Out of Sight, Out of Mind
Colorado’s continued warehousing of mentally ill
prisoners in solitary confinement

The American Civil Liberties Union of Colorado is a nonpartisan, nonprofit
organization dedicated to fulfilling the promise of equal justice under the
law for all Coloradans. Our mission is to protect, defend and extend the
civil rights and civil liberties of all people in Colorado through litigation,
education and advocacy. Our scope of work is fundamentally defined
by one document, the Bill of Rights. The rights and freedoms contained
within impact a wide range of issues, including free speech, freedom of
religion, due process, privacy and equality for all people under the law.
We advocate for members of disenfranchised communities, including
people of color, LGBT persons, women, immigrants, low income people,
homeless, prisoners, students and the elderly. While we are incorporated
as an independent entity, we are also an affiliate of the national American
Civil Liberties Union.

Table of Contents
Executive Summary ………………..………………………………………………………………………..  1
Key Facts and Findings …………………………………………………………..…………………………  1
Policy Recommendations ………………………………………………………………………………….  2
Introduction ……………………………………………………………………………………………………. 3
Background ……………………………………………………………………………………………………. 4
Seriously Mentally Ill Prisoners Living in Isolation ……………………………………………… 6
	

Case Study: Descent into Madness .......……………………………………………………. 7

Discipline of Mentally Ill Prisoners in Solitary Confinement ..........…......................... 13
	

Case Study: The Tower of Power……………………………………………………………… 14

Out-of-Cell Time for Mentally Ill Prisoners ………………………………………………………… 15
Mental Health Staffing Levels ……………………………………………………………………………17
Conclusion and Final Recommendations ……………………………………………………………. 18
Photos of Administrative Segregation at CSP ……………………………………………………… 19
Acknowledgements	 ………………………………………………………………………………………… 21

Executive Summary
This report examines past and continued use of solitary confinement by the Colorado
Department of Corrections (CDOC) to manage mentally ill prisoners; considers the moral,
fiscal, safety and legal implications of CDOC’s continued warehousing of mentally ill prisoners
in solitary confinement; and makes recommendations to bring Colorado’s prisons in line
with modern psychiatric, correctional and legal standards. The report draws on 18 months
of research by the American Civil Liberties Union (ACLU) of Colorado, which included
correspondence with mentally ill prisoners housed in solitary confinement by CDOC; analysis
of data provided by the CDOC in response to over a dozen public records requests by the ACLU,
as well as other publicly available CDOC records; in-depth review of several prisoner mental
health files; extensive written and in-person dialogue with CDOC’s executive team; on site visits
to CDOC; and multiple consultations with correctional and psychiatric experts.

Key Facts and Findings
•	 While the Residential Treatment Program was initiated in early 2013 as a means of
providing intensive mental health care to prisoners with the most significant mental health
needs, CDOC continues to resort to solitary confinement to manage many mentally ill
prisoners.
•	 As of March 2013, CDOC housed at least 87 seriously mentally ill prisoners in solitary
confinement, 54 of whom have been living in isolation for over a year and 14 of whom have
been in solitary confinement for more than 4 years.
•	 Prisoners with moderate to severe psychiatric needs now constitute a majority of those in
solitary confinement in Colorado.
•	 Mentally ill prisoners are disproportionately likely to be held in solitary confinement
because mental illness often makes it impossible to comply with the strict behavioral
expectations of prison.
•	 In 2012, the average length of stay for mentally ill prisoners in solitary confinement was 16
months.
•	 Housing prisoners in solitary confinement can cost taxpayers nearly twice as much as
holding them in general population.
•	 Once in solitary confinement, the mental health of seriously mentally ill prisoners often
deteriorates further, making them a greater threat to their own safety, as well as the safety
of other prisoners, prison staff, and – ultimately – the public at large, to whom almost all
Colorado prisoners will one day be released.
•	 Courts and the U.S. Department of Justice have agreed that the Constitution forbids
subjecting prisoners with serious mental illnesses to prolonged solitary confinement.

1

Policy Recommendations
The ACLU of Colorado strongly encourages the Colorado Department of Corrections (CDOC) to
promptly implement the following recommendations:
•	 CDOC should bar seriously mentally ill prisoners from placement in prolonged solitary
confinement, or administrative segregation.
•	 CDOD should adopt policies requiring mental health involvement in disciplinary and
criminal charging decisions related to seriously mentally ill prisoners.
•	 All seriously mentally ill prisoners, including those at the lowest levels of the Residential
Treatment Program (RTP), should be provided a minimum of 20 hours of out-of-cell time
per week, including 10 hours of dedicated therapeutic time.
•	 RTP should be fully staffed to provide adequate out-of-cell therapeutic and non-therapeutic
time. To accomplish this goal, CDOC must have the funding and the will to fill all mental
health staff positions, particularly those of psychiatrists and psychiatric nurses.

