. The experts also discovered in Alabama prisons the use of, “one-half inch thick rubber or plastic mats used for sleeping.” A white foam oozed from some of the mats onto the concrete block which serves as the bed. The experts’ report noted that:

When lifted, the surface in each case was blackened, resembling some type of fungus or mildew. Inmates could actually scoop-up the white foam and display it in their hands. When asked, the inmates said they had no access to any cleaning materials and claimed that they were being medically affected by the foam and fungus. One inmate displayed a rash over much of his body and said it came from the pad and the fresh mortar used to construct his new bed.¹⁸⁴

• As of 1997 the cells in the disciplinary detention area at New Jersey State Prison:

had the non-flushing toilets that were overflowing with feces, paper and cloth. Inmate workers wearing masks were employed to drain these holes with a roto-rooter and then fill them with bleach. The result was a nauseating stench that only added to the general odor of feces throughout the area. Inmates were not given toilet paper and reported gnats or other small insects everywhere, including in their food. There was poor or no lighting in these cold cells. There was no fresh bedding, and inmates generally wore the same clothing for lengthy periods of time.¹⁸⁵

• A court described the Iowa State Penitentiary in 1997 as follows:

The bug range [colloquial term for the cell-block] populated with severely ill inmates] is dominated by maddening waves of noise. Some inmates yell at the top of their lungs for no apparent purpose other than to make noise. This behavior often lasts for hours. Other inmates are known as “bangers.” These inmates bang on either their cell walls, their cell bars or their stainless steel sink-toilet combinations. They bang with whisk brooms, shoes or whatever else makes the loudest racket. Some inmates bang on the cell walls with their heads…. Still other inmates in the bug range urinate and defecate anywhere other than their [toilets]. Some inmates cover the walls of their cells with feces…some of these inmates also defecate and urinate in the communal shower and cover the walls and fixtures with their excrement.¹⁸⁶

Vulnerability of Mentally Ill Prisoners to Abuse by Other Prisoners

Corrections and mental health experts acknowledge that mentally ill prisoners are likely to be victims of other prisoners — mentally sound as well as mentally ill. They are vulnerable to assault, sexual abuse, exploitation, and extortion. Their vulnerability is heightened when there are not sufficient correctional staff adequately trained to monitor, supervise, and protect mentally ill prisoners.

Dr. Terry Kupers identifies many of the problems facing the mentally ill in prison:

For mentally disordered prisoners, danger lurks everywhere. They tend to have great difficulty coping with the prison code — either they are intimidated by staff into snitching or they are manipulated by other prisoners into doing things that get them into deep trouble…male and female mentally disordered prisoners are disproportionately represented among the victims of rape…. Many voluntarily isolate themselves in their cells in order to avoid trouble. Prisoners who are clearly psychotic and chronically disturbed are called “dings” and “bugs” by other prisoners, and victimized. [Their] anti-psychotic medications slow their reaction times, which makes them more vulnerable to “blind-siding” an attack from the side or from behind by another prisoner.¹⁸⁷

Other prisoners share the fears, misconceptions, and erroneous beliefs about mental illness that exist outside the prison walls. “This leads to an unwillingness to associate with persons who have mental illness, and, thus, social isolation of persons with mental illness. The consequences of social isolation are themselves further disabling and stigmatizing.”¹⁸⁸ Victor Hassine, a Pennsylvania prisoner who wrote a book about his prison experiences, described mentally ill prisoners as “pathetic and disruptive.” He explains, “Their helplessness often made them the favorite victims of predatory inmates. Worst of all, their special needs and peculiar behavior destroyed the stability of the prison system.”¹⁸⁹

