In two months, America will observe the 50th anniversary of one of its most dubious moments. On March 13, 1964, Catherine "Kitty" Genovese was brutally murdered in Queens, New York. What made her case infamous—legendary, even—was that nobody responded to her cries for help. "Please help me, please help me!" she cried, over and over, and at least 38 people in her neighborhood who heard those cries did nothing to help her. They did not call the police. They did not come to comfort her. They did not, they later said, want to get involved. "When good people do nothing" is a timeless moral question, indeed.
One could say the same thing about the citizens of the state of South Carolina, who stand condemned today by one of their own. On Wednesday, in one of the most wrenching opinions you will ever read, a state judge in Columbia ruled that South Carolina prison officials were culpable of pervasive, systemic, unremitting violations of the state's constitution by abusing and neglecting mentally ill inmates. The judge, Michael Baxley, a decorated former legislator, called it the "most troubling" case he ever had seen and I cannot disagree. Read the ruling. It's heartbreaking.
The evidence is now sadly familiar to anyone who follows these cases: South Carolina today mistreats these ill people without any evident traces of remorse. Even though there are few disputed material issues of law or fact in the case, even though the judge implored the state to take responsibility for its conduct, South Carolina declared before the sun had set Wednesday that it would appeal the ruling—and thus likely doom the inmates to years more abuse and neglect. That's not just "deliberate indifference," the applicable legal standard in these prison abuse cases. That is immoral.
But what makes this ruling different from all the rest—and why it deserves to become a topic of national conversation—is the emphasis Judge Baxley placed upon the failure of the good people of South Carolina to remedy what they have known was terribly wrong since at least 2000. Where was the state's medical community while the reports piled up chronicling the mistreatment of these prisoners? Where was the state's legal community as government lawyers walked into court year after year with frivolous defenses for prison policies? Where were the religious leaders, the ones who preach peace and goodwill?
No one in power came forward. Even as the evidence became more clear and compelling that something horrible was happening inside those prisons. The most telling reaction to Judge Baxley's ruling came from State Senator Mike Fair, who chairs the Senate Corrections and Penology Committee. On Wednesday, after the ruling, he said: "I didn't know that we had a problem with any particular aspect of mistreating or not treating inmates who have a diagnosis of mental illness." But Senator Fair knew. His fellow lawmakers knew. Yet like Kitty Genovese's neighbors, they did nothing, even as the cries for help became louder.
To understand Wednesday's ruling—to understand the extent to which South Carolina ignored what was in front of its very nose—it's important to look at the history of the problem. In the 1980s and early 1990s, South Carolina did a reasonably good job of caring for its mentally ill prisoners. That changed in the mid 1990s. Michael Moore, a renowned prison administrator, came from Texas and implemented a series of harsh reforms that vitiated mental health services for inmates. Jobs for prison psychiatrists were cut. Programs that had helped the mentally ill were shelved. And conditions, predictably, got worse in a hurry.
Moore left for Florida in 1999, but state lawmakers and prison officials in South Carolina never undid the damage he had caused even after they began to appreciate the scope of that damage. Sentencing reform even came to South Carolina, in 2010, courtesy of Governor Mark Sanford and his fellow Republicans in the state legislature, but no reform ever came to the state's mental health programs for inmates. No meaningful influx of money came to fix the problem. No reformers were commissioned to help. Judge Baxley, in his ruling this week, picks up the story from here. He writes:
The evidence is overwhelming that SCDC (South Carolina Department of Corrections) has known for over a decade that its system exposes seriously mentally ill inmates to a substantial risk of serious harm.
In 1999, SCDC retained Dr. Patterson (who became the Plaintiffs’ expert in Judge Baxley’s case), through a grant, to inspect its mental health program. His report, issued in 2000, characterized the program as being in a state of “profound crisis.”
In October 2000, a Joint Legislative Proviso Committee report concluded that “inmates with mental illness are not receiving adequate treatment… and oftentimes leave prisons worse off than when they entered."
In April 2003, a South Carolina Task Force whose members included three former SCDC Directors issued a report that concluded Gilliam Psychiatric Facility was “clearly inadequate."
In May 2003, the South Carolina Department of Mental Health issued a report on SCDC’s mental health program, noting “[t]he lack of psychiatric coverage has resulted in a critical situation, with extremes of poor care, inhumane treatment, and dangerousness…”
In September 2003, SCDC Director Jon Ozmint, in a application for technical assistance, stated that “[t]he current plight of persons with mental illness at SCDC is at a crisis level.”