2

Introduction
Every day, hundreds of mentally ill prisoners across Colorado are forced to live in extreme
isolation, confined to small barren cells where they spend 23 hours per day. These prisoners
are deprived of human interaction, mental stimulation and meaningful mental health care.
Disembodied hands deliver meals to the prisoner through a slot in the cell door. Human touch
is limited to those instances when the prisoner is being transported or disciplined. Most of
these mentally ill prisoners “exercise” in a small concrete room with a single pull-up bar and
are intentionally denied the opportunity to feel sun on their face, rain on their body or wind
in their hair. No activities, programs, or classes break up the day. Few, if any, phone calls
are allowed. Few personal possessions are permitted. Prisoners languish in these isolating
conditions (called “administrative segregation” by CDOC) for months and often years on end.
For many of these prisoners, their mental illness will worsen in solitary confinement. For
some, the isolating conditions will drive them to a psychotic state and lead them to attempt
suicide, attack others, eat their own feces, or bang their heads against the wall in an effort to
drown out the voices in their heads.
It is time for the state of Colorado to stop warehousing seriously mentally ill prisoners in
long-term solitary confinement and to begin providing these prisoners with the intensive
mental health treatment they need to allow them to be productive members of society upon
release.

3

Background
During each day of fiscal year 2012 (FY 2012),1 CDOC housed between 537 and 686 mentally ill
prisoners in the solitary conditions of administrative segregation.2 This data derives from a
CDOC report released in January 2013 pursuant to Senate Bill 11-176 (“2013 Report”).3 The 2013
report reflects that CDOC, to its credit, significantly decreased its administrative segregation
population during this time. Of serious concern, however, is that even as administrative
segregation numbers have decreased, the proportion of prisoners in administrative
segregation who are mentally ill has increased. From June 2011 to June 2012, the percentage
of mentally ill prisoners in administrative segregation jumped
from 46.4 percent to 57.7 percent, an increase of over 11
Prisoners with
percent.4 Prisoners with moderate to severe psychiatric
psychiatric needs
needs now constitute a majority of those in administrative
now constitute a
segregation.5 Yet a substantially smaller portion of the
majority of those
Colorado prison population as a whole – 32 percent – have such
in administrative
psychiatric needs.6 Given this comparative data, it is clear that
segregation.
one of CDOC’s methods of managing the scores of mentally ill
prisoners under its charge is to confine them in administrative
segregation.

“

“

Recently, CDOC has taken steps to move some mentally ill prisoners out of administrative
segregation and into treatment, but this report finds that CDOC’s provision of mental health
treatment for many of its mentally ill prisoners remains seriously deficient. At the end of 2012,
CDOC made the prudent decision to abandon the Offenders with Mental Illness (OMI) Program,
which purported to provide treatment to mentally ill prisoners in an administrative segregation
setting. According to CDOC’s own statistics, the program had only a 27 percent success rate.7
In conversations with the ACLU of Colorado, CDOC executives frankly acknowledged that the
1

FY 2012 closed June 30, 2012.
SB 11-176 2012 Annual Report, p. 10, Figure 10.
3
In 2011, the Colorado legislature enacted SB 11-176 to address growing concern over CDOC’s overuse of
administrative segregation. The statute requires CDOC to provide an annual written report to the senate and
house judiciary committees “concerning the status of administrative segregation; reclassification efforts for
prisoners with mental illnesses or developmental disabilities, including duration of stay, reason for placement,
and number and percentage discharged; and any internal reform efforts since July 1, 2011.” Colo.Rev.Stat. § 17-1113.9(1).
4
2013 Report, p.10, Figure 10. CDOC uses a code system to identify and track offenders with mental health
treatment needs. “The psychiatric needs level codes (P codes) ranges from 1-5, with 3-5 indicating moderate to
severe needs.” 2013 Report, p. 10. “Mentally ill offenders” are defined by CDOC as offenders with a psychiatric
needs level code (P code) of 3-5. 2013 Report, p. 10.
5
Ibid.
6
CDOC Statistical Report Fiscal Year 2011, p. 54, Table 40.
7
Offenders with Mental Illness Report, submitted to House and Senate Judiciary Committees January 31, 2013, p.
5.
2

4

OMI program had largely refrained from enrolling seriously mentally ill prisoners, and that
CDOC had instead cherry-picked prisoners who were likely to succeed in the program. CDOC’s
statements to the ACLU are supported by the recommendations of CDOC’s consulting clinical
psychologist Dr. Joel Dvoskin, who played an integral role in the design and execution of the
OMI program. In December 2010, Dr. Dvoskin “recommended that historically when starting
programs, you want to cheat and pick people you know
will succeed so that you build a safety net for both the
offenders and staff and get people to trust the program.
CDOC’s provision
Rig it to succeed in the first year before you take chances
of mental health
on the cases that make you nervous.”8 Especially given
treatment for many
this careful selection of prisoners, the OMI program’s 27
of its mentally ill
percent success rate sends a strong message that mentally
prisoners remains
ill prisoners cannot get better in the solitary conditions of
seriously deficient.
administrative segregation.

