A COMMUNITY MENTAL HEALTH MODEL
IN CORRECTIONS
Terry A. Kupers*
The jail and prison population in the United States has been multiplying
exponentially for four decades. We now have almost two-and-a-half million
people behind bars, and during the same years the proportion of prisoners with
1
serious mental illness has also grown. The Treatment Advocacy Center and the
National Sheriff’s Association recently released a study showing that there are
ten times as many individuals with serious mental illness in our jails and prisons
2
as there are in our state psychiatric hospitals. Mental health services behind
bars have not grown apace, and as a result a large number of prisoners with
serious mental illness are subject to victimization in the jails and prisons, receive
inadequate mental health treatment, and are subjected to harsh conditions of
3
confinement that exacerbate their mental illness and make their prognosis dire.
There is a mental health crisis behind bars, and correctional mental health
treatment requires urgent attention.

INTRODUCTION: PUBLIC MENTAL HEALTH POLICY .................................................. 120
I. THE COMMUNITY MENTAL HEALTH MODEL ................................. 123
II. ALTERNATIVES TO INCARCERATION ............................................... 126
III. THE COMMUNITY MENTAL HEALTH MODEL IN CORRECTIONS .......................... 127
A. A Definition of Mental Health in Corrections .............................................128
B. The Requisite Components of Mental Health in Corrections ......................129
C. Intermediate Care: A Crucial Component of Mental Health Services 134
D. Suicide and Self-Harm .................................................................................135
E. A Note About Trauma ..................................................................................138
IV. SOME ISSUES UNIQUE TO CORRECTIONAL SETTINGS .......................................... 139
A. Isolative Confinement and Supermax Security ............................................139
B. Medications and Medication-over-Objection..............................................144
C. The Disturbed/Disruptive Prisoner .............................................................147

* M.D., M.S.P. Institute Professor, The Wright Institute. Mailing address: 2100
Lakeshore Avenue, Suite C, Oakland, CA 94606. Email: Kupers@igc.org.
1. See DORRIS J. JAMES & LAUREN E. GLAZE, BUREAU OF JUSTICE STATISTICS, NCJ
213600, MENTAL HEALTH PROBLEMS OF PRISON AND JAIL INMATES 10 (2006), available at
http://www.bjs.gov/content/pub/pdf/mhppji.pdf.
2. E. FULLER TORREY ET AL., THE TREATMENT OF PERSONS WITH MENTAL ILLNESS IN
PRISONS AND JAILS:
A
STATE SURVEY 6
(2014),
available
at
http://
www.tacreports.org/treatment-behind-bars.
3. See TERRY A. KUPERS, PRISON MADNESS: THE MENTAL HEALTH CRISIS BEHIND
BARS AND WHAT WE MUST DO ABOUT IT (1999).

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D. Use of Force ................................................................................................149
E. Therapeutic Cubicles ...................................................................................151
F. Malingering .................................................................................................154
V. SOME GUIDING PRINCIPLES................................................................................... 156
CONCLUSION ................................................................................................................ 158

INTRODUCTION: PUBLIC MENTAL HEALTH POLICY
Some social policies are carefully designed, vigorously debated, and then
put into practice through legislation. Medicare is an example; the federal law
culminates public debate and establishes a strong social policy regarding
medical care for seniors. Other policies are not as clearly formulated and
ultimately prove foolhardy, but they are similarly effected through legislation.
The imprisonment binge of the past several decades is an example. Legislation,
presumably mirroring public opinion, shapes ever longer prison sentences for a
growing number of charges. The designers of that social policy, however, failed
to see the long range costs in higher recidivism rates, decimation of inner city
communities, and mandated medical care for a huge population of older
prisoners. Then there are social policies that are never actually articulated, are
not guided by specific legislation, and seem to have no champions. The
incarceration of people with serious mental illness is like that, and even though
unplanned, it has been accelerating for decades. There really are no advocates
for incarcerating people with serious mental illness. Sheriffs and wardens
universally complain that it should not be their job to take care of people with
mental illness, and they certainly were not trained for the task.
There are a number of historic events that combined to send so many
people with serious mental illness to jail and prison, including deinstitutionalizaton, “The War on Drugs,” and changes in the criteria for a
psychiatric defense. De-institutionalization involves the downsizing and closing
of state and Veterans Affairs mental hospitals with the expectation that former
patients (or, today, individuals who would have been candidates for state
hospitals until the 1960s) would receive quality mental health care in the
community.4 But community mental health care, after an infusion of federal
funds with President Kennedy’s 1963 Community Mental Health Centers Act,
would experience successive budget cuts and eventually, by the 1990s, prove
vastly inadequate for the task of providing public mental health services.5

4. E. FULLER TORREY, OUT OF THE SHADOWS: CONFRONTING AMERICA’S MENTAL
ILLNESS CRISIS 8-11 (1997).
5. Hunter L. McQuistion et al., Challenges for Psychiatry in Serving Homeless
People With Psychiatric Disorders, 54 PSYCHIATRIC SERVS. 669, 673-74 (2003); E. Fuller
Torrey et al., Documenting the Failure of Deinstitutionalization, 73 PSYCHIATRY:
INTERPERSONAL & BIOLOGICAL PROCESSES 122, 122-24 (2010).

	
  

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In the same period, there was the “War on Drugs” with attendant
sentencing guidelines that sent an unprecedented number of low-level drug
offenders to prison for longer terms. Of course, since “dual diagnosis,” that is,
psychiatric disorder plus substance abuse, is very prevalent, the War on Drugs
landed a huge number of individuals with serious mental illness in our jails and
prisons.
Meanwhile, the criteria for determining that a defendant is insane have
changed. The “third prong” of many states’ statutes on insanity, the criterion
whereby a defendant, on account of a mental illness or defect, is unable to
control himself and refrain from the criminal act, was taken off the books.6
This change made it more difficult to prove a defendant is not guilty by reason
of insanity (NGRI), resulting in more individuals with mental illness going to
prison.
The growing proportion of prisoners with serious mental illness created a
huge over-subscription for correctional mental health services and a glaring
crisis in correctional mental health care today. For example, many prisoners
with serious mental illness are warehoused in prison segregation units, where
isolation and idleness exacerbate their mental illness. Others are consigned to
general population units where mental health treatment is very thin, and they
are too often victimized. Even when the prisoner in crisis is identified, and, for
instance placed in an “observation cell” while he presents an imminent risk of
suicide, on average there is too little actual treatment going on in the
observation cells. Then, because correctional mental health services are
relatively underfunded and oversubscribed, the prisoner in crisis is moved out
too fast, often transferred back to a segregation cell from where he came, and
receives inadequate follow-up treatment. This is why a disproportionate
number of prison suicides occur in isolation cells, with prisoners who have
cycled through the prison’s observation unit.7
The high rate of suicide in prison is only one of many indicators that prison
mental health services are far from adequate. There is a widely held but
erroneous assumption that correctional mental health is relatively adequate, that
the best place for the indigent individual with serious mental illness to receive
treatment is behind bars. This assumption can actually serve to rationalize the
consignment of even more individuals with serious mental illness to prison.
Thus, in many states the law provides for a finding in criminal trials that the
defendant is “guilty but insane.” The jury can find the defendant guilty, not
guilty, not guilty by reason of insanity (NGRI), or “guilty but insane.”8
6. GRAY B. MELTON ET AL., PSYCHOLOGICAL EVALUATIONS FOR THE COURTS 190-93
(2d ed. 1997).
7. Raymond F. Patterson & Kerry Hughes, Review of Completed Suicides in the
California Department of Corrections and Rehabilitation, 1999 to 2004, 59 PSYCHIATRIC
SERVS. 676, 677 (2008).
8. THOMAS GRISSO ET AL., EVALUATING COMPETENCIES: FORENSIC ASSESSMENTS AND
INSTRUMENTS 193-98 (2d ed. 2003).

	
  

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Because many jurors actually believe that prison is the best place for a severely
disturbed individual to receive needed mental health treatment, when given the
choice, they opt for “guilty and insane.”9 Perhaps they also fear that a “NGRI”
finding would result in the defendant eventually being released when the
defendant seems too dangerous for that. But in the several states where I have
investigated correctional mental health care and where “guilty but insane” is
provided in the jury instructions at trial, prisoners who have been found “guilty
but insane” do not receive any different mental health care than do other
prisoners, and for the most part that care is quite substandard.
While the prison population has grown exponentially and the proportion of
prisoners with serious mental illness also has enlarged, mental health services
in corrections have simply not grown apace. There are too many individuals
with serious mental illness for the mental health staff to treat them
adequately.10 The oversubscribed mental health staff try to fulfill their
professional duty. They may try focusing their energies on the “major mental
illnesses,” including schizophrenia, bipolar disorder, and major depressive
disorder. Or in some states a decision is made to provide a larger “case
load” psychotropic medications only. Or there is a tendency, neither
articulated nor
advocated by anyone in particular, to lock up the most seriously disturbed
prisoners in some form of isolative confinement, usually punitive segregation
but occasionally protective custody (which too often also happens to be an
isolative confinement unit). In any case, prisoners with serious mental illness
tend to go untreated, undertreated, or treated with medications and little else,
and a disproportionate number wind up in isolative confinement.11 Then the
isolated prisoners with mental illness complete their prison term and need to
return to the community. But the many years of inadequate treatment and harsh
conditions, including prison crowding and long-term isolative confinement,
have exacerbated their mental disorder and made them more disabled.12 Then
we read about prisoners with mental illness being released straight out of
isolative confinement and perpetrating horrible crimes in the community. A
very high profile and tragic example is the 2012 murder of Tom Clements, the
Executive Director of the Colorado Department of Corrections, by a man who
had recently been released from prison after spending years in
solitary

9. See John Q. La Fond, U.S. Mental Health Law and Policy: Future Trends
Affecting Forensic Psychiatrists, 11 AM. J. FORENSIC PSYCHIATRY 5 (1990).
10. See KUPERS, supra note 3; TORREY, supra note 2.
11. ACLU OF COLO., OUT OF SIGHT, OUT OF MIND: COLORADO’S CONTINUED
WAREHOUSING OF MENTALLY ILL PRISONERS IN SOLITARY CONFINEMENT (2013); TORREY,
supra note 2; Fred Cohen, Denial of Needed Mental Health Care, Excessive Segregation and
Predictable Tragedy: The Nebraska Ombudsman Report, 16 CORRECTIONAL MENTAL
HEALTH REP. 3 (2014).
12. Terry A. Kupers, What to Do with the Survivors?: Coping with the Long-Term
Effects of Isolated Confinement, 35 CRIM. JUST. & BEHAV. 1005, 1014 (2008).

	
  

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confinement.13 The irony was that Director Clements had been advocating the
downsizing of solitary confinement in the Colorado D.O.C.
Departments of correction cannot effectively address the mental health
crisis behind bars in isolation from community groups and government
agencies. The mental health crisis behind bars is not of correctional
professionals’ doing. It is a matter of poorly planned social policies—i.e., deinstitutionalization, incrementally diminished funding for public mental health
services, a War on Drugs that captured many individuals with serious mental
illness in its dragnet, changes in criteria for a psychiatric defense in court, and
so forth—, so the social policies designed to address the mental health crisis
behind bars must include consideration of such things as public mental health
resources in the community, services available to ex-prisoners when they return
to the community, low-income housing, jobs, and substance abuse treatment in
the community.
In effect, our society needs to decide how we want to deal with serious
mental illness and whether dreadful and harmful prison conditions and
deprivations are acceptable in our democracy. It is no longer possible for
politicians and the public to ignore the problem and leave individuals with
serious mental illness to be arrested and sent to prison, where their fate is
mostly invisible to the public. Mental illness can no longer be swept under the
carpet. Media coverage of the ill effects of isolative confinement, as well as
correctional officers’ excessively violent measures with prisoners who suffer
from mental illness, opens the discussion to a larger public. The relegation to
jails and prisons of a large proportion of people suffering from mental illness
was not a well-considered policy, but the remedy will require careful
deliberations about our social priorities.
I. THE COMMUNITY MENTAL HEALTH MODEL
I trained as a community psychiatrist out of commitment to the principle
that mental health services should be available to all, according to their needs
and regardless of their ability to pay. That was the vision underlying President
Kennedy’s Community Mental Health Centers Act of 1963. Federal grants to
support local governments in building community mental health centers lasted
for five years, with a possible three-year extension.14 By the time I completed a
fellowship in social and community psychiatry in 1974, the incremental defunding of public mental health services was already underway, and a growing
13. Colorado Department of Corrections Director Murdered, CBS DENVER (Mar. 20,
2013, 5:50 AM), http://denver.cbslocal.com/2013/03/20/colorado-department-of-correctionsdirector-murdered.
14. Benjamin G. Druss et al., Trends in Mental Health and Substance Abuse Services
at the Nation’s Community Health Centers, 1998-2003, 96 AM. J. PUBLIC HEALTH
1779.(2006); Rebecca Wells et al., Trends in Behavioral Health Care Service Provision by
Community Health Centers, 1998-2007, 61 PSYCHIATRIC SERVS. 759 (2010).

