“For inmates with disabilities who are routinely denied their mental or physical needs, incarceration can be a nightmarish fight for survival.”
President Obama marked the anniversary of the Americans with Disabilities Act on July 26 with a public statement supporting the act, while acknowledging that its aim of equality is far from realized. Last year, he had said that “despite the gains we have made, independence and freedom from discrimination remain out of reach for too many individuals with disabilities.” Possibly no group of people understands this so deeply as prisoners.
It is well understood that staff working in jails and prisons have used unnecessary, excessive, and even malicious force on prisoners with mental disabilities such as schizophrenia and bipolar disorder. Corrections officials at times needlessly and punitively deluge them with chemical sprays; shock them with electric stun devices; strap them to chairs and beds for days on end; break their jaws, noses, ribs; or leave them with lacerations, second degree burns, deep bruises, and damaged internal organs. The violence can traumatize already vulnerable men and women, aggravating their symptoms and making future mental health treatment more difficult. In some cases, including several documented in this report, the use of force has caused or contributed to prisoners’ deaths.
Prisons can be dangerous places, and staff are authorized to use force to protect safety and security. As facts suggest, staff at times have responded with violence when prisoners engage in behavior that is symptomatic of their mental health problems, even if it is minor and non-threatening misconduct using profane language, or banging on a cell door. When used in these ways, force constitutes abuse that cannot be squared with the fundamental human rights prohibition against torture or other cruel, inhuman, or degrading treatment or punishment. Unwarranted force also reflects the failure of correctional authorities to accommodate the needs of persons with mental disabilities.
Compared with the public, offenders may seem less cooperative, less appealing, and even less “human.” Yet courts have clearly established that prisoners have a constitutional right to receive medical and mental health care that meets minimum standards with no underlying distinction between the rights to medical care for physical illness and its psychological counterpart. Clinical services are to be provided in the inherently coercive system of prisons without compromising its missions and the providers' ethics standards, which is at the very least, extremely challenging.
There are many problems associated with placing seriously mentally ill individuals into prisons and jails. They remain in prison and jail longer than regular prisoners and thus contribute to overcrowding, because they are less likely to obtain bail and are more likely to break the rules, thus failing to get a reduction in their sentence for good behavior.Mentally ill prisoners, especially those not being treated, cause major behavioral problems in prisons and jails.Prisons and jails are unpleasant environments even on the best of days.
They are disproportionately abused, beaten and victimized much more frequently than other prisoners, often become much sicker in prison and jail, especially if they are not being treated. And are much more likely to spend time in solitary confinement which usually involves keeping prisoners in cells by themselves for 23 hours a day, allowing prisoners only one hour for showers and to exercise by themselves. Human interactions are limited, with meals usually being passed into the cell.
And it has been seen that mentally ill prisoners are much more likely than regular prisoners to return to prison or jail in a “revolving door” phenomenon.
There is no national data on the prevalence of staff use of force in the more than 5,000 jails and prisons in the United States. The misuse of force against prisoners with mental health problems is widespread and may be increasing. It is well known that US prisons and jails have taken on the role of mental health facilities. This new role for them reflectsthe limited availability of community-based outpatient and residential mental health programs and resources, deficient mental health treatment in corrections facilities, inadequate policies to protect prisoners from unnecessary force, insufficient staff training and supervision, a lack of accountability for the misuse of force, poor leadership, and the lack of alternatives to incarceration for men and women with mental disabilities who have engaged in minor offenses.According to one recent estimate, correctional facilities confine at least 360,000 men and women with serious conditions such as schizophrenia, bipolar disorder, and major depression. In a federal survey, 15 percent of state prisoners and 24 percent of jail inmates acknowledged symptoms of psychosis such as hallucinations or delusions. But what is less known is that these prisoners are at heightened risk of physical mistreatment by the staff.