“

“

In place of the OMI program, CDOC opened a 240-bed Residential Treatment Program (RTP)
at Centennial Correctional Facility in early 2013. The RTP purports to provide intensive
mental health care to those prisoners with the most significant mental health needs in a
setting that avoids the isolating conditions of administrative segregation.9 Unfortunately,
as discussed in greater detail below, early reports on the RTP strongly suggest that some
residents are still being held in solitary confinement. Further, even with the opening of RTP,
CDOC acknowledges that as of March 2013, it still housed at least 87 seriously mentally ill
prisoners in administrative segregation who were not part of the RTP program, the majority of
whom had been living in isolation for a year or more.10 CDOC persists in this practice despite
agreement by psychiatrists and courts that administrative segregation is no place for the
seriously mentally ill, because prolonged isolation poses a substantial risk of causing and/or
exacerbating mental illness. CDOC must stop relying on prolonged isolation as the means of
managing seriously mentally ill prisoners.
8

“OMI Meeting,” CDOC Meeting Notes, December 8, 2010, p. 4
See Generally, Offenders with Mental Illness Report, submitted to House and Senate Judiciary Committees
January 31, 2013, pp. 13-14.
10
CDOC Response to March 4, 2013 Colorado Open Records Act Request by ACLU of Colorado. “Seriously mentally
ill prisoners” are those identified by CDOC as having a “major mental illness,” which CDOC defines as:
9

those chronic mental disorders that cause longstanding problems with emotional regulation and/or
reality testing, which leads to poor functioning in multiple domains, including social, occupational, and
relational. [Major mental illnesses] include psychotic disorders such as schizophrenia, schizoaffective
disorder, and psychoses not otherwise specified. Bipolar disorder and major depression are also
considered [major mental illnesses].
Offenders with Mental Illness Report, submitted to House and Senate Judiciary Committees January 31, 2013, p.
15.

5

Seriously Mentally Ill Prisoners Living in Isolation
Why are so many mentally ill prisoners housed in the isolating conditions of administrative
segregation? It is likely that mental illness is a root cause of this placement. This is
particularly true for those prisoners who suffer from a serious mental illness, such as
schizophrenia or depressive disorder with psychotic features. According to the American
Psychiatric Association (APA), several studies have shown that prisoners with serious mental
illness have more difficulty conforming their actions to the strict behavioral expectations of
prison life than do prisoners without mental illness.11 One study concluded that “seriously
mentally ill prisoners were less able to successfully negotiate the complexity of the prison
environment, resulting in an increased number of rule infractions leading to more time in
segregation and in prison.”12 Other studies found that “inmates with serious mental illnesses
committed infractions at three times the rate of non-seriously mentally ill counterparts.”13
Once in administrative segregation, prisoners must
conform their behavior to extraordinarily strict conduct
Due to their mental
guidelines in order to work their way through a fourillnesses, these
level system and gain release back to the general prison
prisoners are unable
population. Given that mental illness makes it extremely
to achieve the simple
difficult for some prisoners to control their behavior and
behavioral goals
that the conditions of administrative segregation have
necessary to progress
been proven to exacerbate mental illness, many seriously
out of administrative
mentally ill prisoners suffer for years in the solitary
segregation.
conditions of administrative segregation, and they appear
to have no road out of these extremely restrictive conditions of confinement. These prisoners,
due to their mental illnesses, are unable achieve even simple, short-term behavioral goals,
much less the more difficult and sustained behavioral goals necessary to progress out of
administrative segregation.

“

“

11

Background to the Position Statement on Segregation of Prisoners with Mental Illness, APA Official Actions,
Dec. 2012 (hereinafter “APA Background to Position Statement”).
12
APA Background to Position Statement (citing for this proposition Morgan, D.W., A.C. Edwards, and L.R.
Faulkner. The Adaptation to Prison by Individuals with Schizophrenia. Bulletin of the American Academy of Psychiatry
and the Law, 1993).
13
APA Background to Position Statement (citing for this proposition Lovell, D. and R. Jemelka. When Inmates
Misbehave: The Costs of Discipline. The Prison Journal, 1996; Lovell, D. and R. Jemelka. Coping With Mental Illness
in Prison. Family & Community Health, 1998, as cited in Background to the Position Statement on Segregation
of Prisoners with Mental Illness). Notably, CDOC’s own statistics support the notion that mentally ill prisoners
face significant hurdles in conforming their behavior to prison expectations. The top two reasons for CDOC’s
placement of mentally ill prisoners in administrative segregation relate to repeated prison rule violations. 2013
Report, p. 11, Figure 12.

6

In 2012, the ACLU of Colorado learned of several prisoners in long-term administrative
segregation who, according to the ACLU of Colorado’s review of confidential CDOC records
related to each prisoner, have repeatedly attempted suicide, suffered from psychotic episodes,
and/or persistently heard voices in their heads telling
them to harm themselves or others. As their mental
health deteriorated in isolation, several of these prisoners
For many, if not all,
were charged with violations of the Code of Penal
of these prisoners, the
Discipline (COPD) and/or the criminal law. These charges
isolating conditions
were based on behavior, such as suicide attempts or
of administrative
throwing feces or urine, that forensic psychiatrists have
segregation are making
opined stemmed from mental illness in each case.
them sicker.
COPD and criminal convictions related to this behavior
have resulted in prisoners’ failure to progress out of
administrative segregation, or worse, have turned shorter
sentences into virtual life sentences. These prisoners likely are too mentally ill to meet the
behavioral expectations that would allow them to progress out of administrative segregation.
For many, if not all, of these prisoners, the isolating conditions of administrative segregation
are making them sicker.

“

“

The following is a case study of John Quinn, a seriously mentally ill prisoner confined in
long-term isolation who the ACLU has been following for more than a year. This case study
underscores the cruelty and fundamental unfairness of confining prisoners in the most
restrictive prison setting as a consequence of their mental illness.

