The mentally ill offender: a brighter tomorrow through the eyes of the Mentally Ill Offender Treatment and Crime Reduction Act of 2004.

• Author: Rivera, Ralph M.

1. INTRODUCTION II. DUTY TO PROVIDE OR THE RIGHT TO RECEIVE HEALTH CARE SERVICES III. EXCEPTIONS TO THE GENERAL RULE THAT THE STATE HAS NO DUTY TO PROVIDE HEALTH CARE: PERSONS UNDER STATE CUSTODY A. Rights to Health Care for Children in State Custody B. Rights to Health Care for Persons in Mental Institutions C. Rights to Health Care for Prison Inmates, Pretrial Detainees, and Arrestees IV. THE LANDMARK DECISION OF ESTELLE V. GAMBLE: INMATES ACCESS TO HEALTH CARE A. The Deliberate Indifference and Serious Medical Needs Test V. RIGHTS TO MENTAL HEALTH CARE TREATMENT A. Rights to Mental Health Care Treatment in State Treatment Facilities B. Rights to Mental Health Care Treatment in Correctional Facilities VI. BARRIERS TO EFFECTIVE AND EFFICIENT TREATMENT FOR MENTALLY ILL OFFENDERS A. Correctional Facilities Must Implement Screening Procedures B. Correctional Facilities Must Staff Adequately Trained Mental Health Care Professionals C. Results of the Lack of Training for Law Enforcement Officers VII. PROBLEMS THAT RESULT FOR THE FAILURE TO PROPERLY TREAT MENTALLY ILL OFFENDERS A. Lack of Treatment in Correctional Facilities for Mentally Ill Offenders B. Recidivism Rates Among Mentally Ill Offenders VIII. PUBLIC POLICY DEMANDS THAT MENTALLY ILL OFFENDERS RECEIVE THE NECESSARY MENTAL HEALTH CARE TREATMENT WHILE INCARCERATED A. The Mentally Ill Offender and Crime Reduction Act B. Properly Implemented Treatment Programs in Correctional Facilities Can Lower Recidivism Rates Among Mentally Ill Offenders C. Collaboration Between Systems to Combat the Barriers Affecting the Mentally Ill Offender D. Law Enforcement Agencies Must Be Trained to Deal with the Mentally Ill Offender E. Alternatives to Incarceration for Mentally Ill Offenders IX. CONCLUSION I. INTRODUCTION

   Rhonda Atkins poured her heart out when she testified to Congress, in the summer of 2004, about her concerns that this country faces in combating the problem of obtaining the necessary treatment for mentally ill offenders. This problem is especially close to her heart because her daughter Reese was diagnosed with bipolar disorder, a severe mental disorder, when she was fifteen years old. (1) For years, Reese's conditions went untreated and she began to slowly deteriorate. Reese tried to control her conditions by abusing various substances, like so many other individuals suffering from mental illnesses. Reese's behavior would range from severe mania, to extreme irrationality, to paranoia. When her daughter's behavior became uncontrollable, Rhonda's only resource was to call the police. (2)

   Through the countless times that the police were called to her residence because of her daughter's behavior, some police officers were compassionate to her illness, while others were rough. Sometimes, the officers escalated Reese's conditions where she or the officers could have been injured. One officer stated, "if you were my daughter, I would knock you across the room." (3) The officer's behavior exemplifies the growing problem that the criminal justice system is ill-equipped to properly handle mentally ill offenders.

   At the time of Reese's first arrest for trespassing, there were no resources available to give her daughter the necessary treatment she required. Even after she was later diverted into a drug court, following a drug charge, her daughter was still left without the necessary treatment. One social worker even discouraged the integration of substance abuse treatment and mental health treatment. (4) The reality of Reese Atkins is a sad but true story. The Atkins family is not alone in this fight.

