By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
The Office of the Inspector General (OIG) of the Department of Justice (DoJ) issued a shocking report last week, detailing the continued use of solitary confinement to house mentally-ill inmates– despite a 2014 policy change that was touted as getting such prisoners access to appropriate mental health care.
Prisoners are being held in solitary confinement for too long– in contravention of the Bureau of Prison’s (BOP) own guidelines– denied medical treatment, and in some prisons, held in confinement cells of 58.5 square feet (well below the American Correctional Association’s minimum recommendation of 80 square feet), according to a Jurist report, Federal report criticizes harsh treatment of mentally ill inmates.
The conclusions the 96-page report– Review of the Federal Bureau of Prisons’ Use of Restrictive Housing for Inmates with Mental Illness –were stinging. So much so that the Marshall Project reported in Federal Watchdog Finds Mentally Ill Are Stuck in Solitary:
A Bureau of Prisons spokesman declined to comment on the report. In a response to a draft, Thomas Kane, the agency’s acting director, said the BOP would adopt all 15 of the Inspector General’s recommendations.
Rhetoric Reality Gap
The previous administration received significant kudos last August when then deputy attorney-general Sally Q. Yates issued a memo directing the BOP o cease housing inmates in private, for-profit prisons, as The New York Times reported in U.S. to Phase Out Use of Private Prisons for Federal Inmates. This policy change followed release of a critical OIG report, Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons— issued the very same month– which described and criticised conditions at such prisons.
I should emphasise that the appalling conditions that exist in U.S. prisons– whether public (federal and state) or private– are well and widely-known to those who care to notice. And while the previous administration does deserve limited credit for phasing out the use of private prisons– this change wasn’t undertaken until the OIG spotlighted the issue.
That’s not to say that the Trump administration can’t find a way to worsen the situation. In February, Attorney General Jeff Sessions reversed the Yates phase-out policy, and directed the BOP to continue to use private, for-profit facilities, as reported in The New York Times in Justice Department Keeps For-Profit Prisons, Scrapping an Obama Plan.
Treatment of Mentally Ill Prisoners in Federal Prisons
Yet being government-run is not a panacea. In this latest report, the OIG turned its attention to the failure of public prisons to meet basic needs of mentally ill prisoners– and documented not only the use of solitary confinement, but also demonstrated how mental health treatment for inmates has actually worsened since new mental health policies were adopted in 2014.
The report covers federal government-run prisons, and doesn’t cover those run by states, or for-profit contractors. About 2.2 million people are currently incarcerated in the US, about half of whom are in state-run prisons, according to this Wall Street Journal account, Some Mentally Ill Federal Inmates Receive Little to No Treatment, Audit Finds. The report itself is an extremely depressing read.
J[erri-Lynn here: Note that what the OIG report describes as Restrictive Housing Units (RHUs) you or I would call solitary confinement.]
And please forgive these lengthy quotations (largely taken from the executive summary, with citations to the more extensive supporting discussion within the Report’s main body). Absent the extensive direct quotations, you simply may not believe the shocking findings. I would encourage those who have the time to look at the main body of the Report– but I warn you, it is very difficult reading. I simply cannot understand how such a system is allowed to continue.
According to the Report:
As of June 2016, of the 148,227 sentenced inmates in the BOP’s 122 institutions, 9,749 inmates (7 percent) were housed in its three largest forms of RHU: Special Housing Units (SHU) in 111 institutions; 2 Special Management Units (SMU) at the U.S. Penitentiaries (USP) in Lewisburg and Allenwood, Pennsylvania; and the USP Administrative Maximum Security Facility (ADX) in Florence, Colorado (p. i).
The BOP places prisoners in solitary confinement, even though the Report recognizes:
However, according to recent research and reports, as well as the BOP’s own policy, confinement in RHUs, even for relatively short periods of time, can adversely affect inmates’ mental health and can be particularly harmful for inmates with mental illness.
