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This week, there have been two inmate deaths at two different correctional facilities in Massachusetts - one was the third suicide of the year, as compared to four in all of 2005 and one in 2004. There were seven in 2006. The suicide occurred at Bridgewater State Hospital, the facility that specifically houses those inmates with severe mental health issues (though it’s very clear in my experience that a hell of a lot more inmates have mental health issues than end up at Bridgewater AND that Bridgewater is such a miserable place to be that many resist going there at all costs).

Last month, the Disability Law Center sued the Massachusetts Department of Correction in federal court, alleging that inmates with severe mental health issues were being treated inhumanely (including being on lock-down 23 hours per day) and asking that the remedy be more specialized housing and treatment for them.

Putting such prisoners in segregation units, the advocates say, violates the constitutional prohibition against cruel and unusual punishment and should be banned. The Disability Law Center also said the segregation of mentally ill inmates violates federal statutes, including the Americans with Disabilities Act.

The Department of Correction said in a statement that it does not comment on pending litigation. However, the department said it was “well aware of the national trend of the increasing number of prisoners with mental illness” and that it had begun taking steps to reduce the risk of suicide for the state’s nearly 11,000 inmates.

In February, the Department of Correction issued its own independent report on inmate suicides, recognizing that facility procedures and policies were contributing to a suicide rate that was almost double the national average (27 per 100,000 v. 14 per 100,000):

Guards and other staff members do not have enough training in suicide prevention.

Guards fail to check frequently enough on some inmates at risk of suicide.

Some cells used to house suicidal inmates have not been stripped of features they could use to harm themselves.

Inmates under suicide watch become even more isolated because they are denied visits, showers, phone calls, and time outside their cells.

[…]

The report also includes unsettling details about recent suicides, the vast majority from inmates hanging themselves. In two recent cases, inmates were hanging for more than 30 minutes before they were discovered, though prisoners on suicide watch are supposed to be checked at least every 30 minutes. In the report, [author Lindsay Hayes of the National Center on Institutions and Alternatives] urges the department to do away with 30-minute checks for suicidal patients, which he concludes are too infrequent, and instead check at least every 15 minutes and have constant observation for the most troubled inmates.

It’s frustrating to be on the cusp of seeing this first hand - I hear complaints from my clients held in custody all the time, and it is not just those who are classified as having mental health issues. The local county facility that I spend the most time in regularly keeps inmates locked down for 23 hours and I hear stories all the time about social workers who deride inmates, correctional officers who spit on them, and nurses who treat every ailment with an ibuprofen. I hear about cells designed for two people housing four or five and makeshift beds shoved into the cafeteria. But these things all happen literally locked away from the public eye. And it’s not like the general public has much sympathy for those people locked away for criminal activity, nor do they place much stock in their credibility. It’s tragic that suicides have to be the catalyst for any sort of scrutiny, but I hope that, with the help of organizations like the Disability Law Center and Massachusetts Correctional Legal Services, something may be done soon.

I am gearing up for my vacation to Las Vegas starting on Thursday, so I decided to see what was going on in the world of crime and defense in my favorite city of Elvis, roulette, and open containers. And I came across as issue that, shockingly, I have not yet figured out an opinion on - whether a verdict of “guilty but mentally ill” should be an option in criminal cases.

Apparently, the state of Nevada scrapped the “not guilty by reason of insanity” verdict back in 1995 and replaced it with “guilty but mentally ill.” The Nevada Supreme Court slapped the legislature down, however, ruling in 2001 that getting rid of the insanity defense was unconstitutional and eliminating the “guilty but mentally ill” option. But now State Assemblyman William Horne - a Democrat and a criminal defense attorney - has proposed re-introducing the “guilty but mentally ill” verdict in addition to the constitutionally-mandated insanity defense. The public defenders in the state, though, have expressed concerns that such a verdict would actually deprive the mentally ill of proper treatment.

“The defense bar does raise some legitimate concerns, but I don’t think it’s bad that a jury can say, ‘You didn’t meet the standard for insanity, but you did have some mental health issues,’” Horne said.

Horne added that offenders should still have an obligation to society to pay for crimes they commit.

[…]

Lisa Rasmussen testified for Nevada Attorneys for Criminal Justice, saying the proposed standard should not be used to erode the “not guilty by reason of insanity” standard. She said it should only be allowed if the defendants propose it themselves, and not by prosecutors as a bargaining tool against the insanity plea.

She also pushed for excluding death penalty and life-without-parole sentences for those found guilty but mentally ill.

As the actual text of proposed AB193 makes clear, a defendant would have to prove mental illness by the (relatively low) preponderance of the evidence standard and would also “generally” be subjected to the same penalties as any other defendant pleading guilty.

Regardless of whether a defendant is mentally ill at the time of sentencing, the court is required to impose any sentence available to the court for a defendant who pleads or is found guilty of the same offense. However, if the defendant is mentally ill at the time of sentencing, the court is also required, under certain circumstances, to direct the Department of Corrections to provide to the defendant such treatment as is available for his mental illness during his confinement or probation.

Specifically in regards to treatment:

[A court shall] include in that sentence an order that the defendant,
during the period of his confinement or probation, be given such treatment as is available for his mental illness if the court determines that the relative risks and benefits of the available treatment are such that a reasonable person would consent to such treatment.
The Department of Corrections shall provide any treatment ordered by a court [.]

So, while the verdict could be incredibly helpful in some circumstances, the public defender faction seems to be quite correct (not that I am biased or anything) in their concerns about what actual treatment these defendants may receive. Now, I do not know any details about the mental health resources available in the Nevada Correctional system, but “whatever treatment is available” seems awfully vague. It appears that individual judges would be responsible for mandating specific treatment (hopefully with the input of defense attorneys), but that the DoC would be responsible for carrying it out. It’s sort of like adding a condition of probation to a jail sentence and I’m not sure how practical or helpful that really is to a defendant with mental health issues.