   Beginning in the early 1950s and '60s, states began to close their public mental health hospitals. This process was known as "deinstitutionalization." In recent years, following the massive wave of deinstitutionalization, a substantial number of institutionalized persons with mental disabilities were relocated from civil mental hospitals into jails and prisons. (5) Despite this shift in population, correctional facilities remain ill-equipped to handle and deal with offenders with mental disabilities. One study found that approximately 6.5-10% of inmates suffered from a serious mental illness, while another 15-40% suffered from a moderate mental illness. (6) Another study done by the Bureau of Justice Statistics indicated that 16% or an estimated 283,800 inmates were identified as being mentally ill by mid-year 1998. (7) Cheri Nolan, Deputy Assistant Attorney General of the Office of Justice Programs, testified to Congress that "the increasing number of people with mental illnesses in the criminal justice system is one of the most pressing issues facing our police departments, jails, prisons, and courts. (8)

   Despite such statistics, offenders' rights to mental health treatment have been slow to reach many of incarcerated inmates who require treatment. The landmark case of Estelle v. Gamble (9) and its modern predecessors have only reactively addressed the egregious actions of correctional facilities that deny mentally ill offenders the proper mental health care treatments. The United States Supreme Court formulated the appropriate test in Estelle, concluding "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' that violates the Eighth Amendment." (10) Such a standard makes it difficult for inmates to receive the necessary treatment they require, or to prove that current treatment is inadequate. The courts have said for years what the constitutional minimums were concerning rights to mental health treatment. If the courts were to raise such minimums to allow for greater access to treatment, or uniformly apply the standards used by many proactive correctional facilities, mental health professionals could possibly treat the mental illnesses that may have inevitably led to the vast majority of mentally ill offenders' current incarceration.

   With the signing into law of The Mentally Ill Offender Treatment and Crime Reduction Act of 2004, government agencies and health care providers will now be able to act more proactively in attempting to reduce the amount of crime committed by mentally ill individuals. But only time will tell how such legislation will help combat the problem of the inadequacy of mental health treatment that mentally ill offenders receive while incarcerated. This Note will examine the evolution of health care rights that incarcerated persons are afforded, specifically looking at the rights to mental heath treatment. Through this process, the many problems will be illustrated that this issue creates, and look towards the future at what could be done by examining what currently works and what is still needed to alleviate the problem of mentally ill offenders.

2. DUTY TO PROVIDE OR THE RIGHT TO RECEIVE HEALTH CARE SERVICES

   Under the common law, a private hospital had no obligation to provide medical treatment, regardless of whether there existed an emergency. (11) This absence of duty followed from the common law tort principle that a person had no duty to help another in peril, absent a special relationship. At common law, physicians had no affirmative duty to accept a particular patient for the purposes of treatment. (12) However, once a physician chose to treat a patient, the physician was then under a legal obligation to provide continuous necessary medical treatment until their physician-patient relationship had been terminated. (13)

   As discussed above, early common law principles placed no affirmative duty upon the state to provide medical care to those in need, or at least made it difficult to obtain the care needed. Modern rights to health care have emerged via the Federal Constitution. The question of whether there is a constitutional right to health care lies in the debated cases that deal with the funding of abortions. In Harris v. McRae and Maher v. Roe, the Supreme Court held that the government is not obligated to provide for such services. (14) The Court drew the distinction between a duty to provide necessary medical care or treatment and the impeded access to such medical services as a result of state action. (15) Relying on the above cases, the Eleventh Circuit has held that individuals do not have a general constitutional fight to medical care or treatment provided by the state, (16) but there are exceptions when a special relationship exists between the state and the patient.

3. EXCEPTIONS TO THE GENERAL RULE THAT THE STATE HAS NO DUTY TO PROVIDE HEALTH CARE: PERSONS UNDER STATE CUSTODY

   The modern principle that draws an inference of the state's duty to provide those individuals under its control or custody with the necessary medical care is known as the DeShaney principle. (17) The Supreme Court held that the state had no affirmative duty to protect a child from the abuse of his father. (18) Simply stated, the Due Process Clause of the Fourteenth Amendment does not require a state to affirmatively protect the life, liberty, or property of a citizen, regardless of how severe or detrimental those actions taken by private citizens may be. The Fourteenth Amendment provides a blanket of protection for citizens only against the egregious actions of the state, not the actions of private citizens. (19)

   The Supreme Court has stated that an exception to the general rule exists only when a special custodial or other relationship exists between the government and the individual seeking medical care. (20) Constitutional violations may arise when the government fails to provide the necessary medical services when a special relationship exists. (21)

   This custodial relationship arises when the government exercises a significant degree of custody or control over a person, and the government's isolation of the person places him in a worse situation than he would have been had the government failed to act. (22) Such situations exist when the state places an individual in a...