	
  

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number of individuals with serious mental illness were finding their way into
jails and prisons.
Originally, in the 1960s and early 70s, community mental health services
included not only direct treatment in the community, but also prevention and
consultation to schools, churches, and other community agencies and
institutions (including jails) to best support individuals prone to mental illness
living in the community.15 The model was sound, even visionary,
but
eventually community mental health was decimated by cuts in public budgets
until we reached the point where, in many clinics, the main therapeutic
modality would be medication with very little in the way of talking therapy,
and even case managers would find their caseloads so large that they could not
provide optimal care or even adequate monitoring.16 Meanwhile, the social
safety net was cut as drastically as public mental health services, and a large
number of those suffering from mental illness found their way into
homelessness, and then jails and prisons.
Community mental health begins with the idea that it is far better to treat
individuals suffering from mental illness in the community than it is to
warehouse them in state psychiatric hospitals, where they become passive,
overweight, and numbed out on strong tranquilizers.17 The array of
required
clinical services at community mental health centers (CMHCs)
would change over the years. At first the list included adult outpatient and crisis
intervention services, inpatient services, services for children, day treatment
(also known as intermediate care or partial hospital), vocational training,
consultation to community agencies, and so forth.18 Halfway houses, supported
living programs, self-help groups, substance abuse treatment programs, case
management, services for individuals with developmental disabilities,
psychiatric or psychosocial rehabilitation services, and other worthy programs
would eventually be added to the list of required services.19 The CMHCs were
encouraged to establish collaborations with local colleges, vocational training
facilities, and low-income housing agencies to provide wrap-around services to
individuals with serious mental illness. Meanwhile, community psychiatrists
and psychologists would consult with schools, governmental agencies, and
local businesses to foster improvements in the general quality of mental health

15. Wells et al., supra note 14.
16. McQuistion et al., supra note 5, at 374.
17. COMMUNITY PSYCHOLOGY: IN PURSUIT OF LIBERATION AND WELL-BEING (Geoffrey

Nelson & Isaac Prilleltensky eds., 2010); GERALD N. GROB, FROM ASYLUM TO COMMUNITY:
MENTAL HEALTH POLICY IN AMERICA (1991).
18. William R. Breakey, The Rise and Fall of the State Hospital, in INTEGRATED
MENTAL HEALTH SERVICES: MODERN COMMUNITY PSYCHIATRY 15, 34 (William R. Breakey
ed., 1996).
19. See Gale Bataille, Psychotherapy and Community Support: Community Mental
Health Systems in Transition, 46 NEW DIRECTIONS FOR MENTAL HEALTH SERVS. 9, 10-11
(1990).

	
  

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in the community. As part of their preventive work, community psychiatrists
advocate quality schools, full employment, low-income housing, vocational
training, and access by disabled individuals to work sites as well as education
programs. “Safety-net” programs are the underpinning of a sound community
mental health program.20 After all, clients need a place to live and a job or jobtraining opportunity if the clinical treatment is to be effective, no matter how
targeted and powerful the prescribed medications are. The emphasis of
community mental health is on prevention: attacking the social problems that
are believed to cause mental illness. The reason that advocating for quality
public schools is so important to community psychiatrists is that a good
primary education serves as a foundation for a lifetime of sound mental health,
whereas early and serious failure in school too often leads to substance abuse,
failure in the job market, and then psychiatric disability and the risk of criminal
involvement.21 The addition of Psychiatric Rehabilitation or Psychosocial
Rehabilitation since the 1980s enlarges community mental health practitioners’
methods for helping individuals with serious mental illness live the best quality
lives they can, given their disability.22 Analogously, rehabilitation programs in
prison support post-release success, while social isolation and idleness during a
prison term lead to subsequent disability.23
In Part IV, I will outline twelve components of a contemporary community
mental health model for the delivery of mental health services that I believe
should be available in a correctional mental health treatment program. They
include (1) screening mental health assessment; (2) a method for prisoners to
access mental health treatment; (3) confidentiality and privacy; (4) adequate
staffing; (5) inpatient, outpatient, crisis intervention, and intermediate levels of
care; (6) proper documentation; (7) a variety of therapeutic modalities; (8)
communication and collaboration among mental health, medical, and custody
staff; (9) adequate staff training; (10) informed consent; (11) case management;
and (12) a variety of psychiatric rehabilitation programs.

20. See Jenny Gold, Mental Health Cops Help Reweave Social Safety Net in San
Antonio, NAT’L
PUB.
RADIO
(Aug.
19,
2014,
3:34
AM),
http://www.npr.org/blogs/health/2014/08/19/338895262/mental-health-cops-help-reweavesocial-safety-net-in-san-antonio.
21. William P. Erchul, Gerald Caplan: A Tribute to the Originator of Mental Health
Consultation, J. EDUC. & PSYCHOL. CONSULTATION 95, 101-02 (2009).
22. William Anthony, Psychiatric Rehabilitation Leadership, 33 PSYCHIATRIC
REHABILITATION J. 7, 7-8 (2009); see also LeRoy Spaniol et al., The Role of the Family in
Psychiatric Rehabilitation, in AN INTRODUCTION TO PSYCHIATRIC REHABILITATION 153
(1994).
23. David Lovell et al., Recidivism of Supermax Prisoners in Washington State, 53
CRIME & DELINQ. 633, 649-50 (2007) (discussing how direct release from extended solitary
confinement may significantly impact recidivism because such confinement exacerbates
certain unstable mental states).

	
  

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II. ALTERNATIVES TO INCARCERATION
Before exploring what would constitute adequate mental health care in
prison, I must mention alternatives to providing mental health care in prison. In
other words, the community mental health (CMH) model for public mental
health emphasizes “prevention,” and one important way to prevent the
incarceration of individuals with serious mental illness is to provide alternatives
to incarceration that include mental health and substance abuse treatment in the
community.
To be effective, a remedy for the current crisis in correctional mental
health must include a drastic reduction in the prison population, such as
sentencing reform aimed at sending fewer people to prison and on average for
shorter terms, plus widespread “diversion.” Diversion is occurring in many
states today.24 In a diversion program, a behavioral health court usually
administers a program where a criminal defendant is offered an opportunity to
avoid jail or prison if he or she is willing to participate in a drug treatment or
mental health treatment program in the community under the court’s
supervision.25 Often the court’s authority is just what the defendant needs to
motivate full participation in the treatment program, and behavioral health
courts boast of impressive success rates, as measured in eventual compliance
with mental health treatment and/or recovery from substance abuse.26
In many localities there is robust debate about building “mental health
jails” or “mental health prisons” as opposed to diverting a significant number of
offenders with mental illness to treatment programs in the community. In Los
Angeles County, the Board of Supervisors recently voted to demolish the
dilapidated and unsafe Men’s Central Jail and to carry out a little of both
strategies: build a new “mental health jail” and expand behavioral health courts
and diversion mental health programs in the community.27 I concur with the

24. BRIAN STETTIN ET AL., TREATMENT ADVOCACY CTR., MENTAL HEALTH DIVERSION
PRACTICES: A SURVEY OF THE STATES 8-9 (2013).
25. See, e.g., Developing a Mental Health Court: An Interdisciplinary Curriculum,
COUNCIL OF STATE GOV’TS JUST. CENTER (2012), http://learning.csgjusticecenter.org.
26. See, e.g., ARLEY LINDBERG, SAN FRANCISCO SUPERIOR COURT, COSTS AND
BENEFITS OF BEHAVIORAL HEALTH COURT: FINDINGS FROM “EXAMINING PROGRAM COSTS
AND OUTCOMES OF SAN FRANCISCO’S BEHAVIORAL HEALTH COURT” (2009); Rafael A. RivasVazquez et al., A Relationship-Based Care Model for Jail Diversion, 60 PSYCHIATRIC SERVS.
766 (2009); Henry J. Steadman et al., A SAMHSA Research Initiative Assessing the Effectiveness of Jail Diversion Programs for Mentally Ill Persons, 50 PSYCHIATRIC SERVS. 1620
(1999); Henry J. Steadman et al., Effect of Mental Health Courts on Arrests and Jail Days,
68 ARCHIVES GEN. PSYCHIATRY 167 (2011). But see, e.g., David Loveland & Michael Boyle,
Intensive Case Management as a Jail Diversion Program for People with a Serious Mental
Illness: A Review of the Literature, 51 INT’L J. OFFENDER THERAPY & COMP. CRIMINOLOGY
130 (2007).
27. See SARAH LIEBOWITZ ET AL., ACLU OF S. CAL., A WAY FORWARD: DIVERTING
PEOPLE WITH MENTAL ILLNESS FROM INHUMANE AND EXPENSIVE JAILS INTO COMMUNITY-

	
  

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Southern California ACLU and the Bazelon Center for Mental Health Law in
strongly advocating sentencing reforms to bring down the jail and prison
population and in choosing the diversion option over the “mental health jail.”
Research shows that the outcome of community mental health and substance
abuse programs is far superior to the outcomes when individuals suffering from
serious mental illness are incarcerated, as demonstrated by higher recidivism
and parole-violation rates among this population in recent years.28 It is simply
too easy, and too likely, that a mental health jail, several years down the line
when there are further budget cuts for correctional mental health programs, will
become a human warehouse where inmates with serious mental illness merely
sit in a cell or jail dormitory and take strong psychotropic medications with no
real treatment or rehabilitation opportunities. But sentencing and diversion are
not the topics at hand.
The first step toward applying CMH principles in correctional mental
health care is to expand prevention and diversion. Today, this requires rebuilding the social safety net that helps disabled individuals remain functional
in the community and expanding upon very widespread and encouraging efforts
to “divert” individuals with mental illness and substance abuse problems
through behavioral health and drug courts. Placing low-level offenders in
community programs that target their areas of disability has proven to help
keep them out of jail and prison. Anything that can be done to strengthen
education, help youngsters who get into trouble at school straighten out and
succeed in their studies, and resurrect the social safety net—including lowincome housing and meaningful job placement—will provide important
prevention vis a vis mental illness, psychiatric disability, future substance
abuse, and criminal behavior. Prevention and diversion are very important
issues in any discussion of the problem of mental illness behind bars—the best
remedy is to prevent the incarceration of individuals with mental illness or
provide alternative treatment in the community—, but since this Article is
about prison mental health per se, prevention and diversion are left to another
day.
III. THE COMMUNITY MENTAL HEALTH MODEL IN CORRECTIONS
Inside correctional facilities, community mental health provides a model
for comprehensive mental health treatment. When in the 1960s and 1970s we
worked to reintegrate individuals with mental illness into the community, we
relied on community resources (e.g., churches, schools, youth centers,
BASED TREATMENT THAT WORKS 2-3, 9 (2014), available at https://www.aclusocal.org/wpcontent/uploads/2014/07/JAILS-REPORT.pdf.
28. See
generally
Bureau
of
Justice
Statistics,
RECIDIVISM,
http://
www.bjs.gov/index.cfm?ty=tp&tid=17 (last visited Nov. 15, 2014) (providing data on the
recidivism patterns of a variety of offenders, including persons on probation or released from
prison).

	
  

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community colleges, and job-training agencies) to help them succeed in the
community.29 Ninety-five percent of prisoners will eventually be released.30
The focus of mental health programs in corrections must be the successful postrelease re-integration of prisoners with mental illness. And we know, from
years of work in community mental health, what that requires.
Individuals suffering from mental illness who receive adequate treatment
and spend their time in peaceful and encouraging circumstances (for example, a
loving home or a halfway house where they are encouraged to study, form
healthy relationships, and accomplish the steps they need to traverse if they are
ever to enjoy meaningful employment) have a fighting chance of being able to
keep their illness under control and do relatively well. On the other hand, the
equivalent individual (i.e., someone who suffers from the same mental illness)
who is repeatedly traumatized, maybe raped, has neither stable residence nor
gainful pursuits, and is shuffled from one relatively uncaring service provider
to another will suffer a worsening mental disability and will have a much
bleaker future (likely including incarceration).31 The take-away message is that
prisoners with mental illness must be provided a safe place to serve their
sentences (they need to be safe from victimization, from the unrestrained
expression of their own most troubling proclivities, and from damaging
conditions such as crowding and solitary confinement) and need to be provided
an adequate level of mental health treatment and rehabilitation so that they are
prepared to succeed in the community after they are released. I will offer a
definition of “mental health” in correctional settings; outline the array of
services that are needed to support the mental health of prisoners; expand a
little on two components that I believe are critical if mental health services are
to be effective: intermediate treatment and suicide prevention; and end this Part
with a note about the issue of trauma.
A. A Definition of Mental Health in Corrections
How do we define “mental health” in the context of corrections?
Traditionally, mental health has been defined as the absence of mental illness,32
but that definition is limited in its usefulness in correctional contexts. I have
come to the conclusion that the definition of what we consider “healthy” must

29. See Breakey, supra note 18.
30. TIMOTHY HUGHES & DORIS JAMES WILSON, BUREAU OF JUSTICE STATISTICS,

REENTRY TRENDS IN THE UNITED STATES 7 (2004), available at http://www.bjs.gov/
content/pub/pdf/reentry.pdf.
31. See, e.g., WERNER M. MENDEL, TREATING SCHIZOPHRENIA (1989).
32. See Patricia Woods, Mental Health: More Than the Absence of Mental Illness,
ROCHESTER
HEALTH
HEALTHCARE
RESOURCE
GUIDE
(Nov.
2011),
http://www.rochesterhealth.com/healthnotes/articles/mental-health-more-than-the-absenceof-mental-illness (“When mental health is brought up in a conversation, most people’s initial
reaction is to think of it as the absence of a mental illness.”).

