WHEN THE DAY BEGINS AT the Cook County Jail, the holding pens are almost always full. Most of the men in them were picked up the night before by cops in Chicago or the surrounding county. Their clothes are rumpled, hair messy, faces unshaven. Some have the dazed expression of somebody who stayed up all night. Others just look blank. They sit on the wooden benches that run around the perimeter of the high-ceilinged cinder-block rooms or lean against the chain-link fencing that forms the front of the pen. A few lie on the floor, too drunk or sick or high to stay upright. By noon, they will all be led out to eat lunch and then left in another set of holding pens to wait until bond court starts at one. But before that happens, each will stand in front of a tall wooden counter and get screened for mental illness.
Many jails, especially big ones, do mental health checks for new arrivals. What’s different about Chicago is that it happens before you get arraigned. Diagnosing in jail can be difficult, especially in the first hours after arrest, when a person may still be intoxicated or high. The social worker who oversees these intake exams, a slight woman with long blond hair and glasses, plays detective, looking for clues about the newcomers, who often don’t know or don’t want to share their psychiatric histories. The secret “is to talk… about a medical problem, blood pressure, or diabetes. They’re willing to talk about that,” she says. Then you casually ask, “Where’d you get help? Where’d you get meds? They’ll mention by accident a psych hospital. Ask what meds they were given, they’ll name a medicine for hypertension and an older anti-psychotic.” This early screening is important because it increases the chances that people with mental illness will be identified and treated. And it gives the jail a head start on getting them proper treatment and housing.
Besides comprehensive mental health screens, the jail boasts that a person with mental illness who comes there can now get individual therapy, group therapy, and special housing. Many of the corrections officers at the jail are trained in working with people with mental illness. There is a transition center to help them prepare for life on the outside, a program that includes both intensive therapy and job training. There are discharge planning services that help them enroll in Medicaid and figure out where they will get mental health care on release. And once people are released, there’s a place for them to safely spend their first night in freedom and even a mental health hotline to call if they have a crisis. It’s an enviable range of services, many of which one would be hard-pressed to find elsewhere in the community.
Between 20 percent and 30 percent of the Cook County Jail’s nine thousand prisoners have a mental illness. Sheriff Tom Dart, who is responsible for the jail, is one of the loudest critics of a mental health care system that has helped turn jails and prisons into psychiatric facilities. But he is also a pragmatist and knows that this situation is not going to change anytime soon. This has made him a trailblazer in changing the way his jail deals with people with mental illness: “If they’re going to make it so that I am going to be the largest mental health provider, we’re going to be the best ones. We’re going to treat ’em as a patient while they’re here, it’s like, we are going to think differently.”1 In a profession that tends to shy from publicity, he has taken the opposite approach, broadcasting his views in appealing sound bites and enthusiastically inviting members of the media to tour his jail.
Not everybody has embraced the new paradigm as enthusiastically as Dart. But most have at least come to acknowledge what Dart wrote in an open letter to sheriffs and jail directors in 2016: “Absolutely none of us signed up to run the largest mental health institutions in our respective communities. Yet that is where we find ourselves.”2 The letter serves as the introduction to a template he wrote for colleagues across the country about how best to respond to this crisis. Some jails—and prisons—have responded with to this new reality with a sort of “if-you-can’t-beat-’em-join-’em” philosophy by building special mental health units—or in some cases separate facilities, adding new ways to screen people for disease and new ways to treat them. Others acknowledge the need but have done little to accommodate it, citing limited budgets and other constraints. But even when the money is there, is building hospitals behind bars really the solution? What happens when you try to turn an institution designed to punish into one that is meant to cure? Is there a danger that it will simply reinforce an already troubling reality, creating an incentive to send even more people with mental illness into the criminal justice system? On the other hand, what are the consequences when jails and prisons choose not to take on this new responsibility or when they do it halfheartedly? As with so much in the criminal justice system, the answer is complicated.
One place where you can see the rapid expansion of mental health care side by side with facilities that have largely ignored it is Rikers Island. In early 2016, New York City announced that it would spend $8.7 million in the coming year—with additional funding each year for a total of more than $24 million by 2020—to improve mental health care at the jail.3 Around 70,000 people pass through the jail in a given year, and according to recent data, more than 40 percent of them have some form of mental illness. This is up from 30 percent less than a decade ago, a trend that has been apparent at many other jails across the country.4 Among other aims, the additional funds for Rikers were meant to increase the number of special mental health units known as the Program to Accelerate Clinical Effectiveness (PACE).
