Supermax: The Constitution and Mentally Ill Prisoners

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The Eighth Amendment prohibits the "cruel and unusual punishment" of inmates. So how will the Bureau of Prisons defend itself at Supermax?

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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 no one.

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 and Dostoevsky 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 facility.

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 area.

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 jails.

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?

THE CONSTITUTION

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

1. The Need for Mental Health Services At Pelican Bay

2. Systemic Deficiencies In the Delivery of Mental Health Care

    a. Staffing Levels

    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)

3. Defendants' State of Mind

POSTSCRIPT AND PREVIEW

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 complaint is 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 inmate's incarceration?

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. 

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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