CASE STUDY – Descent into Madness
John Quinn* has been incarcerated since he was a 14-year-old boy. When he was 19 years old, CDOC
placed him in administrative segregation for participating in a three-way phone call and tampering
with a bathroom lock. John spent the next 15 years in the near-complete isolation of administrative
segregation until he was moved to the RTP in December 2012. Prior to this long period in administrative segregation, John had been noted to be a young man who was funny, warm and reasonably
articulate. All of this is gone.
John had not shown signs of serious mental illness until he had spent about a decade in isolation
at the Colorado State Penitentiary (CSP), a supermax prison designed to deny prisoners human
contact. During that time, John did not cause serious harm to himself or others, but he could not

7

manage to work his way out of administrative segregation. By 2006, he was in a deep depression.
Under the pressure and stress of long-term isolation with no apparent way out, John’s mental health
began to deteriorate rapidly. By 2009, he reported hearing a woman’s voice in his head that verbally
abused him and demanded that he hurt himself. John began to exhibit bizarre and often selfharming behavior that worsened over time. He experienced frequent psychotic breaks, including
three suicide attempts and an episode in which he smeared excrement on his food tray because he
believed staff members were putting rat feces in his food. At one point, John lost nearly 20 percent
of his body weight.
It is clear that in the 15 years John lived in isolation, he became seriously mentally ill. At least eight
different psychiatrists since 2010 have diagnosed John as suffering from a serious mental illness
with psychotic features, including chronic paranoid schizophrenia. Recently, an independent psychiatrist recommended psychiatric hospitalization for John. In 2012, an evaluating psychiatrist
determined that John’s placement in long-term solitary confinement was a source of his mental
deterioration. This doctor also concluded that improvement of John’s mental health was likely
impossible in isolation.
John’s psychotic breaks have often led to his placement in the administrative segregation ward of
CDOC’s mental health prison, San Carlos Correctional Facility (SCCF). During fiscal year 2011, John
spent 183 days in SCCF recovering from various psychotic episodes. John was repeatedly placed in
four-point restraints for days at a time – once for a full two weeks. Once stabilized, John was sent
directly back to administrative segregation at CSP and the same isolating conditions that were exacerbating – if not causing – his mental illness.
Although John was moved to the RTP in late 2012, a February 22, 2013 report from CDOC shows that
John had not been able to progress from the lowest levels of the program. As a result, he was still
spending the vast majority of his time in isolation.
John currently has state-appointed lawyers who are asking the court to shorten his sentence because of a change in the law. According to John’s lawyer, he is too mentally ill to assist in his own
advocacy. His lawyers have found that John is often drugged into incoherence and resembles a
zombie more than the fully functional young man he once was.
*name changed to protect privacy

8

John’s story lends credence to the wide and
growing consensus among psychiatrists that
isolation is predictably damaging to seriously
mentally ill prisoners. In December 2012, the
APA adopted a position statement against
segregation of prisoners with serious mental
illness.14 Specifically, the APA espoused that
“[p]rolonged segregation of adult inmates with
serious mental illness, with rare exception,
should be avoided due to the potential for
harm to such inmates.” The APA clarified
that “prolonged segregation means duration
of greater than 3-4 weeks” and explained that
“placement of inmates with a serious mental
illness in these settings can be contraindicated
because of the potential for the psychiatric
conditions to clinically deteriorate or not
improve.”15
Restraint chair for transportation within

Further, as CDOC well understands, it is nearly
impossible to provide intensive mental health
treatment to prisoners who are locked down 23 hours per day, denied all social interactions,
and can only leave their cells to meet privately with a therapist or to participate in group
therapy when fully restrained and escorted by two or more prison guards (which deters many
prisoners from engaging in private therapy at all). As CDOC frankly acknowledged in a 2013
report to the Colorado legislature:
Colorado State Penitentiary

It is difficult to operate a mental health treatment program in an administrative
segregation environment. Designed with security in mind, the atmosphere is
not necessarily conducive to behavior change. In addition, due to the highly
restricted movement and facility design with segregation at the forefront, it has
been challenging at best to conduct group treatment sessions.16
14

Position Statement on Segregation of Prisoners with Mental Illness, APA Official Actions, Dec. 2012.
Background to the Position Statement on Segregation of Prisoners with Mental Illness, APA Official Actions,
Dec. 2012.
16
Offenders with Mental Illness Report, submitted to House and Senate Judiciary Committees January 31, 2013, p.
14.
15

9

Yet CDOC routinely places seriously mentally ill prisoners in segregated housing for months
and sometimes years. By CDOC’s own count, as of March 2013, 87 seriously mentally ill
prisoners were confined in administrative segregation, 54
of whom had been living in isolation for over a year and 14
Their untreated
of whom had been in administrative segregation for over
and often worsened
4 years.17 According to CDOC’s 2013 Report, for FY 2012,
mental illness will
the median length of stay in administrative segregation for
lead to criminal
mentally ill prisoners was 485 days, or 16 months.18

“

actions after
release, leaving
the public to suffer
the consequences
of misguided CDOC
policies.