Around seven hundred people at Rikers are too sick to live in general population and are housed in mental observation units, basic units similar to those in Los Angeles County and elsewhere. For those who need more care, the PACE units, introduced in 2015, are designed to provide an alternative that is more therapeutic. They are intended to replicate the kind of treatment found in the outside world, whether that of specialized behavioral health facilities or of psychiatric units in general hospitals. “My conceptualization of Rikers is as a hospital,” Elizabeth Ford, the psychiatrist in charge of mental health care at the jail, told me shortly after taking the job in 2014. “You’ve heard that the criminal justice system is the new mental health system. We need to accept that fact and then, obviously, try to change it.”
PACE units are small, with no more than twenty-five beds each, and like many units in hospitals on the outside, they are tailored to specific populations. Among the first four that were built, one was designed for people returning from an inpatient stay at the state psychiatric hospital, another for people returning from a stay at the forensic unit at Bellevue Hospital, one for patients at risk for needing inpatient hospitalization, and one for patients needing further psychiatric evaluation. In addition, the jail also runs two other units—one for men and one for women—called Clinical Alternative to Punitive Segregation (CAPS). These are, effectively, PACE units for people who repeatedly violate rules in the jail, replacing a series of punitive solitary confinement cells that were previously used to house prisoners with mental illness who repeatedly broke the rules.
The standard mental observation units, where most people with mental illness at Rikers are held, have typically had a shortage of clinicians and little in the way of programming. On PACE units, however, there are more staff and more services, such as group therapy and art activities. The medical staff and corrections officers who work on the PACE units train and work as a team, which helps reduce much of the tension between the jail’s growing health care mandate and its primary function as a jail that has to guarantee everybody’s safety. Staffing on the PACE units is also meant to be consistent so that the patient-prisoners see the same clinicians and have some degree of continuity of treatment. Patients have the opportunity to get to know the staff and become comfortable with them, which is important for successful treatment; likewise, both clinicians and security staff are also more likely to recognize problems or changes in patients they have observed over time. Hardly revolutionary in medical practice, this kind of consistency is nevertheless a departure from standard practice for many jails and prisons, in which prisoners may seldom see the same clinician twice.
Also different is the approach to discipline. On standard mental health units—including most of those at Rikers and at many other jails—medical staff often complain they are working at cross-purposes with the security personnel. On the PACE units, however, the security officers themselves are given special training in working with people with mental illness. Rather than relying on the usual combination of threats and punishments, PACE units use a reward system, where prisoners can earn socks, T-shirts, and even pizza parties for cooperation and good behavior. The units are also self-contained, which means that they are mostly protected from the chaos of the rest of the jail. In most parts of the jail, prisoners need corrections officers to be brought to appointments with the psychiatrist or therapist. That means missed appointments when there aren’t enough officers or the jail is on lockdown. On the PACE units, clinicians come to the patients, so it’s less likely they’ll miss appointments. Even when the rest of the jail is on lockdown, people here can continue with their daily routines. So far, it seems, all of this is working well: according to Ford and the city, the first three years have seen half as many use-of-force incidents in PACE units as there are in other mental health units, half as many incidents of self-harm, and a 40 percent increase in patients taking their medication properly.5 One activist attorney—long one of Rikers’s harshest critics—called it a tremendous step in the right direction.
I visited one of the CAPS units. And while it’s hardly luxurious—among other issues, the physical plant at Rikers is in terrible condition—the atmosphere is noticeably different from typical ones. Prisoners are encouraged to spend much of the day in the common room, which has table tennis and a television. Unlike larger jail units, it’s relatively quiet. The therapy office—a converted corner cell—feels more human, thanks to prisoners’ artwork on the walls. These are some of the toughest, most violent people at Rikers, but in most cases, treating them as patients rather than prisoners brings positive results.
