From the asylum to solitary: transinstitutionalization.

• Author: Wachtler, Sol
• Position: Miscarriages of Justice

1. INTRODUCTION

   England, by a decree of 1697, and as a mark of civilization, established houses of correction for persons with mental illness. (1) These mentally ill persons were penned up with other "socially deviant persons" because it was felt that undesirable behavior could be corrected by punishment. (2) In those times, mental illness was considered a "curse, corruption of the soul, or possession of demons." (3) And so the mentally ill were put in asylums--a form of imprisonment.

   In the 1840s, in the United States, Dorothea Dix discovered that the mentally ill were being confined in the nation's prisons. (4) She began a nationwide crusade to remove these persons from prison-- to see to it that they were put in treatment facilities. (5) Speaking before the Massachusetts Legislature she said:

   I proceed, gentlemen, briefly to call your attention to the present state of insane persons confined within this Commonwealth, in cages, closets, cellars, stalls, pens! Chained, naked, beaten with rods, and lashed into obedience. (6) As a result of her crusade, states created psychiatric hospital systems and the number of severely mentally ill prisoners nationwide was reduced to less than 1%. (7) However, these psychiatric hospitals, or "asylums," were underfunded, overcrowded, and poorly staffed. (8) Over the years, most of these institutions have been virtually abandoned. (9) Since 1970, almost 90% of these psychiatric hospital beds have been closed and the mentally ill are again being put into our prisons. (10) Today, there are likely more than 350,000 seriously mentally ill prisoners behind bars; or an estimated 16% of our jail and prison populations. (11)

   We have transinstitutionalized these prisoners from the psychiatric hospitals into the cells, it has reached the point where law enforcement personnel, correction officers, and the criminal justice system are primarily responsible for persons who are in psychiatric crisis. In the United States, "jails and prisons treat more people with serious mental illness than hospitals" and "have become the insane asylums of the 21st Century." (12) It would appear that we have come full circle--prisons are once again being used to house many who are seriously mentally ill. (13) They are, once again: houses of correction for persons with mental illness.

   Imprisonment for a person with normal brain function can be Kafkaesque, but imprisonment for a mentally ill person can be beyond the pale of imagination. Prisons are governed by strict rules--institutionally and nuanced codes among the prisoners themselves. The mentally ill inmate often cannot comprehend or even vaguely understand these rules. In addition, mentally ill prisoners are often provocatively irritating and offensive to other prisoners and prison guards. Screaming obscenities, removing clothes in a rage, throwing food, and setting fires to purge their cells of the devil are not unusual behavior patterns for these seriously mentally ill inmates.

   It is this aberrational behavior which results in a disproportionate number of these inmates being put in solitary confinement. There is no disciplinary hearing or due process preliminary to an inmate being so confined. Prison guards need little provocation, and are the sole judges of who and for how long an inmate can be put in solitary. Once a seriously mentally ill prisoner is put in solitary confinement, a new tragedy unfolds.

   Locking up a seriously mentally ill person in solitary, claustrophobic eight-by-ten cells for twenty-three hours a day, with only one hour in an outdoor zoo-like cage, isolated and idle, only exacerbates their symptoms and leads to greater mental dysfunction.

   I have seen and been with mentally ill prisoners in solitary confinement. They are mostly untreated or under-treated and as a consequence of neglect, they deteriorate. Their behavior becomes unpredictable--they may react violently to the goading of other inmates, or they may rant or engage in incoherent babble which infuriates their guards. They may not respond to direction and, instead, cower silently. They may respond to voices only they can hear, or talk to invisible persons in a world constructed from their own hallucinations. They may self-mutilate and riddle their bodies with scars. Many try suicide. This acting out, this aberrational behavior, constitutes infractions which are punished by their keepers, most often by continuous and protracted interment in a Secure Housing Unit, otherwise known as the SHU.

   This explains why a disproportionate number of the eight thousand seriously mentally ill in our New York State prisons end up serving an average of over three years in the SHU. (14) Because of the closing of our mental hospitals, there has been a dramatic increase of prisoners diagnosed with serious mental illness. Placing them in the SHU is both uncivilized and counterproductive.

   When the linear thinking of a seriously mentally ill inmate, or the autistic inmate, in the SHU does not allow him to understand that his misbehavior is the reason for his punishment, he continues to act out while in the SHU. To further punish him, he is fed the "loaf'--a brick-like mixture of vegetables and flour served with a dish of raw cabbage and water. (15) As a spokesperson for the Department of Correctional Services once said, "the loaf is ordered when 'there's nothing left to take away.'" (16)

   Bread and cabbage given for punishment has been condemned by the American Correctional Association, and was eliminated from federal prisons and most state prisons--but not in New York. (17) In fact, during the Pataki years, use of the loaf diet was increased by over 100% and many of those put on the diet were seriously mentally ill. (18)

   Recognizing the barbarism of this treatment, and after an enormous effort by individuals and organizations, the New York State Legislature passed the "SHU" bill. (19) It took a law suit, the weathering of an inexplicable Pataki veto, and the commitment of dozens of individuals and organizations over a period of many years to have the legislature, with almost unanimity, provide more appropriate and humane in-prison residential and treatment services for prisoners with psychiatric disabilities. (20) The SHU bill also ensured that correctional officers would be provided with adequate mental health training. (21)

   Although the law was not scheduled to take effect until 2011, in his final Executive Budget, Governor Paterson proposed to diminish and delay, for an additional three years, the protections afforded by the SHU bill, putting off implementation of the bill until 2014. (22) Accompanying legislation also called for the elimination of about half of the correctional beds from the requirements of the SHU bill, and cut the training requirements for correctional officers. (23)

   I was asked to testify at the budget hearings related to Governor Paterson's effort to amend the SHU Bill. I arrived at the Empire State Plaza before the hearing began and wandered into the large auditorium, which was adjacent to the room where the hearing was to be held. The auditorium was jammed with legislators, the press, and members of the public. Several members of the clergy were speaking, and various religious icons were displayed: the subject of this gathering was to condemn same-sex marriage and the sin of homosexuality. Next door, when I was asked to speak, I presumed to note that if Jesus were at the Empire State Plaza that day, he would be more interested in what was transpiring with respect to our treatment of the mentally ill in prison than with the rally taking place in the auditorium next door.

   During those hearings I testified that the SHU bill was already a carefully worked out compromise and that the administration's effort to significantly alter and scale back the scope of the legislation by way of the budget process was shameful. The Governor seemed to be simply and arbitrarily walking away from the State's commitment to provide humane treatment to those with psychiatric disabilities who are most vulnerable. Fortunately, the legislature rejected the Governor's bid to postpone the implementation of what became known as the SHU Exclusion Law.

2. THE SHU EXCLUSION LAW

   The SHU Exclusion Law, (24) which went into effect on July 1, 2011, was designed to remove inmates with serious mental illness who are put in segregated confinement as a disciplinary measure, and to give these inmates the help and treatment...