An expert retained by plaintiffs in a lawsuit over overcrowding and other conditions in Alabama’s correctional facilities for women noted that “several inmates stated that mentally ill inmates are extremely vulnerable to the manipulations of their peers. They seek favors or material goods, in exchange for protection and/or safety. The shortage of correctional officers greatly amplifies the severity of this problem.”¹⁹⁰ The Correctional Association of New York found that 54 percent of prisoners in New York’s intermediate care units for mentally ill prisoners reported victimization in the general population, including having property stolen and physical and/or sexual assaults. Fifty-seven percent reported not feeling safe in the general population.¹⁹¹ A mentally ill Montana prisoner housed in a special unit for the mentally ill told a reporter that prisoners who are “different like him are picked on in the rest of the prison. That doesn’t really happen [in the special unit] because we’re all kind of strange.”¹⁹² As the Chief of Clinical Services and the Chief of Psychological Services for the Pennsylvania Department of Corrections have pointed out, “individuals in this special population [with mental illness and/or mental retardation] are at greater risk of being victimized and manipulated by more predatory inmates.” ¹⁹³

According to a class action complaint against the Georgia Department of Corrections filed by prisoners at Georgia’s Phillips State Prison, when:

Prisoner 14 first arrived at Phillips State Prison in 1999, he was raped repeatedly by several prisoners. He was transferred to August State Medical Prison for over a week as a result of the injuries he sustained during this assault. Since this incident, Prisoner 14 has been raped again by other prisoners. In addition, Prisoner 14, who is seriously mentally ill and mildly retarded, feels compelled to exchange sex for commissary items such as cigarettes and coffee because he has no money.¹⁹⁴

The complaint alleges further that sexual abuse among prisoners is “condoned, ignored or encouraged by prison staff who fail to take adequate steps to reduce or prevent the incidence of abuse.”

An Indiana prisoner suffering from schizophrenia told Human Rights Watch that he was constantly being coerced into unwanted sex. Describing his situation, he said:

So one day I goes to the day room going to get my medication there was a big Black guy both of them call me to the back of the day room. They were punking¹⁹⁵ me out. I didn’t want to fight them they made me call them daddy, made kept repeating it…these things keeps happening to me…these officers and these inmate they take avantige of the weak give them coffee, cigerrete to make them do things for them…there was a White guy that took advantages of me in prison at another facility…. I don’t know my rights or about the law, so I’m hit everytime I go to prison.¹⁹⁶

Terry Kupers presents the case of “Aaron,” a twenty-three-year-old white man who had a long history of severe mental illness prior to his arrest and conviction for child abuse in 1996:

In prison, Aaron, who stands five feet six inches and has a retiring personality, was singled out for abuse. After he was taken off his medications by the prison psychiatrist who had decided he did not need such an expensive drug [Clozaril, a powerful “atypical” anti-psychotic medication], he began to hallucinate again and wrapped T-shirts around his head to protect his brain from hostile rays. His mental deterioration was quickly noted by prison toughs, and he was beaten and raped several times.¹⁹⁷

A prisoner in Texas wrote to Human Rights Watch about rape in Texas prisons. Addressing the characteristics of prisoners who are sexually abused, he wrote that they are “Mentally ill; primarily white inmates; physically small; inmates who are not emotionally or physically violent in nature (passive people); child molesters/rapists….”¹⁹⁸

Improper supervision and treatment can also leave the mentally ill vulnerable to each other. For example, in 2001, two prisoners who were mentally ill died violent deaths at the hands of other prisoners at Phillips State Prison in Georgia: one was beaten to death, and the other was bludgeoned to death by a seriously mentally ill cellmate who had repeatedly warned correctional officers that he was on the verge of snapping. On January 12, 2003, another killing occurred, with both the victim and the person responsible for his death prisoners with mental illness. Several other mentally ill prisoners at Phillips have been assaulted and sustained serious injuries in recent years.¹⁹⁹

Rule-Breaking by Mentally Ill Prisoners

On March 21, 2003, New York State Department of Correctional Services Commissioner Glenn S. Goord responded in a letter to prisoner families concerned about the care of the mentally ill in prison. He said, “I take exception to your allegation that we punish people because they are sick. Being mentally ill is not now, and never has been, against department rules.”²⁰⁰ Commission Goord’s response is disingenuous: while mental illness itself may not technically violate prison rules, a number of the all but inevitable concomitants of mental illness do.

