Author:Short, Stefen R.
Position:Special Issue: The Geography of Confinement

TABLE OF CONTENTS Introduction 438 I. Deinstitutionalization and Resulting Deficiencies in New York's Prison Mental Health Care System 449 A. An Abridged History of the Deinstitutionalization Movement 449 B. The Scope of the System and the Availability of Mental Health Treatment in New York State Prisons 454 1. Regional Catchment Areas 461 2. VTC in New York Prisons: Implementation, Current Practices, and Shortcomings 463 II. The Insufficiency of Litigation Solutions Absent Grassroots Approaches 472 A. An Abridged Overview of the Eighth Amendment Framework 473 1. Defendant Failed to Conduct an Adequate Examination, Take an Adequate History, or Ask Necessary Questions 476 2. Defendant Failed to Remedy Known Systemic Deficiencies, such as an Institutional Lack of Access to Qualified Staff or Repeated Failures to Afford Proper Placement 479 B. A Grassroots Approach is Necessary to Correct the Systemic Problems Litigation Usually Cannot Address 486 III. A Grassroots Solution to the Geographic Crisis Causing Subpar Prison Mental Health Treatment 487 Conclusion 497 INTRODUCTION

During the mid-1950s, amidst burgeoning awareness among social justice activists of the abuse and neglect of individuals with mental health needs in psychiatric hospitals, the number of individuals confined to those hospitals peaked. (1) Five hundred and sixty thousand patients were held in often brutal conditions, and scores of them were denied access to basic necessities of life, such as the right to form and maintain interpersonal relationships. (2) Rather than simply accept such severe restrictions upon their humanity, people who were confined to institutions told their stories. (3) Due chiefly to their courage and the courage of their families and friends, a robust psychiatric deinstitutionalization movement emerged. (4) That movement--at its peak during the 1960s and 1970s--forced psychiatric professionals, state governments, and the federal government to reckon with a treatment model that systematically devalued the lives of thousands of people. (5) Although many states shuttered large psychiatric institutions in response to that movement, a large number of them--including New York--failed to devote necessary resources to the development of robust, community-based alternatives that could provide psychiatric care. (6) Because the creation of a community-based care model, the chief goal of the deinstitutionalization movement, was not actualized, some scholars consider the movement a failure. (7) Furthermore, many of those in need who stood to benefit from the movement wound up poor, destitute, or homeless as a result--arguably not much better off than they were before. (8)

The "law and order" movement, which grew alongside the deinstitutionalization movement, led to the increasingly draconian criminalization of conduct often related to, or directly attributable to, mental health needs. (9) Driven largely by establishment politicians increasingly buoyed by "tough on crime" rhetoric, the "law and order" movement produced significant regressive legal reforms. (10) One such example are New York's Rockefeller Drug Laws, enacted in 1973, which mandated harsher penalties for both the sale and possession of small amounts of banned narcotics. (11) The Rockefeller Drug Laws and other state and federal laws enacted during the "law and order" movement criminalized conduct often attributable to a manifestation of mental health needs. (12) For example, increased criminalization of substance abuse disproportionately impacts individuals with mental health needs, as over fifty percent of people with mental health needs have a co-occurring and related substance use disorder. (13)

The results of these two movements cohered. As the "law and order" movement increasingly criminalized mental health-related conduct, the deinstitutionalization movement failed to shield individuals with mental health needs from the criminal justice system because it did not create the type of robust treatment model shown to prevent arrest and incarceration. (14) Research has demonstrated that the increase in individuals with mental health needs in jails and prisons is directly correlated with the lack of mental health services available in community settings. (15) Left to fend for themselves without access to robust treatment, individuals with mental health needs were ever more imperiled by New York's emergent "law and order" ethos. (16) That ethos's harsh response to manifestations of mental health-related conduct, combined with New York's lack of resources to treat such manifestations, led inexorably to an increase in the incarceration rate of individuals with mental health needs over several decades. (17) Between 1991 and 2002, the percentage of individuals receiving active mental health treatment in in New York prisons increased by 73%. (18) Over that same time period, the overall prison population increased by 14.6%. (19) The increase in those incarcerated with mental health needs was five times greater than the increase in the overall prison population. (20) As recently as 2012, one-quarter of incarcerated individuals nationwide were diagnosed with mental health needs. (21) These trends, along with a lack of fiscal resources, have burdened Central New York Psychiatric Center ("CNYPC"), the New York State Office of Mental Health ("OMH") forensic hospital that is responsible for corrections-based mental health treatment in New York State prisons. (22) The predicament at the CNYPC is a reflection of a nationwide crisis. (23)

