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Article Excerpt
Introduction
I. The People A. James, an Iraq War Veteran with PTSD B. Millie, an Abuse Victim Who Lost Her Children C. Wally, a Victim of Childhood Mental Illness II. Pre-Conviction Issues A. Crisis Intervention Teams and Mental Health Courts B. Jails C. Formularies D. Sentencing III. Post-Conviction Issues A. Risk Assessment B. Prison Medication C. Overcrowding D. Discipline and Segregation IV. After Incarceration A. Reentry into Society B. Recidivism V. Reform or Litigation Conclusion
INTRODUCTION
Twenty years ago, prisoners around the nation challenged their unsatisfactory conditions of confinement and few states escaped the oversight of federal judges. Overcrowding compounded problems of inmate idleness, fire safety risks, insect and rodent infestations, unhygienic food, and lack of basic medical care, all of which in combination appeared like low-hanging fruit, ready for the picking by plaintiffs seeking humane treatment. (1) Mental health care was virtually non-existent. (2) In the years that followed, many states responded by meeting minimum constitutional standards, the Supreme Court responded by limiting the scope of permissible relief, and Congress responded by doing its best to stifle the litigation itself. The context for addressing problems that prisoners faced changed accordingly.
In spite of general improvements in conditions, severe problems have continued, spurred on, in particular, by a dramatic growth in the number and percentage of mentally ill offenders who now populate our jails and prisons. (3) In the late 1980s, assessments of the mentally ill prison population were based upon limited data; reports indicated that 6% to 8% of state prisoners had "serious psychiatric illness[es] ... while fifteen to twenty percent of all prison inmates [would] need psychiatric treatment at some point in their incarceration." (4) In contrast, a 2006 report from the Bureau of Justice Statistics reported that more than 40% of state prisoners and more than half of jail inmates reported symptoms that met the criteria for mania, 23% to 30% reported symptoms of major depression, and 15% to 24% reported symptoms that met the criteria for a psychotic disorder. (5) Furthermore, approximately three-quarters of inmates with mental illness suffer from a co-occurring diagnosis of addiction to drugs or alcohol. (6) The challenge presented by this enlarged population of mentally ill inmates taxes the resources of even the most progressive correctional systems.
Experts have posited various theories to explain the dramatic growth in both numbers and percentage of mentally ill inmates. Part of the explanation undoubtedly comes from increased efforts to screen inmates and to diagnose mental illnesses that may be susceptible to treatment. (7) Others hypothesize that part of the explanation arises from closing of in-patient mental health facilities, limits on involuntary civil commitments, and the failure to keep pace with adequate community treatment options. (8) Additional theories include responses to the war on drugs, given that the mentally ill often have co-occurring substance abuse disorders. (9) Changes in sentencing practices place greater weight on successive convictions, and inadequately treated mentally ill offenders are often recidivists. (10) Whatever the reason, prisons now provide a substantial share of mental health treatment in the United States. (11)
This Article follows the path of mentally ill offenders as they encounter the criminal justice system, and identifies points of potential relief from the current crisis. Part I describes three "typical" mentally ill offenders. Subsequent sections describe a variety of the problems such offenders face when encountering life in our jails and prisons. Part II begins with offenders' initial encounters with the criminal justice system and discusses the importance of diagnosis as well as the various ways mentally ill offenders are dealt with at the pre-conviction stage, identifying the shortcomings of each method in turn. Part III explores the shortcomings related to various post-conviction issues that mentally ill offenders face within the prison system, including "risk assessment" by prison officials, medication being administered by prison officials, overcrowding, and discipline. Part IV discusses difficult issues that mentally ill offenders face after incarceration, such as community reentry, an increased likelihood of recidivism, and perpetuation of the offense/incarceration cycle. Part V concludes with a brief assessment of opportunities for litigation and reform.
I. THE PEOPLE
James, Millie, and Wally are names I will use to describe three typical offender "types" who suffer from mental illness and who become enmeshed in the correctional system. All three are meant to be realistic depictions, combining national studies and reports with descriptions shared by people who work with this inmate population within the Kansas Department of Corrections. (12) James returned more than a year ago from back-to-back tours in Iraq. Millie is a mother of four children who recently lost her parental rights after enduring several years of physical and mental abuse from her ex-husband. Wally recently turned nineteen and has been in and out of hospitals, juvenile detention facilities and foster care homes for more than a decade.
