A JOINT REPORT The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey APRIL 8, 2014 Research from the Treatment Advocacy Center Visit TACReports.org/treatment-behind-bars to read the full report 1 The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey E. Fuller Torrey, M.D. Associate Director, Stanley Medical Research Institute Founder and Board Member, Treatment Advocacy Center Mary T. Zdanowicz, Esq. Mental health law attorney, Eastham, Massachusetts Sheriff Aaron D. Kennard (retired), M.P.A. Executive Director, National Sheriffs’ Association H. Richard Lamb, M.D. Emeritus Professor of Psychiatry, University of Southern California, Keck School of Medicine Board Member, Treatment Advocacy Center Donald F. Eslinger Sheriff, Seminole County, Florida Board Member, Treatment Advocacy Center Michael C. Biasotti Chief of Police, New Windsor, New York Board Member, Treatment Advocacy Center Doris A. Fuller Executive Director, Treatment Advocacy Center © 2014 by the Treatment Advocacy Center The Treatment Advocacy Center is a national nonprofit organization dedicated exclusively to eliminating barriers to the timely and effective treatment of severe mental illness. The organization promotes laws, policies and practices for the delivery of psychiatric care and supports the development of innovative treatments for and research into the causes of severe and persistent psychiatric illnesses, such as schizophrenia and bipolar disorder. 3 Table of Contents Executive Summary 1. History of the Problem: Have We Learned Anything in 200 Years?  From 1820 to 1970  From 1970 to the present  Problems Associated with Putting Mentally Ill Persons in Prisons and Jails 2. Legal Background for Treating Mentally Ill Persons in Prisons and Jails  What can prisons and jails do when an inmate refuses medication, despite all efforts to encourage compliance? Can they administer medication, despite an inmate’s refusal?  What can be done if an inmate refuses medication and becomes imminently dangerous?  What happens when it’s not an emergency, but an inmate’s deteriorating symptoms increase his likelihood of becoming a danger to self or others or decrease his ability to provide for self-care?  What process is due under the U.S. Constitution when a prison or jail seeks authorization for administration of nonemergency involuntary psychotropic medication?  How does the United States Supreme Court’s decision in Washington v. Harper influence prison and jail policies and procedures for nonemergency administration of involuntary psychotropic medication today? 3. The State Survey: Methods, Definitions, and Results Alabama..….……..….27 Idaho......……………..44 Mississippi................62 Alaska…….………….28 Illinois..……....……….46 Missouri....................63 Arizona…….………...30 Indiana………..….…..47 Montana...................65 Arkansas….……...….31 Iowa..…..……....….....49 Nebraska..................66 California………….....33 Kansas.......................50 Nevada.....................68 Colorado………….….35 Kentucky....................52 New Hampshire........69 Connecticut……….…37 Louisiana...................53 New Jersey...............70 Delaware………..…...38 Maine.........................55 New Mexico..............72 District of Columbia...39 Maryland....................56 New York..................72 Florida………………..40 Massachusetts...........57 North Carolina..........74 Georgia……………....42 Michigan.....................59 North Dakota............76 Hawaii…………….….43 Minnesota...................60 Ohio..........................77 4 TACReports.org/treatment-behind-bars Oklahoma..................79 South Dakota..........87 Virginia......................93 Oregon......................81 Tennessee..............88 Washington...............95 Pennsylvania.............83 Texas......................89 West Virginia.............96 Rhode Island.............84 Utah........................91 Wisconsin..................97 South Carolina...........85 Vermont..................92 Wyoming...................99 4. Findings and Recommendations  Findings  Recommendations  A Model Law Acknowledgments References TACReports.org/treatment-behind-bars 5 EXECUTIVE SUMMARY Prisons and jails have become America’s “new asylums”: The number of individuals with serious mental illness in prisons and jails now exceeds the number in state psychiatric hospitals tenfold. Most of the mentally ill individuals in prisons and jails would have been treated in the state psychiatric hospitals in the years before the deinstitutionalization movement led to the closing of the hospitals, a trend that continues even today. The treatment of mentally ill individuals in prisons and jails is critical, especially since such individuals are vulnerable and often abused while incarcerated. Untreated, their psychiatric illness often gets worse, and they leave prison or jail sicker than when they entered. Individuals in prison and jails have a right to receive medical care, and this right pertains to serious mental illness just as it pertains to tuberculosis, diabetes, or hypertension. This right to treatment has been affirmed by the U.S. Supreme Court. The Treatment of Persons with Mental Illness in Prisons and Jails is the first national survey of such treatment practices. It focuses on the problem of treating seriously mentally ill inmates who refuse treatment, usually because they lack awareness of their own illness and do not think they are sick. What are the treatment practices for these individuals in prisons and jails in each state? What are the consequences if such individuals are not treated? To address these questions, an extensive survey of professionals in state and county corrections systems was undertaken. Sheriffs, jail administrators, and others who were interviewed for the survey expressed compassion for inmates with mental illness and frustration with the mental health system that is failing them. There were several other points of consensus among those interviewed:  Not only are the numbers of mentally ill in prisons and jails continuing to climb, the severity of inmates’ illnesses is on the rise as well.  