Placing seriously mentally ill prisoners in prolonged
isolation is not only cruel, it is also financially costly and
poses a significant risk to public safety. Housing prisoners
in administrative segregation can cost nearly twice as much
as holding them in general population.19 More importantly,
97 percent of Colorado prisoners will one day be released
to the community. Mentally troubled individuals who enter the prison system and find
themselves housed in administrative segregation are likely to emerge with even more serious
mental health issues. For some of those prisoners, their untreated and often worsened mental
illness will lead to criminal or antisocial actions after release, leaving the public to suffer the
consequences of misguided correctional policies.

“

Also of concern is that CDOC, by allowing seriously mentally ill prisoners to languish in
long-term administrative segregation, exposes itself to a very real and significant risk of
civil liability. Courts are unanimous in their conclusion that the Constitution forbids subjecting
prisoners with serious mental illnesses to prolonged segregated confinement.20 Specifically,
because isolation is so predictably damaging to the seriously mentally ill, courts have
17

CDOC Response to March 4, 2013 Colorado Open Records Act Request by ACLU of Colorado.
2013 Report, p. 12.
19
CDOC Statistical Report, FY 2011, p. 14.
20
See, e.g., Ruiz v. Estelle, 37 F. Supp. 2d 855, 915 (S.D. Tex. 1999) (“conditions in [the] administrative segregation
units clearly violate constitutional standards when imposed on the subgroup of the plaintiffs’ class made up of
mentally-ill prisoners”); rev’d and remanded on other grounds, 243 F.3d 941 (5th Cir. 2001), adhered to on remand,
154 F. Supp. 2d 975, 984–86 (S.D. Tex. 2001); Coleman v. Wilson, 912 F. Supp. 1282, 1320–21 (E.D. Cal. 1995) (inappropriate disciplinary treatment and placement in segregation units of prisoners with mental illness was unconstitutional); Casey v. Lewis, 834 F. Supp. 1447, 1548-49 (D. Ariz. 1993) (condemning placement and retention of mentally
ill prisoners in lockdown status); Inmates of Occoquan v. Barry, 717 F. Supp. 854, 868 (D.D.C. 1989) (holding that
prisoners with mental health problems must be placed in a separate area or a hospital and not in administrative/
punitive segregation area); Langley v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1988) (holding that evidence that
prison officials fail to screen out from SHU “those individuals who, by virtue of their mental condition, are likely to
be severely and adversely affected by placement there” states an Eighth Amendment claim).
18

10

repeatedly found segregated confinement of such prisoners violates the Eighth Amendment’s
ban on cruel and unusual punishment. As a district court explained when it banned
segregation of seriously mentally ill prisoners at California’s Pelican Bay State Prison:
For these inmates, placing them in the [segregated housing unit] is the mental
equivalent of putting an asthmatic in a place with little air to breathe. The risk
[of suffering serious injury to their mental health] is high enough, and the
consequences serious enough, that we have no hesitancy in finding that the risk
is plainly unreasonable.21
Similarly, in 2001, the federal court considering conditions at Wisconsin’s Supermax
Correctional Institution noted “[m]ost inmates have a difficult time handling these conditions of
extreme social isolation and sensory deprivation, but for seriously mentally ill inmates,

Colorado State Penitentiary
Administrative Segregation unit

the conditions can be devastating.”22 After protracted litigation, the court ordered that all
prisoners with serious mental illness must be removed from Wisconsin’s supermax facility. At
the end of 2012, yet another federal court found “extensive evidence” that “segregation harms

21
22

Madrid v. Gomez, 889 F. Supp. 1146, 1265 (N.D. Cal. 1995) (quotation marks omitted).
Jones’El v. Berge, 164 F. Supp. 2d 1096, 1098 (W.D. Wis. 2001).

11

mentally ill prisoners,” and ruled that segregation of certain mentally ill prisoners by the
Indiana Department of Corrections violated the Eighth Amendment.23
Quite simply, courts and psychiatrists agree that seriously mentally ill prisoners do not
belong in administrative segregation, because prolonged
isolation poses a substantial risk of exacerbating mental
CDOC is aware
illness.

“

that confining
seriously mentally
ill prisoners in
administrative
segregation is
unconstitutional.

In May 2013, the United States Department of Justice (“DOJ”)
issued damning findings regarding solitary confinement
practices of the Pennsylvania State Correctional Institution
at Cresson (“Cresson”). These findings are instructive in
considering the legitimacy of CDOC’s continued confinement
of seriously mentally ill prisoners in prolonged administrative
segregation. After an initial investigation, the DOJ determined
that Cresson’s placement of prisoners with serious mental illness in prolonged isolation
degrades the prisoners’ physical and mental health, leads to an increased risk of suicide, and
violates the Eighth Amendment. As the DOJ cogently explained:

“

Neither the interests of the Pennsylvania Department of Corrections nor those of
the Commonwealth of Pennsylvania are served when one of its prisons subjects
prisoners to conditions that deny prisoners with psychiatric disabilities the
benefit of mental health treatment and exacerbate their mental illness. When
the mental health of prisoners deteriorates, when their episodes of paranoia
and psychosis intensify, and when they engage in behaviors more dangerous to
themselves and others, taking care of them becomes more difficult and more
dangerous for correctional officers and more expensive for the Commonwealth.
Moreover, those living outside the prison’s walls feel the negative impact of
the prison’s mistreatment of prisoners with serious mental illness when these
prisoners return to the community.24
It is worth noting that the DOJ’s findings rested on Cresson’s placement of seriously mentally
23

Indiana Protection and Advocacy Services Commission v. Commissioner, Indiana Department of Correction, Case No.
1:08-cv-01317-TWP-MJD, 2012 WL 6738517 (S.D. Ind. Dec. 31, 2012).
24
Investigation of the State Correctional Institution at Cresson and Notice of Expanded Investigation, undated
2013 Letter signed by Assistant Attorney General Thomas E. Perez and United States Attorney, David J. Hickton
(hereinafter “Cresson Findings”), p. 2.

