There are at least 1.8 million people incarcerated in prisons or jails in the United States, andthe number continues to increase each year.   (See footnote 1)  ¹ In Massachusetts, more than 23,000 prisoners areconfined in the state and county correctional systems.   (See footnote 2)  ² Despite the common misconception thatmentally ill offenders will be found not guilty by reason of insanity and then hospitalized fortreatment, in reality many such individuals end up in prison.   (See footnote 3)  ³ Indeed, the Los Angeles County Jailhas been called the "largest de facto mental hospital in the world."   (See footnote 4)  ⁴

     The Prevalence of Mental Disorders in Prisons and Jails

    The incidence of mental disorders among prisoners is substantially higher than it is in thecommunity. Studies indicate that anywhere between 5 and 20 percent of prisoners suffer from amajor mental illness, defined as schizophrenia, bipolar disorder, or major depression.   (See footnote 5)  ⁵ In theMassachusetts Department of Correction (DOC), the incidence of major mental illness "is at least 9%,is almost certainly between 10-20%, and is best estimated at about 12-15%."   (See footnote 6)  ⁶ The problem may notbe quite so severe in the county houses of correction, where the Department of Mental Health (DMH)recently concluded that the level of serious mental illness is about 5%.   (See footnote 7)  ⁷ As high as these numbers are,they may actually underestimate the need for mental health services because some inmates are likelyto develop a major mental disorder during their incarceration, and many others suffer from less severedisorders that nonetheless require treatment.   (See footnote 8)  ⁸ Additionally, at least 1-2% of all inmates have adevelopmental disability.   (See footnote 9)  ⁹     The reasons for the high incidence of mental illness among prisoners is somewhat unclear. It is unlikely that incarceration itself is the cause, except in extreme circumstances such as prolongedconfinement in solitary confinement. Other explanations include the lack of community support forpersons with mental illness, and the large number of deinstitutionalizion of mental patients whocannot control their behavior.   (See footnote 10)  ¹⁰

     The Widespread Neglect of Prisoners with Mental Disorders

    Despite the tremendous demand for mental health treatment, the available services in many,if not most, prisons and jails are woefully inadequate. Dozens of class action law suits havesuccessfully attacked the overall quality of care in correctional institutions across the country.   (See footnote 11)  ¹¹ Madrid v. Gomez, 889 F. Supp. 1146, 1280 (N.D. Calif. 1995), contains a particularly gruesomeportrayal of the experiences of the mentally ill. In finding conditions at Pelican Bay -- California'sstate-of-the-art, "supermax" penitentiary -- to be unconstitutional, Chief Justice Henderson declaredthat "dry words on paper cannot adequately capture the senseless suffering and sometimes wretchedmisery" endured by inmates with mental illness. The litany of abuse included a schizophrenic inmatewho received third degree burns when correctional officers placed him in scalding water because hehad smeared himself with feces.   (See footnote 12)  ¹² In the words of Stuart Grassian, the Harvard Medical Schoolpsychiatrist who has served as an expert witness in Madrid and other cases, "I've seen people whoare horribly ill, eating their own feces, eating parts of their body, howling day and night and it'signored, like 'who cares?' You think it belongs to some other century, but you go into the prison andyou think you're back in some medieval torture chamber. The prison has become this place that'shidden and secret and it's really awful."   (See footnote 13)  ¹³

    In Massachusetts the neglect and mistreatment of mentally ill prisoners received nationalattention after the 1996 suicide of John Salvi at MCI Cedar Junction. Although the jury thatconvicted Salvi of murder for killing two workers at Brookline reproduction clinics rejected hisinsanity defense, it was obvious to almost everyone who encountered him that Salvi was seriouslydisturbed.   (See footnote 14)  ¹⁴ Yet after he was turned over to the custody of the Massachusetts DOC, Salvi received essentially no mental health treatment, and was not even being monitored by mental health staff at thetime of his suicide.   (See footnote 15)  ¹⁵

