An American Gulag-The Atlantic
June 28, 2012
Descending into Madness at Supermax
The Atlantic: June 18 2012
A detailed new federal lawsuit alleges chronic abuse and neglect of mentally ill prisoners at America’s most famous prison.
When Jack Powers arrived at maximum-security federal prison in Atlanta in 1990 after a bank robbery conviction, he had never displayed symptoms of or been treated for mental illness. Still in custody a few years later, he witnessed three inmates, believed to be members of the Aryan Brotherhood gang, kill another inmate. Powers tried to help the victim get medical attention, and was quickly transferred to a segregated unit for his safety, but it didn’t stop the gang’s members from quickly threatening him.
Not then. And certainly not after Powers testified (not once but twice) for the federal government against the assailants. The threats against him continued and Powers was soon transferred to a federal prison in Pennsylvania, where he was threatened even after he was put into protective custody. By this time, Powers had developed insomnia and anxiety attacks and was diagnosed by a prison psychologist as suffering from Post-Traumatic Stress Disorder.
Instead of giving Powers medicine, or proper mental health therapy, officials transferred him yet again, this time to another federal prison in New Jersey. There, Powers was informed by officials that he would be removed from a witness protection program and transferred back into the prison’s general population. Fearing for his life, Powers escaped. When he was recaptured two days later he was sent to ADX-Florence, part of a sprawling prison complex near Florence, Colorado often referred to as “ADX” or Supermax,” America’s most famous and secure federal prison.
From there, things got worse. The Supermax complex, made up of different secure prison units and facilities, is laden with members of the Brotherhood and Powers was no safer than he had been anywhere else. Over and over again he was threatened at the Colorado prison. Over and over again he injured or mutilated himself in response. Over and over again he was transferred to federal government’s special mental health prison facility in Missouri, diagnosed with PTSD, and given medication. Over and over again that medication was taken away when he came back to Supermax.
As he sits today in Supermax, Powers had amputated his fingers, a testicle, his scrotum and his earlobes, has cut his Achilles tendon, and had tried several times to kill himself. Those tattoos you see? Powers had none until 2009, when he started mutilating with a razor and carbon paper. He did much of this — including biting off his pinkie and cutting skin off his face — in the Control Unit at ADX while prison officials consistently refused to treat his diagnosed mental illness. Rules are rules, prison officials told him, and no prisoners in that unit were to be given psychotropic medicine no matter how badly they needed it.
CALL AND RESPONSE
If the Powers case were unique it would be shocking enough. Bureau of Prison policies prohibit officials from assigning mentally ill inmates to ADX. And the Eighth Amendment requires prison staff everywhere to adequately diagnose and treat mentally ill prisoners, including those prisoners, like Powers, who evidently become mentally ill while in prison. No law or policy, at any level, would appear to sanction or condone the conduct of those prison officials accountable for the lack of response to Powers’ decline.
For these inmates, the prison is a Gulag, a place of unspeakable cruelty and state-sponsored wickedness,
But Powers is not an exception. In federal court in Denver this morning, a new class-action lawsuit was filed against the Bureau of Prisons and the officials in charge of Supermax. The long, detailed complaint, which reads at times like the plot from HBO’s Oz, alleges not just “deliberate indifference” on the part of those officials but outright cruelty — even torture — in the face of obvious cases of mental illness at the prison. You can read the complaint in its entirety here. The very first paragraph of the pleading states plainly the case:
Currently, BOP [Bureau of Prisons] turns a blind eye to the needs of the mentally ill at ADX and to deplorable conditions of confinement that are injurious, callous and inhumane to those prisoners. No civilized society treats its mentally disabled citizens with a comparable level of deliberate indifference to their plight.
Paragraph 5 of the complaint alleges in more detail:
Prisoners interminably wail, scream and bang on the walls of their cells. Some mutilate their bodies with razors, shards of glass, writing utensils and whatever other objects they can obtain. Some swallow razor blades, nail clippers, parts of radios and televisions, broken glass and other dangerous objects. Others carry on delusional conversations with voices they hear in their heads, oblivious to the reality and the danger that such behavior might pose to themselves and anyone who interacts with them.
