By Nicole Carter*

Introduction: U.S. Prisons Deprive Inmates of Adequate Mental Health Treatment

In 2016, John Rudd was sentenced to eight months in federal prison for violating a term of his probation.^[1] While he had been diagnosed with Post Traumatic Stress Disorder (P.T.S.D.) and Schizophrenia, Rudd was placed on a “care level 1” unit for inmates without “significant mental-health needs.”^[2] Subsequently, he was not provided with psychiatric medication or any other form of treatment for his mental health.^[3] By April of 2017, Rudd notes his psychosis had strengthened and the voices that accompanied it “were getting louder”.^[4] His symptoms became so severe that he confided his suicidal ideation to the prison staff, leading to his placement in a suicide watch room.^[5]Later, the staff found him banging his head against the wall, “trying to snap his neck,” and injected him with haloperidol to end the episode.^[6] Rudd was moved back to “care level 1” within 24 hours.^[7]

While purporting to be rehabilitative, the U.S. prison system is depriving individuals with mental illnesses of the treatment they need, subjecting them to unnecessary and significant harm. According to the American Psychological Association, “64 percent of jail inmates, 54 percent of state prisoners and 45 percent of federal prisoners” report mental health concerns.^[8] However, as of February 2018, the Federal Bureau of Prisons reported mental illnesses they deemed “severe enough to require regular treatment” in only 3% of inmates.^[9] Notably, about 50% of individuals detained in state or federal prisons who had been taking psychiatric medications to treat a mental illness before incarceration were not given access to that medication once detained.^[10] Further, individuals with diagnosed mental illnesses living in federal prisons “are lucky to get even one hour of mental health treatment a month,” and are often kept in solitary confinement due to psychosis symptoms, further exacerbating underlying mental illnesses.^[11] This leaves the vast majority of inmates struggling with mental illnesses in prison without adequate treatment, leading many to face relapse or, like Mr. Rudd, escalation of symptoms to the point of crisis. As current legal approaches to this issue fail to produce change, significant policy change is required.

Current Legal Tests Fail to Protect Individuals with Mental Illnesses in Prison

In Estelle v. Gamble, the Supreme Court held that the failure of prisons to address an individual’s medical condition can amount to violation of the eighth amendment right to be free from cruel and unusual punishment, reasoning that “[i]n the worst cases, such a failure may actually produce ‘physical torture or a lingering death’… In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.”^[12] However, in practice, strict legal tests shield prisons from accountability. In Farmer v. Brennan, the Supreme Court laid out the standard for cruel and unusual punishment.^[13] Under the first “objective” prong, the court asks whether the conditions at issue create a “substantial risk of serious harm.”^[14] Under the second “subjective” prong, the court asks whether the prison officers inflicting the harm (the failure to provide care) were deliberately indifferent to the risk of harm.^[15]

Given the systemic nature of the prison system’s failure to provide adequate mental health care, this test does not capture the majority of the harms of this issue due to its focus on the “deliberate indifference” of specific individual officers. Courts are, accordingly, hesitant to hold prisons accountable for conditions that clearly deprive inmates of necessary mental health care. For example, in Herndon v. Heyns, the petitioner’s claim alleging a violation of eighth amendment rights due to the subjection of an individual suffering from mental illness to solitary confinement was denied because the petitioner did not allege wrongdoing on behalf of a specific prison staff member.^[16] Further, the court held that the prison’s “denial of an administrative grievance” for inadequate medical care was not synonymous with a “denial of a request for medical care” sufficient to establish a constitutional violation.^[17] While obscure, this strict rule is echoed in further caselaw.^[18] Under such standards, the law as it stands is not protecting incarcerated individuals who need mental health care.

Moving Forward

As the legal tests available fail to capture these harms, policy change is necessary to address this issue. Notably, the solutions do not lie within prisons. Rather, local and national governments must examine the policies that disproportionately subject individuals with mental illnesses to the carceral system, and instead invest in creating affordable, accessible, and culturally competent mental health care systems.

A 2021 report by The Atlantic identifies several policies driving the disproportionate incarceration of individuals with mental illnesses.^[19] Initially, when a mental health emergency is reported, police officers are almost always the first to respond.^[20] Given their lack of training in mental health, this creates a situation geared toward dysfunction, in which people who vitally require mental health treatment are instead jailed due to conduct that is consistent with their symptoms.^[21] Further driving this issue are so-called “broken windows” policing policies that crack down on low level crimes on the theory that doing so will reduce the frequency of serious crimes.^[22] Under these policies, individuals can be incarcerated for crimes such as disorderly conduct for “erratic behavior” often associated with mental illness, disproportionately subjecting people with mental illnesses to the carceral system.^[23] Additionally, the “War on Drugs” has subjected millions of individuals struggling with mental illnesses to the carceral system.^[24]Approximately 75% of incarcerated individuals with mental illnesses also struggle with a substance use disorder, as substances are commonly used as “a form of self medication.”^[25] Incarcerating individuals for drug-related crimes deprives these individuals of the opportunity to receive treatment for substance use and underlying mental illnesses, and subjects them to preventable suffering.