A. James, an Iraq War Veteran with PTSD
James suffers from severe depression and posttraumatic stress disorder ("PTSD"), but that condition was not clearly diagnosed prior to his discharge from the Army Reserve. His commanding officers labeled him as a malingerer, objected to his repeated failure to meet demands of the training regime that took place between tours of duty, and were happy when he did not reenlist. James had never been treated for mental illness prior to his military service, and he was discharged prior to receiving a diagnosis or treatment. After returning to the community where he grew up, he had difficulty finding a job, and his mental condition continued to deteriorate. To relieve his "demons," he chose to "self medicate," beginning with alcohol and then moving on to more serious and even more addictive drugs. In order to fund his addiction, he also sold drugs, which ultimately resulted in his arrest. A first conviction for possession with intent to sell resulted in a three year prison sentence. (13)
Fallout from the Iraq war is just beginning to hit the criminal justice system. While "James" may be a mythical figure, the group that he represents is large and growing. Studies based upon questionnaires filled out by returning soldiers have shown high rates of "posttraumatic stress disorder (PTSD), major depression, substance abuse [and] functional impairment in social and employment settings...." (14) These concerns rise in the months following return from deployment, with more than 20% of active duty soldiers and 42% of returning National Guard or reserve soldiers "needing referral or already being under care for mental health problems." (15)
Caring for the mental health problems of returning soldiers is complicated by related factors. Concerns about the stigma attached to those with mental health problems may suppress reporting by soldiers and reduce opportunities for effective treatment. (16) In addition, as with other populations of the mentally ill, there is a high occurrence of substance abuse, particularly with alcohol. Within the military system, however, self-reports of such problems are not confidential, must be reported to the soldier's commander, and may cause significant career problems. As a result, despite frequent identification of alcohol abuse on screening questionnaires, there is limited follow-up treatment for these problems. (17) Furthermore, it is well documented that the Department of Defense mental health system is "overburdened, understaffed, and underresourced." (18) A major additional problem is that, for reservists like James, health insurance benefits are inadequate to start with, and expire six months after their return to civilian status. (19) Increased interpersonal conflicts and the stress of transitioning back to civilian employment further complicate the lives of returning guard and reserve soldiers. (20)
It is too early to know how many of the returning soldiers will end up among the ranks of those serving time in prison. (21) The combination of PTSD, severe depression, alcohol abuse, difficulty with relationships, and employment problems, however, leaves little doubt about the probability that the numbers will be substantial. Experience with returning veterans from prior wars underscores this prognosis. (22) For individuals like James, military service was the first step along a path that will place heavy demands upon prison mental health services.
B. Millie, an Abuse Victim Who Lost Her Children
Millie is a thirty-three-year-old woman who had her first child at age sixteen, married at age eighteen, and had three more children in the following seven years. She suffered repeated abuse from her husband, who threatened her with abandonment if she reported his violent behavior. When she finally made the break from her husband, she received short-term care from a battered women's facility. Shortly thereafter, she began experiencing mental problems. When Millie failed to secure employment, she obtained financial assistance from the state department of social and rehabilitation services. Millie's social worker identified signs of severe depression and mood disorders frequently associated with histories of abuse. The social worker's primary concern was with providing care to Millie's children; sensing a lack of care and an apparent threat of physical abuse, she removed the children from Millie's home and placed them in foster care. An unsuccessful effort was made to find community mental health treatment for Millie, but all local mental health care facilities were filled to capacity, with waiting lists in excess of six months. Millie registered for out-patient care, but lacked either money or transportation to get to those appointments. As her mental condition deteriorated, she refused to cooperate with welfare authorities and physically assaulted her case worker. After being held briefly in jail, she was released with the stipulation that she participate in anger management classes. She not only missed those classes, but also assaulted a waitress in a local restaurant who accused Millie of attempting to leave without paying her bill. That second assault resulted in a conviction, a fifteen-month prison sentence, and, as a result of separate proceedings, the termination of her parental rights.
The picture of Millie as both a victim and offender is far from unique. Although both men and women in prison often have been scarred by histories of abuse, such experiences are most likely to be true of women. (23) A Bureau of Justice Statistics study found that 73% of mentally ill women in local jails, and more than 75% of mentally ill women in state prisons, have reported histories of abuse. (24) In comparison, approximately 30% of mentally ill male inmates in both state prisons and local jails reported abuse histories. (25) High rates of abuse histories among women inmates are a primary explanation for their correspondingly high rates of mental illness. (26)
Jail and prison settings are likely to be especially difficult for women with histories of physical or sexual abuse. (27) They have a greater likelihood than men of drug related convictions, (28) and approximately three quarters of female jail detainees have co-occurring substance abuse disorders. (29) Furthermore, as compared to men, they are more likely to be poor, have lower self-esteem, have more severe physiological problems, and have been victims of abuse. (30) Estimates are that approximately one quarter of all women who enter prison are either pregnant or postpartum, with medical and mental health conditions that require careful prenatal care. (31) All of these factors contribute to stress.
The most common, serious mental health diagnosis for incarcerated women is posttraumatic stress disorder, and the symptoms of PTSD include phobias, flashbacks, and uncontrollable anger or rage. (32) Their traumatic experiences are often associated with male authority figures, leading to problems interacting with men. (33) This volatile combination creates predictable problems in the prison context, including personal suffering from the mental illness itself, as well as increased disciplinary problems and lengthened terms of imprisonment. (34)
C. Wally, a Victim...
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