	
  

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begin with the set of human capacities we believe are required to succeed in the
community after one’s release from prison (in other words, modifying a very
old quote from Freud, the capacity “to love, work and play” without resorting
to illicit substances and running afoul of the law). I believe this definition is
superior to definitions based on, for example, the absence of a psychiatric
disorder, because the most important consideration in treating prisoners with
mental illness is the likelihood of their success at “going straight” after they are
released. Then, in the process of developing individual treatment plans,
correctional mental health staff need to assess patients on the caseload for the
capacities that need to be strengthened if he or she is to succeed after being
released. Of course, to be healthy one’s mental illness must be under control,
and thus compliance with mental health treatment and the ability to make basic
efforts to take care of oneself (one’s diet, dress, and ability to regulate sleep and
wake cycles) would head the list of capacities associated with mental health.
We would want to add the capacity to be on time for appointments, to act in
disciplined fashion, to be reliable and trustworthy, to set and work on goals, to
modulate emotions and do some reality-testing when irrational thoughts
emerge, to settle differences peacefully, to be able to follow through and
complete tasks, and so forth. The list of healthy capacities would become the
core aims of treatment throughout the mental health programs, and frequent
rewards, including expanded privileges and freedoms, would be granted when
prisoners reach a new level of emerging healthy capacities. In other words, we
would build into all prison mental health programs the learned capacities we
consider prerequisites for success at going straight after release.
B. The Requisite Components of Mental Health in Corrections
As in the community, a community mental health model in corrections
requires a spectrum of treatment modalities at different levels of intensity.
There needs to be sufficient screening, assessment, outpatient, inpatient, crisis
intervention, intermediate care, and case management for the population being
served. Clinicians need to form trusting therapeutic relationships with prisoners
suffering from mental illness. This is not so easy to accomplish in corrections.
Research shows that the more trusting and caring the therapeutic relationship,
and the more continuous it is over time, the more likely the patient is to comply
fully with treatment and function the best he or she can, given the level of
psychiatric disorder.33 This is the rationale for the continuous treatment team
and the assertive community treatment model in CMH, where a subpopulation
of the mental health caseload in the community is assigned to a team of

33. Gregory B. Teague et al., Evaluating Use of Continuous Treatment Teams for
Persons with Mental Illness and Substance Abuse, 46 PSYCHIATRIC SERVS. 689, 691-92
(1995) (indicating that “continuous treatment teams” were more effective than standard case
management programs at implementing substance abuse treatment).

	
  

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clinicians who have continuing responsibility for them (e.g., the clinicians will
visit patients at home if they fail appointments).34
Too often in correctional settings, because of relative budget shortfalls and
a resulting excessive caseload for clinicians, there is no time to establish an
adequate therapeutic relationship, or the prisoner is seen in episodic fashion and
shifted from one clinician to another each time he or she asks to be seen.
Instead, continuous therapeutic relationships must be formed. A related
requirement is “through care.” Provisions need to be made so that prisoners
entering the system are able to continue the mental health care they had been
receiving prior to incarceration, and prisoners being released need to have postrelease community care arranged in advance of their release. Likewise, when
prisoners are transferred from one correctional facility to another, including jail
to prison, or from one location to another within a facility, continuity of care
must be a high priority. For example, many departments of corrections provide
automatic continuation of previously prescribed psychotropic medications (a
“bridge prescription”) until the prisoner has an opportunity to meet with a
psychiatrist after being transferred to a different facility.
With these potential shortfalls in mind, and utilizing the standard of care in
the community as a reference, I will outline the components of a correctional
mental health program.35 As in the community, not all the components need to
be available in any particular location. For example, prisoners in need of
inpatient psychiatric treatment can be transferred to a hospital within the
department of corrections or to an outside hospital per prior arrangement. But
inpatient care needs to be available, and it is not acceptable to simply isolate an
acutely psychotic or suicidal prisoner in a segregation cell, perhaps with
psychotropic medications, when inpatient care is required. Required
components include:
• There must be a mental health screening assessment, including
rigorous suicide risk assessment, upon admission of a prisoner to the
Department of Corrections, upon transfer to a prison, and upon
admission to segregation; then there must be periodic mental health
assessments from that time onward or as needed (for example, when
the prisoner evidences a heightened risk of decompensation
(breakdown) or suicide). Suicide risk assessments must be rigorous
and not superficial. If staff ask prisoners, “Are you suicidal?” most
prisoners will answer, “no,” simply because they do not know the staff

34. See AM. PSYCHIATRIC ASS’N, Practice Guidelines for the Treatment of Patients
with Schizophrenia, in PRACTICE GUIDELINES FOR THE TREATMENT OF PSYCHIATRIC
DISORDERS: COMPENDIUM 299 (2000).
35. See NAT’L COMM’N ON CORR. HEALTH CARE, STANDARDS FOR HEALTH SERVICES IN
PRISONS (2008); see also AM. PSYCHIATRIC ASS’N, PSYCHIATRIC SERVICES IN JAILS AND
PRISONS (2d ed. 2000); FRED COHEN, PRACTICAL GUIDE TO CORRECTIONAL MENTAL HEALTH
AND THE LAW (2011); CORRECTIONAL PSYCHIATRY: PRACTICE GUIDELINES AND STRATEGIES
(Ole J. Thienhaus & Melissa Piasecki eds., 2007).

	
  

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member and do not want to be stigmatized as weak in the prison
setting. But if the screening staff member is well-trained to recognize
clues of suicide risk, and asks the prisoner a longer series of
questions—such as “Do you ever feel like nobody would care if you
were dead,” “Do you ever feel that life is not worth living,” “Have you
ever thought about ending your life?”—then the prisoner begins to get
a sense that this staff member is concerned and can be trusted to a
certain extent. There then is a good chance he will drop his guard and
start responding candidly to the questions.36 In other words, instead of
limiting the mental health assessment to one or two questions about
whether the prisoner is feeling suicidal, the screening instrument must
include ten or twenty questions related to self harm. Then, while the
staff member spends the time necessary to garner answers to the
multiple questions, there is an opportunity for sufficient trust to evolve
so that the prisoner becomes more forthcoming.
Prisoners must have a way to access mental health care when they feel
they need it. Thus, prisoners must be oriented about the mental health
services available, and there must be forms they can fill out to request
mental health care (even when they are in segregation); the
confidentiality of the process must be guaranteed so that the prisoner
seeking mental health services does not fall prey to stigma related to
being a mental patient; and there must be a timely and adequate
response to prisoners’ requests for mental health care.
Prisoners must be provided confidential and private meetings with
mental health staff. This means that when the prisoner is in segregated
housing, the intervention cannot occur “at cell-front.” It is not
acceptable for a mental health clinician to stand in front of a prisoner’s
segregation cell and conduct an interview about very sensitive matters
such as hallucinations and suicidal ideation. Prisoners in neighboring
cells and officers passing by too easily overhear the dialogue, and in
prison there can be very intense stigma toward prisoners with mental
health problems.37 In fact, in my experience, when mental health staff
interview prisoners on segregation units at cell-front, the prisoner tends
not to be forthcoming with responses and merely wants the mental
health staff member to go away so that there will be no negative
repercussions. In other words, the cell-front interview is unlikely to
uncover the information that is needed (e.g., that the prisoner is acutely
psychotic or suicidal). False negatives abound when assessment occurs
at cell-front, absent a private and confidential interview. The prisoner

36. Ole J. Thienhaus, Suicide Risk Management in the Correctional Setting, in
CORRECTIONAL PSYCHIATRY, supra note 35.
37. See KUPERS, supra note 3.

	
  

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also is entitled to private and confidential contact with mental health
providers.
There must be sufficient staff at every level of care so that prisoners in
need of mental health services are evaluated and treated in a reasonable
time and with a comprehensive treatment plan. There are staffing
ratios available; for example, the American Psychiatric Association
recommends that a full-time psychiatrist not be responsible for
prescribing psychotropic medications to more than 150 prisoners.38
But more important than any ratio of staff to patients is the adequacy
of the treatment being provided. In prisons where there are insufficient
numbers of mental health staff of all disciplines, typically the prisoners
on the mental health caseload are prescribed medications and receive
little or no psychotherapy of any kind or other
psychiatric
39
rehabilitation programming.
In other words, overreliance on
psychotropic medication is a clear sign of inadequate staffing levels
and inadequate staff training.
There must be a psychiatric inpatient hospital within the Department of
Corrections or available by contract for transfer of prisoners requiring
inpatient level of care. There must be an outpatient mental health
treatment program. There must be a crisis intervention program,
including suicide prevention and intervention. There must be an
intermediate level of care, a program in between the inpatient and
outpatient levels of care where prisoners suffering from mental illness
can be safely housed and can participate in a variety of mental health
treatment, psychiatric rehabilitation and case management services.
Intermediate care will be discussed in the next Part. Outpatient care
must be available to prisoners housed anywhere in the department of
corrections.
Documentation in the form of paper charts or electronic medical
records must meet the standard of care in the community. There must
be adequate medical records that include accurate and thorough
histories, mental status examinations, case formulations, diagnoses,
treatment plans that outline each phase of the treatment, explanations
of rationales for treatment interventions and changes in treatment,
medication monitoring, and continuity of care.
Inpatient crisis intervention, intermediate treatment, and outpatient
treatment must all include a variety of therapeutic modalities as well as

38. See AM. PSYCHIATRIC ASS’N, supra note 35, at 8.
39. WESLEY K. SOWERS ET AL., MENTAL HEALTH IN CORRECTIONS 49-50 (1999)

(“Currently, there are three major approaches to treating mental illness: (1) the use of
medications and other ‘biological’ interventions; (2) psychotherapy or ‘talking’ treatment,
and (3) rehabilitation . . . . Like the illnesses involved, treatment is complex, and usually
involves all three of these methods.”).

	
  

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case management (see #11 below). The prescription of psychotropic
medications alone is not, in itself, adequate mental health treatment at
any of these levels of care. Medications are often part of the needed
treatment but do not substitute for staff taking time to talk to prisoners
as part of multiple treatment and rehabilitation modalities. That is
clearly the standard of care in the community and is reflected in all
standards in the field of correctional mental health. For example, the
Task Force on Correctional Mental Health Care of the American
Psychiatric Association arrived at this formulation: “Mental health
treatment in the correctional setting, like that in any setting, is defined
as the use of a variety of mental health therapies, including biological,
psychological, and social. In the correctional setting the goal of
treatment is to alleviate symptoms of mental disorders
that
significantly interfere with an inmate’s ability to function in the
particular criminal justice environment in which the inmate is located.
It is obvious, therefore, that mental health treatment is more than the
mere prescribing of psychotropic medication, and psychiatrists should
resist being limited to this role.”40
There must be meaningful communication and collaboration between
mental health disciplines, including multi-disciplinary team meetings,
and between mental health, medical, and custody staff.
There must be adequate training for both mental health and custody
staff working in areas where mental health treatment is occurring.
Informed consent must be in place for all treatments, including
documented discussion of the patient’s right to refuse treatment,
including medications. Informed consent is a fundamental ethical
consideration in the practice of medicine, including psychiatry.
Patients have a right to accept or reject any recommended treatment,
and that right cannot be meaningfully exercised unless the decision is
informed: that is, the physician must explain to the patient the material
facts about the nature, consequences, and risks of the proposed
treatment, examination, or procedure; the alternatives to it; and the
prognosis if the proposed treatment is not undertaken. This
fundamental principle of the requirement of informed consent applies
in prisons just as it does in the community. The National Commission
on Correctional Health Care (NCCHC) articulates the requirement of
informed consent as follows: “Informed consent is the agreement by a
patient to a treatment, examination, or procedure after the patient
receives the material facts about the nature, consequences, and risks of
the proposed treatment, examination or procedure; the alternatives to
it; and the prognosis of the proposed treatment is not undertaken . . . .”
Further, “If at any point the patient indicates refusal, the medication

40. AM. PSYCHIATRIC ASS’N, supra note 35, at 15-16.

	
  

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must not be forced: the right to refuse treatment “is inherent in the
notion of informed consent . . . .”41
Case management, where the case manager tracks the progress of the
prisoner on the mental health caseload and meets with him or her at
regular intervals, is also a crucial component of mental health services,
but case management does not substitute for needed individual and
group psychotherapy.
Psychiatric rehabilitation programs are needed, including education
and vocational training programs as well as social skills training, anger
management, and substance abuse treatment. For example, a prisoner
suffering from schizophrenia needs quality contact with mental health
clinicians. In addition to individual and group psychotherapy, psychoeducation is an important component of treatment. The afflicted
individual must understand the nature and probable life course of the
illness, the benefits and side effects of medications, the dangers of
non-compliance, ways to recognize early or “prodromal” symptoms of
an impending psychotic episode or suicidal crisis, the value in seeking
help early when an episode seems to be evolving, the dangers of using
illicit substances, and ways to cope with the depression and suicidal
ideation that tend to accompany schizophrenia. In addition, the patient
needs help navigating the ordinary events of life, the activities of daily
living (ADL). All of this takes a certain amount of staff time, and there
must be an adequate amount of face-to-face talk at all levels of
treatment.