Prisoners with mental illness may find it difficult, if not impossible, to comply consistently with prison rules. Some exhibit their illness through disruptive behavior, belligerence, aggression, and violence. Many will simply — and sometimes without warning — refuse to follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers. Forensic psychologist Keith Curry described the process as follows:

Once incarcerated, inmates suffering from schizophrenia, schizoaffective disorder, bipolar disorder, and major depressive disorder display predictable deficits in behavioral and emotional control, maladaptive interpersonal styles, social skills deficits, and distorted perceptions of their environments. As a result, they are less able to conform their behavior to the rigid expectations of prison life and often fall into self-defeating patterns of irrational opposition to the demands placed upon them. Seriously mentally ill inmates are thus more prone to disciplinary infractions….²⁰¹

Such rule violations, even if the result of mental illness, are routinely punished.

Numerous studies report that the mentally ill have higher than average disciplinary rates. In 1986, Kenneth Adams, then of the State University of New York at Albany, studied prisoners in Clinton prison and found that “referred inmates [inmates on the mental health roster] have higher infraction rates than nonreferred inmates…. At Clinton, the median annual infraction rate for nonreferred inmates is 3.0. This compares to a median rate… of 5.4 for active service referred inmates.”²⁰² On the other side of the country, a study by researchers in Washington in 1996 found that: “offenders with serious mental illness constitute 18.7% of the prison population but account for 41% of the infractions.”²⁰³ In Colorado prisons, an internal prison report showed that:

As a group, OSMIs [offenders with serious mental illnesses] are more likely than non-OSMIs to be given writeups for disobedience and verbal behavior such as disobeying a lawful order, refusal to work, sexual misconduct, threats, and verbal abuse. It is certainly conceivable that the impairment in social skill and perception found in many mental illnesses contributes to this pattern of conduct.²⁰⁴

According to the Bureau of Justice Statistics, mentally ill prisoners in state and federal prisons as well as local jails are more likely than others to have been involved in a fight and also more likely to have been charged with breaking prison rules. For example, 36.7 percent of mentally ill state prison prisoners have been in fights since admission, compared to 24.4 percent of other prisoners. Similarly, 62.2 percent of mentally ill state prisoners have been charged with breaking prison rules, compared to 51.9 percent for other prisoners.²⁰⁵

After identifying patterns of disturbed, disruptive, or disturbed-disruptive episodes in their sample of New York prisoners, Hans Toch and Kenneth Adams concluded that “more often than not periods of high disciplinary involvement overlap with symptomatic behavior for seriously disturbed inmates.” Among prisoners who have been hospitalized for psychiatric treatment, disturbed-disruptive episodes are the most common. Among prisoners who have received outpatient mental health services, disruptive episodes are the most common and purely disturbed episodes relatively rare.

These data indicate that disruptiveness is the central feature of maladaptive patterns among outpatients…. Our findings for [prisoners who have been hospitalized while in prison for mental illness] underscore the limitations of viewing custodial and mental health problems as separate and discrete. Temporal coincidence does not necessarily imply causation in the sense that disciplinary problems are always the result of emotional disorders. It does suggest, however, that at some level, different manifestations of coping problems are interrelated.²⁰⁶

Discipline for Misconduct

Prison management is predicated on obedience to rules. Rule-breaking is subject to discipline and punishment. When the rules are broken by the mentally ill, punishment remains the default response, although in the past few years some prison systems have begun wrestling with ways to accommodate consideration of the role of mental illness in prompting prisoners to commit infractions.

