How Public Officials Can Protect the Rights of Prisoners with Mental Illness

In the U.S., one third to one half of people in state prisons and local jails have mental illness. Despite this fact, funding for prison mental health care has been historically inadequate, which limits access to and quality of treatment.

It is illegal to discriminate against prisoners with mental illness, and that includes failing to provide accommodations and reasonable treatment for serious mental health conditions. Yet, “the U.S. prison system often falls short of meeting acceptable standards of care.”

Inadequate correctional mental health care not only represents disability discrimination, but it also exposes prisoners with psychiatric conditions to other forms of discrimination. Compared with other prisoners, prisoners with mental illness have higher rates of segregated confinement (defined as confinement to a cell for 22 or more hours daily), longer sentences and a greater likelihood of recidivism.

Prisoners with mental illness may have trouble following rules or fitting in, resulting in segregation for punishment or protection. Once there, they cannot access rehabilitative programming that impresses parole boards or awards good time, and they don’t gain the skills-training that helps protect against reincarceration.

The best approach is to divert people with mental health issues from the correctional system. But until workable diversion systems are widely available, people with mental health issues will continue to need screening and care in correctional facilities.

The current situation is unacceptable. However, there are solutions public officials can implement to better serve prisoners with mental illness.

Ensure Appropriate Medications Are Available

Accessing psychiatric medication — the one type of treatment that correction agencies have routinely delivered — can be challenging. A large-scale study found that more than 50% of those who reported taking medication for a mental health condition at intake did not receive medication in prison.

In some cases, particular medications may not be available in prisons due to expense or concerns regarding abuse potential. The limitations can be significant. A recent analysis found that pharmaceutical companies are marketing their drugs to correctional officials, and even including free samples. This could lead officials to select promoted medicines rather than more appropriate ones.

Establish External Oversight

As the experiences of prisoners seeking medication suggest, it is imperative to monitor correctional mental health care for access and quality. Correction officials should welcome and encourage external oversight, which, as prisoner advocate Michelle Deitch argues, promotes both transparency and accountability.

Currently, public oversight of correctional facilities is not the standard. While some states have established citizen review, others have almost no regular or empowered ways to shine public light on prison practices and conditions.

Monitors face an initial hurdle of figuring out what resources facilities are devoting to mental health care. Correctional officials may not separate mental and physical health expenses. Also, state dollars may not be distributed among counties in proportion to inmate population. Even when mental health care spending is isolated and appears to be increasing, that may not necessarily mean increased resources for care. What appears as increased spending may reflect something else: inflation in medical costs or the concentration of funds on more expensive programs that may not reach all prisoners with mental health needs.

Manage Medical Contracts Carefully

Many prisons and jails outsource their mental health services. A 2017 study found that over half the states have privatized at least some of their prisons and local jails. Likewise, a correctional accreditation agency estimates that about 70% of the jails it certifies have privatized their medical services. These trends extend to mental health care.

For example, in Massachusetts, the state correctional agency and multiple counties now contract with for-profit companies, including national entities, to provide their prisoners with mental health services. Only a few counties offer mental health services in-house or through contracts with local non-profits. It is difficult to undo these trends. When for-profit companies charge less than community-based or non-profit providers and put them out of the prison health care business, correctional officials are left with corporate providers as their only choice.

As privatization becomes entrenched in correctional health care, officials should be wary. Private providers have a strong financial incentive to limit care. And, corporate health care providers have faced many lawsuits across the country regarding quality of care in prisons. Unfortunately, this private system is not subject to external scrutiny the way that public systems are.

To overcome these obstacles, corrections officials must allocate additional resources to creating and managing their medical contracts. Particularly given the financial incentive to deliver minimal levels of care, contracts must include specific standards and penalties. Correction agencies should assign full-time, senior-level staff to rigorously monitor contract compliance and oversee service delivery.

Offer Specific Instruction on What Care Should Look Like

External and internal monitors should look to the legal system for guidance when evaluating care. A growing body of case law requires that correctional mental health services include:

• Intake screening
• Assessment
• Staff training
• Adequate mental health staff
• Suicide prevention and response
• Treatment planning
• Service delivery (at the same levels as available in the community)
• Exclusion from solitary
• Access to emergency care
• Hospitalization when inpatient care in needed
• ​Adequate record keeping

These laws, while important, do not specify what mental health services should look like in corrections facilities. Unless states develop robust mental health care standards, corrections officials and their providers are left to create their own policies and practices. This can result in uneven, and potentially inadequate, levels of care.

Public officials can address this problem by providing instruction as to what prison and jail mental health care should include. Recent clinical research offers some answers. For example, the most common diagnoses in correctional facilities — major depressive disorder, bipolar I, schizophrenia, and PTSD — can be effectively treated with a combination of medication and psychotherapy. Specialized therapies, like cognitive-behavioral therapy and mindfulness-based therapies, have been shown to be effective in corrections. Group therapies have also been found to be as successful as individual therapy. Additionally, treatments used in the community should be imported for incarcerated populations, including those for substance use. This array of services should be fully available.

Finally, correction officials should examine their own practices to ensure they are providing a safe and therapeutic environment. They should get rid of punitive mental health watches, make suicide-resistant cells the norm, and offer individual and group therapy in comfortable environments — comparable to what one would experience in the community.

To solve this problem, we need a full-fledged paradigm shift.

Jennifer Honig, Senior Attorney at Mental Health Legal Advisors Committee (MHLAC), focuses on institutional advocacy and community rights of persons with mental health issues. She has worked at MHLAC since 1992. Most recently, she has been advocating on behalf of individuals confined to jails and prisons in Massachusetts.

The author would like to thank Charlie Catino for his research assistance on this project.