C. Intermediate Care: A Crucial Component of Mental Health Services
The importance of intermediate care, including what is generally called in
corrections a “stepdown mental health unit” or “residential treatment program,”
cannot be stressed too much. These are locations and programs within the
prisons where an intermediate level of mental health care is provided,
intermediate between inpatient and outpatient care. Intermediate care, or
residential treatment programs within the prisons, are equivalent to halfway
houses and day treatment or partial hospitalization programs in the community.
They are not staffed with round-the-clock nurses as inpatient units are, yet there
are psychologists, social workers, case managers, and nurses available on a
nearly daily basis. There are group therapy, milieu meetings, and case
management. Usually these are general population units, and the prisoners go
out from the unit to mingle with other prisoners on the yard and in the cafeteria.
But they have support from the mental health staff on the unit as well as
counseling when they experience troubling interactions with other prisoners off
the unit. In the best of cases, there are Correction Officers dedicated to work on
41. See NAT’L COMM’N ON CORR. HEALTH CARE, supra note 35.

	
  

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the intermediate care units. In other words, all officers on the intermediate care
unit have received special mental health training and elected to work on the
unit.
If enough intermediate care beds are provided to serve the population in
need, then many prisoners with mental illness will be provided a safe enough
environment and sufficient continuous mental health treatment to avoid
victimization and stay out of disciplinary trouble, and thus will not wind up as
often in punitive isolation units, nor as likely require protective custody.42 This
kind of intermediate care is relatively inexpensive; the cost of the mental health
staffing necessary to run such a program is far less than what is required for an
inpatient psychiatric ward or than the cost of security on a supermax solitary
confinement unit.43
Too many prisoners with serious mental illness get robbed, beaten, raped,
and eventually sent to long-term segregation. In segregation they suffer terribly,
often developing an exaggerated version of their already familiar pattern of
emotional breakdown.44 In the New York litigation Disability Advocates, Inc.
v. Office of Mental Health, we found too many very disturbed prisoners
warehoused in segregation cells, and as just one of several possible remedies
for that problem, the negotiated settlement included dedicating 305 additional
intermediate care beds.45 And indeed, prisoners with serious mental illness who
are fortunate enough to be admitted to an intermediate care unit in prison are
much less likely to be written a rule violation ticket and much less likely to be
sent to segregation.46
D. Suicide and Self-Harm
Suicide is a very big problem in jails and prisons. The rate of suicide
behind bars is much greater than in the community. It has been known for
decades that suicide is approximately twice as prevalent in prison as in the
community. Long-term consignment to segregation is a major factor in the high

42. See David Lovell, Evaluating the Effectiveness of Residential Treatment for
Prisoners with Mental Illness, 28 CRIM. JUST. & BEHAV. 83 (2001).
43. See Terry A. Kupers, Treating Those Excluded from the SHU, 12 CORRECTIONAL
MENTAL HEALTH REP. 49 (2010).
44. See Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in
Psychiatric Seclusion and Solitary Confinement, 8 INT’L J.L. & PSYCHIATRY 49 (1986); see
also Craig Haney, Mental Health Issues in Long-Term Solitary and
‘Supermax’
Confinement, 49 CRIME & DELINQ. 124 (2003); Peter Scharff-Smith, The Effects of Solitary
Confinement on Prison Inmates: A Brief History and Review of the Literature, 34 CRIME &
JUST. 441 (2006).
45. Private Settlement Agreement at 7, Disability Advocates, Inc. v. N.Y. State Office
of Mental Health (S.D.N.Y Apr. 27, 2007) (No. 02 Civ. 4002 (GEL)).
46. See Kupers, supra note 43; Lovell, supra note 42.

	
  

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suicide rate among prisoners.47 Recent research confirms that of all successful
suicides that occur in a correctional system, approximately fifty percent involve
the three to eight percent of prisoners who are in some form of isolated
confinement at any given time.48
Crisis intervention and suicide prevention must include a number of
components. The standards of the National Commission on Correctional Health
Care49 provide this list: Training of mental health and custody staff on
recognition and intervention regarding prisoners at risk; identification (i.e.,
screening at admission to the prison or the segregation unit as well as ongoing
suicide risk assessment as clinically appropriate); referral (to the appropriate
mental health practitioners and programs); evaluation (comprehensive mental
health examination including past suicidal and self-harm crises and incidents as
well as current stressors); housing (for example, transfer to an observation cell,
or after a period of observation, to a location where the patient will be safe and
appropriately monitored); monitoring (this means not
only intensive
observation during the immediate crisis, but also ongoing monitoring at
incrementally less frequent intervals as the prisoner demonstrates diminishing
risk of self-harm); communication (between custody and mental health staff
and also between the various mental health and medical
providers);
intervention (including but not limited to observation and monitoring since
meaningful talking psychotherapy must occur if the staff are to get to the issues
driving the prisoner to despair and contemplate or attempt suicide); notification
(of family members, and so forth); reporting (in the electronic medical record
according to widely accepted standards in the medical and mental health
fields); review (peer review, quality assurance, etc., with the assumption that
where programmatic deficiencies or lapses in staff interventions are discovered
they will be corrected); and critical incident debriefing (which are essential if
flaws in the mental health program are to be addressed).
Continuity of care is absolutely essential. Because fifty percent of prison
suicides involve the three to eight percent of prisoners in segregation or
isolative confinement, let us consider the case of a prisoner in segregation who
complains to an officer that he is suicidal. The officer refers him to mental
health staff, and he is transferred to an “observation cell,” often in the
infirmary. The observation cell typically has a large interior window to the
47. See Daniel P Mears & Jamie Watson, Towards a Fair and Balanced Assessment of
Supermax Prisons, 23 JUST. Q. 232 (2006); see also Patterson & Hughes, supra note 7;
Bruce Way et al., Factors Related to Suicide in New York State Prisons, 28 INT’L J.L. &
PSYCHIATRY 207 (2005).
48. Patterson & Hughes, supra note 7; Rusty Reeves & Anthony Tamburello, Single
Cells, Segregated Housing, and Suicide in the New Jersey Department of Corrections, 42
AM. ACAD. PSYCHIATRY & L. 484-88 (2014).
49. See NAT’L COMM’N ON CORR. HEALTH CARE, supra note 35. While accreditation
by the National Commission on Correctional Health Care (NCCHC) is not required, the
standards of the NCCHC do reflect a national consensus on what the standard of care in the
community requires as adapted to the correctional environment.

	
  

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hallway, or a transparent wall (usually constructed of lexsan or indestructible
plastic). Typically, the prisoner’s clothes are removed, and he is given a
suicide-proof gown and blanket. Usually there are no other amenities or
possessions in his observation cell, and he is not permitted out for recreation
while on observation. There is nothing to do all day. He is even more isolated,
idle, and uncomfortable in the observation cell than he would be in a
segregation cell. The prisoner eventually tells staff he is no longer suicidal. I
have spoken with many prisoners who have been in this situation, and most tell
me the boredom and discomfort in the observation cell is worse than what they
experience in their segregation cell, and mental health staff do not really talk to
them while they are in observation. So they eventually tell staff they are not
suicidal in order to effect a move back to their ordinary cell. And when suicides
actually happen in prison, they quite likely occur in the period of time after the
prisoner is transferred out of observation.50 Many successful suicides in prison
occur in segregation cells, where prisoners who have been released from
observation are returned. Then they are not closely enough monitored, staff do
not talk to them about the quality or causes of their despair, and when I
examine their medical record I do not find an adequate treatment plan that
covers the frequency of observation or the kind of treatment that is planned
subsequent to their release from observation.
An effective crisis intervention and suicide prevention plan would not in
most cases permit sending a prisoner back to a segregation cell after he is
discharged from observation but would require a detailed treatment plan that
includes recommendations on housing, the frequency of monitoring and the
kind of ongoing mental health treatment he will receive. This might include
medications and must include some talking psychotherapy so the mental health
staff can assess ongoing suicide risk and the prisoner can be helped to become
more functional.51
Sometimes self-harm involves suicidal intent; sometimes it does not. Both
kinds of self-harm are urgent problems in a correctional setting. I have very
rarely seen grown men cut themselves for non-suicidal reasons anywhere
except in a prison isolation unit. “Cutting” is a symptom usually seen in
adolescent girls and rarely occurs in adult males.52 But non-suicidal self-harm,
especially cutting of some part of the body, is very commonplace in prison
segregation units, and in my experience the worse the conditions of
confinement and the less the officers attend to prisoners’ urgent needs, the
more often prisoners cut themselves for non-suicidal reasons.
50. See Henry Schmidt III & Andre Ivanoff, Behavioral Prescriptions for Treating
Self Injurious and Suicidal Behaviors, in CORRECTIONAL PSYCHIATRY: PRACTICE GUIDELINES
AND STRATEGIES, supra note 35.
51. Id. at 6-1 to 7-23.
52. See Milton Z. Brown et al., Reasons for Suicide Attempts and Nonsuicidal SelfInjury in Women with Borderline Personality Disorder, 11 J. ABNORMAL PSYCHOL. 198
(2002).

	
  

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Often correctional mental health staff, viewing non-suicidal self-harm as
manipulative, pay little or no attention to the prisoners’ despair, anxiety, and
needs that are expressed in the self-harm. That is a deadly mistake. Nonsuicidal self-harm can be as dangerous as self-harm with suicidal intent. Nonsuicidal self-harm, a well-studied psychiatric phenomenon, is usually related to
a high degree of anxiety, often secondary to past or current traumas and
exacerbated by isolation and idleness, and it can result in unintended fatalities.
For example, many prisoners I have interviewed subsequent to a serious
episode of self-harm in a segregation setting report that they despair of ever
being released from their unbearable segregation cell, and often there is an
objective reality to their fear of never leaving segregation. That reality-based
despair drives many acts of self-harm. When a prisoner decides out of despair
to take his own life, the situation can be dire, and much clinical energy and
competence need to be expended on providing crisis intervention.
E. A Note About Trauma
In many correctional systems, because there are inadequate resources to
provide all the prisoners who need it with mental health treatment, the mental
health staff concentrate their limited resources on the “major mental illnesses,”
including schizophrenia, bipolar disorder, and major depressive disorder.
Prisoners suffering from those conditions do require mental health treatment.
But so do a lot of others suffering from diagnosed conditions that do not appear
on the short-list of “major mental disorders.” I mentioned non-suicidal selfharm in Part III.D. Often it is anxiety more than depression that drives acts of
non-suicidal self-harm. This means that a condition such as “anxiety disorder”
can lead to as much disability as can a condition such as bipolar disorder. In
other words, correctional mental health treatment needs to be available to all
prisoners who need help, not just to those whose diagnosis happens to fit a
short-list that qualifies for services.
Posttraumatic stress disorder is one of the conditions that is not among the
“major mental illnesses” but can cause severe disability, even suicide. A large
majority of prisoners have suffered multiple traumas throughout their life prior
to incarceration.53 Very often they require mental health treatment. In addition,
the traumas of prison life can add to their emotional troubles, too often serving
as a “reenactment” of earlier traumas or “retraumatization.”54 If adequate
treatment for PTSD were offered to prisoners, there would be far fewer
incidents of self-harm, and many of the treated prisoners would
more
53. See Terry A. Kupers, Posttraumatic Stress Disorder in Prisoners, in MANAGING
SPECIAL POPULATIONS IN JAILS AND PRISONS (Stan Stojkovic ed., 2005).
54. See Louise Bill, The Victimization and Re-Victimization of Female Offenders,
CORRECTIONS TODAY 107 (1998); see also Angela Browne et al., Prevalence and Severity of
Lifetime Physical and Sexual Victimization Among Incarcerated Women, 22 INT’L J.L. &
PSYCHIATRY 301 (1999); Kupers, supra note 53.