A federal district court in California ruling in 1995 found that:

“Mentally ill inmates who act out are typically treated with punitive measures without regard to their mental status.”…[and] such treatment was the result of inadequate training of the custodial staff so that they are frequently unable to differentiate between inmates whose conduct is the result of mental illness and inmates whose conduct is unaffected by disease…. There is substantial evidence in the record of seriously mentally ill inmates being treated with punitive measures by the custody staff to control the inmates’ behavior without regard to the cause of the behavior, the efficacy of such measures, or the impact of those measures on the inmates’ mental illnesses.²⁰⁷

Similarly, in 1997, a federal district court found that at the Iowa State Penitentiary, prisoners with mental illness received disproportionately severe sentences. For example, “the inmate who commits the relatively minor misdeed of sloshing cereal on a guard would receive thirty days disciplinary detention, one year in administrative segregation and loss of one year’s good time.” This is the same punishment given for grave offenses such as hitting a correctional officer. In addition, the disciplinary officer:

does not review an inmate’s mental health status before assigning a punishment. Thus when, for example, [the officer] disciplines Inmate 103 for banging his head against his cell wall to keep his dead father from entering his cell, [the officer] has no idea of the type or magnitude of mental afflictions that inmate suffers. [As mental health staff testified, the officer] cannot tell the difference between inmates who simply act out their frustrations and those patients who are indeed mentally ill.²⁰⁸

Deciding upon the proper weight to be given to mental illness in determining whether infractions should be punished, and if so how, is not an easy matter. Indeed, the question of discipline is at the heart of the inherent tension between the security mission of prisons and mental health considerations. Corrections officials have a legitimate need to maintain order — which they believe is best done through punishment for rule breaking, and the deterrent effect they believe it has. Many fear that accommodating mental illness will encourage excuses for misconduct, condone malingering, encourage others to engage in similar misconduct, and promote a general breakdown in order. They assume misconduct is volitional, and they find it difficult to understand the role mental illness can nonetheless play in behavior and the ability to handle the stresses of incarceration.

Dr. Terry Kupers points out that severely disturbed individuals:

are prone to act bizarrely and inappropriately because of their psychiatric condition. Acting out and rule-breaking can be signs of a mental disorder that is not adequately treated and controlled. For instance, many disturbed prisoners hear voices or “command hallucinations” telling them to commit violence against themselves or others. When a psychotic prisoner loses control and follows the hallucinatory commands, more intensive treatment is needed.²⁰⁹

From a mental health perspective, the disciplinary process all too often ignores the very real impact of mental illness on conduct and ends up punishing individuals for behavior directly connected to their illness. The goal of deterrence is clearly misplaced when individuals have no meaningful control over their conduct. Punishment can also be counterproductive to therapeutic and behavioral goals for those who are mentally ill, particularly when the punishment consists of being locked down in isolation cells.²¹⁰ For the person with mental illness who accumulates misconduct reports, “the pattern of custodial routine is an original demand for compliance, and subsequent deprivation and punishment reinforce the original demand, which intensifies the problems by imposing more pressures upon already existing pressures without providing any solution to the original problem.”²¹¹ Yet, the formal disciplinary process in most prisons does not offer options other than some form of punishment. It does not include consideration of more constructive, productive, and change-oriented responses that would help contribute long-term to the prisoner’s ability to cope better both with his or her illness and with prison life.

Prisoners accused of serious (and sometimes not so serious) infractions have their guilt and punishment determined in prison disciplinary proceedings. Criminal law recognizes that it is fundamentally unfair to try someone incapable of either understanding the charge or presenting a defense, and it is unfair as well as cruel to punish someone for conduct that he cannot appreciate or control. With few exceptions, “incompetence” to participate in disciplinary proceedings and an “insanity” defense are not, however, formal features of prison disciplinary systems. Correctional mental health law expert Fred Cohen has written that the case law does “not require an administrative insanity defense and prison systems would not now easily tolerate it.”²¹² Human Rights Watch believes, however, that prisoners who are incompetent by virtue of their mental illness should not be subjected to disciplinary proceedings, at least as long as they remain in such a condition. Indeed, we believe that prisoners who are incompetent should be in a hospital setting with institutional responses to their conduct determined solely by mental health staff.