12

ill prisoners in solitary confinement for relatively short periods of time when compared with
CDOC placements. Most seriously mentally ill prisoners placed in isolation at Cresson were
there for a matter of months, and according to the Cresson Findings, only two dozen prisoners
spent more than a year in isolation.25 These numbers pale in comparison to CDOC’s selfreported 87 seriously mentally ill prisoners in administrative segregation, 54 of whom, as of
March 2013, had been housed in isolation for more than a year.
CDOC is aware that confining seriously mentally ill prisoners in administrative segregation
worsens the prisoners’ mental health and is unconstitutional. In 2010, CDOC took the positive
step of retaining Dr. Joel Dvoskin, an independent clinical psychologist with expertise in the
treatment of persons with serious mental illness. On several occasions between 2010 and
early 2013, Dr. Dvoskin advised CDOC officials that the courts have made clear that seriously
mentally ill prisoners are not to be placed in administrative segregation because of the
substantial risk of exacerbating their mental illness.26 Unfortunately, despite Dr. Dvoskin’s
advice, the unanimous rulings of several federal courts, the opinion of the APA, the DOJ’s
Cresson Findings, and the repeated requests of the ACLU of Colorado, CDOC continues to place
seriously mentally ill prisoners in the solitary conditions of administrative segregation for
prolonged periods.

Adminstrative Segregation Cell
25
26

Ibid.
See, e.g., “OMI Meeting,” CDOC Meeting Notes, December 8, 2010, p. 2.

Discipline of Mentally Ill Prisoners in Solitary Confinement
As discussed above, mentally ill prisoners often have difficulty conforming their behavior to
prison rules, particularly in the highly structured environment of administrative segregation.
As a result, some mentally ill prisoners languish for years in
administrative segregation at CDOC, repeatedly violating prison
rules and racking up COPD disciplinary charges, or even new
Prisoners in ad
criminal charges that may lengthen their sentences.
seg who break a

“

rule as a result of
a serious mental
illness are punished
rather than given
treatment.

CDOC lacks any formal policy requiring the input of mental
health staff into disciplinary decisions regarding prisoners with
serious mental illness, including decisions of whether to refer
the case to the district attorney’s office for possible criminal
prosecution, bring COPD charges, or handle the disciplinary
issue therapeutically. This means that many prisoners in
administrative segregation who break a prison rule as a result of a serious mental illness –
often while in the context of psychiatric deterioration due to prolonged isolation – are punished
rather than given treatment. Punishing mentally ill prisoners for behaviors that result from
their mental illness serves no legitimate purpose and raises serious constitutional concerns.
In fact, in the Cresson Findings, the DOJ determined Cresson violated the Constitution by failing
to make appropriate considerations for mental health in the course of disciplinary hearings.27

“

Punishing prisoners for infractions that suggest mental illness, including self-harming or
smearing feces, is counterproductive to therapeutic success. Dr. Dvoskin advised CDOC that
for mentally ill prisoners, “the lines are blurred between the symptoms of mental illness
and an intentional behavioral choice,” so that misbehavior by mentally ill prisoners should
be handled clinically, rather than through the disciplinary process, whenever possible.28 Dr.
Dvoskin recognized that “there will be instances when . . . the situation must be handled
disciplinarily.”29 He warned, however, that “this should occur in a small number of cases
and only after a determination has been made that the behavior is not a symptom of mental
illness.”30 Recognizing these constitutional and therapeutic concerns, many state prison
systems, including California, Connecticut, New Jersey, New York, Ohio and Wisconsin, provide
for mental health staff to participate in the process of disciplining prisoners with mental
illness.
27
28
29
30

Cresson findings, pp. 20-22.
“OMI Meeting with Joel Dvoskin, Ph.D.,” CDOC Meeting Notes, February 15, 2011, pp. 2-3.
Ibid.
Ibid.