	
  

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effectively participate in rehabilitation programs and stay out of trouble while
incarcerated, and then would more likely succeed at “going straight” after being
released from prison.55
IV. SOME ISSUES UNIQUE TO CORRECTIONAL SETTINGS
Certain situations unique to correctional settings require further comment.
These include the mental health hazards of isolative confinement, the
prescription
of
medications
and
medication-over-objection,
the
“disturbed/disruptive” prisoner, use of force, “therapeutic cubicles” or what the
prisoners call “cages” for therapy sessions, and the issue of malingering.
Before I move on to those topics, a comment about general principles is in
order. Quality correctional mental healthcare is not only about an adequate
array of services or a complete list of conditions that require treatment. It also
is about more general principles for the provision of care: the conditions of
confinement need to be humane; the prisoners need to be treated with respect at
every turn; there need to be multiple modalities of treatment so that
individualized treatment plans can be created for each patient; in general,
rewards for positive behaviors are more effective than negative punishments; at
each level of security, and there need to be incremental phases wherein a
prisoner who successfully works on his or her program can be advanced to
higher levels of freedom and more amenities. There needs to be close
collaboration between mental health and custody staff, and discipline must be
handled in the context of that collaboration; in other words discipline must be
handled in the context of a treatment plan that emerges from the collaboration
of mental health and custody staff. Keeping these general principles in mind
throughout the discussion that follows, I will return to a fuller discussion of
general principles in Part VI, below.
A. Isolative Confinement and Supermax Security
One huge obstacle to the application of a community mental health model
in corrections is the widespread practice of long-term segregation and
supermaximum isolative confinement. Too often the prisoner who is involved
in mental health treatment, or who should be in treatment, acts inappropriately
or breaks rules and finds his or her way into the “SHU” (acronym for long-term
segregation or supermaximum security). Litigation in quite a few states has, to
a varying extent, succeeded in barring prisoners with serious mental illness
from long-term solitary confinement because of the known destructive effects
of forced isolation and idleness on individuals prone to mental illness.56 State

55. See Kupers, supra note 53.
56. Presley v. Epps, No. 4:05CV148-JAD, 2014 WL 1468087 (N.D. Miss. 2005);

Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001); Madrid v. Gomez, 889 F. Supp.

	
  

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legislatures have enacted or are considering legislation barring the department
of corrections from placing prisoners with serious mental illness in long-term
isolative confinement.57 I have written about the treatment programs that are
subsequently needed for the population thus excluded from isolated
confinement.58
Long-term confinement (three months or longer) in an
isolated
confinement unit is well-known to cause severe psychiatric morbidity,
disability, suffering, and mortality.59 It has been known for as long as solitary
confinement has been practiced that human beings suffer a great deal of pain
and mental deterioration when they remain in solitary confinement for a
significant length of time. Prisoners who are relatively stable when they enter
solitary confinement experience symptoms including anxiety, thinking
disorders, possibly paranoia, insomnia, mounting anger, and problems with
concentration and memory. Prisoners with pre-existing mental disorders, and
those with any proclivity to suffer from mental illness, tend to experience
exacerbations of their mental illness or experience despair and become
suicidal.60 These effects tend to be long-lasting or permanent. The recidivism
and parole violation rates for prisoners who “max out” their sentences in
isolated confinement, as well as for those who spent considerable time in
isolation, are extremely dire.61
If the community mental health model is to succeed in corrections, there
needs to be a comprehensive re-thinking about isolated confinement.62 The
entire notion of “worst of the worst” prisoners, who have to be locked up for
long periods in near 24/7 solitary cell confinement, is relatively new, having
caught on in American corrections in the 1990s. Of course there was always
“the hole,” usually a dark dungeon-like area of a prison where a prisoner would
be consigned for ten days or a few weeks for fighting or contraband. But never
before the advent of the supermax prison at the end of the twentieth century had
1146, 1265 (N.D. Cal. 1995); see also Erica Goode, Prisons Rethink Isolation, Saving
Money, Lives and Sanity, N.Y. TIMES (Mar. 10, 2012), http://www.nytimes.com/
2012/03/11/us/rethinking-solitaryconfinement.
57. Colorado, New York, Maine, and New Mexico have passed laws limiting
admission of prisoners with mental illness to solitary confinement, and Illinois, Nevada, and
Texas are considering comparable legislation. See Joe Palazzolo, Colorado Becomes Latest
to Back Ban on Solitary Confinement of Mentally Ill, WALL ST. J. (June 6, 2014, 3:55 PM),
http://blogs.wsj.com/law/2014/06/06/colorado-becomes-latest-to-back-ban-on-solitaryconfinement-of-mentally-ill.
58. See Kupers, supra note 43.
59. For reviews of this research, see Bruce Arrigo & Jennifer Leslie Bullock, The
Psychological Effects of Solitary Confinement on Prisoners in Supermax Units: Reviewing
What We Know and Recommending What We Should Change, 52 INT’L J. OFFENDER
THERAPY COMP. CRIMINOL. 622 (2008); Scharff-Smith, supra note 44, at 488-90.
60. See Scharff-Smith, supra note 44.
61. Lovell et al., supra note 23.
62. CRAIG HANEY, REFORMING PUNISHMENT: PSYCHOLOGICAL LIMITS TO THE PAINS OF
IMPRISONMENT (2006).

	
  

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so many prisoners been consigned to segregation for such extended periods.63
Whenever prison violence spikes and mayhem in the prisons seems imminent,
there are calls for more punitive measures, including deep-freeze segregation.64
There are a disproportionate number of prisoners with serious mental
illness in segregation units and supermax prisons.65 As soon as a significant
proportion of prisoners are consigned to long-term segregation, there are issues
about individual prisoners’ mental status. Did a mental disorder either cause the
unacceptable behavior that led to segregation as punishment, or are the
conditions in segregation damaging the prisoner with mental illness to the point
where he or she needs to be removed from solitary confinement? The mental
health clinician is tasked with separating prisoners with bona fide mental illness
who should be excluded from supermax isolation from those who are
“malingering” or “merely Axis II.”66 In states that bar consignment of prisoners
with serious mental illness from isolative confinement, the prisoners deemed
authentically “disturbed” are removed from isolation and, one hopes,
transferred to the level of mental health treatment their condition requires, be it
inpatient, outpatient, or intermediate care. Those whose mental disorders are
considered inauthentic are left to the punishments meted by custody staff.
Of course, once a prisoner with mental illness is consigned to isolative
confinement, providing that prisoner with mental health treatment becomes
very problematic. On the one hand, staff believe the isolation and control are
warranted because, according to an old adage in institutional psychiatry, one
cannot conduct psychotherapy or psychiatric treatment if the situation is not
safe, and it is not safe if either the clinician or the patient has valid reality-based
reasons for feeling unsafe during the encounter. On the other hand, isolation is
well-known to exacerbate mental illness. Mental health clinicians err when they
emphasize the need to keep patients in isolation to provide safety, and they give
too little attention to the mental damage caused by the isolation. Clinicians
must venture into discussions of security issues, if only to better guarantee a
safe place to practice and a safe place for their patients to serve their time while
minimizing the negative effects of penal isolation.67 In order to address this
dilemma in an effective and humane way, mental health clinicians need to
63. LORNA RHODES, TOTAL CONFINEMENT: MADNESS AND REASON IN THE MAXIMUM
SECURITY PRISON (2004); SHARON SHALEV, SUPERMAX: CONTROLLING RISK THROUGH
SOLITARY CONFINEMENT (2009).
64. Corey Weinstein, Even Dogs Confined to Cages for Long Periods of Time Go
Berserk, in BUILDING VIOLENCE: HOW AMERICA’S RUSH TO INCARCERATE CREATES MORE
VIOLENCE 118-23 (John P. May & Khalid R. Pitts eds., 2000); HUMAN RIGHTS WATCH, COLD
STORAGE: SUPER-MAXIMUM SECURITY CONFINEMENT IN INDIANA 18-20 (1997).
65. HUMAN RIGHTS WATCH, supra note 64.
66. Terry A. Kupers, Malingering in Correctional Settings, 5 CORRECTIONAL MENTAL
HEALTH REP. 6 (2004).
67. Fred Cohen provides a lucid forum on the topic in a Special Issue of Correctional
Law Reporter. See Fred Cohen et al., Long-Term Penal Isolation: A Problem Solving
Symposium, 26 CORRECTIONAL L. REP. 1 (2014).

	
  

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advocate for close collaboration between custody and mental health staff. There
needs to be cross-training and cross-thinking. Clinicians need to know about
security issues, and officers who work with prisoners suffering from mental
illness need to know a certain amount about mental illness and suicide.68
Research is beginning to prove that supermaximum isolation units do not
achieve the end of reduced prison violence.69 In fact, the
collaborative
Mississippi study I participated in concludes that downsizing supermax and
segregated confinement actually reduces violence in the prisons.70 The
punishment society has meted through the courts for felonies is captivity in a
penal institution.71 The punishment includes loss of one’s family, one’s work,
and one’s freedom. Solitary confinement is not part of a prison sentence; it is
an additional punishment and restriction mandated by the administration of the
prisons and jails. Today, if a correctional system elects to warehouse a
significant number of prisoners in solitary confinement for long periods, then,
in the opinion of a growing number of courts and state legislatures, at the very
least that system must exclude prisoners with serious mental illness.72 There
also is a duty to offer effective programming at the end of a stint in solitary
confinement to help the prisoner isolated and idle for so long to learn or relearn the social skills and personal capacities that long-term isolated
confinement tends to destroy or weaken.
Instead of simply modifying long-term isolation by excluding prisoners
with mental illness and providing transitions back to the general population or
to the community, I strongly advocate, and include in my list of remedies
during trial testimony, that there be much less solitary
confinement
altogether.73 Of course there are certain prisoners who need to be in isolation
for a limited period for the purpose of quarantine—they present a clear danger
of violence and chaos if they are permitted to mix with others in general
population. Even there, though, with professional classification officers doing
their job and keeping enemies apart, there are not many individuals who really
need to be isolated for long periods of time. I believe the current population

68. As I enter collaborative discussions about security and safety, I have to disclose
early on that I believe there is excessive punishment going on in the jails and prisons,
punishment for punishment’s sake, with no valid “penological objective.”
69. See Chad S. Briggs et al., The Effect of Supermaximum Security Prisons on
Aggregate Levels of Institutional Violence, 41 CRIMINOLOGY 1341 (2003).
70. See Terry A. Kupers et al., Beyond Supermax Administrative Segregation:
Mississippi’s Experience Rethinking Prison Classification and Creating Alternative Mental
Health Programs, 36 CRIM. JUST. & BEHAV. 1037 (2009).
71. Thanks to Henry W. “Hank” Skinner for pointing out this fact to me.
72. Presley v. Epps, No. 4:05CV148-JAD, 2014 WL 1468087 (N.D. Miss. 2005);
Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001); Madrid v. Gomez, 889 F. Supp.
1146, 1265 (N.D. Cal. 1995).
73. See Expert Report of Terry Kupers, Dockery v. Epps, No. 3:13-cv-326 TSL-JCG
(S.D. Miss. 2013), available at https://www.aclu.org/prisoners-rights/dockery-v-epps-expertreport-terry-kupers.