Of course, many prisoners who are seriously mentally ill are “competent” to participate in disciplinary proceedings. But they still present difficult questions regarding the extent to which their mental illness should be factored into findings of guilt and disposition, i.e., to what extent should they be held responsible for their conduct and what should the sanctions be. Prison officials operate disciplinary proceedings with the same reluctance to permit mental conditions to function as an excuse to misconduct that is so evident in criminal trials. They have not taken advantage of the flexibility they have as architects of prison regimes to modulate institutional responses to wrongdoing.

According to correctional mental health expert Dr. Jeffrey Metzner, while many states have come down against insanity defenses during internal disciplinary hearings, most states now dolet mental health experts testify during disciplinary hearings.²¹³ The formal and informal roles played by mental health staff in disciplinary hearings vary as does the willingness of disciplinary hearing officers to take mental health perspectives into consideration. Vince Nathan, who has been an expert in numerous prison cases, told Human Rights Watch that, “The idea of ceding security authority to mental health personnel is pretty repugnant to most prison administrations.”²¹⁴ In New York, for example, the law requires the mental health staff present information at a disciplinary hearing if a prisoner’s mental state is an issue. According to the Correctional Association of New York, however, attorneys report these safeguards have not been implemented in:

a manner that protects mentally ill prisoners from being punished for being ill. This failure is due to several factors: mental health staff’s overdiagnosis of malingering by mentally ill prisoners, hearing officers’ lack of training in mental illness symptomatology, and mental health staff’s reluctance to get involved in security issues.²¹⁵

In Ohio, the disciplinary system for misconduct by prisoners incorporates consideration as to whether the prisoner is competent to participate in the hearing because he or she understands the charges and can cooperate in the proceedings.²¹⁶ However, insanity — or even a lesser level of mental disorder — is not a defense. Even if an offense could clearly be shown to be caused by or inextricably connected to mental illness, the prisoner can still be found guilty of the infraction. The mental illness is, however, be taken into account in the determination of the sanction for the infraction. The adjudicating body, the Rules and Infractions Board (RIB), consults with mental health staff about the diagnosis, treatment, and needs of prisoners accused of infractions who are on the mental health caseload, and mental health staff may provide input and make recommendations about suitable disposition if there is a finding of guilt. According to Fred Cohen, who is currently a contracted consultant to the Ohio Department of Rehabilitation and Correction, when a prisoner’s mental illness is clearly related to his conduct, the RIB will often find guilt, but sentence the prisoner to time served in segregation pending the hearing or will set a sentence of a numbers of days in disciplinary segregation as punishment, but suspend the sentence.²¹⁷ But the tension remains between recognition from a mental health perspective that an prisoner was not able to control his behavior in any meaningful sense and the decision nonetheless that he should be punished for it.²¹⁸ Director Dr. Reginald Wilkinson explained to Human Rights Watch, “what we cannot do is ignore the disciplinary aspect [of misconduct]. Otherwise, this would lead to faking [of mental illness] by other inmates.”²¹⁹

On September 1, 2001 a new Georgia Department of Corrections policy became effective regarding discipline procedures for prisoners who have mental illness (or mental retardation) requiring that they be “screened and evaluated by mental health/mental retardation staff during the investigation phase of the disciplinary process when there is a violation of the institutional/departmental rules.”²²⁰ For prisoners with more serious conditions, the procedures prescribed require a determination by mental health staff regarding whether the prisoner at the time of the infraction was responsible for the conduct. This includes a determination of whether the prisoner “lacks substantial capacity to appreciate the inappropriateness of his/her conduct or to conform his/her conduct to the requirements of the laws/regulations due to mental illness.” The regulations further require that if mental health staff determine a mentally ill prisoner can be held responsible for the rule breaking conduct, they must still indicate whether his or her present mental status should preclude use of some regular disciplinary sanctions in favor of alternative sanctions. Such alternatives may include placement in specific therapy or psycho-education groups, individual counseling or therapy or placement in an intensive behavioral therapy unit.

