By William Fisher
Is it just part of the 99-1 percent formulation of post-compassion capitalism that people suffering from mental illnesses commit crimes and end up in prison are simply consigned to the landfills of decomposing humanity – and become forgotten and invisible?
Well, Adam Smith, generally thought to be the “father” of Capitalism, never subscribed to that construct. In an era when safety nets were for sissies [1723-1790] Smith saw an urgent need to help the least fortunate of our citizens. He dubbed it – and many other characteristics of capitalism – The Invisible Hand.
Here’s what Smith wrote in his “Theory of Moral Sentiments”:
“Though our brother is upon the rack, as long as we ourselves are at ease, our senses will never inform us of what he suffers. They never did and never can carry us beyond our own persons, and it is by the imagination only that we form any conception of what are his sensations...His agonies, when they are thus brought home to ourselves, when we have this adopted and made them our own, begin at last to affect us, and we then tremble and shudder at the thought of what he feels.”
But last week the Invisible Hand wasn’t working for Warren Hill or Yokamon Hearn. Both were mentally retarded. Both were executed. Despite a Supreme Court decision that the death penalty would violate the Eighth Amendment against cruel and unusual punishment.
In Georgia, the State Board of Pardons and Parole denied Hill’s request to commute his death sentence and on the same day the US Supreme Court turned down his request for a review. Previously a trial judge had ruled that Hill was indeed mentally retarded. But the Georgia Supreme Court later said Hill failed to prove his intellectual disability “beyond a reasonable doubt.” Legal experts have pointed out that this bar is so high that virtually no mentally ill person could scale it. So Georgia turned justice on its head: it is almost always the State, and not the Defense, that has to prove an inmate’s deficiency.
While in prison between the age of 28 and 33, Hill tested at a grade level of approximately 6-7, and had an IQ within the range of mental retardation.
Texas death row inmate Yokamon Hearn, 33, was executed the same week in Huntsville for the 1998 carjacking and murder of a Dallas-area stockbroker.
If you trip and break a leg, you don’t go to the supermarket to get it fixed. You go to a hospital. If you’re suffering from a mental illness, you don’t go to the county jail to make you better. You go to a mental illness hospital. But where? For the past twenty years or so, a large and growing population of mentally ill men and women have been discovering that they have virtually no place to go and that their future is homelessness followed by jail. Thousands are serving long sentences for relatively minor infractions.
Human Rights Watch (HRW) has produced several landmark reports since 2000 on mental illness in prison. They report that some of the inmates commit serious crimes. Others commit non-violent or “victimless” crimes. Others simply “act out” to get themselves arrested. They can then go through all the due process steps afforded to defendants with no illnesses – except that the nature of their illnesses often prevents them from being able to exercise those rights.
The HRW Reports go on: Sometimes they have intelligence deficits and can’t explain themselves. Sometimes they lack judgmental skills – they don’t know how to make a plea bargain for a lighter sentence or they choose an inexperienced lawyer. Or sometimes, they’re not taking their meds and they are at the dangerous end of their spectrum of peace vs. rage.
The grandson of a friend was convicted of murder in upstate New York. He had been diagnosed several times with schizophrenia and was on specialized psychotic drugs. Of course he wasn’t allowed to bring these drugs into the jail – which was a county jail, not a prison – and so he was “off his meds.” And he was off them for weeks, until a supply was ordered. In fact, this defendant was obliged to go through his entire trial without medication. When he finally saw a psychiatrist, it was on a TV monitor. There was no psychiatrist able to be physically in the jail.
So here is a young schizophrenic, looking forward to spending the rest of his life in a jail rather than a mental hospital, arriving at what will be his new home for the rest of his life and finding no meds, no doctor, no nurse, no nothing.
Then there’s the “supermax” issue. According to the HRW Report, when a mentally ill inmate of a supermax breaks a rule, he/she is punished in the same way as someone from the general population. A news story about the soon-to-be-closed Illinois Tamms supermax profiled one prisoner with a well-documented history of paranoid schizophrenia who was held in solitary for nearly six years, mutilating himself and smearing feces.
Other Tamms prisoners reportedly cut themselves, eat their own flesh, attempt suicide, and engage in other behaviors consistent with suffering from serious and untreated or poorly treated mental illness.
The HRW Report says the psychological harm of supermaximum security confinement is exacerbated because mental health professionals are not permitted to provide a full range of mental health treatment services to the prisoners. Mental health services are typically limited to psychotropic medication, a health care clinician stopping at the cell front to ask how the prisoner is doing (that is, "mental health rounds"), and occasional meetings in private with a clinician.
HRW adds: Individual therapy, group therapy, structured educational, recreational, or life-skill enhancing activities, and other therapeutic interventions are usually not available because of insufficient resources and clashes with prison rules-for example, insufficient numbers of custodial staff to take prisoners to and from their cells to private meetings with clinicians, and rules requiring prisoners to remain in their cells and prohibiting contact with other prisoners.
As Duncan Campbell of The Guardian wrote in the Los Angeles Times, “Prisons were never designed as facilities for the mentally ill, yet that is one of their primary roles today. Many of the men and women who cannot get mental health treatment in the community are swept into the criminal justice system after they commit a crime.”
In fact, they commit crimes specifically to get swept back into the system. For example, they act out, get themselves arrested, and know at least that they’ll have a meal and a roof over their heads for a day or two -- or longer.
Twin Towers jail in central Los Angeles is known by the Los Angeles county sheriff's department as the biggest known jail in the world. In 2003 there were more than 2,000 mentally ill prisoners, recognizable by yellow shirts and the letter M on their name tags, make up almost half its intended occupants.