Other states are taking steps as well. California recently spent $900 million to open the largest prison hospital in the country, the California Health Care Facility in Stockton. It has space for nearly two thousand patients with the “most severe and long term needs,” including mental health care. And in April 2017, the state announced it is building a fifty-bed inpatient mental health facility at the California Institution for Men, a minimum-security prison for two thousand prisoners. The acute-care facility will provide crisis treatment for people from that prison and others.6 The Special Offender Unit at the Monroe Correctional Complex in Washington State has some four hundred beds for people with mental illness.7 In early 2017 the sheriff in New Orleans signed off on plans for a new building that will include eighty-nine beds for prisoners who have “acute and subacute mental health needs.”8 In southeastern Washington State, Benton County plans to build a $5 million, twenty-four-bed mental health unit in the county jail. “We are committed to not only develop, but create the best mental health system we can in the incarceration system,” county commissioner Shon Small told the local newspaper.9
The need for in-house psychiatric care in jails and prisons has been acknowledged for a very long time. At its 1930 annual meeting the American Medical Association (AMA) adopted a resolution to support principles around “psychiatric service in criminal courts,” a concept that had been put forth by the American Bar Association the year before. Among the principles was the idea “that there be a psychiatric service available to every penal and correctional institution” and that “there be a psychiatric report on every prisoner convicted of a felony before he is released.”10
For more than four decades, little was done to put such an idea into practice. An AMA survey in the early 1970s found that only 14 percent of jails around the country had facilities for prisoners with mental illness.11 To be sure, it wasn’t just mental health care that was lacking in correctional institutions; the same survey found that in two-thirds of the institutions, the only medical care available inside the jail was first aid, and just over 15 percent didn’t even have that. A US Department of Justice study around the same time reported that among larger jails, only one in eight had a specialized medical facility of any kind; the study made no specific mention of mental health.12
However, just a few years after those findings appeared, the situation changed dramatically. Today, prisoners have more of a right to health care than anybody else. As with so many criminal justice reforms, these changes were driven by a lawsuit—in this case, one involving prison labor. (Although many people know about prisoners making license plates, the reality is that prisoners have long been required to work on prison farms or in factories. Some private companies contract with prisons to provide labor, and in some states, such as California, prisoners are used to fight forest fires.)
In 1973 J. W. Gamble, a prisoner at the state prison in Huntsville, Texas, was unloading a truck at his prison job at a textile mill when a six-hundred-pound bale of cotton fell on him. Gamble kept working, but several hours later he went to the prison hospital complaining of back pain. After examining him briefly, the nurse gave him some painkillers and sent him back to his cell.
Gamble’s back still hurt the following day, so he went back to the hospital. This time a doctor prescribed more painkillers and ordered him to stop working for a while—in effect, to take medical leave. Yet several weeks later, when the doctor declared Gamble healed and cleared him to return to his prison job, Gamble said his back still hurt as much as it had that first day and refused to start working again. The prison sent him to solitary confinement.
The cycle continued for several months. Gamble would refuse to work, citing back pain, and the prison would punish him with more time in solitary. Finally, Gamble filed a lawsuit pro se—that is, acting as his own attorney—saying that by denying him proper medical care the prison had violated the Eighth Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted” (emphasis added).
The case, Estelle v. Gamble, eventually made it to the US Supreme Court, and in 1976 the Court ruled in Gamble’s favor. Writing for the majority, Justice Thurgood Marshall observed that because prisoners depend on the prison (or jail) to meet all of their needs, “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’”13 In effect, this historic decision established that people in jails and prisons have a constitutional right to medical care. They are the only population in the country that does.
The ruling laid the groundwork for the creation of a parallel health system within jails and prisons. The Supreme Court case clarified the fact that jails and prisons were obliged to provide medical care. It left it up to district courts and others to decide what, precisely, that was to mean in practice.
At the same time that courts began considering what mental health care in jails and prisons was to look like, state legislatures in places such as Indiana and California were ordering the closing of state hospitals. This could be seen as further evidence of “transinstitutionalization”: as people with mental illness left the state hospitals and ended up in the criminal justice system, jails and prisons saw an increased need for correctional health care services. But a closer examination suggests a different explanation: that these were simply two opposite responses to the same need for mental health care. The state legislatures got rid of state hospitals on the grounds that they were unnecessary and beyond repair, while the Gamble decision to require medical care put the United States on a long path toward the normalization of jails and prisons as major health care providers.