    The neglect of John Salvi unfortunately is not unique. In explaining why it ignored the pleasof Salvi's family that he be given treatment, DOC spokesman Anthony Carnevale said "We getcomplaints day in and day out from family members of inmates: 'He doesn't belong in prison, hebelongs in a hospital,' . . . We get a dozen calls a day like that, but unless something specific happens.. . mental-health therapy is not part of the prison routine."   (See footnote 16)  ¹⁶ Given this attitude, and the lack ofresources available to treat prisoners with mental illness, it is not surprising that in the past year nineMassachusetts prisoners have committed suicide, up from a total of eight during all of the previousthree years.   (See footnote 17)  ¹⁷ And suicide is not the only risk. In 1996 an inmate with undiagnosed schizophreniaat MCI Shirley gouged out both his eyeballs and is now completely blind.   (See footnote 18)  ¹⁸ In 1994 an inmate witha long history of mental illness bludgeoned his cellmate to death at MCI Norfolk after prison officialsdisregarded complaints about his mental condition.   (See footnote 19)  ¹⁹ Prisoners with untreated mental illness are alsovulnerable to victimization by other inmates, may pose a threat of assault to correctional officers andstaff, and can seriously disrupt the prison routine.   (See footnote 20)  ²⁰ They are also likely to face discrimination inhousing, access to rehabilitative programs, and parole.   (See footnote 21)  ²¹

Legal Rights of Prisoners with Mental Disorders

    Since there is little public or political support for quality mental health care for offenders withmental illness, prisoners have been almost entirely dependent on the courts for protection of theirright to treatment. The starting point for an understanding of the constitutional principles underlyingthe claim of inmates to mental health services is Estelle v. Gamble,429 U.S. 97 (1996), where theSupreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment endows all inmates with a right to medical care. Specifically, the court ruled that prison officials maynot exhibit "deliberate indifference" to the "serious medical needs" of inmates.   (See footnote 22)  ²² Thus, an EighthAmendment claim has two basic elements: an objective component, the existence of a "seriousmedical need"; and a subjective, or state-of-mind, component, namely that a prison official was"deliberately indifferent" to the need for treatment.

    It is firmly established that prison officials must be equally attentive to mental as well asphysical disorders.   (See footnote 23)  ²³ The cases elaborating the constitutional requirements in this area, however, areoften murky and inconsistent. For example, courts have considerable difficulty in deciding whatmental health needs are "serious" enough to mandate treatment.   (See footnote 24)  ²⁴ Generally, however, prisoners havea right to psychological or psychiatric treatment under the Eighth Amendment if a physician or otherhealth care provider "concludes with reasonable medical certainty (1) that the prisoner's symptomsevidence a serious disease or injury; (2) that such disease or injury is curable or may be substantiallyalleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of carewould be substantial."   (See footnote 25)  ²⁵ Thus, mild depression and anxiety associated with the stress of the prisonexperience will not be regarded as a "serious," while any condition that is diagnosed by a doctor asmandating treatment must receive professional attention.   (See footnote 26)  ²⁶

    Discerning whether or not prison officials have demonstrated the requisite "deliberateindifference" can be similarly confusing. It is not enough that prison officials exercised poor judgment,or that they were negligent or even grossly negligent; rather the inmate must show that the prisonofficial was at least reckless, and reckless in the criminal sense, meaning that he or she had actualknowledge of a condition that required treatment.   (See footnote 27)  ²⁷ But prison officials may not shield themselvesfrom liability by deliberately remaining ignorant about the need for treatment.   (See footnote 28)  ²⁸ They may still be heldaccountable if they deliberately disregard a known risk, even if they are ignorant of the details of a particular inmate's situation.   (See footnote 29)  ²⁹

Basic Components of a Prison Mental Health System

    While there may be controversy about whether a specific inmate has received constitutionallyacceptable care, the courts have established a clear set of minimum requirements for an adequatesystem of prison mental health care.   (See footnote 30)  ³⁰ Further, a number of professional organizations, such as theNational Commission on Correctional Health Care and the American Psychiatric Association, havepromulgated standards governing mental health services in prisons and jails.   (See footnote 31)  ³¹ Although courts arefond of saying that the professional standards may well exceed the constitutional floor, they oftenutilize such standards, both to evaluate the quality of mental health care and to devise remedies forconditions found to be unlawful.   (See footnote 32)  ³²     

    The essential components of a prison mental health system are set forth below:

1.    Screening and Evaluations

    The first requirement is that every inmate be screened upon admission in order to identifythose with mental illness or developmental disabilities.   (See footnote 33)  ³³ This entails a standardized set of questionsand observations by specially trained staff, as well as a mechanism to ensure that all potentiallymentally disordered inmates are promptly referred for a comprehensive mental health evaluation andtreatment.   (See footnote 34)  ³⁴ It also means that inmates must be monitored throughout their incarceration for signsand symptoms of mental illness. It is also vital that the institution have a program to identify andsupervise suicidal inmates and those in crisis.   (See footnote 35)  ³⁵ The threshold for referral for services must be low,both upon admission and later, since it is easy for mentally ill inmates to escape notice in the prisonenvironment so long as they do not engage in egregiously bizarre behavior.   (See footnote 36)  ³⁶