Many inmates with mental illness need intensive treatment, and officials in the prisons and jails feel compelled to provide the hospital-level care that these inmates need.  The root cause of the problem is the continuing closure of state psychiatric hospitals and the failure of mental health officials to provide appropriate aftercare for the released patients. Among the findings of the survey are the following:  From 1770 to 1820 in the United States, mentally ill persons were routinely confined in prisons and jails. Because this practice was regarded as inhumane and problematic, until 1970, such persons were routinely confined in hospitals. Since 1970, we have returned to the earlier practice of routinely confining such persons in prisons and jails.  In 2012, there were estimated to be 356,268 inmates with severe mental illness in prisons and jails. There were also approximately 35,000 patients with severe mental illness in state psychiatric hospitals. Thus, the number of mentally ill persons in prisons and jails was 10 times the number remaining in state hospitals. 6 TACReports.org/treatment-behind-bars  In 44 of the 50 states and the District of Columbia, a prison or jail in that state holds more individuals with serious mental illness than the largest remaining state psychiatric hospital. For example, in Ohio, 10 state prisons and two county jails each hold more mentally ill inmates than does the largest remaining state hospital.  Problems association with incarcerating mentally ill persons include: o Jail/prison overcrowding resulting from mentally ill prisoners remaining behind bars longer than other prisoners o Behavioral issues disturbing to other prisoners and correctional staff o Physical attacks on correctional staff and other prisoners o Victimization of prisoners with mental illness in disproportionate numbers o Deterioration in the psychiatric condition of inmates with mental illness as they go without treatment o Relegation in grossly disproportionate numbers to solitary confinement, which worsens symptoms of mental illness o Jail/prison suicides in disproportionate numbers o Increased taxpayer costs o Disproportionate rates of recidivism  In state prisons, treatment over objection can be accomplished administratively in 31 states through the use of a treatment review committee. Such committees were originally authorized in the case of Washington v. Harper and upheld in 1990 by the U.S. Supreme Court. Even though this treatment mechanism is authorized in those states, it is often grossly underutilized.  In state prisons in the other 18 states and the District of Columbia, treatment over objection requires a judicial review or transfer to a state psychiatric hospital, making such treatment much more difficult to carry out. Arkansas was the only state that refused to provide information for the survey.  In county and city jails, the procedures for treating seriously mentally ill inmates over objection are much more varied and less clear. All counties in South Dakota and occasional counties in other states use a treatment review committee similar to that used in state prisons, and more jails could use this procedure if they wished to do so. Many jails require the inmate to be transferred to a state psychiatric hospital for treatment; since such hospitals are almost always full, such treatment does not take place in most cases. TACReports.org/treatment-behind-bars 7  Prison and jail officials thus have few options. Although they are neither equipped nor trained to do so, they are required to house hundreds of thousands of seriously mentally ill inmates. In many cases, they are unable to provide them with psychiatric medications The use of other options, such as solitary confinement or restraining devices, is sometimes necessary and may produce a worsening of symptoms. Yet, when things go wrong, as they inevitably do, the prison and jail officials are blamed. The present situation is unfair to both the inmates and the officials and is untenable.  The ultimate solution to this problem is to maintain a functioning public mental health treatment system so that mentally ill persons do not end up in prisons and jails. To this end, public officials need to: o Reform mental illness treatment laws and practices in the community to eliminate barriers to treatment for individuals too ill to recognize they need care, so they receive help before they are so disordered they commit acts that result in their arrest. o Reform jail and prison treatment laws so inmates with mental illness can receive appropriate and necessary treatment just as inmates with medical conditions receive appropriate and necessary medical treatment. o Implement and promote jail diversion programs such as mental health courts. o Use court-ordered outpatient treatment (assisted outpatient treatment/AOT) to provide the support at-risk individuals need to live safely and successfully in the community. o Encourage cost studies to compare the true cost of housing individuals with serious mental illness in prisons and jails to the cost of appropriately treating them in the community. o Establish careful intake screening to identify medication needs, suicide danger, and other risks associated with mental illness. o Institute mandatory release planning to provide community support and foster recovery. o Provide appropriate mental illness treatment for inmates with serious psychiatric illness.  A model law is proposed to authorize city and county jails to administer nonemergency involuntary medication for mentally ill inmates in need of treatment. 