An internal study was done to ascertain whether mental health staff input in fact had any outcome on disciplinary hearings at Georgia’s Phillips State Prison. The study, which looked at disciplinary procedures in the months of September and October 2002, found that of ninety-four disciplinary reports issued in September to mental health prisoners, thirteen of the prisoners were found incompetent to participate in the disciplinary proceedings, eight were found competent to participate but had alternate sanctions recommended. In October, of eighty-four disciplinary reports issued to mental health prisoners, twenty-five of the prisoners were found incompetent and four were found competent to proceed but alternate sanctions were recommended. Dr Jeffrey Metzner, who at the behest of the Georgia Department of Corrections has been evaluating mental health services at Phillips State Prison, considered the results to be consistent with “the mental health input having an impact on this process.” Discussions he had with staff suggested, however, “possible confusion relevant to the criteria for competency to proceed versus responsibility assessments.” ²²¹

University of California psychiatrist Michael Krelstein surveyed the fifty state departments of corrections and the Federal Bureau of Prisons about their disciplinary systems. In many states prison officials “informally expressed the view that mental health clinicians should neither volunteer to, nor be placed in the position of having to, provide ultimate opinions on disciplinary responsibility.”²²² They expressed concerns that having mental health staff involved in determining discipline responses would create a conflict of interest for the mental health teams; could encourage non-mentally ill prisoners to feign illness knowing that this illness might mitigate the prison system’s responses to their misbehavior; and could place the clinicians at risk of revenge attacks from patients whom they had assigned punishments. For example, Krelstein found that:

Under Texas policy, mental health may communicate with custody regarding the disciplinary management of seriously mentally ill inmates, but are prohibited from performing forensic evaluations including sanity at the time of the alleged disciplinary infraction or competence to undergo disciplinary proceedings.²²³

According to Krelstein, Texas justified the state’s policy on forensic evaluations on the grounds that “custody [staff] could object to the mental health [staff’s] insanity determinations, which excuse an inmate’s antisocial or violent behavior, further straining custodial-clinical staff relations.”²²⁴ Moreover, he told Human Rights Watch, the mental health staff themselves are generally reluctant to go before a disciplinary committee and argue that a prisoner was insane at the time of his misbehavior:

because that essentially forgives the crime, and that is a slippery slope in terms of what mental health’s role ought to be within the prison setting…. There’s no precedence for mental health staff to provide the ultimate answer for “yes, you are guilty,” or “no, you are not guilty.”²²⁵

Our research for this report uncovered countless examples of mentally ill prisoners being punished for rule-breaking connected to their mental illness. We provide examples throughout this report, and note several below, in an effort to communicate the nature and pervasiveness of an unsolved problem that vexes prisoners, correctional staff, and mental health professionals alike:

• In October 2001, a prisoner at Georgia’s Phillips State prison who was mentally ill had had an extensive history of self-mutilation, heard the murder of another prisoner, David Strickland, at the hands of his cellmate in a nearby cell. The prisoner “responded to the stress by cutting himself, and was subsequently given a disciplinary report and placed in an isolation cell for “destruction of state property.”²²⁶ The property in question was the prisoner’s own body.

• On March 31, 2001, James Mitchell, a mentally ill prisoner who was incarcerated at the Southern Ohio Correctional Facility in Ohio and was assigned to the Residential Treatment Unit, began screaming and kicking his cell door. He subsequently explained that “he was hearing voices and was trying to get someone to tell them that he wanted to see psych.” He was charged with destruction of property and creating a disturbance. The Rules Infraction Board stated that it believed the statement by Mitchell, but nonetheless found him guilty and sentenced him to twenty days in disciplinary control.²²⁷

• “I remember this one woman very clearly, there was a fire drill and they had to evacuate. She was in the middle of a major panic attack, sitting in the bathroom. She couldn’t get up,” Janet Schaeffer, one-time director of mental health services at the Washington Correctional Center for Women, told Human Rights Watch.

