Mental Health in the Criminal Justice System

1
Mental Health in the Criminal Justice System

• Are You Crazy?
• Dont Go to Prison!

2
Prisons have become the nations primary health
facilities. Human Rights Watch

• There are currently three times as many inmates
  with a mental illness imprisoned in the United
  States than there are in mental hospitals.
• The prison population rate of mental illness is
  three times higher than that in the general
  population.
• One in six U.S. prisoners is mentally ill
• With the shockingly high rate of incarcerated
  mentally ill men and women, the treatment of such
  offenders amounts to a significant medical need.

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Inadequate Treatment

• Understaffing
• Poor screening tracking methods
• Lack of timely access
• Dismissal of symptoms as feigned illness
• Psychotropic medications
• Lack of confidentiality that prisoners, as
  patients, have with medical staff
• BUT

4
Legal Standards Rights

• Just as important are the legal standards in
  affecting mental health care to prisoners and
  what rights, if any, are afforded to a mentally
  disordered offender.

5
Assessing Medical Claims under the Eighth
Amendment

• Estelle v. Gamble ? Only failure or refusal to
  provide treatment, when indicating a deliberate
  indifference to serious medical needs of
  prisoners, results in unnecessary and wanton
  infliction proscribed by the Eighth Amendment,
  and is therefore unconstitutional.
• Malpractice or negligence does NOT amount to the
  level of deliberate indifference required to
  maintain an Eighth Amendment violation.

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Right to Treatment

• Bowring v. Godwin ? A prisoner is entitled to
  psychological or psychiatric treatment if a
  physician or other health care provider,
  exercising ordinary skill and care at the time of
  observation, concludes with reasonable medical
  certainty (1) that the prisoner's symptoms
  evidence a serious disease or injury (2) that
  such disease or injury is curable or may be
  substantially alleviated and (3) that the
  potential for harm to the prisoner by reason of
  delay or the denial of care would be substantial.
• Bailey v. Gardebring ? Without a reliable
  medical diagnosis of some serious mental illness,
  one that can be alleviated symptomatically by a
  known treatment, prisoners are without a
  constitutional right to psychiatric treatment.
• The right to treatment is further limited to that
  which may be provided upon a reasonable cost and
  time basis and the essential test is one of
  medical necessity and not simply that which may
  be considered merely desirable.

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International Standards

• International Covenant on Economic, Social, and
  Cultural Rights (ICESCR) provides for the right
  of everyone to the enjoyment of the highest
  attainable standard of physical and mental
  health, including mentally ill criminals.
• The ICESCR and the Basic Principles for the
  Treatment of Prisoners, a document created out of
  the United Nations attempt to guide governments
  in their obligations concerning human rights,
  afford inmates a level of health care equivalent
  to that available to the general public.
• Under, these international standards, mental
  health care in U.S. prisons amounting to levels
  of malpractice negligence might be actionable,
  but the problem is the failure of U.S.
  authorities to implement them properly, if at
  all.
• The U.S. deals with the rights of mentally ill
  prisoners by concentrating only on the rights
  protected by the Federal Constitution and State
  Constitutions.
• The Constitutional protection is that against
  cruel and unusual punishment.

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How Serious is Serious?

• Remember? Absent a serious mental illness
  prisoners have no constitutional right to
  treatment.
• Schizophrenia, bipolar disorder, psychotic
  disorder, and major depression qualify as
  serious, BUT
• The deliberate indifference requirement prevents
  even patients with these serious illnesses from
  receiving adequate treatment

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Prison Mental Health Services Must
Include

• Systematic programs for screening and evaluating
  inmates
• Treatment more than just segregation and
  supervision
• Sufficient numbers of trained mental health
  professionals
• Accurate, complete, and confidential records
• Prescription of behavior-altering drugs must be
  in safe amounts, administered with safe methods,
  and with appropriate supervision
• Program for identification, treatment, and
  supervision of inmate-patients with suicidal
  tendencies
• However, research by the Human Rights Watch
  found NO prisons with mental health care
  facilities that incorporate all six elements of
  adequate care.

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Special Report from Bureau of Justice Statistics

• Of the Nations 1,558 State Adult Prisons
• Less than 70 screen
• 65 administer psychiatric assessments
• A little over 50 have 24 hour care
• 71 offer therapy by professionals
• 66 provide community care for released men and
  women

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How South Dakota Measured Up

• Of the 2,591 adult men and women in SDs four
  correctional facilities
• Only 2 screen
• 3 perform psychiatric assessments
• 1 provides 24 hour care
• All 4 give meds
• 3 help released prisoners
• 1.7 of prisoners received 24 hour care
• 22.3 had therapy with trained professionals
• 16.2 were given medication

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Improvements through Litigation

• Tool in revealing the horrific conditions that
  mentally ill inmates have suffered
• Has consequently enabled prison personnel to make
  improvements in medical needs
• Sometimes lawsuits are usefulits our aim not
  to have them, but a part of what got us the
  resources we have now is Hallet v. Payne. We got
  resources as a result to do it better.
  Superintendent for a womens prison in Washington
• National Prison Project of the American Civil
  Liberties Union (ACLU)

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Reasons to Medicate

• To serve an important governmental interest
• The inmate is a danger to himself or others
• To address the inmates grave health concern

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Criminal Defendants

• Balance between
• Governments need to prosecute
• Defendants Constitutional rights

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Sell Test

• Important governmental interest
• Serious crime?
• Rights to a fair trial
• Medication will significantly further both the
  govt interest in prosecution and the ?s
  constitutional rights.

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Significantly further interests

• Meds must be
• substantially likely to render the defendant
  competent to stand trial
• substantially unlikely to have side effects that
  will interfere significantly with the defendants
  ability to assist in his own defense.

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Sell Test, continued

• Medication must be the least intrusive
  alternative
• Medication is medically appropriate
• Who makes that decision?

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Constitutional Questions

• Meaningful participation in own defense?
• Jury prejudiced by side effects?
• Cruel and unusual?

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Moral Questions

• Medicate to convict?
• Medicate to execute?
• Should it be the courts decision?

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Kennedys Riggins Concurrence

• Brady violation
• true mental state
• Catch 22
• True mental state incompetence.

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Side Effects

• If the defendant cannot be tried without his
  behavior and demeanor being affected in this
  substantial way by involuntary treatment, in my
  view the Constitution requires that society bear
  this cost in order to preserve the integrity of
  the trial process.

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Side Effects
Extrapyramidal Symptoms -Tardive dyskinesia
(involuntary movements) -Tremors rigidity
(Parkinsons) -Body restlessness -Muscle
contractions
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More objective criteria

• Vitek due process requirements
• Notice to prisoner
• A hearing
• Opportunity to be heard call witnesses
• Disclosure of evidence
• Access to legal counsel
• Notice of rights

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Harper v. Washington

• Due Process is satisfied if
• The inmate is a danger to himself or others, and
• The treatment is in the inmates medical interest.

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Conclusion

• The balance between access to proper mental
  health care and overzealous administration of
  psychotropic drugs is a continuing struggle in
  the criminal justice system.
• Instead of legislatures and courts setting the
  rules, maybe we should leave it to the doctors.