Activists, advocates, and lawyers have played a major role in responding to this crisis and improving psychiatric treatment in New York's prisons over the last several decades. (24) For example, lawyers from Disability Advocates, Inc., Prisoners' Legal Services of New York, and the Prisoners' Rights Project of The Legal Aid Society of New York City negotiated a private settlement agreement in Disability Advocates, Inc. v. New York State Office of Mental Health, (25) expanding the circumscribed mental health services options in New York State prisons and increasing services for people with serious mental health needs housed in twenty-three-hour-per-day solitary confinement. (26) Although that settlement agreement has since expired, it led to the implementation of the Special Housing Unit ("SHU") Exclusion Law, (27) a New York State law that codified the expansion of treatment options and units for incarcerated individuals with serious mental health needs. (28) Among other requirements, the SHU Exclusion Law requires the New York State Department of Corrections and Community Supervision ("DOCCS")--the agency that operates all New York State prisons--to "divert or remove inmates with serious mental illness... from [twenty-three-hour-per-day solitary confinement] when the period of [solitary confinement] could potentially be [longer than] thirty days." (29) As a result, people with serious mental health needs--who, studies show, are far more susceptible to mental deterioration in solitary confinement--are diverted to a more treatment-rich environment. (30) Apart from the SHU Exclusion Law, the Constitution mandates that DOCCS and OMH provide mental health treatment to all other individuals with serious mental health needs, including mental health assessments by trained clinicians. (31)

A memorandum of understanding between DOCCS and OMH details how the agencies work together to serve the needs of the population. (32) Services are delivered primarily through mental health satellite units, which are units within the prisons providing mental health treatment. (33) Each satellite unit is headed by a mental health unit chief and is additionally staffed by nurses, social workers, and psychiatrists. (34)

Almost all New York State prisons with mental health satellite units support local economies and serve as economic anchor institutions in fiscally depressed communities far from New York City's population center. (35) These prisons provide well-paying jobs in communities without many other employment options and maintain generational wealth through retirement packages and union protections. (36) Although a boon to local economies, the location of these prisons and the satellite units in them--specifically their geographic isolation--has negatively affected the quality of mental health care provided to incarcerated people. (37) For years, rural and suburban New York counties have experienced psychiatrist shortages: for example, in 2017, fifty-four of sixty-two counties in the state reported shortages. (38) As such, the prison mental health satellite units in certain rural regions of New York State are under-staffed because DOCCS and OMH have difficulty hiring mental health clinicians in under-resourced, remote parts of the state that are experiencing those shortages. (39)

Due to the dearth of qualified mental health clinicians in rural communities, DOCCS and OMH extensively utilize a video teleconferencing ("VTC") model (40) for the provision of outpatient mental health services in many of the satellite units. (41) Psychiatrists assess individuals through VTC to determine whether individuals who have reported a mental health crisis should be removed from suicide watch or discharged from an observation cell. (42) Individuals incarcerated in New York State prisons are often assessed for their mental health condition--and even for their suicide risk--via VTC. (43) Individuals who receive ongoing mental health services, known as "being on the OMH case load," also receive treatment from psychiatrists via VTC. (44) That treatment includes regular VTC appointments with individuals for the purpose of assessing mental health status, evaluating treatment regimens, and determining whether medications need to be adjusted. (45) Many correctional agencies throughout the nation have championed VTC as a method of responding to resource issues. (46)

Due to the...

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