13

It is for all of these reasons that during the course of 2012 the Colorado Public Defender’s
Office, the ACLU of Colorado, and CDOC’s own expert, Dr. Dvoskin, all urged CDOC to adopt a
policy mandating the involvement of mental health staff in all disciplinary decisions related
to seriously mentally ill prisoners and especially those housed in administrative segregation.
In a March 1, 2013 letter to the ACLU of Colorado, CDOC reported that it was in the process
of drafting a regulation that would require consultation with mental health workers at the
beginning and end of the COPD disciplinary process.31 We await a draft of this welcome new
rule. Of continuing concern, however, is that, according to CDOC, the rule apparently will
neither require nor even encourage mental health staff to provide input in the decision of
whether to urge the district attorney to initiate a criminal prosecution against a seriously
mentally ill prisoner – a prosecution that could result in lengthening of the prisoner’s
sentence.32
The following is a case study of a seriously mentally ill prisoner who has been confined by
CDOC in administrative segregation for over eight years.
CASE STUDY – The Tower of Power
Marcus Aguilar* has been housed in administrative segregation since 2004, when he was initially diagnosed with bipolar disorder. Marcus’s mental health has deteriorated in long-term isolation and he
suffers from ongoing auditory and command hallucinations. He believes that CDOC is trying to control
him using radio waves from the “Tower of Power,” a radio tower he can see from his cell and the voices
he hears tell him to harm himself.
Multiple forensic psychiatrists have evaluated Marcus extensively and agree that he suffers from
serious psychiatric disorders including psychosis. At least two have stated that the conditions of
administrative segregation have caused Marcus’s sensory deprivation and intensified his psychosis.
Between 2007 and 2010, while in administrative segregation, Marcus was charged with several counts of
assault with his bodily fluids – incidents which appear closely related to periods of mental deterioration.
Rather than receiving specialized mental health treatment, Marcus was charged with and convicted of
three assault charges. Prior to these convictions, Marcus was set to be released from CDOC in 2012.
The convictions have extended his sentence substantially and his mandatory release date is now 2049.
Marcus is currently facing another assault charge. All of his examining psychiatrists agree that he is
mentally incompetent to stand trial on this charge and that his condition is unlikely to change unless he
is removed from isolation and administered psychotropic medications. Marcus remains in administrative segregation indefinitely.
*name changed to protect privacy
31

Letter from CDOC Executive Director Tom Clements to ACLU of Colorado Staff Attorney Rebecca Wallace, dated
March 1, 2013.
32
Ibid.

14

Out of Cell Time for Mentally Ill Prisoners
Psychiatrists agree that mentally ill prisoners need significant out-of-cell time every week,
including opportunities for therapy, recreation and socializing.33 As Dr. Dvoskin explained to
CDOC representatives, there is common consensus on “the simple philosophical position... that
23 hours per day lockdown is not
a mental health treatment.”34 Dr.
Dvoskin posited that seriously
mentally ill prisoners should
presumptively be provided a
minimum of 20 hours out-of-cell
time every week, including 10
hours of therapeutic activity.35
The OMI program was originally
envisioned by Dr. Dvoskin to
provide these 20 hours of out-ofcell time.36 Yet August 2012 data
provided by CDOC shows that,
Exercise room at Colorado State Penitentiary for ad seg prisoners
on average, prisoners in the now-abandoned OMI program spent an average of only about two
hours per week engaged in out-of-cell therapeutic activities.37 Of particular concern, prisoners
at the lowest levels of the OMI program were out of their cells
for therapeutic activity only an average of 25 minutes per
week.38
Prisoners at the

“

lowest levels of the
OMI program were
out of their cells for
therapeutic activity
only an average
of 25 minutes per
week.

“

33
34
35
36
37
38

In conversations with the ACLU of Colorado, CDOC stated
the new RTP was also designed with the goal of providing
prisoners the recommended 20 hours of out-of-cell
therapeutic activity each week. However, CDOC reports
from early 2013 suggest that, for most participants, the RTP
program is no better than the defunct OMI program in its
provision of therapeutic out-of-cell time. According to data
provided by CDOC to the ACLU of Colorado, RTP residents
spent an average of two hours of out-of-cell time engaged in

Position Statement on Segregation of Prisoners with Mental Illness, APA Official Actions, Dec. 2012.
“OMI Meeting,” CDOC Meeting Notes, December 8, 2010, p. 3.
Ibid.
Ibid.; “OMI Meeting with Joel Dvoskin, Ph.D.,” CDOC Meeting Notes, February 15, 2011, p. 4.
CDOC Response to Request for Information from Representative Claire Levy, Dec. 7, 2012, pp. 10-11.
Ibid.

15

therapeutic activity (which includes the gym) each week during April 2013.39 Notably, prisoners
like John Quinn who are in the lowest and most restrictive levels of the RTP spent negligible
time out of their cell. Prisoners at level 1 of the program spent an average of 14 minutes out
of cell each week engaged in therapeutic activity, and prisoners at level 2 spent an average
of 55 minutes out of cell each week engaged in therapeutic activity.40 For reasons detailed
above, seriously mentally ill prisoners are likely to face significant challenges in meeting the
behavioral expectations required to move up from the lowest levels of the RTP program. It
is these prisoners – those who are seriously mentally ill and stuck at the lowest and most
restrictive levels of an incentive program – with whom the federal district court was concerned
in the Wisconsin Supermax case. The court found:
Not surprisingly, the mentally ill inmates identified by plaintiffs rarely progress
out of Level One of the incentive program or, if they do, their upward movement is
only temporary. . . . These inmates are stuck in the lowest levels, a circumstance
that by itself suggests the inappropriateness of subjecting such persons to an
incentive program that is so all encompassing and harsh.41
Prolonged isolation will inevitably exacerbate some RTP prisoners’ mental illness and
further decrease their ability to meet the behavioral goals necessary to graduate to less
restrictive levels of the RTP program. While CDOC claims that RTP prisoners are not held
in “administrative segregation,” many RTP residents are still held in conditions that are as
isolating as administrative segregation, making their transfer from administrative segregation
to RTP nearly meaningless.

