The Right to Health for the Most Vulnerable

As it is, individuals who commit crimes are often marginalized. Since the public generally expresses little interest to ensure the welfare of such individuals, many of the needs of the incarcerated are unmet. Adding to the already vulnerable population of inmates is the sheer magnitude of mental illnesses within prisons, a population, which has grown over the years.¹ An increase in the mentally ill in prisons came partly as a result of efforts in the 1970s to “deinstitutionalize” the mentally ill and close state-run facilities in favor of community-based treatment settings.²

International, national, and state standards have helped shape how the mentally ill in the criminal justice system should be treated, particularly with regards to their right to mental health services. International guidelines such as those stated by the Economic Social Counsel (ESC) in the Standard Minimum Rules for the Treatment of Prisoners include the requirements that “[a]t every institution there shall be available the services of at least one qualified medical officer who should have some knowledge of psychiatry” and that “medical services .... shall include a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.”³ Likewise, the U.N. General Assembly’s guiding document on the rights of those with mental illness, “The Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care,” addresses the needs of criminal offenders in Principle 20, which calls for the incarcerated to receive the best available mental health care, limited only as necessary under the circumstances.⁴ Nationally, the Eighth Amendment to the U.S. Constitution guarantees prisoners the right to medical care.⁵ In the past 20 years, courts have moved beyond inquiring whether any mental health treatment was provided to whether sufficient treatment was provided.⁶ The basic framework for the constitutional minimum in acceptable treatment includes: (1) a systematic screening and evaluation procedure; (2) treatment which entails more than segregation and supervision; (3) treatment involving a sufficient number of mental health professionals to provide adequate care to all prisoners suffering from severe mental disorders; (4) adequate and confidential mental health records; (5) a ban on prescribing potentially dangerous medications without adequate monitoring; and (6) identification, treatment, and supervision of suicidal inmates.⁷

Massachusetts also provides guidance with the issue of the right to mental health for prisoners. Article 26 of the Massachusetts Declaration of Rights prohibits the infliction of cruel and unusual punishments.⁸ Further, under the Massachusetts statute, the Commissioner of the Department of Correction (DOC) is authorized to establish and enforce standards, rules and regulations for all state correctional facilities, and to enter into contracts to render services to committed offenders and to provide training for correctional officers.⁹ The Commissioner of Correction's statutory duties do not include a duty to provide health services.¹⁰ Superintendents of prisons, however, are statutorily required to ensure that physicians conduct examinations of inmates.¹¹ The only statutory provision expressly calling for mental health care for inmates requires that inmates in segregation receive periodic medical and psychiatric treatment under the supervision of the Department of Mental Health (DMH).¹²

With the many standards in place for the treatment of mentally ill individuals in prisons, “Massachusetts has one of the lowest suicide rates in the United States, but the suicide rate of incarcerated people [in general] is one of the highest,” states State Rep. Byron Rushing (D-Boston, Cambridge). Such a statistic begs the question, why?

In a 2007 Boston Globe Spotlight team report, the deepening mental illness behind the walls of the state’s prisons that included botched background screenings, missing mental health records, and skipped security rounds was highlighted.¹³ As a partial result of this report, the Department of Corrections requested an independent study of Massachusetts prisons. The report, conducted by Lindsay M. Hayes, a national specialist in prison suicide prevention, had 29 recommendations, including increasing monitoring of suicidal inmates, adding training for staff, and improving mental health treatment. Through the implementation of such recommendations, the number of inmate suicides dropped from seven in 2007 to zero in 2008. One notable concrete change for the mentally ill was that such individuals were no longer punished with a disciplinary report in addition to being moved to segregation.¹⁴

Recently however, there were three inmate suicides in 2009, and four so far in 2010, according to Leslie Walker, executive director of Prisoners’ Legal Services, which advocates on behalf of inmates for better medical and mental health care. Walker attributes this increase in suicides a partial result of the decision to lay off 40 mental health staff last spring, as the Department of Corrections is not equipped to deal with the influx of mentally ill prisoners.¹⁵

Currently, the non-profit Disability Law Center sued the state two years ago claiming the prison system’s segregated units for mentally ill inmates is a violation of their constitutional rights. They also alleged that the prison’s 23-hour a day confinement of such inmates was inhumane and contributed to inmate suicides. The suit is scheduled for trial in the coming years but the status is largely unknown due to the state’s desire to delay.¹⁶

The recent suicides are the most visible signs of the Massachusetts prison mental health system in stress. It is true that state taxpayers spend over $55 million a year on medical and mental health care for inmates in the state prisons and nearly half a billion dollars for all prison costs.¹⁷ However, from a social benefit analysis, while mentally ill inmates are dying or trying to die, most will serve their sentences and eventually be released, often sicker than when they entered.¹⁸

As such, budgetary constraints and social stigmas should not ignore social considerations when determining the extent mentally ill inmates should be treated. Rather than viewing prison as mere punishment for convicted criminals, it should also be seen as a form of therapy and rehabilitation. If anything, such individuals should be more closely monitored and treated so that upon potential reentry into society, they are more functional and healthy than when they left.

Namita Agarwal is AyerHoffman's Health Law & Policy Contributor. Ms. Agarwal is currently a J.D. candidate at Northeastern University School of Law where she concentrates her studies on domestic and international health care, welfare, and immigration law.