	
  

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consigned to solitary confinement in prisons and jails could be greatly reduced
with no negative outcome in terms of the safe functioning of the institutions.
One of the main reasons I would greatly reduce the use of isolative
confinement is that the warehousing of prisoners in segregation cells further
undermines the quality of relationships that are possible between prisoners and
staff. When an officer’s main contact with prisoners occurs during the passage
of a food tray through a slot in the cell door, there is not much opportunity to
talk about much. One officer is exchangeable with another; the passing of a
food tray is something any officer can do. So the staff move around, and
prisoners have less and less opportunity to talk to the officers who are charged
with providing for their wellbeing. A widening gap opens between the officers
and the prisoners. I truly believe that many of the assaults on officers that occur
in supermax prisons are a thin veil over a prisoner’s compelling need to have
human contact, even if it has to be negative. I am afraid the quality of
relationships between officers and prisoners has deteriorated in recent decades
precisely because so many prisoners are in isolation. Newer officers express
fear when they walk among prisoners; they prefer having the prisoners “locked
down.” But mental health treatment requires a trusting therapeutic relationship
that deepens over time. To my knowledge, nobody has found a way to do that
when the prisoner is experiencing near total isolation and idleness in a
segregation cell. This problem is another important reason why mental illness
becomes so florid in isolation units—there can be no mental health treatment
involving a deepening therapeutic relationship.
The most obvious risks of long-term isolative confinement are suicides and
repetitive self-harm. But in addition, as a general rule, the longer an acute
episode of mental illness goes untreated—in other words the longer the
individual is left to be irrational and emotionally out of control—the worse the
prognosis. Thus, placing prisoners prone to serious mental illness in isolation,
where their disorder is exacerbated, and failing to provide them with adequate
mental health treatment are quite likely to result in permanent psychiatric
injury.
For the purpose of illustration, think of schizophrenia. Generally the illness
follows a waxing and waning course over a lifetime; that is, there are
decompensations (“break-downs”) and remissions. As a general rule, the longer
the period of decompensation lasts, and the less functional the patient is during
the remission phase, the worse the prognosis. If the acutely psychotic
individual can quickly undergo effective mental health treatment in a safe and
health-sustaining setting, a remission is likely. The shorter the psychotic
episode and the longer and more complete the inter-episodic remission, the
better the prognosis. On the other hand, for the individual who never really
attains remission, or is left in harsh conditions to experience acute psychosis for
a lengthy period, the eventual prognosis is much more dire.
Thus, when a prisoner in long-term segregation suffers a psychotic episode
and receives little or no treatment except for psychotropic medications, the
isolation and idleness to which he is subjected exacerbate his mental illness.

	
  

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Isolation and idleness, especially when accompanied by staff neglect, excessive
use of force, and other harsh conditions of confinement, exacerbate mental
illness and make the disability and prognosis much more severe. Often such an
individual remains in a psychotic state for months or even years. The fact that
he does not experience remission in a relatively short time means that his
prognosis is going to be much worse than if he had been removed from
isolation and provided adequate mental health treatment. The most severe and
disabling cases of psychosis, mania, and depression that I have ever
encountered in over forty years of psychiatric practice are in prisoners who
have been held in long-term segregation.
In some departments of correction, prisoners with serious mental illness are
left in isolative confinement in supermax units, but their treatment program is
supplemented with two or more hours out of their cell, often in “therapeutic
cubicles,” during which time they are involved in group activities or psychoeducational classes. It is my considered opinion that this kind of mental health
treatment does not ameliorate the very damaging effects of isolative
confinement. In addition, the use of “therapeutic cubicles,” which I discuss
more in depth below, is problematic.
B. Medications and Medication-over-Objection
It is very dangerous to give medications when no other treatment
modalities are available. Quite often, when medications are the sole form of
psychiatric treatment, the dosages of the medications have to be incrementally
increased to control the patient’s behavior if not to resolve the worst symptoms.
This is because there is no therapeutic process in effect that might relieve the
target symptoms of mental illness. In general, medications alone will not
resolve many of the symptoms, nor will they improve functioning and
prognoses. On the other hand, when medications are administered in the
context of a full treatment program (i.e., along with individual and group
psychotherapy and therapeutic programs such as vocational rehabilitation or art
therapy), then the medications play an important role as part of the treatment.
When medications are given in the absence of other mental health
treatment modalities, they can have the effect of merely tranquilizing or
sedating the patients, and then long-term prognoses worsen. This was a big
problem in the state hospitals of the 1940s and 1950s, which were termed
“asylums” and “snakepits.” Many patients were merely turned into chronic
patients or “zombies” in the state hospitals through the administration of high
doses of anti-psychotic medications.74 It was the public’s outrage about the
warehousing and ill-treatment of mental patients in the asylums that brought on

74. See ERVING GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL
PATIENTS AND OTHER INMATES (1962).

	
  

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“de-institutionalization” and the down-sizing of state mental hospitals since the
1960s.75
Medications must be prescribed carefully, and there must be close
monitoring by the psychiatrist to gauge effectiveness and tolerance and to
prevent negative side effects, including excessive sedation. There must be
informed consent, and of course this means patients must have a right to refuse
the treatment. There are instances where the patient must be involuntarily
treated, or prescribed and administered medications over the patient’s
objections.
The National Commission on Correctional Health Care (NCCHC)
publishes standards for the involuntary administration of medications in nonhospital settings. The NCCHC standards reflect the standard of medical care in
the community. The NCCHC Standard on Forced Psychotropic Medication
requires that before administering medication involuntarily, “[a]ll less
restrictive or intrusive measures have been employed or have been judged by
the treating physician or psychiatrist to be inadequate. . . . The physician or
psychiatrist clearly documents in the medical record the inmate’s condition, the
threat posed, and the reason for the proposed forcing of medication, including
other treatments attempted.”76 The Code of Federal Regulations, while
controlling practices in the Federal Bureau of Prisons and not binding on state
corrections systems, also reflects the community standard of care. It provides
that “[d]uring a psychiatric emergency, psychotropic medication may be
administered when the medication constitutes an appropriate treatment for the
mental illness and less restrictive alternatives (e.g., seclusion or physical
restraint) are not available or indicated, or would not be effective.”77
Physicians are permitted to order involuntary medications on an emergency
basis for a certain number of hours; depending on the state or jurisdiction, that
might be 24, 48, or 72 hours.78 If there is not an emergency, or after 72 hours
elapse, due process is required, including an “involuntary medication hearing,”
with the prisoner notified in writing twenty-four hours prior to the hearing.79
Harper v. Washington is the controlling legal precedent for non-emergency
involuntary medication in prison.80 Harper requires a due process hearing
before an impartial hearing committee that does not include members of the

75. Walid
Fakhoury & Stefan Priebe,
Deinstitutionalization
and
Reinstitutionalization: Major Changes in the Provision of Mental Healthcare, 6 PSYCHIATRY
313 (2007).
76. NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, CORRECTIONAL MENTAL
HEALTH CARE: STANDARDS & GUIDELINES FOR DELIVERING SERVICES 146 (2003).
77. 28 C.F.R. § 549.46 (West, Westlaw through Aug. 12, 2011).
78. NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, supra note 76, at 146.
79. Id. (“For guidance in forcing psychotropic medications on a more frequent basis or
as part of an ongoing treatment plan, staff are referred to current case law . . . .”) (citing
Harper v. Washington, 494 U.S. 210 (1990)).
80. Harper v. Washington, 494 U.S. 210 (1990).

	
  

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treatment team, advance notice to the prisoner of the hearing, and the prisoner’s
right to argue against involuntary medications.
Of course, policies and law do not permit the administration of medications
that act for longer than two weeks such as antidepressants or Haldol Decanoate,
because the time limit on emergency administration is seventy-two hours, and
the time limit on an order for medication-over-objection from the Special
Hearing Committee is fourteen days. Involuntary medications are not permitted
merely because a prisoner refuses to take his prescribed medications (remember
that according to guidelines for informed consent, the prisoner has the right to
refuse treatment), and involuntary medications are never to be administered as
punishment.
In a prison where psychotropic medications are the only mental health
intervention—that is, facilities where there are no other treatment modalities—
involuntary medications should be barred precisely because no less restrictive
interventions are available, so they cannot have been tried and found to fail. In
fact, clinical research shows that where there is a good therapeutic relationship
between the patient and mental health staff, involuntary medications are very
rarely needed.81 According to the American Psychiatric Association’s 1999
“Mandatory Outpatient Treatment Resource Document,” “[e]mpirical studies of
mandatory outpatient treatment tend to indicate that outcomes would not be
significantly improved by allowing forcible administration of medication, and
that, even if available, forced medication will rarely be necessary in clinical
practice.”82 In the vast majority of cases, by developing a
therapeutic

81. See, e.g., Jennifer C. Day et al., Attitudes Toward Antipsychotic Medication: The
Impact of Clinical Variables and Relationships with Health Professionals, 62 ARCHIVES
GEN. PSYCHIATRY 717 (2005); Brandon A. Gaudiano & Ivan W. Miller, Patients’
Expectancies, the Alliance in Pharmacotherapy, and Treatment Outcomes in Bipolar
Disorder, 74 J. CONSULTING & CLINICAL PSYCHOL. 671 (2006); Margaret Weiss et al., The
Role of the Alliance in the Pharmacologic Treatment of Depression, 58 J. CLINICAL
PSYCHIATRY 196 (1997); Rosemarie McCabe et al., The Therapeutic Relationship and
Adherence to Antipsychotic Medication in Schizophrenia, PLOS ONE (Apr. 27, 2012),
http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0036080.
82. AM. PSYCHIATRIC ASS’N, MANDATORY OUTPATIENT TREATMENT RESOURCE
DOCUMENT 8 (1999). The American Psychiatric Association, in its 1999 Mandatory
Outpatient Treatment Resource Document, states: “Studies have shown that mandatory
outpatient treatment is most effective when it includes services equivalent to the intensity of
those provided in the assertive community treatment or intensive case management models.
States adopting mandatory outpatient treatment statutes must assure that adequate resources
are available to provide effective treatment.” Id. at 1. For example, California Welfare and
Institutions Code §§ 5325-5337 permits assisted outpatient treatment and involuntary
medications with due process only in counties that prove they supply a variety of mental
health treatment modalities and services—including multiple modalities of psychotherapy,
case management, home visits and so forth—available to the population being involuntarily
treated, and then only after all less restrictive interventions have been exhausted. Cal. Welf.
& Inst. §§ 5325-5337 (West, Westlaw through 2014 Reg. Sess.); see John Menninger,
INVOLUNTARY TREATMENT: HOSPITALIZATION AND MEDICATIONS 3, http://www.brown.edu/
Courses/BI_278/Other/Clerkship/Didactics/Readings/INVOLUNTARY%20TREATMENT.

	
  

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relationship with the patient while engaged in individual and group
psychotherapy and other modalities of treatment and psychiatric rehabilitation,
the staff are in a position to influence her and motivate her to comply with
treatment, even in emergency situations, so very little or no involuntary actions
are needed.83
The converse also is definitely true. When involuntary medications are
utilized more often than on rare occasions, it is almost certain that there are
staff shortages and a lack of adequate training on the part of mental health staff,
leading to inadequate treatment and the inability of mental health staff to foster
patients’ compliance with treatment. In states where involuntary medications
are permitted outside of psychiatric hospital settings, there is a requirement that
comprehensive mental health services be available.84
C. The Disturbed/Disruptive Prisoner
It is the responsibility of custody as well as mental health staff to write
disciplinary tickets or RVRs (rule violation reports). This sometimes puts
mental health staff in the difficult position of deciding which inappropriate
behaviors on the part of prisoners with serious mental illness are related to their
mental illness—for example, a command hallucination or voice commanding
the prisoner to break the rule or hit someone, or an irresistible, anxiety-driven
impulse to cut oneself—as opposed to willful acts deserving of punishment. I
believe this is a useless distinction. In previous eras (before the 1990s), a
distinction was typically made between “the bad and the mad.” The bad were
prisoners with behavior problems deserving of punishment, and the mad were
those with a serious mental illness, whose misbehaviors were to be viewed as
symptoms. There were many problems with that dichotomy, including the fact
that the consignment of individual prisoners either to punitive segregation or a
more intensive level of mental health treatment often played out along racial
lines; that is, too often the prisoner of color was sent to punitive segregation
while the white prisoner was referred to mental health treatment. Meanwhile,
the same individuals could be mad and act bad. Were their bad acts symptoms
of their mental illness, or were they simply individuals with mental illness who
would act inappropriately? Hans Toch pioneered the contemporary consensus
in corrections that prisoners with serious mental illness can be both mad and
bad, and the distinction is not actually very important because it is the entirety
of the person, the mad and the bad, that needs to be taken into account as we
proceed to devise a combined treatment and management plan that integrates

pdf (last visited Nov. 13, 2014) (“Emergency medications should work acutely (e.g.,
neuroleptics and benzodiazepines as opposed to antidepressants and mood stabilizers) and
must target the serious presenting symptoms.”).
83. See AM. PSYCHIATRIC ASS’N, supra note 82.
84. Id.