2.    Treatment Modalities            Correctional institutions must provide a range of meaningful treatment modalities to inmatesidentified as mentally disabled. Although many prisons and jails simply confine mentally ill inmatesto segregation units where they can be closely supervised, this is not acceptable.   (See footnote 37)  ³⁷ The institutionmust also provide psychotropic medication if needed, but medication alone is not sufficient. It mustbe part of an overall program of therapy, including individual and group therapy where appropriate,as well as crisis intervention services.   (See footnote 38)  ³⁸ Each mentally disordered inmate must also have anindividualized treatment plan.   (See footnote 39)  ³⁹ In addition, the facility must provide qualified interpreters to ensurethat non-English speaking inmates have access to mental health services.   (See footnote 40)  ⁴⁰

3.    Qualified Mental Health Staff

    It is absolutely essential that the institution have sufficient numbers of qualified and trainedstaff to provide treatment consistent with contemporary standards of care.   (See footnote 41)  ⁴¹ This means the facilitymust have an adequate number of psychiatrists, psychologists, and other mental health professionals,either on site or on call, to provide all necessary services.

4.    Special Needs Units and Inpatient Hospitalization

    Like individuals suffering from mental illness in the community, inmates may sometimes needspecial housing separate from the general prison population to receive more intensive treatment andsupervision. This may range from a day treatment program within the prison, to a crisis unit foracutely psychotic or suicidal inmates who does not require inpatient hospitalization, to anintermediate level residential treatment unit for those whose level of functioning makes themvulnerable to abuse from other inmates, are too disruptive for placement in the general population,or who need a considerable therapeutic services.   (See footnote 42)  ⁴² Since sometimes nothing short of intensiveinpatient hospitalization is adequate to handle an inmate who has decompensated, the institution mustalso have a procedure to transfer acutely mentally ill prisoners to a hospital setting.   (See footnote 43)  ⁴³ 5.    Accurate Mental Health Records and a Quality Assurance Program

    Mental health treatment records must be accurate, complete, up-to-date, and well-organized.   (See footnote 44)  ⁴⁴ Further, the institution must have a quality assurance plan to assure that inmates receive competentcare.   (See footnote 45)  ⁴⁵

6.    Discharge Planning

    Since most mentally ill inmates are eventually released back to their communities, it is vitalthat the facility make an effort to ensure continuity of care after release. This may mean providingthe inmate with a medication prescription, as well as arranging for follow-up services in communitymental health centers.   (See footnote 46)  ⁴⁶

The State of Mental Health Services in Massachusetts Prisons and Houses of Corrections    

    The Massachusetts correctional system has two parts, the state institutions, such as MCICedar Junction and MCI Framingham, which are run by the DOC, and the independent jails andhouses of corrections operated by the county sheriffs with minimal oversight from the DOC.   (See footnote 47)  ⁴⁷ Although the state prisons and most of the houses of correction have carefully drafted policies andprocedures designed to meet their constitutional obligations regarding mental health care, there is awide gulf between what exists on paper and the services that are actually available.

The Department of Correction

    The UMass Medical Center's Salvi Report identified a broad range of systemic deficienciesin the DOC mental health services, and issued twenty-five specific recommendations, as well as anarray of supplemental suggestions. In accordance with its view that adequate staffing is by far themost important feature of an acceptable mental health system, the UMass Team focused on the dangerously low number of psychiatrists and other professional mental health staff.   (See footnote 48)  ⁴⁸ Outside ofBridgewater State Hospital, DOC has only 4.25 psychiatrists for over 10,000 prisoners, less than halfthe "absolute minimum" of what is needed.   (See footnote 49)  ⁴⁹ The number of psychologists and social workers is alsofar below acceptable levels.   (See footnote 50)  ⁵⁰ As a result, DOC prisoners receive inadequate mental healthevaluations and psychotherapeutic treatment, as well as inappropriate medications.   (See footnote 51)  ⁵¹ One of theworst consequences of the inadequate staffing is that only those mentally ill prisoners who exhibitespecially bizarre behavior, or who are assaultive and disruptive, are likely to receive any treatmentat all.   (See footnote 52)  ⁵² Even though their illness may be equally severe, those who suffer quietly go unnoticed andunserved. This problem is exacerbated by the failure of the Department to provide sufficient trainingto correctional officers concerning the signs and symptoms of mental illness.   (See footnote 53)  ⁵³