Prisoners with mental disabilities misbehave and are sanctioned for disciplinary infractions at higher rates than other prisoners. Nationwide, among state prisoners, 58 percent of those who had a mental health problem had been charged with rule violations, compared to 43 percent of those without such problems. In New York City, for example, inmates with mental health problems represent 40 percent of the jail population but are involved in 60 percent of all incidents of misconduct.
In jails and prisons across the country officials fail to ensure one or more of the following: sound and comprehensive use of force policies; effective training for and supervision of staff on the proper use of force; special provisions to protect prisoners with mental disabilities from unnecessary force; strict compliance with reporting policies; effective supervisory review of all use of force reports; thorough investigations of questionable use of force incidents; and meaningful disciplinary measures for staff who violate policies and procedures.
An estimated one in five prisoners in the US has a serious mental illness, including schizophrenia, bipolar disorder, and major depression, and an estimated 5 percent are actively psychotic at any given moment. Prisoners with such conditions often find it difficult to cope with the extraordinary stresses of incarceration and to comply with the prison regimen and staff orders. Untreated or undertreated because of inadequate mental health services, these prisoners may engage in conduct correctional staff consider annoying, bizarre, frightening, disruptive, or dangerous. They may refuse to obey orders, and they break the rules at higher rates than other prisoners. The default response of staff may be the use of force.
All rights granted to mentally ill prisoners for improving the situation begin with the general premise that individuals with severe mental disorders who are in need of treatment belong in hospitals, not in prisons and jails. The present situation suggests that the public mental illness treatment system is broken. Thus, the ultimate solutions to the problems presented in this report include having an adequate number of public psychiatric beds for the stabilization of mentally ill individuals and involve a fundamental realignment of the public mental illness treatment system in which public mental health officials at the state and county level are held responsible for any failure of the treatment system.
Innovative and comprehensive treatment programs in prisons, coupled with state-of-the-art diversionary measures for mentally ill arrestees and prisoner community reentry programs, must be pursued to prevent a high rate of recidivism and morbidity of prisoners and to facilitate their adjustment in the community. There should be appropriate treatment provided for prison and jail inmates with serious mental illness.
There should be mandate release planning for all mentally ill inmates being released from prison or jail, a written plan for psychiatric follow-up should be developed. Studies have suggested this presently happens in only a small percentage of cases
Corrections experts say that best practices require special use of force measures for prisoners whose disruptive behavior is symptomatic of mental illness. For example, following recent class action litigation, prison officials in Arizona and California are adopting policies that greatly restrict the use of chemical sprays on prisoners with mental illness except in an emergency. But most agencies lack such policies. Similarly, most agencies do not train their staff to understand the impact mental illness can have on behavior and to use verbal negotiation strategies to end disruptive behavior without force. The biggest difference could be made by decriminalizing the poverty experienced by many (ordinances targeting panhandling and loitering disproportionately affect disabled people, for example), as well as decriminalizing certain drugs.
Public officials should reduce the number of prisoners with mental disabilities, confined in prisons and jails, including by increasing the availability of community mental health resources and access to criminal justice diversion programs. Officials should also improve mental health services in prisons and jails; and ensure that correctional facilities adopt and follow sound policies on using force that take into account the unique needs and vulnerabilities of prisoners with mental illness. Officials should use training to enforce these policies and include mechanisms for holding accountable staff who violate them.
In the absence of such meaningful changes, prisoners with disabilities will continue to be subject to some of the prison system’s worse excesses, for example, punitive solitary confinement.
Toshio Meronek, The invisible punishment of prisoners with disabilities, available at,
http://www.thenation.com/article/invisible-punishment-prisoners-disabilities/, last accessed on 25th September, 2015.
Jamie Fellner, Callous and Cruel, available at, https://www.hrw.org/report/2015/05/12/callous-and-cruel/use-force-against-inmates-mental-disabilities-us-jails-and, last accessed on 2nd October, 2015.
Supra note 1.