The WSJ further recognizes the mental health consequences, and then ties the impact of that damage to the potential for recidivism:
Many researchers say long periods of isolation can have damaging and long-lasting psychological effects, particularly on the mentally ill, making it more likely these inmates will struggle when they return to society and commit more crimes.
And the Marshall Project article notes that the BOP doesn’t keep statistics on recidivism rates — another issue picked up in the OIG’s Report.
In the interest of keeping this post a manageable length, I will only discuss three of the Report’s four major findings, each highlighted in italics.
- BOP Policies Do Not Adequately Address the Confinement of Inmates with Mental Illness in RHUs, and the BOP Does Not Sufficiently Track or Monitor Such Inmates
Jerri-Lynn here: The Report detailed shocking and depressing conditions, and focussed especially on conditions in the USP Administrative Maximum Security Facility (ADX) in Florence, Colorado:
BOP guidance and policies do not clearly define “restrictive housing” or “extended placement.” Although the BOP states that it does not practice solitary confinement, or even recognize the term, we found inmates, including those with mental illness, who were housed in single-cell confinement for long periods of time, isolated from other inmates and with limited human contact. For example, at the ADX, we observed an RHU that held two inmates, each in their own cell, isolated from other inmates. The inmates did not engage in recreation with each other or with other inmates and were confined to their cells for over 22 hours a day. Also, in five [Special Housing Units (SHUs)], we observed single-celled inmates, many with serious mental illness. One inmate, who we were told was denied ADX placement for mental health reasons, had been single-celled for about 4 years.
Although the BOP generally imposes a minimum amount of time that inmates must spend in RHUs, it does not limit the maximum amount of time and does not monitor inmates’ cumulative time in RHUs. The BOP also does not track its housing of inmates in single-cell RHU confinement, nor does it account for their confinement in all RHUs throughout BOP institutions. As a result, inmates, including those with mental illness, may spend years and even decades in RHUs. For example, we learned of an inmate with serious mental illness who spent about 19 years at the ADX before being transferred to a secure residential mental health treatment program. In addition, our sample of inmates with mental illness showed that they had been placed in the ADX for an average of about 69 months. Similarly, we found that between fiscal years (FY) 2008 and 2015, inmates with mental illness averaged about 896 consecutive days, or about 29 months, in the [Special Management Unit (SMU)]. We further found that inmates with mental illness spend disproportionately longer periods of time in RHUs than their peers. Equally concerning, our review showed that 13 percent of the inmates with mental illness in our sample were released by the BOP directly into the community after spending nearly 29 months in the SMU prior to their release (Report pp. i-ii and pp. 15-33)
The Report notes that the BOP’s treatment of mentally-ill prisoners significantly lags behind that of several states:
By contrast, officials in six of the eight state departments of corrections told us that they limit the length of time inmates with mental illness can be placed in restrictive housing. In 2015, three states (Massachusetts, Mississippi, and New York) had at least a 30-day limit, while three other states (Colorado, Maine, and Pennsylvania) no longer placed inmates with serious mental illness in RHUs at all (Report, p. ii).
2. Mental Health Staff Do Not Always Document Inmates’ Mental Disorders, Leaving the BOP Unable to Accurately Determine the Number of Inmates with Mental Illness and Ensure that It Is Providing Appropriate Care to Them
Jerri-Lynn here: The BOP failed to treat many of the inmates who suffered from mental illness. This is because prison officials did not, in fact, have any idea of which inmates suffered from mental disorders, because institution staff failed to document these disorders:
BOP data showed that, as of 2015, only 3 percent of the BOP’s sentenced inmate population was being treated regularly for mental illness. Yet, the BOP’s FY 2016 Performance Budget Congressional Submission cited an internal BOP study, which suggested that approximately 19 percent of federal inmates had a history of mental illness. Moreover, a 2006 Bureau of Justice Statistics report concluded that 45 percent of federal inmates had symptoms or a recent history of mental illness.