    The Report also recommended that the Department make available residential special needsunits for inmates who do not require hospitalization at Bridgewater.   (See footnote 54)  ⁵⁴ In 1989 the Governor's SpecialAdvisory Panel on Forensic Mental Health, which did a comprehensive evaluation of correctionalmental health services, made essentially the same recommendation.   (See footnote 55)  ⁵⁵ It called for the establishmentof at least three prison mental health centers, each of which would provide crisis residence, longer- term residential units that would provide day treatment in a sheltered setting, and an outpatientclinic.   (See footnote 56)  ⁵⁶ But DOC mental health providers have been advocating for these services for years, to noavail.   (See footnote 57)  ⁵⁷

    Further, the Report recommended improvements in the care afforded prisoners withdevelopmental disabilities. Specifically, it proposed that DOC develop a relationship with theDepartment of Mental Retardation (DMR) regarding increased testing in the admission screening andevaluation process. Although DMR has recently agreed to consult with the DOC about service needsand discharge planning, it has historically paid little attention to people with mental retardation in prison. For example, even though DMR regulations require that an Individual Support Plan beprepared for all its clients, this directive is routinely ignored if the individual is incarcerated.   (See footnote 58)  ⁵⁸

The County Jails and Houses of Correction

    Although, DMH has little involvement with mental health care in the state prisons, beginningin the late 1980's it has had a significant role with respect to the county jails and houses of correction. Although several counties provide their own mental health services, a number of others havearrangements with the Division of Forensic Mental Health (DFMH), whereby DFMH either providesservices directly, or gives the Sheriff funds to provide services.   (See footnote 59)  ⁵⁹ Further, G.L. c. 127, §§1A and 1B,requires the commissioner of correction to establish and enforce minimum standards for the countycorrectional facilities.   (See footnote 60)  ⁶⁰

    Historically, county correctional mental health services have been seriously underfunded andthis remains true today. Although DFMH spends approximately one and one-half million dollarsannually on county mental health services,   (See footnote 61)  ⁶¹ on a per capita basis this is considerably less even thanthe amount spent by the DOC. Thus, the central criticisms made by the Salvi Report of the DOC arealso valid with respect to the counties. The only treatment most county inmates can expect is crisisintervention since ongoing individual or group therapy is largely unavailable.   (See footnote 62)  ⁶²

    In 1987 the legislature ordered the construction of "specialized mental health units" in the newhouses of correction that were to be built in Bristol, Essex, Hampden, Suffolk, and NorfolkCounties.   (See footnote 63)  ⁶³ Despite the efforts of the Division of Forensic Mental Health, the legislative mandate wasignored; today only the Hampden County House of Correction has a mental health unit.   (See footnote 64)  ⁶⁴ Mentalhealth units in the other counties were never built, or were unfunded and not put into operation.   (See footnote 65)  ⁶⁵

Bridgewater State Hospital    Bridgewater State Hospital is a psychiatric facility operated by the DOC to evaluate and treatmentally ill offenders who need maximum security confinement because of their violent or suicidalbehaviors. Bridgewater serves as the inpatient psychiatric hospital for state and county prisoners, aswell as for individuals who are incompetent to stand trial or not guilty by reason of mental illness.   (See footnote 66)  ⁶⁶ It also conducts competency and criminal responsibility evaluations for the courts.   (See footnote 67)  ⁶⁷

    Ever since the release of the 1967 film "Titticut Follies", Bridgewater has been synonymousin the public mind with abuse and mistreatment of the mentally ill. Although there have beensubstantial reforms in the last thirty years, it remains a deeply troubled institution.   (See footnote 68)  ⁶⁸ The root of theproblem is that DOC operates Bridgewater as a prison that offers a modicum of treatment, rather thanas a genuine forensic hospital such as those that exist in other states.   (See footnote 69)  ⁶⁹ In any forensic hospital thereis inevitably tension between the goals of treatment and security, but at Bridgewater DOC has tiltedthe balance so far in the direction of security that it has seriously compromised the quality of clinicalcare.   (See footnote 70)  ⁷⁰ Not only does Bridgewater have a much smaller clinical staff than equivalent hospitals in otherstates, and fewer options for psychological treatment, but correctional policies frequently interferewith or override the judgment of the psychiatrists and other clinical staff.   (See footnote 71)  ⁷¹