8 TACReports.org/treatment-behind-bars Chapter 1 History of the Problem: Have We Learned Anything in 200 Years? Prisons and jails were commonly used to house mentally disordered persons in colonial America. If a “lunatic” or “mad person” was not violent, he or she would usually be kept at home. But those that were assaultive or violent would be confined in jail. As early as 1694, legislation was passed in the Massachusetts Bay Colony authorizing confinement in jail for any person “lunatic and so furiously mad as to render it dangerous to the peace or the safety of the good people for such lunatic person to go at large.”i Jailers were usually paid a fee by the person’s family or by the town for confining such persons. For example, in New York City, the town marshal was paid two shillings six pence each week by the churchwardens “for to subsist Robert Bullman, a Madman in prison.”ii However, from the earliest days, there were voices of protest in the colonies, claiming that confining mentally ill persons to prisons and jails was inhumane. Such sentiments were important in leading the Pennsylvania Hospital in Philadelphia in 1752 to admit its first “lunatics” to what was essentially the nation’s first psychiatric ward. Then, in 1773, Virginia Governor Francis Fauquier authorized the building in Williamsburg of the nation’s first psychiatric hospital exclusively for the insane. Fauquier acknowledged that, lacking any alternative, he had been “forced to authorize the confinement of lunatics in the Williamsburg jail, against both his conscience and the law.”iii From 1820 to 1970 In the early years of the newly created United States, there were many Americans who claimed that putting mentally ill people in prisons and jails was inhumane and uncivilized. Such sentiments became prominent in the 1820s, with the organization of the Boston Prison Discipline Society. Founded in 1825 by the Reverend Louis Dwight, a Yale graduate and Congregationalist minister who had been shocked by what he saw when he began taking Bibles to inmates in jails, the Society began publicly advocating for improved prison and jail conditions in general and for hospitals for mentally ill prisoners in particular. According to Gerald Grob’s Mental Institutions in America, Dwight’s “insistence that mentally ill persons belonged in hospitals aroused a responsive chord, especially since his investigations demonstrated that large numbers of such persons were confined in degrading circumstances.”iv Dwight’s advocacy led to the appointment in 1827 of a committee by the Massachusetts legislature to investigate conditions in the state’s jails. The committee reported shocking conditions for “lunatics” being so confined: “Less attention is paid to their cleanliness and comfort than to the wild beasts in their cages, which are kept for show.”v The committee recommended that confinement of mentally ill persons in prisons and jails be made illegal. TACReports.org/treatment-behind-bars 9 Three years later, Massachusetts approved the building of a state psychiatric hospital for 120 patients at Worcester. When the hospital opened in 1833, more than half of the admissions during the first year were transfers from jails, prisons, and almshouses. The pioneering reform efforts of Louis Dwight are today not well known compared to the efforts of his successor, Dorothea Dix. A 32-year-old school teacher, Dix began her crusade in 1841, when she agreed to teach a Sunday school class at the Cambridge jail in suburban Boston. She was horrified by the conditions of the mentally ill inmates and immediately began investigating conditions in other Massachusetts jails. Dix’s interest was presumably also influenced by the fact that she had grown up with a father who was almost certainly mentally ill, described as “fanatically religious, with a penchant for writing theological tracts in fits of ‘inspiration.’”vi Over the following year, Dix visited every jail in Massachusetts, then moved on to New Jersey and other states. In each state, she publicized the horrid conditions for mentally ill persons in the jails, prisons, and almshouses, then urged the state legislatures to appropriate funds for the building of state psychiatric hospitals where such persons could be treated humanely. What is perhaps most remarkable about her public speeches is how relevant they are for conditions today: I come to present the strong claims of suffering humanity. I come to place before the Legislature of Massachusetts the condition of the miserable, the desolate, the outcast. I come as the advocate of helpless, forgotten, insane and idiotic men and women; of beings, sunk to a condition from which the most unconcerned would start with real horror; of beings wretched in our Prisons, and more wretched in our Alms-Houses. And I cannot suppose it needful to employ earnest persuasion, or stubborn argument, in order to arrest and fix attention upon a subject, only the more strongly pressing in its claims, because it is revolting and disgusting in its details. Mentally ill individuals, said Dix, do not belong in prisons and jails: Prisons are not constructed in view of being converted into County Hospitals, and Alms-Houses are not founded as receptacles for the Insane. And yet, in the face of justice and common sense, Wardens are by law compelled to receive, and Masters of Alms-House not to refuse, Insane and Idiotic subjects in all stages of mental disease and privation. Good treatment for mentally ill persons is not possible in prisons and jails, she said, and the people running prisons and jails are not trained to provide such treatment: Jails and Houses of Correction cannot be so managed as to render them suitable places of confinement for that unfortunate class of persons, who are the subjects of your inquiries, and who, never having violated the law, should not be ranked with felons, or confined within the same walls with them. Jailors and Overseers of Houses of Correction, whenever well qualified for the management of criminals, 10 TACReports.org/treatment-behind-bars