	
  

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custody staff’s concerns about security with mental health staff’s concerns
about treatment issues. Toch coined the term “disturbed/disruptive” and
provided treatment and management recommendations for mental health staff
as well as security staff.85
When prisoners with serious mental illness break rules, especially if they
assault staff, they tend to be “flunked out” or ejected from treatment programs
such as intermediate mental health care programs. Then they are once again at
very high risk of running into disciplinary problems and winding up in longterm punitive isolation. Long-term punitive isolation, however, is banned by
court order for prisoners with serious mental illness in many jurisdictions.86 In
my view, intermediate care and other treatment programs fail to the extent they
eject “disturbed/disruptive” prisoners, thereby leaving them to be punished for
their unacceptable actions and eventually consigned to isolative confinement.
Instead, prisoners with mental illness who are in step-down mental health
programs or intermediate care and subsequently break rules and assault staff
need to be retained within the mental health program, where the consequences
for their disruptive or assaultive behaviors can be handled in the context of a
mental health treatment plan—again, utilizing a collaborative approach by
custody and mental health staff. This means that there must be, in each
department of correction, a step-down mental health treatment unit that can
operate at a high level of security.
With Toch’s help, we now know how to provide mental health treatment
for “disturbed/disruptive” prisoners. There need to be incremental rewards for
appropriate behaviors and a lot of encouragement as the patient traverses the
incremental steps or phases of the program toward greater freedoms and
amenities. For example, if custody staff believe the patient poses a security risk
in congregate activities, he or she can be released from a cell with staff
supervision and permitted to go alone down the hallway to a day room or
library. Next, after he succeeds at that level or phase of treatment, he can be
offered the opportunity to be in the day room or library or on the recreation
yard with one or two other inmates, as long as he can prove over a certain
length of time that he can refrain from self-harm, angry verbalizations toward
staff and others, and threats of violence. The best option, to the extent possible,
is to offer positive rewards for appropriate behavior rather than negative
consequences and punishments for unacceptable behavior. More time in the
day room, recreation, and so forth can be among the rewards, as can more
possessions including art materials, more commissary, participation in activities

85. See Hans Toch, The Disturbed Disruptive Inmate: Where Does the Bus Stop?, 10
J. PSYCHIATRY & L. 37 (1982).
86. Presley v. Epps, No. 4:05CV148-JAD, 2014 WL 1468087 (N.D. Miss. 2005);
Jones ‘El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001); Madrid v. Gomez, 889 F. Supp.
1146, 1265 (N.D. Cal. 1995).

	
  

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and programs the prisoner likes, and opportunities to participate in congregate
activities.
Of course, there needs to be close collaboration between mental health and
custody staff to arrive at a collaborative treatment plan and management plan
for difficult-to-manage prisoners. Toch and Adams explain that the more
difficult the prisoner is to manage and treat, the more collaborative meetings
need to occur to devise a workable treatment and management plan.87 It is
important to assign one or a few mental health staff and custody staff to work
consistently with the prisoner; then, in the context of a deepening, trusting
therapeutic relationship, even the most recalcitrant prisoner can be encouraged
to cooperate with the psychopharmacological component of treatment.
Dialectical behavior therapy, a modality that has proven effective with difficult
“disturbed/disruptive” prisoners, requires frequent and thorough case
discussions across multiple disciplines precisely because this kind of
collaboration is needed to help staff cope with the difficult feelings treatment of
these patients evokes.88
D. Use of Force
Prisoners suffering from serious mental illness are, on average, subject to a
disproportionate amount of use force on the part of custody staff. The term “use
of force” denotes physical restraint, shooting with pepper spray or mace, or
otherwise subduing a prisoner. Often this has something to do with the fact that
custody staff, especially if they have not been trained adequately in working
with prisoners on the mental health caseload, become impatient with disturbed
prisoners and relatively insensitive to their psychiatric disabilities. Such
prisoners’ rule-breaking and recalcitrant behavior angers the officers, and too
often officers lose any objective sense of the “penological objective” involved
in their use of force and go overboard. Excessive force is that which goes
beyond the penological objective, such as resorting to force before talking has
been tried, kicking a prisoner after he has already been subdued, or shooting a
prisoner with a second round of immobilizing gas before the prior round has
had time to take effect.
I will illustrate the notion of “excessive force” with incidents where a jail
prisoner with serious mental illness is sprayed with immobilizing gas as part of

87. HANS TOCH & KENNETH ADAMS, ACTING OUT: MALADAPTIVE BEHAVIOR IN
CONFINEMENT (2002).
88. See MATTHEW MCKAY ET AL., DIALECTICAL BEHAVIOR THERAPY WORKBOOK:
PRACTICAL DBT EXERCISES FOR LEARNING MINDFULNESS, INTERPERSONAL EFFECTIVENESS,
EMOTION REGULATION & DISTRESS TOLERANCE (2007); Marsha M. Linehan et al.,
Dialectical Behavior Therapy for Patients with Borderline Personality Disorder and DrugDependence, 8 AM. J. ADDICTIONS 279 (1999); Marsha M. Linehan et al., Interpersonal
Outcome of Cognitive Behavioral Treatment for Chronically Suicidal Borderline Patients,
151 AM. J. PSYCHIATRY 1771 (1994).

	
  

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a procedure known as a “cell extraction.” Several correction officers are going
to rush into an uncooperative prisoner’s cell and perform a “take-down.” As in
mental hospitals, when a ward needs to be subdued, several staff members team
up to accomplish the “take-down.” But in jail, before officers will perform a
forcible “take-down,” they spray the prisoner with immobilizing gas in his cell.
The hope is that the prisoner who has been sprayed will give up and submit to
“cuffing” or “returning the food tray,” and further physical force will not be
needed. But the spraying of immobilizing gas can in itself constitute “excessive
force.” I have been in litigation involving excessive force allegations and
discovered that, indeed, officers shoot the prisoner with two or even three
bursts of immobilizing gas, without even waiting enough time between bursts
to determine if the previous spraying has been effective. I have seen videos of
prisoners with serious mental illness being sprayed so many times with
immobilizing gas that they lay motionless on the floor between gasps for
breath.
Use of immobilizing gas in this fashion is an entirely unacceptable
practice; it runs a very high risk of negative medical consequences, including
death, and very serious and long-lasting psychiatric consequences, including
exacerbation of mental illness and the likely development of posttraumatic
stress disorder (PTSD) or other trauma-related psychiatric disorders and
disabilities. Sheriff departments need to write policies that require officers
intent on using force against prisoners with mental illness to first do their best
to reason with the recalcitrant prisoner, then to summon the shift commander
and a mental health clinician, to each talk with the prisoner to see if a solution
to the impasse other than the use of force can be negotiated. At the very least,
this type of policy provision mandates a “cooling off period,” and, one hopes,
in very many cases the use of force can be averted.
Custody staff too often attempt to manage the use of force against a prisoner
with serious mental illness with very little participation by mental health staff.
This is an unacceptable practice. Inmates with serious mental illness often do
not comprehend orders. Their delusions, hallucinations, and oppositional
behavior can be symptoms of their mental illness and preclude their ability to
follow orders. Their symptoms need to be managed as a mental health
treatment issue, and absent a dire emergency requiring the urgent use of force,
these prisoners’ recalcitrant stand should not trigger the use of force. It is quite
likely that some of the inmates did not even entirely understand that they were
being subjected to immobilizing gas in order to influence them to “cuff up.” It
is simply cruel to administer repeated doses of the gas.
Not only is the use of force unlikely to improve inmate behavior, but it also
is very likely to be extremely harmful. The use of immobilizing gas, or actually
any form of force, on inmates with mental illness is likely to have very

	
  

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damaging effects on their psychiatric condition, disability, and prognosis.89 A
delusional inmate will likely incorporate into his delusional system the intrusion
into his cell of deputies wearing padding and gas masks; for example, he will
believe that the same external enemies who he already knew were out to harm
him are now responsible for his being attacked and sprayed with gas. And just
about any inmate who is subjected to multiple sprayings with immobilizing gas
and other uses of force will be traumatized by the incidents. Since prisoners as
a group have suffered many more prior traumas than the general population,
they are very vulnerable to “retraumatization” and even the emergence of
PTSD following a new trauma such as a cell extraction with the use of
immobilizing gas.
Of course the best way to ward off incidents of excessive force is to have
in place adequate mental health treatment, and then, in the immediate prelude
to officers’ use of force, mental health staff should be called upon to interact
with the prisoner. In too many cases, the prisoner who is eventually the target
of use of force had not been receiving adequate mental health treatment in the
period just prior to the use-of-force incident. Had the prisoner been receiving
adequate treatment, he likely would have been taking prescribed medications
that would lessen the severity of symptoms and would have previously formed
a therapeutic relationship with mental health staff who would then be in a better
position to talk him into complying with the order to cuff up. In fact, when
officers are considering the use of force with prisoners who are suffering from
serious mental illness or are enrolled in mental health treatment, mental health
staff should be asked to talk to the prisoner first. Their specialized training
makes them better-equipped than officers are to handle inmates suffering from
mental illness. Where possible, the mental health staff assigned to the particular
jail module should be tasked with talking to the prisoner, as individuals with
severe mental illnesses are more likely to cooperate with mental health staff
members with whom they have a pre-existing relationship.
The general principle that underlies the standard of care in the community
as well as correctional health care standards, including those of the National
Commission on Correctional Health Care (NCCHC), is that the use of force
must be a last resort, and it should happen only very rarely when all other, less
restrictive options have been attempted and failed. The first option, always, is
to talk, perhaps to negotiate, compromise—whatever it takes to avoid violence.
E. Therapeutic Cubicles
In quite a few state departments of correction, “programming cubicles” are
used in isolative confinement units to restrain prisoners while they participate

89. See Steve Martin, Sanctioned Violence in American Prisons, in BUILDING
VIOLENCE: HOW AMERICA’S RUSH TO INCARCERATE CREATES MORE VIOLENCE 113-17 (John
P. May & Khalid R. Pitts eds., 2000).

	
  

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in group therapy or classes.90 The cubicles are approximately the shape of a
telephone booth, but they are made of indestructible metal and lexsan
(unbreakable plexiglass). Four or five of these booths are bolted to the floor in
a group therapy room. Prisoners are brought from their segregation cells one at
a time in shackles and locked into a booth. When the booths are all occupied,
the counselor or teacher comes into the room and conducts the session.
Prisoners call these booths “cages” and tell me that when they are placed inside
of them, they feel they are being treated like animals.
Often correctional mental health staff arrive at the point where it seems to
them that all prisoners in segregation units need to be severely restrained
because their classification level shows they pose an imminent risk of harm to
staff. Some do, but I find that most of the prisoners currently confined in
supermax units are actually perfectly capable of having “contact visits” with
clinicians and acting appropriately. I report that conclusion after investigating
dozens of such units in many states and finding that only very rarely do I
encounter a prisoner with whom I cannot safely sit down with for a face-to-face
interview.
Security staff are very good at identifying that rare prisoner who poses a
danger of assault during a contact visit, and they advise me not to meet with
those few prisoners without officers present. In other words, one-size security
does not fit all. When across-the-board security measures are designed to
restrain the most disturbed, assaultive prisoner, then inevitably a large number
of prisoners (all prisoners in the supermax who qualify for congregate
programs) will be forced to endure what essentially constitutes excessive
restraint for most of them. This has led some departments of corrections to
construct a large number of therapeutic cubicles, which then led automatically
to restraining all supermax prisoners in them whenever they are scheduled to
see a clinician, individually or in group.
When prisoners are treated as if they are out of control (i.e., they are
saddled with severe restraints, including programming cubicles), they feel
demeaned and become angry about the way they are being treated. A selffulfilling prophecy is thereby activated whereby they actually may become
more disruptive and assaultive.91
Programming cells, as currently utilized in average practice, worsen two
compelling problems with supermaximum, long-term isolative confinement:
the “dead time” phenomenon, where the prisoner despairs of ever winning
greater freedom and amenities, and the growing distance and alienation
between prisoners and staff. As for the first of these problems, I advocate

90. Jeffrey Metzner, The Use of Programming Cells in the Treatment of Seriously
Mentally Ill Inmates in Supermax Prisons, 13 CORRECTIONAL MENTAL HEALTH REP. 90
(2012).
91. Kate King et al., Violence in the Supermax: A Self-Fulfilling Prophecy, 88 PRISON
J. 144, 161-63 (2008).