39
40
41

CDOC Response to May 23, 2013 Colorado Open Records Act Request by ACLU of Colorado.
Ibid.
See Jones’El v. Berge, 164 F. Supp. 2d 1096, 1117 (W.D. Wis. 2001).

16

Mental Health Staffing Levels
The ACLU of Colorado is deeply concerned that, as of early 2013, the RTP was woefully
understaffed. Dr. Dvoskin affirmed in 2011 and again in a conversation with the ACLU of
Colorado in 2013 that one of the most significant threats to CDOC’s success in managing its
mentally ill population is its severe shortage of psychiatrists and psychiatric nurses.42 In
February 2011, Dr. Dvoskin noted that “[OMI] remains severely understaffed,” and that with
such understaffing “there is no remote possibility of achieving the goal of 10 and 10 [out-of-cell
hours].”43 Understaffing problems extend far beyond the
RTP program. In 2011, Dr. Dvoskin noted that CDOC had
One of the most
only 8 psychiatric providers for 6000 mentally ill offenders,
significant threats
falling 32 providers short of the APA guideline of one
to CDOC’s success in
provider for every 150 mentally ill inmates.44 As a result, Dr.
managing its mentally
Dvoskin told CDOC representatives that “if the Department
ill population is its
was sued today and he was hired as an expert witness,
severe shortage of
he is not sure what he could say in the Department’s
mental health staff.
defense.”45 As of May 23, 2013, more than two years after
Dr. Dvoskin’s comments, CDOC had added less than two
full-time psychiatric providers, with 1.5 positions still unfilled.46 According to CDOC, as of July
1, it will have funding for an additional 13.4 full-time psychiatric providers.47 This is welcome
news, despite the fact that – even if CDOC were to fill all of the vacant positions – it would still
be 8 providers, or 25 percent, short of APA recommendations. Of greater concern, however,
is that CDOC has not completely filled its vacant psychiatric positions since 2010 when the
OMI program was created. The ACLU of Colorado is doubtful that CDOC has the either plan or
the will to promptly fill the new positions. CDOC will need to consider new hiring strategies,
including increased salaries and/or a location change for the RTP program, to ensure all open
psychiatric provider positions are filled quickly. Until those positions, and likely others, are
filled, the RTP will continue to have a low chance of success.

“

“

42
43
44
45
46
47

“OMI Meeting with Joel Dvoskin, Ph.D.,” CDOC Meeting Notes, February 15, 2011, p. 4.
“OMI Meeting with Joel Dvoskin, Ph.D.,” CDOC Meeting Notes, February 16, 2011, p. 1.
Ibid.
Ibid.
CDOC Response to May 23, 2013 Colorado Open Records Act Request by ACLU of Colorado.
Ibid.

17

Conclusion and Final Recommendations
While recent steps taken by CDOC are positive, including the dismantling of the OMI
program and the institution of the new RTP, there is still much work to be done. Below
are recommendations that the ACLU of Colorado strongly encourages CDOC to implement
promptly:
•	 CDOC should bar seriously mentally ill prisoners from placement in prolonged
administrative segregation.48
•	 CDOC should adopt policies requiring mental health involvement in disciplinary
and criminal charging decisions related to seriously mentally ill prisoners.
•	 All seriously mentally ill prisoners, including those at the lowest levels of RTP,
should be provided a minimum of 20 hours of out-of-cell time per week, including
10 hours of dedicated therapeutic time.
•	 RTP must be fully staffed to provide adequate out-of-cell therapeutic and nontherapeutic time. To accomplish this goal, CDOC must have the funding and the
will to fill all mental health staff positions, particularly those of psychiatrists and
psychiatric nurses.

48

APA guidelines posit that “prolonged segregation means duration of greater than 3-4 weeks.” APA Background
to Position Statement, APA Official Actions, Dec. 2012.

18

Administrative Segregation at CSP

An administrative
segregation cell for
mentally ill prisoners
at Colorado State
Penitentiary

For most prisoners in
administrative segregation,
being handcuffed through
their cell doors is the only
physical human contact they
receive.

19

Group therapy cages
for mentally ill
inmates fortunate
enought to be granted
therapeutic out-ofcell time

A closer look into the group
therapy cages

20

Acknowledgements
This report was principally researched and written by Rebecca Wallace, ACLU of Colorado
Staff Attorney. This report was edited by Mark Silverstein, ACLU of Colorado Legal Director;
David Fathi, ACLU National Prison Project Director, and Sushma Raju, ACLU of Colorado Legal
Intern. Layout, graphics and production were coordinated by Kiela Parks, ACLU of Colorado
Advocacy Associate. ACLU of Colorado Public Policy Director Denise Maes was instrumental
in bringing this report to fruition. The ACLU of Colorado would like to thank the prisoners
who shared their experiences coping with serious mental illness while held in prolonged
solitary confinement by CDOC. The ACLU of Colorado would also like to thank Daniel Zettler,
Deputy State Public Defender of Colorado and Laura Rovner, Ronald V. Yegge Clinical Director
and Associate Professor of the University Denver Sturm College of Law, who shared their
invaluable expertise and time. Finally, the ACLU of Colorado would like to thank the CDOC
officials, corrections experts, and psychological and psychiatric experts and officials who
provided detailed and forthright records to the ACLU of Colorado and who spoke candidly about
the challenges they face in managing seriously mentally ill prisoners.

21