She was given an infraction for this and put in segregation. It wasn’t like she was trying not to follow the rules. She’d done well in prison prior to that. They put her in segregation. She started to do very poorly there. Something triggered them calling me. I went to see her and continued to see her. It turned out this woman was very delusional. She’d gone unnoticed in the prison.²²⁸

• Attorney Jane Kahn, who has represented many seriously mentally ill prisoners in California, told Human Rights Watch that her clients are routinely disciplined for acts related to their illness.²²⁹ In some instances, these prisoners are criminally prosecuted for their prison conduct, which in a number of cases has led to them receiving life sentences under California’s three strikes law.²³⁰

We see a lot of [mentally ill prisoners] get third strikes — mental health cases with, for example, bipolar disorder. They’d be in a manic state — because the medication delivery is abysmal still. There are shortages of MTAs [medical technician assistants], problems getting prescriptions filled in the pharmacies. Prescriptions run out. Or someone is discharged from a crisis bed or transferred between prisons and their medications don’t follow them. There was a guy in Chino. By the time we saw him, he was in Ad Seg [administrative segregation] and had picked up a third strike for assaulting another inmate. His mental illness wasn’t picked up at the intake screening. He was on medications in the community — he was a schizophrenic. But the prison didn’t pick this up. He became horribly psychotic.²³¹

Kahn told Human Rights Watch about the following cases exemplifying the use of punishment in California prisons to respond to conduct connected to mental disorders:²³²

• One prisoner, diagnosed with paranoid schizophrenia and bipolar disorder, was being housed in the Enhanced Outpatient Program at the Salinas Valley prison. When he responded to news of an unfavorable legal decision by pacing repeatedly up and down his unit, a correctional officer immediately ordered him back to his cell. The prisoner became very upset and threw his legal papers, some of which hit the officer in the leg. He was charged with “battery on a peace officer.” According to Kahn, the prisoner is “totally delusional.”

• A seriously mentally ill prisoner kept telling female officers that he loved them. He was charged with threatening the guards and was locked down for thirty days.

• A bipolar prisoner who was so ill that he had been forcibly medicated after refusing his medications, was locked down in a security housing unit for throwing food and feces at officers while in a manic state.

• A delusional prisoner told a clinical psychologist at Salinas Valley during a confidential counseling session that his skin was poisonous and if a correctional officer touched him he would die. The psychologist, who was also a case manager, wrote a disciplinary ticket saying the prisoner was threatening to kill a correctional officer. The prison was eventually forced to drop this charge.

• Prison expert Dr. Dennis Koson prepared a report for the plaintiffs in C.F. v. Terhune²³³ in which he found:“when inmates are seriously mentally ill and not adequately treated, they become increasingly incapable of conforming to institutional rules of conduct and, as a result, often are charged with disciplinary infractions.”²³⁴ Koson wrote of one prisoner, John Doe #117, who:

was charged with “being untidy” because he smeared feces on his cell door. In the absence of a psychological evaluation, he received a sanction of 60 days loss of commutation time, 90 days administrative segregation, and 15 days detention as well as referral to mental health staff for treatment.

Later on, the prisoner was charged with flooding his cell, and, following a psychological report that showed he was “often psychotic,” the prisoner was again referred to the mental health staff. After that, however, Koson found that:

subsequent disciplinary officers… declined even to seek a [mental health] evaluation or ignored its findings when requested. On July 1, 1995, John Doe #117 was again charged with flooding his cell. A psychological evaluation determined that John Doe #117 was “cognitively limited,” “schizophrenic,” and “not completely in control of his behavior.” Nonetheless, he received detention and administrative segregation time.

• At Tamms prison in Illinois, lawyers suing the prison on behalf of mentally ill prisoners, refer in their complaint to H.X.²³⁵ H.X. is a forty-year-old chronic schizophrenic, who has a documented record of serious mental illness going back to his childhood. According to the complaint:

Several times [H.X.] has tried to harm himself or his surroundings at Tamms on account of his active psychosis, and he has been punished for his actions. For example, twice after he attempted suicide by swallowing a piece of his mirror, he was found guilty of damaging or misusing state property. When guards found him with a homemade rope around his neck attempting to hang himself, they gave him a ticket for destroying the sheet he had torn to make a rope; the Adjustment Committee found him guilty and ordered him to pay restitution for the torn sheet.