In June 2005, the Plaintiffs filed their Complaint in this case, alleging constitutional deficiencies in SCDC’s program.
From June 2006-2010 Plaintiffs’ experts issued eight site inspection reports criticizing conditions in SCDC facilities.
In October 2007, SCDC psychiatrist Dr. Michael Kirby wrote a letter to his supervisor noting several serious problems with SCDC’s mental health system…
In January 2010, a United State Department of Justice report was highly critical of SCDC’s medication management and administration practices.
And through all of this time, this 15-year stretch in the state's history, no session of the legislature passed a comprehensive measure to fix the obvious problems. No governor called a press conference to lament the conditions of confinement and demand reforms from the Department of Corrections. No one save a few lonely advocates held a prayer vigil for the ill people who were being treated so poorly. No one brought any ethics charges against the doctors who were supposed to be treating these people or against the state lawyers who were defending these indefensible policies and practices in the state's courts of law.
Here is the link to Dr. Patterson's initial report. Here is the link to the Joint Legislative Proviso report. Here is the link to the 2003 Task Force Report.* Here is the link to the May 2003 Department of Mental Health memo. Take the time to read these documents and then decide for yourself whether the good people of South Carolina knew or should have known what was happening inside their prisons all those years. And keep those officials warnings in mind as you read next what Judge Baxley found happened to so many of the mentally ill prisoners caught in the vise of this callous system.
He started with the basics. "The evidence in this case has proved," Judge Baxley wrote, "that inmates have died in the South Carolina Department of Corrections for lack of basic mental health care, and hundreds more remain substantially at risk for serious physical injury, mental decompensation, and profound, permanent mental illness." There are not enough mental health professionals working on the state's prisons and those who are working are not adequately doing their jobs. Meanwhile, punitive prison policies, and poor communication, exacerbate the problems of the mentally ill. The judge wrote:
First, the mental health program at SCDC is severely understaffed, particularly with respect to mental health professionals, to such a degree as to impede the proper administration of mental health services….
Second, seriously mentally ill inmates are exposed to a disproportionate use of force and segregation (solitary confinement) when compared with non-mentally ill inmates…
Third, mental health services at SCDC lack a sufficiently systematic program that maintains accurate and complete treatment records to chart overall treatment, progress, or regression of inmates with serious mental illness.
Fourth, SCDC’s screening and evaluation process is ineffective in identifying inmates with serious mental illness and in providing those it does identify with timely treatment.
Fifth, SCDC’s administration of psychotropic medications is inadequately supervised and evaluated.
Sixth, SCDC’s current policies and practices concerning suicide prevention and crisis intervention are inadequate and have resulted in the unnecessary loss of life among seriously mentally ill inmates.
Those are the antiseptic words judges often use to describe unconstitutional conditions. What do they mean? They mean that one mentally ill inmate, James Wilson, was kept in solitary confinement for at least 2,491 consecutive days. It means that an intellectually disabled (and schizophrenic) man named Jerome Laudman was abused and neglected, and then left to rot in his own feces and vomit, until he died of a heart attack. It means that force was used 81 times on a severely mentally ill inmate named James Howard. It means that some mentally ill inmates were restrained at length in what they called a "crucifix position."
It means some mentally ill prisoners were "routinely placed" naked "in shower stalls, 'rec cages', interview booths, and holding cells for hours and even days at a time." It means that suicidal prisoners who were supposed to be receiving anti-psychotic medication were not receiving them. No surprise, the judge wrote, since SCDC's "computer system cannot retrieve the names or numbers of all inmates referred" for mental health treatment, "the number of inmates who have made serious suicide attempts; or the number of inmates whose psychotropic medications have expired without being timely renewed."
It means that mentally ill inmates are routinely caged for days in their own feces and urine, having to eat literally where they shit. It means, Judge Baxley wrote, that "the deposition testimony of some psychiatrists reveals an alarming lack of knowledge about the policies and procedures at SCDC." One such psychiatrist did not know "what mental health counselors do, and had 'no idea' who drafted treatment plans" for inmates. And even if the mental health professionals knew what they were doing, they wouldn't have been able to do much. The ratio of inmates needing treatment to professionals able to provide it was astronomically high.