	
  

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multiple, relatively short phases within any SHU term, wherein the prisoner can
achieve incremental behavioral objectives and advance steadily in the quest to
return to general population. “Dead time” is the opposite of this approach, a
lengthy course of isolation and idleness with no opportunity for the prisoner to
improve his plight. The resulting despair, of course, plays a major part in the
shockingly high rate of suicide in segregation units. Programming cells have a
less obvious but still highly destructive impact on staff perceptions, confirming
the view that these are very dangerous prisoners who need to be he handled
very forcefully.
In the psychiatric literature on seclusion and restraint, guidelines require
that all alternatives to more severe forms of restraint first must be tried and
exhausted, and that the patient then needs to be placed in the least restrictive
environment for the shortest time that will accomplish the maintenance of
safety and permit the treatment to proceed.92 Of course adjustments need to be
made for correctional milieus, but the psychiatric guidelines remain relevant. If
this kind of restraint were possible in corrections, I would have no objection to
the use of programming cubicles in very rare circumstances as a time-limited
means to help a prisoner advance in the phase program toward greater freedom
and amenities. In practice, I have not seen any department of corrections where
use of programming cubicles is rare or short-term.
I find that the use of therapeutic modules or programming cubicles tends to
exacerbate the distance and alienation between prisoners and staff in
contemporary corrections.93 Over several decades there has been a diminution
of everyday interactions between prisoners and staff. At every level of security,
compared to just a few decades ago, prisoners spend less time interacting with
staff out of their cells and in public spaces within the facilities. For example, in
the 1970s, even in a maximum-security prison, general population prisoners
would exit their cells in the morning, spend most of their day at work or on the
yard or in a dayroom, and would need to return to their cells only for count and
to sleep. Today, many maximum-security general population cellblocks permit
only four or five hours per day of non-work, out-of-cell time. At the same time,
“lockdowns” have become commonplace, where cellblocks or entire prisons
are locked down for months at a time. In that context, contact between
prisoners and officers is relatively limited, often consisting only of officers
92. 104 MASS. CODE REG. 27.12 (LexisNexis, Lexis Advance through Nov. 21, 2014)
(“Medication restraint, mechanical restraint, physical restraint or seclusion may be used only
after the failure of less restrictive alternatives, including strategies identified in the individual
crisis prevention plan, or after a determination that such alternatives would be inappropriate
or ineffective under the circumstances, and may be used only for the purpose of preventing
the continuation or renewal of such emergency condition.”); see also AM. PSYCHIATRIC
ASS’N ET AL., VERMONT STATEWIDE STANDARDS: LEARNING FROM EACH OTHER, available at
http://mentalhealth.vermont.gov/sites/dmh/files/CommitteesWorkgroups/Statewide_Standar
ds/Learning_from_Each_Other.pdf.
93. Terry A. Kupers, Programming Cells Are Neither the Problem nor the Solution, 13
CORRECTIONAL MENTAL HEALTH REP. 83 (2012).

	
  

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passing out food trays and ushering prisoners in restraints to and from
activities. In many settings, officers have essentially forgotten (or never learned
or practiced) how to interact with prisoners informally, and in too many cases
they are actually frightened of interacting with prisoners. Is it any wonder that
staff who once “walked the line” and chatted with their wards are now afraid to
be in a room with prisoners who are not in total restraints? Unfortunately, when
programming cubicles become a routine, across-the-board requirement, they
serve to further distance staff from prisoners and worsen the growing problem
of alienation.
F. Malingering
One of the obstacles to supplying adequate mental health treatment to
many prisoners with serious illness, especially those who fit the description of
“disturbed/disruptive,” is that clinical staff deem them malingerers or otherwise
not bona fide psychiatric patients. Malingering, the exaggeration or feigning of
symptoms for secondary gain, does occur.94 But I also have seen in quite a
large number of prisoners, whom I diagnosed with confidence, a very serious
mental illness when local correctional mental health staff insisted they were
“merely malingering” or that their behavior problems stemmed from an
antisocial personality disorder. It is likely there are errors in both directions. It
is possible I occasionally diagnose serious mental illness where the prisoner is
merely malingering, and I am taken in.
It also is possible that correctional mental health staff, in their rush to
diagnose malingering, miss cases of bona fide mental illness. The difference is
extremely important in a courtroom context; whether a prisoner is incompetent
to stand trial or merely malingering is a critical question. In the context of
assessing potential admissions to a step-down mental health unit, I will make a
bald assertion: We can mostly trump the entire issue of malingering by creating
mental health programs where prisoners are required to learn precisely the
things we think any prisoner would need to know in order to succeed at going
straight after being released. In other words, we do not have to worry so much
if prisoners exaggerate symptoms to some extent to get into the program (but
remember, an individual with mental illness can also exaggerate symptoms or
be manipulative, so it is usually not an either/or consideration); we want them
to benefit from what the program offers even while they are trying to fool us
about having a bona fide mental illness.
Of course correctional mental health staff do not want to let themselves be
manipulated too much, or they will lose the respect of prisoners. It also is
important to have a reasonable policy on prescribing medications with a “street
value” in prison. Thus, malingering to get drugs must be carefully controlled.

94. CLINICAL ASSESSMENT OF MALINGERING AND DECEPTION (Richard Rogers ed.,
1997); Kupers, supra note 66, at 81.

	
  

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The most important aim of correctional programming, however, is to
rehabilitate prisoners so they have a better chance at succeeding in noncriminal roles after release. If, hypothetically, a prisoner tries some version of
faking to get out of a prison punishment and succeeds at the manipulation to the
extent he is admitted to the step-down mental health treatment unit, then the
upshot is that he has to learn to relate to other prisoners more peacefully in
group therapy, has to take a class on being a good parent, or has to take part in
some kind of educational or vocational preparatory program. Everyone wins.
Even though victory is achieved with a little deception, the deceiver actually is
playing ball with us in our plan to help him go straight. In other words, the
more we make the aims of the step-down unit synonymous with the aims we
have for “correcting” the unacceptable and self-destructive behaviors of
prisoners, the less we need to worry that the wrong prisoners will be admitted
as a result of their fakery.
I do not want to push this point too far. Of course there needs to be a
rational disciplinary process in prisons, and we do not want to make the mental
health step-down unit a haven for fakers. Within limits, however, I am
suggesting that, by bringing the step-down unit interventions in line with the
general aims of prison rehabilitation, we diminish the dangers of staff being
fooled by prisoners who merely want to gain an easier housing and program
situation.
I do not believe there are too many prisoners in mental health treatment
(but probably there are some wrong prisoners in treatment). The mental health
portion of the corrections budget is far too meager, on average. We know that a
very large proportion of prisoners suffer from significant mental illness (a
nuance: “significant” means requiring treatment, in contrast to the more
specific “serious” mental illness). Thus, while it is the case that certain
“inauthentic” patients get treatment that unfairly taxes the mental health
budget, it also is the case that many prisoners with mental health issues
justifying treatment do not receive any treatment at all or receive inadequate
treatment. The difficult hat trick is to get the right prisoners into the right slots,
and it requires clinician hours and competence to perform proper diagnosing
and treatment planning. My idea is to reconfigure mental health budgeting so
that rehabilitative programs that would accomplish positive purposes have less
stringent admission mechanisms and thus, were an “inauthentic” prisoner to
gain admission and in the process learn some skills that would prepare him
better for post-release success, we would all say that the mental health bucks
have been well-spent.

	
  

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V. SOME GUIDING PRINCIPLES95
As mentioned in Part V, I can offer eight guiding principles that inform the
work of correctional mental health.
•

•

•

•

•

Confine the prisoners in humane surroundings that would not be held
unconstitutional in the face of competent legal challenge. In other
words, improve conditions so they are humane and end all abuses that
violate prisoners’ Eighth Amendment right to remain free of “cruel and
unusual punishment.”
Treat the prisoners with respect, and in a meaningful dialogue, both in
and out of treatment, communicate to the prisoners that they will do
better and be better people if they likewise treat the staff with respect.
After all, a quality therapeutic relationship is the key to success in
mental health treatment and for successful rehabilitation in corrections.
Provide multi-modality therapeutic interventions. Individual
psychotherapy is important wherein a trusting therapeutic relationship
is fostered. Group therapy also is important, as are meaningful
educational and vocational programs. The principles of modern
psychiatric rehabilitation need to be applied robustly, and prisoners
with and without mental illness need help preparing to succeed at
“going straight.”
Emphasize rewards over punishments. This is such a long-established
principle in psychology that it should need no explication. I often find
it shocking how intent some (but certainly not all) custody staff and
even mental health staff are about punishing prisoners for every
infraction and how little need they feel to reward prisoners’ positive
behaviors and accomplishments. If the punitive attitude I too often
discover on prison units were described to social psychologists
studying therapeutic milieus, they would conclude that the punitive
prison milieu is entirely counter-therapeutic. What all parties need to
remind themselves of constantly is that prisoners are serving their
sentence in prison as their punishment. They are deprived of their
freedom, contact with loved ones, a life in the community, and so
forth. They do not need to be further punished with inhumane
conditions and brutal abuse. In the case of prisoners with serious
mental illness residing in a mental health treatment unit, it is especially
the case that a relative emphasis on rewards over punishments is a
prerequisite to therapeutic success.
When the prisoner with mental illness is in segregation or at a
classification level that is restrictive in terms of freedoms and
amenities, create very short and incremental phases whereby the
prisoner can rapidly and continually earn increasing freedoms and

95. See Kupers, supra note 43.

	
  

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amenities. The best of the correctional step-down mental health units I
have toured contain many phases, each relatively brief, with
advancement to the next phase very attainable with a change in
behavior or attitude. The result, and the variable to measure in
assessing success at behavior change, is the proportion of prisoners
who are able to achieve each goal and move briskly through the stages
of the program. A corollary is that long-term static conditions of
deprivation should not be imposed on prisoners. Even prisoners
consigned to segregation on account of unacceptable or assaultive
behaviors should be given attainable goals to reach if they want to
increase their freedom and amenities. Having no way to attain more
freedom will almost certainly lead to despair and desperate acts; this is
a major reason why disciplinary infractions occur so often in
supermaximum segregation units and staff so frequently resort to the
use of force. It also has much to do with the extraordinarily high rate
of suicide in segregated housing units.
Foster very close collaboration between custody and mental health
staff. There is a very strong consensus in corrections about the need to
foster cross-discipline custody and mental health staff collaboration.
This is not easy to accomplish. It requires quite a lot of crosstraining—security training for mental health staff and mental health
training for custody staff. In some states, it runs afoul of civil service
labor arrangements; for example, some union contracts make it
difficult for custody staff with an interest in working with prisoners
suffering from mental illness to successfully bid for jobs in the mental
health unit. And there are concerns about confidentiality: should
custody staff be permitted to know about prisoners’ psychiatric issues,
and how will their vow to maintain patient confidentiality float in an
officer culture that frowns on special agreements involving select
prisoners? These very reasonable debates need to be joined and
resolved in the process of establishing step-down mental health units.
Pay close attention to, and target in treatment plans, the context in
which each individual prisoner is prone to get into disciplinary trouble.
It also is important to identify the events that typically lead up to the
trouble. Having studied the context and history of the disruptive
behavior, the custody and mental health collaborative team can best
design management and treatment plans that take into account this
unique analysis in each prisoner’s case. This is a strategy proposed by
Hans Toch for the “disturbed/disruptive” prisoner.96
Discipline is handled in the context of a treatment plan by a
collaborative treatment team. Many correctional systems require that
hearing officers check with mental health staff prior to ruling on
disciplinary infractions to make certain the unacceptable behavior is
not driven by mental illness. Too often that process involves nothing

96. HANS TOCH & KEN ADAMS, THE DISTURBED, VIOLENT OFFENDER (1989).

	
  

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more than a “rubber stamp,” with the mental health team responding
that there is no reason this prisoner cannot be fully punished. The issue
is not whether the behavior at issue is part of the individual’s mental
illness or merely a “bad behavior.” I find that distinction very difficult
to make when the prisoner suffers from schizophrenia, for example.
Rather, the question needs to be how to manage the disruptive prisoner
in a treatment context with a collaborative (mental health and custody
staff) treatment team. Punishments can be meted, of course, but the
disciplinary process occurs in a treatment context, where the entire
team works with the prisoner to improve behavior and foster
compliance with and continuity of treatment.
CONCLUSION
When it comes to the treatment of individuals with mental illness in
correctional facilities, the central question is: “Who is the prisoner?” Is he or
she a human being with feelings and rights? Or is the prisoner an animal who
should be kept in a cage with no social interactions nor productive activities,
and then sprayed with immobilizing gas as punishment for behaviors the
prisoner with serious mental illness cannot control? The breakdown in policy is
society-wide and involves more than funding for psychiatric hospitals and
mental health clinics. I have written about society’s need to “disappear”
prisoners behind bars and “lock them up and throw away the key” so that the
average citizen does not have to see every day on the streets the harmful effects
of dismantling the social welfare safety net.97 But when prisoners with serious
mental illness are warehoused in segregation cells, dosed with immobilizing
gas, put into cages before they can meet with their counselor, and otherwise
abused, their mental illness worsens, as does their prognosis and potential
recidivism rate. I have summarized some approaches to mental health treatment
that I believe would improve the situation. I have offered eight guiding
principles for thinking about prisoners plagued with mental illness. But there
has to be a larger change in attitude on the part of custody staff and mental
health staff, as well as on the part of legislators and the public.

97. Kupers, supra note 12; see also Terry A. Kupers, Isolated Confinement: Effective
Method for Behavior Change or Punishment for Punishment’s Sake?, in THE ROUTLEDGE
HANDBOOK OF INTERNATIONAL CRIME AND JUSTICE STUDIES 213-32 (Bruce Arrigo & Heather
Bersot eds., 2014).