What the Supreme Court did not do was clarify how and in what form health care should be provided in the criminal justice system. So in the following years, lower courts started to do so themselves. In 1980 Ruiz v. Estelle, a Texas class-action suit heard in federal court, laid out minimum requirements for mental health care in jails and prisons. Among these, the Court established that there must be a systematic way to screen people for mental illness, that treatment must be provided by trained mental health professionals and must go beyond simply putting patients in seclusion, that accurate health care records for prisoners must be maintained, that psychotropic medications must be prescribed safely and appropriately, and that every correctional facility must have some kind of suicide-prevention program.14 Alarmingly basic, the requirements set down in Ruiz may seem so obvious that it would be surprising if they were not already being observed. Yet, as we will see in coming chapters, states still regularly fail to follow many of them. In Madrid v. Gomez, another class-action suit, this one in California in 1995, a federal court judge expanded on the minimum standards laid out in Ruiz. Prisoners must also have a way to let medical staff know what they need, and enough clinical staff must be available to provide prisoners with individualized treatment. Furthermore, the court ruled, prisoners need timely access to care, there has to be a quality assurance system, medical personnel have to be competent and well-trained, and systems must be in place for suicide prevention and for responding to health emergencies.15
Over the years, other organizations, such as the American Psychiatric Association (APA), have also laid out straightforward though nonbinding guidelines for the provision of mental health care in jails and prisons. According to the APA, inpatient care should be available either in the correctional facility itself or in an outside hospital; health care coverage should be available seven days per week, with twenty-four-hour nursing coverage for those with acute issues; patients should receive written treatment plans; and they should have access to a full pharmacopeia of psych meds, access to individual and/or group therapy, and access to programs “that provide productive, out-of-cell activity and teach necessary psychosocial and living skills.”16
More generally, the APA suggests that treatment should be a mix of medication and therapy: “[P]atients with bipolar disorder are likely to benefit from a concomitant psychosocial intervention—including psychotherapy—that addresses illness management… and interpersonal difficulties. Group psychotherapy may also help patients address such issues as adherence to a treatment plan, adaptation to a chronic illness, regulation of self-esteem, and management of marital and other psychosocial issues.”17 Guidelines for treating schizophrenia, once the patient is stable, are similar.
For jails and prisons, the question of how to treat people with mental illness is relatively clear. As with diabetes and other chronic diseases, the medications and other therapies are well-known; they are the same inside a correctional facility as they are outside. The conditions needed for optimum care are also well-known. The larger challenge is how to reconcile these needs with the physical and disciplinary environment of correctional institutions.
To people such as Elizabeth Ford, the psychiatrist at Rikers, and Tom Dart, the sheriff in Chicago, it is a challenge that requires a great deal of pragmatism. People with mental illness in the criminal justice system need treatment, the same way people who are not in it do, and that treatment might as well be as effective as possible. “We’re guardians of these people for the time they’re with us,” Ford said. It’s a logical, laudable approach to this problem. Here is a literally captive audience, one that might not get health care otherwise. Of course it makes sense to provide the best care possible.
Some prison systems have taken a similar approach. Washington State has made it a priority to try to identify prisoners’ psychiatric needs when they come into the system and to send them to prisons that can best accommodate those needs. There is also a weekly meeting, similar to what is done in hospitals, to discuss the most complicated cases. “What we’ve tried to focus on here is recognizing the continuum of care that is needed, and being able to provide it,” Karie Rainer, who is in charge of mental health for the Washington State Department of Corrections, told me.
“The chief problem is that mental health care and criminal justice start with different philosophies,” says Bandy X. Lee, a psychiatrist at Yale, “so the ethos itself of the criminal justice approach is incompatible with therapeutic means and methods.” No matter how well meaning, in other words, efforts like the PACE units inevitably point to a far more intractable question: Can institutions designed with radically different priorities than maintaining psychic well-being under any circumstances be adapted to offer appropriate care? And should they?