On the incarceration of those suffering from mental illness, Psychiatrist Stuart Grassian opines, “It’s… absolutely immoral… they just get worse and worse.”^[26] A humane approach to mental health requires policies that emphasize treatment and community. Currently, the city of Eugene, Oregon employs a program in which “unarmed outreach workers and medics respond to many mental-health emergencies” rather than police.^[27] As almost 25% of police shootings involve an individual with a mental illness, such models keep these individuals safe from officers who are untrained in how to deescalate a mental health emergency, and are much more likely to result in an individual receiving access to mental health services than an arrest.^[28] In addition to employing similar models, local governments can take action to end “broken windows” policing policies.

On a national level, given the widely understood negative impacts the intense criminalization of drug crimes has on the United States, and its disproportionate impacts on people of color and those suffering from mental illnesses, steps must be taken to decriminalize drugs and instead allow access to treatment for underlying substance abuse disorders and mental illness.

In order to do so, it is important that policymakers examine creating models of community mental health care systems that are affordable, accessible, and culturally competent. While long term institutionalization can echo the disparities and cruelty experienced in prisons, community-based systems and emphasis on the temporary nature of emergency mental health services can offer alternatives. Most importantly, the approach to treating the most stigmatized mental illnesses must shift away from the dehumanizing assumption that such individuals are “inherently dangerous” and must be separated from society.^[29] Health Affairs details successful community based programs in which “multidisciplinary team[s] of mental health professionals” provide care to individuals within their homes or “where the person is most comfortable,” an option well suited to those facing housing instability, and that reduces rates of incarceration and hospitalization.^[30] The Canadian Observatory on Homelessness also advocates for a multidisciplinary approach to community based mental healthcare that includes such treatment, as well as housing resources, peer support programs, crisis services, daytime “clubhouses,” employment support, and more.^[31] While the U.S. mental health system is far from such goals, it is necessary that we begin working in this direction as the current mental health crisis expands and exponentially more individuals are arbitrarily and cruelly detained.

Conclusion

After leaving prison, a non-profit organization helped Mr. Rudd access biweekly therapy and appropriate medication to treat his Schizophrenia and P.T.S.D.^[32] Subsequently, he began receiving disability benefits and now rents an apartment.^[33] By ensuring that individuals have access to humane, non-carceral mental health treatment, the U.S. can significantly decrease its prison population and avoid preventable harms such as those endured by Mr. Rudd.

[1] Christie Thompson & Taylor Eldridge, Treatment Denied: The Mental Health Crisis in Federal Prisons, The Marshall Project (Nov. 21, 2018), https://www.themarshallproject.org/2018/11/21/treatment-denied-the-mental-health-crisis-in-federal-prisons.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Am. Psych. Ass’n, Incarceration Nation, 45 Monitor on Psych. 56 (2014).

[9] Thompson & Eldridge, supra note 1.

[10] Nat’l All. on Mental Illness, Mental Health Treatment While Incarcerated (2022), https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental-Health-Treatment-While-Incarcerated.

[11] Christine Herman, Most Inmates With Mental Illness Still Wait For Decent Care, NPR,  (Feb. 2, 2019) https://www.npr.org/sections/health-shots/2019/02/03/690872394/most-inmates-with-mental-illness-still-wait-for-decent-care

[12] Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. 436, 10 S. Ct. 930 (1890)).

[13] Farmer v. Brennan, 511 U.S. 825, 828 (1994).

[14] Id.

[15] Id.

[16] Herndon v. Heyns, No. 1:15-cv-1183, 2016 U.S. Dist. LEXIS 135877, at *16 (W.D. Mich. Aug. 22, 2016).

[17] Id.

[18] Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“The mere denial of a prisoner’s grievance states no claim of constitutional dimension.”); Alder v. Correctional Medical Services, 73 Fed. Appx. 839, 841 (6th Cir. 2003); see also Martin v. Harvey, 14 Fed. Appx. 307, 309 (6th Cir. 2001) (noting that denial of an appeal of a grievance for inadequate medical care does not equate to a denial of a request for medical care).

[19] See Alisa Roth, The Truth About Deinstitutionalization, The Atlantic (May 25, 2021), https://www.theatlantic.com/health/archive/2021/05/truth-about-deinstitutionalization/618986/.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Herman, supra note 11.

[27] Roth, supra note 19.

[28] Id.

[29] Roth, supra note 19.

[30] Heather O’Donnel, Kristin Davis, & Samantha Mestan, Building The Community-Based Mental Health Workforce To Expand Access To Treatment, Health Affairs (Oct. 24, 2019), https://www.healthaffairs.org/do/10.1377/forefront.20191022.281887/full/.

[31] Canadian Observatory on Homelessness, Community-Based Mental Health Care (2022).

[32] Thompson & Eldridge, supra note 1.

[33] Id.

*Nicole Carter is a staff member on JLI Vol. 41.