But those horrific facts aren't to me the worst of it. The worst of it is that South Carolina officials both before and after the filing of the lawsuit-- the 2005 filing of the lawsuit, remember-- have refused to accept responsibility for their conduct or to move swiftly to fix the deplorable conditions that still plague the mentally ill inmates in their care. "The evidence shows," Judge Baxley wrote, "that from 1999 until the filing of this action in 2005, SCDC did virtually nothing to address, much less eliminate, the substantial risks of serious harm to which class members were exposed."
And since the filing of the lawsuit more than eight years ago? Judge Baxley wrote: "What limited action SCDC has taken since the filing of this lawsuit has had little to no effect in abating the unconstitutional deficiencies this Court has found." And then the judge cited an old proposition of law that has rarely been more applicable than it is in this case. "Patently ineffective gestures purportedly directed toward remedying objectively unconstitutional conditions do not prove a lack of deliberate indifference, they demonstrate it." South Carolina's "band aids," Judge Baxley wrote, were both too little and too late.
It is one thing to violate the constitutional rights of others in the fashion proven here, day after day, year after year, tortured moment after tortured moment. It is another thing to be caught violating the constitutional rights of people in a manner that shocks the conscience, as we see in this case. But it is something else altogether, something unethical and immoral surely but bordering on something profoundly cruel, to be caught violating the rights of others in this fashion and to then show no regret or remorse for having done so. If those abused inmates have ever received an apology, I have not seen it.
There's been plenty of scorn, though. The last page of Judge Baxley's ruling is perhaps the most profound. He wrote:
We are now eight years into this litigation. Rather than accept the obvious at some point and come forward in a meaningful way to try and improve its mental health system, Defendants have fought this case tooth and nail—on the facts, on the law, on the constitutional issues, portraying itself as beleaguered by the burdensomeness of Plaintiffs' discovery, and generally harrumphed by the invasive nature of Plaintiffs’ counsels’ tactics and strategies.
This Court has spent dozens of hours in hearings and conferences in an effort to resolve discovery disputes, most of which involved delay, missed deadlines, and recalcitrance on the part of the Defendants.
Over and over again, Judge Baxley chronicled, state lawyers sought to minimize the extent of the problem. Specific incidents of inmate abuse or neglect were called "anecdotal" or "outliers" by prison officials. Likewise, the state even failed or refused to find competent experts. The judge noted "the wide disparity between Plaintiffs' and Defendants' experts in case preparation and particular knowledge of the SCDC system." Ponder that for a moment: South Carolina's prison "experts" in this case didn't know as much about South Carolina's prisons as did the experts for the inmates. And yet South Carolina pledges an appeal.
This is unacceptable. We would consider it unacceptable if a private litigant were to act in this fashion—that person or corporation might even be sanctioned by the court and forced to pay fines or fees. And we ought to consider it even more unacceptable for a public litigant to behave like this given the overwhelming evidence presented in this case. The judge clearly believes that state officials have considered this epic case a mere nuisance, an inconvenience, which is precisely the sort of cavalier attitude about constitutional rights that accounts for the abuse, neglect, and mistreatment of the inmates in the first place.
"Justice in this case is not really about who wins or loses this lawsuit," Judge Baxley wrote. He's right, of course. Justice will come in this case only when South Carolina finally spends the time and the money necessary to give these ill people the baseline levels of care and treatment they are entitled to receive as a matter of law—and as a matter of common human decency. But where are the good people of South Carolina today, the ones who know must now, if somehow they didn't before, that this monstrous thing is happening in their midst and in their name?
This epic ruling forces South Carolina, and the rest of us, to make a choice about what we want our prisons to say about who we are as a people and what we represent as a civilized society. And also to make a choice about the extent to which we respect our rule of law and the measure of justice it is intended to represent. So far, I have failed to get any state official to explain to me the basis for the appeal in this case. Not the crass, political basis for the appeal. But the legal and the moral and the ethical basis for the appeal. That's because there is none. Now that Judge Baxley has written what needed to be written, now that he has made a record, there are only right and wrong. And deep down inside somewhere I reckon the decent citizens of South Carolina know it.
* Chaired by none other than Senator Mike Fair, the lawmaker who said Wednesday he did not know "we had a problem with any particular aspect of mistreating or not treating inmates." I sought comment from Senator Fair on Thursday. He has not responded. Nor has anyone from Governor Nikki Haley's office.