Indeed, there are risks associated with programs like the PACE units at Rikers. For starters, they operate on the premise that there will always be a large and growing population of people with mental illness living in jails and prisons. Would it make more sense, one can legitimately ask, to invest in community-based care and other treatment options instead? At times, building new and improved facilities for prisoners with mental illness seems to be almost a knee-jerk response to a crisis. When two civil rights groups sued the Alabama Department of Corrections in 2014 for its treatment of people with mental illness, the department’s initial response was to propose building four new prisons to replace the old ones. There is also the risk that if people can get better health treatment in jail than they can in the community, then it might encourage a new form of mercy booking—when a cop arrests somebody to make sure that the person gets “three hots and a cot”—that is, food and a place to sleep. This is a not-uncommon practice, even in places where correctional mental health care is less than stellar. Sometimes, judges or prosecutors will insist on keeping the person in jail, usually by refusing to set bail, either to keep him “safe”—i.e., off the streets—or as a way to get access to mental health care.
One argument against this kind of “mercy,” of course, is that jails and prisons were never meant to be therapeutic environments. As Lee observes, the real problem with jail psyschiatry, no matter how ambitious, is that it will always be “a correctional unit under correctional control.” Such criticism is not new. In 1972, even before jails and prisons were legally required to provide medical care, criminal justice professor Marvin Zalman found that a “study of cases indicates that adequate medical care cannot be systematically provided in large prisons.” In an analysis that predicted some of the root causes of poor medical care, he wrote that anything that was done to improve prison conditions overall—such as “reducing overcrowding, moving facilities closer to big cities and closer to a greater range of medical talent, and reducing prison populations and the number of people subject to prison medicine”—would also improve medical care.18 Similarly, an editorial published by a group of public health experts in 1990 warned about the problems of leaving mental health care in the hands of jails and prisons: “The cost will be prohibitive and a change in prison philosophy supporting a more ‘caring’ environment will be impossible to develop. Medical and mental health services stand only to be overwhelmed by the escalation in the number of prisoners.” The problem, they said, lies both with the correctional facilities themselves and with the public health system as a whole, and the only way to solve it is for prisoners to “come to be regarded as an important segment of society deserving proper attention.”19
Still, John Wetzel, the corrections commissioner in Pennsylvania, sees few downsides to trying to find new ways of treating people with mental illness in jails and prisons: “I don’t know who the hell would be afraid of trying something new, because the old stuff is not working at all. The outcomes are terrible historically. I don’t know what the risk is in trying something different.” He sought input both from his employees and from the prisoners themselves on how to improve. Like Washington, Pennsylvania has been working on its identification and classification of prisoners with mental illness and then find them appropriate housing. Some units now have psychiatrists on them forty hours per week. The state has been training its corrections officers on how to work with people with mental illness; it has also been exploring the use of peer specialists—people who have experienced mental illness and who are trained to help others—a practice that has become increasingly common in the community.
Successful mental health care in correctional facilities requires both money and leadership willing to make it a priority. But under the relentless pressure of cost control, overcrowding, understaffing, and, undoubtedly in some cases, a lack of will, in many places the reality is far from that. Setting aside the underlying question of whether there should be hospital-style mental health care facilities in jails and prisons, there are countless reasons why, in practice, mental health care too often falls short. At the California Health Care Facility, the new 1,700-bed hospital prison just outside of Stockton, the opening of entire wings was delayed by a shortage of psychiatrists. Worse, workers weren’t doing the regular checks of patients on suicide watch because they didn’t have time; the union representing those workers told the Associated Press in 2014 that supervisors had ordered them to falsify the records to make it look like they had indeed done the monitoring even though they hadn’t.20 In New Orleans a psychiatrist testified in a 2016 lawsuit that the mental health unit at the jail there was in name only, that the only thing differentiating it from any other unit was a sign on the wall identifying it as such.21 And then there is Rikers itself: the introduction of the PACE units came only after years of scandals around an earlier mental health unit where several people with mental illness died hideous deaths.
And that’s the issue: given a long history of abuse and mistreatment of people with mental illness in jails and prisons, whether under the guise of specialized “mental health care” or within a regular disciplinary structure, there is little guarantee that the latest reforms will in practice—and over the long term—be much better than what came before. The patients who end up in jails and prisons are some of the sickest in the country, yet the available resources will always be limited. And as we will see in coming chapters, when the system fails people, the results can be tragic.