    DOC's overemphasis on security is epitomized by its failure even to attempt to haveBridgewater accredited by the Joint Commission on the Accreditation of HealthCare Organizations(JCAHO), the national body that customarily accredits psychiatric hospitals.   (See footnote 72)  ⁷² Instead, DOC requiresonly that Bridgewater be accredited by the National Commission on Correctional Health Care, whosestandards are designed for prison infirmaries, not inpatient hospitals.   (See footnote 73)  ⁷³ The lack of appropriatestandards and oversight is especially problematic because, unlike any other Massachusetts hospital,Bridgewater is not licensed or inspected by either the Department of Mental Health or theDepartment of Public Health. Although in 1989 the Governor's Special Advisory Panel on Forensic Mental Health recommended that DMH licensure was essential to assure that forensic patients receivethe same level of care as others who are hospitalized for mental illness, Bridgewater continues tooperate without any outside monitoring or oversight.   (See footnote 74)  ⁷⁴

     The Prospects for Reform

    The Department of Correction estimates that it would cost approximately $1.7 million toimplement the recommendations of the Salvi Report, an increase of approximately a 50% over whatit spent last year on mental health.   (See footnote 75)  ⁷⁵ It would probably cost a similar amount to bring services in thecounties up to the same level. Although the legislature responded to the Salvi Report byappropriating an additional two million dollars for prison mental health care for fiscal year 1998, DOChas chosen to spend the extra money on other matters, claiming that inflation and other medical costsmake it impossible to expand mental health services.   (See footnote 76)  ⁷⁶ Accordingly, the Salvi Report and itsrecommendations, like similar reports in the past, gathers dust with little likelihood of implementationwithout further legislative action or judicial intervention.

    State Representative Kay Khan, a staunch advocate of mental health reform, has sponsoreda comprehensive bill to improve mental health services in both county and state correctionalfacilities.   (See footnote 77)  ⁷⁷ Representative Khan's legislation mandates that prisoners receive the servicesrecommended by the Salvi Report, and would thereby bring mental health services in Massachusettsinto compliance with the Constitution. Specifically, it includes requirements that each facility providemental health screening and assessment of all inmates, as well as a sufficient number of mental healthprofessionals to give inmates access to mental health services comparable to what is available in thecommunity. It also provides that each inmate with a mental disorder must have a treatment plan, and,significantly, that the inmate be guaranteed all the services called for by that plan, including, whereappropriate, group and individual therapy, or placement in a special needs unit conducive to therapy.   (See footnote 78)  ⁷⁸ Perhaps most importantly, Representative Khan's legislation requires regular DMH inspection of eachcorrectional facility to ensure compliance with minimum standards of care.   (See footnote 79)  ⁷⁹

    Representative Khan has also sponsored a bill that requires Bridgewater to seek JCAHOaccreditation.   (See footnote 80)  ⁸⁰ The Salvi Report also concluded that Bridgewater must obtain JCAHOaccreditation.   (See footnote 81)  ⁸¹ Although the NIC report also recommended that Bridgewater pursue JCAHOaccreditation, it cautioned that Bridgewater is "not anywhere near" ready to begin the process, andthat JCAHO inspection would be doomed to fail unless profound changes are made in the clinicalprogram and organizational structure.   (See footnote 82)  ⁸² Although DOC now claims to be seriously considering theJCAHO process,   (See footnote 83)  ⁸³ its commitment must be suspect, since it made similar representations in 1989when Bridgewater was also the target of serious public scrutiny.   (See footnote 84)  ⁸⁴

    Although the Massachusetts Legislature deserves commendation for including the additionalfunds for prison mental health care in the fiscal year 1998 budget, the DOC decision to spend thismoney on other matters demonstrates the critical need for additional legislation, such as enactmentof the bills proposed by Representative Khan, if the neglect of the mentally ill in Massachusettsprisons and jails is to come to an end. Reform is vital not only for humanitarian reasons, but also toenhance public safety by ensuring that all prisoners with mental illness receive treatment before theirinevitable release back to the community.

authorized to expend $2,000,000 on mental health professionals above the expenditures formental health professionals in fiscal year 1997."