• In 1997, a court in Iowa found that the prison administrator in charge of hearing discipline cases at the state penitentiary “does not check closely to see if the inmates he is punishing have psychological problems when he presides over the administrative hearing.” The court referred to the case of one prisoner who was found guilty of 185 violations between 1984 and 1988 and who had, as a result, spent the past eight years in isolation. Another prisoner had been punished for painting his cell walls with his own blood.²³⁶

• In 2003, Harbans Deol, medical director of the Iowa Department of Correctionsreported to Human Rights Watch thatcorrectional officers tend to refer prisoners to the disciplinary process even when the prisoners “might be having behavioral problems that are a symptom of their illness.” Because he believes this to be counterproductive, his office is working to create better training programs for the correctional officers in the Iowa prison system. “We try to teach [correctional officers]if someone is acting out it might be a symptom of their illness. Some correctional officers might actually poke fun [at the mentally ill.] That escalates into a worsening of his condition. He’ll say something to the C.O. and be disciplined for it.” Because mental health staff in Iowa have no mandated role in disciplinary hearings, whether or not an prisoner’s mental status is taken into account during a hearing is left to the discretion of the individual administrative law judges appointed by the prison administration who conduct the hearings. Deol told Human Rights Watch that there have been instances in which prisoners in the final stages of cirrhosis of the liver have begun acting strangely due to the accumulation of ammonia that builds up in the body as a result of liver malfunction and that can lead to hallucinations and delirium. Instead of responding to the behavior through administering appropriate medications, some judges, Deol reported, have disciplined prisoners for these actions.²³⁷

• In Wisconsin, according to Coalition For Advocacy attorney Todd Winstrom, who was involved in investigating the treatment of the mentally ill at Oshkosh Correctional Institution, the correctional system recently amended its administrative code to exclude mental illness as a defense in disciplinary hearings. The Wisconsin Department of Corrections did not return repeated phone calls from Human Rights Watch requesting information on, and clarification of, this policy. The effects of the mentally ill picking up disciplinary tickets for their behavior are varied. Sometimes, it results in prisoners losing their prison jobs; other times it results in parole being denied. Frequently it results in prisoners being sent into segregated housing. Winstrom reported that one female prisoner at Taycheedah Correctional Institution was twice punished by 180 days in segregation for slitting her throat.

Misconduct reports can lead both to an prisoner being placed in restrictive housing (discussed below, chapter IX), to loss of good time, and ultimately, to mentally ill prisoners serving most or all of their maximum sentence. “I’ll be honest with you,” Superintendent Vaughn, of Graterford Prison, Pennsylvania, told Human Rights Watch. “Most mental health cases, if they get five-to-ten end up doing the max, because they don’t adjust well….”²³⁸ Indeed, the Pennsylvania Department of Corrections reports that prisoners with serious mental illness are three times as likely as other prisoners to serve their maximum sentence.

According to the Bureau of Justice Statistics, mentally ill prisoners in state prison serve more time on average than other prisoners. Mentally ill offenders average a total of 103 months in prison, fifteen months longer than other offenders. The largest differences in time served were among violent and property offenders. The mentally ill serve an average of at least twelve additional months for violent and property offenses.²³⁹ Because of their disciplinary records — as well as concerns about their mental illness itself — mentally ill prisoners are also at greater risk than others of being denied parole when brought before a parole board. As Superintendent Vaughn pointed out to Human Rights Watch, parole boards “don’t want to chance it on releasing them.”²⁴⁰ Dr. Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Correction also pointed out in testimony to Congress that mentally ill prisoners serve more time before getting parole, or never get parole but simply max out of their sentence, because the lack of adequate community services makes it difficult for the parole board to develop an effective community treatment and supervision plan.²⁴¹