There are multiple reasons. “De-institutionalization,” the emptying of state mental hospitals, has been one of the most well-meaning but poorly planned social changes ever carried out in the United States. According to a 2010 study by the Treatment Advocacy Center and the National Sheriffs Association, it was a product of the overcrowding and deterioration of hospitals; new medications that significantly improved the symptoms of about half of patients; and a failure to understand that many of the sickest patients were not able to make informed decisions about their own need for medication.
Ronald Reagan, as governor of California, is often blamed for the failures of this policy, but the emptying of the state’s mental hospitals began in the mid-1950s under Republican governor Goodwin Knight and continued in the 1960s under Democratic governor Edmund “Pat” Brown. When Reagan took office as governor, the hospitals had already been half-emptied. Reagan distinguished himself, however, by vowing to close the hospitals completely.
As this failing social policy was mincing its way across the nation, next to nothing was being done to prepare our prisons for the new intake of now dispossessed mentally ill patients. Similar patterns began to emerge cross country.
And there was at least one other major factor at play. A blockbuster factor. It is that our prison population was growing exponentially, largely due to the so-called “war on drugs.” Law enforcement went on a drug-bust binge, arresting and incarcerating citizens who had a single marijuana joint in a pocket. Along with that Draconian regimen came Mandatory Minimum Sentences, which virtually removed from judges the discretion to decide each case on its merits (many of the mandatory minimums were later changed to non-mandatory guidelines).
Scholars seem never to tire of arguing about whether Americans simply love to lock people up or not. But follow the feet during this period.
Federal statistics from 2006 reveal that the number of mentally ill inmates in U.S. prisons and jails quadrupled since 2000, according to Human Rights Watch. More than half of all prison and state inmates reported mental health problems, including symptoms of major depression, mania and psychotic disorders, according to a federal Bureau of Justice Statistics (BJS) report, “Mental Health Problems of Prison and Jail Inmates.”
In 1998, the BJS reported there were an estimated 283,000 prison and jail inmates who suffered from mental health problems. That number is now estimated to be 1.25 million. HRW reports that the rate of reported mental health disorders in the state prison population is five times greater (56.2 percent) than in the general adult population (11 percent).
Women prisoners have an even higher rate of mental health problems than men: almost three quarters (73 percent) of all women in state prison have mental health problems, compared to 55 percent of men, according to the BJS.
“While the number of mentally ill inmates surges, prisons remain dangerous and damaging places for them,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program and co-author of the 2003 report, “Ill-Equipped: U.S. Prisons and Offenders with Mental Illness.” “Prisons are woefully ill-equipped for their current role as the nation’s primary mental health facilities,” she said.
According to HRW, deficient mental health services in prisons and jails leave prisoners under-treated or not treated at all. Across the country, prisoners with mental health problems face a shortage of qualified staff, lack of facilities and prison rules that interfere with treatment.
When Charles E, Samuels Jr., the Director of the Bureau of Prisons – part of the Department of Justice – testified to a Senate Committee earlier this month, he could not tell lawmakers how many mentally ill patients were locked up in Federal prisons.
But HRW states that the Bureau of Justice Statistics – also part of the DOJ – reports that 56 percent of state prisoners and 45 percent of federal prisoners have symptoms or a recent history of mental health problems. Prisoners have rates of mental illness- -including such serious disorders as schizophrenia, bipolar disorder, and major depression- - that are two to four times higher than members of the general public.
Studies and clinical experience consistently indicate that 8 to 19 percent of prisoners have psychiatric disorders that result in significant functional disabilities, and another 15 to 20 percent will require some form of psychiatric intervention during their incarceration, HRW says.
The organization points out that mental health treatment can help some prisoners recover from their illness and for many others it can alleviate its painful symptoms, prevent deterioration, and protect them from suicide. It can enhance independent functioning and encourage the development of more effective internal controls.
But HRW finds that prisons are ill equipped to respond appropriately to the needs of prisoners with mental illness. Prison mental health services are all too frequently woefully deficient, crippled by understaffing, impossibly large caseloads, insufficient facilities, and limited programs. Many seriously ill prisoners receive little or no meaningful treatment.
Gains in mental health staffing, programs, and physical resources that were made in recent years have all too frequently since been swamped by the tsunami of prisoners with serious mental health needs, says HRW.
In Dade County, Florida (Miami), Judge Steven Leifman did a survey in 2010 of the people who used his court most. The result was 94 people. All had schizophrenia. These 94 people were arrested 2,200 times and cost the State of Florida $13 million. They had only two places to go: the streets or jail. They chose jail, which meant they had to commit an offense and get arrested. Knowing the drill well, they acted out, were arrested and were on their way to jail.
HRW says a disproportionate number of the prisoners in solitary are mentally ill. Yet prison officials across the country have increasingly embraced long-term segregation to manage and/or to discipline prisoners who are perceived to be dangerous, but also those who are seen as difficult or disturbing.
In its 2009 report, Human Rights Watch and the United Nations outline a comprehensive package of recommendations to Congress – with virtually no hope at all that they will ever become law.
But this was a given from the get-go. Government agencies tend to
talk a lot; they form Task Forces. They create charts and graphs and Power Point Presentations for their bosses. They convene press conferences to announce what they’re going to do. The other agencies they’re dealing with pretty much do the same, if they do anything. Too often, by the time it’s past time to show some results, Congress people have changed, Congress has new priorities, we have a new president and a small army of political appointees who know nothing about the high visibility push to begin to solve the “crazy while locked up” problem. There is an ominous silence as lawmakers wait for the National Rifle Association to weigh in.
In the prison reform game, progress gets measured in thimbles.