We found that the BOP cannot accurately determine the number of inmates who have mental illness because institution staff do not always document mental disorders. The BOP’s FY 2014 data estimates that approximately 12 percent of inmates have a history of mental illness; however, in 2015, the BOP’s Chief Psychiatrist estimated, based on discussions with institutions’ Psychology Services staffs, that approximately 40 percent of inmates have mental illness, excluding inmates with only personality disorder diagnoses. Similarly, one institution’s Deputy Chief Psychologist estimated that 50 percent of that institution’s inmates may have Antisocial Personality Disorder; nevertheless, we found that this disorder was documented for only about 3.3 percent of the BOP’s total inmate population. Because mental health staffs do not always document inmates’ mental disorders, the BOP is unable to ensure that it is providing appropriate care to them (Report p. ii and pp. 34-37).
3. Since the BOP Adopted Its New Mental Health Policy, BOP Data Shows a 30 Percent Reduction in Inmates Who Receive Regular Mental Health Treatment
Jerri-Lynn here: And finally, just when you think you cannot possibly imagine how things could be any worse, the Report discusses how mental health treatment of inmates actually declined since the BOP adopted a new mental health treatment policy in 2014. And, for what reason was that? Not enough staff, and not enough money.
The BOP adopted a new mental health policy in 2014, increasing the standards of care for inmates with mental illness. However, since the policy was issued, the total number of inmates who receive regular mental health treatment decreased by approximately 30 percent, including 56 percent for inmates in SMUs, and about 20 percent overall for inmates in RHUs during the scope of our review. Based on our review, it appears that mental health staff may have reduced the number of inmates, including those in RHUs, who must receive regular mental health treatment because they did not have the necessary staffing resources to meet the policy’s increased treatment standards. Indeed, we found that, as of October 2015, the BOP had filled only 57 percent of its authorized full-time Psychiatrist positions nationwide and that it had significant staffing issues with regard to Psychologist positions as well (Report p. iii and pp. 37-51).
This Horror Didn’t Commence on Trump’s Watch
As awful as these facts are, I should point out that these abuses didn’t commence under Trump’s watch. The OIG Report was based on extensive review of documents, coupled with fieldwork, and only covered the period up to June 2016. Although the previous administration trumpeted the reforms it made, as in so many other areas, there was little follow-up to make sure that reality accorded with the soaring rhetoric. As the WSJ noted in the article cited above:
The report by the Office of the Inspector General comes 18 months after the Obama administration hailed new restrictions on the use of solitary confinement for federal inmates, including the mentally ill, as a model for state correctional facilities. Former President Barack Obama barred solitary confinement for the handful of juveniles in federal prison and called the excessive or unnecessary isolation of adult inmates “an affront to our common humanity.”
However, federal government investigators found a wide disconnect between policy and practice, bolstering longstanding complaints by civil-rights activists that some prisons amount to human warehouses. Cumulative time in solitary confinement isn’t tracked, and many mentally ill inmates are receiving insufficient treatment or none at all, the report said.
Whoever is responsible for this abomination, promised budget cuts will only worsen the status quo. Again, according to the WSJ:
The problems associated with incarcerating the mentally ill could worsen as the Justice Department faces $1.1 billion in budget cuts. A request last year by the Bureau of Prisons for 130 new mental health professionals was turned down, the report said, and no new funding is expected in the coming fiscal year.
Even when mental health positions are included in the budget, they are not necessarily filled, the audit found. Mentally ill inmates can spend years on waiting lists to move from a prison to a residential treatment program, according to the report.
The OIG makes fifteen recommendations– many of which are so obvious one wonders why an OIG Report was necessary at all (Report, pp. 65-66). But it also describes a system that seems to be so broken, I’m not sure what– if any– real effect these suggestions will have. Or whether, even if everyone agrees they’re necessary and desirable, that they’ll actually be adopted. Nor do I hold out much hope that even if adopted, -sufficient staff and money will be made available to implement them effectively.
One small glimmer of hope might be that courts could step in and mandate changes. I’m not holding my breath in that regard– I don’t see the current Supreme Court membership as a bastion of support for better treatment of prisoners. And even what tepid support does exist will likely erode further as Trump nominates– and a Republican-controlled Senate confirms– his judicial picks.