There are five named prisoners in the lawsuit (about whom we’ll have more detail in the next installment of this series), and its likely that at least six other inmates named in the complaint, and perhaps many more, will soon join the litigation. It’s certain that this case will be closely followed around the country because of what it portends for other lawsuits challenging dubious prison isolation policies. The lawsuit does not request money damages. Instead, it seeks an injunction that would require prison officials to better treat the ill men in their care.
And just exactly who are the plaintiffs? Who are these convicted felons seeking redress in federal court? All of them came to Supermax because of violent run-ins at other federal prisons or other parts of the sprawling ADX complex in Florence, Colorado (some of those incidents themselves were a manifestation of their mental illness). One plaintiff got to the control unit at Supermax after he assaulted a prison chaplain. Another, who is likely mentally retarded, pleaded guilty to murdering another inmate. These men are hardly noble. But the Eighth Amendment doesn’t require them to be. From paragraph 7 of the complaint:
Plaintiffs are five seriously mentally ill men currently incarcerated at ADX. This Complaint also names as “Interested Individuals” six other current ADX prisoners with serious mental illnesses. … Many of these men also suffer severe functional impairment of their ability to attend to their own personal needs or even to exist in a world with other people. Several of them are mentally retarded, and at least one is functionally illiterate.
Many of these men aren’t serving life sentences. Some will soon be released after going mad in prison, after having preexisting mental illness get worse behind bars. One of the named plaintiffs, for example, is a man named John W. Narducci Jr. His life story is tragic, his criminal conduct unrelenting. Many years ago, his sentencing judge ordered that he be imprisoned in a place that could adequately tend to Narducci’s “serious psychological and emotional problems.” That didn’t happen. And soon he may be free.
Two other Supermax inmates, who are not yet named plaintiffs in the lawsuit, are so severely mentally ill that federal lawyers have allegedly gone to court — repeatedly — to have them involuntarily committed or forcibly medicated. One of these men, paragraph 57 of the complaint contends, is scheduled to be released in October 2012 after having had no mental health treatment for the past six years. Paragraph 58 of the complaint focuses upon the other inmate, whom prison officials themselves have conceded has a “mental disease or defect.”
AN AMERICAN GULAG
The worse the mentally ill men behave without their medication and treatment, the worse they are treated by prison officials.
Over 150 years ago, in a book aptly titled House of the Dead, Fyodor Dostoevsky wrote that “the degree of civilization in a society can be judged by entering its prisons.” This new lawsuit, styled Bacote v. Federal Bureau of Prisons, enters Supermax in a way that none of us ever has before. For these inmates, the prison is a gulag, a place of unspeakable cruelty and state-sponsored wickedness, run by officials who ignore their own policies and seem to revel in humiliating prisoners by depriving them of basic human dignities.
The problem starts even before the men ever get to Supermax. Federal policy prohibits inmates with serious mental illness from being transferred there. But seriously mental ill inmates are nonetheless assigned there anyway. Bureau of Prison policy next requires incoming prisoners to be properly evaluated at ADX for mental health problems. But the complaint alleges that these initial screenings are “only perfunctory interviews” that typically consist of “a few questions asked in a minute or two.”
The result is that many prisoners who are significantly mentally ill are not so diagnosed upon entering Supermax. And even those men who are so diagnosed are often not given appropriate treatment in the months and years that follow their arrival at the facility. For example, the complaint alleges that prison officials violate “every major requirement” of the following federal regulation which is designed to govern the treatment of mentally ill prisoners at Florence:
Mental health services. During the first 30-day period in a control unit, staff shall schedule the control unit prisoners for a psychological evaluation conducted by a psychologist. Additional individual evaluations shall occur every 30 days. The psychologist shall perform and/or supervise needed psychological services, psychiatric services will be provided when necessary. Prisoners requiring prescribed psychotropic medication are not ordinarily housed in a control unit. (Emphasis added in complaint.)
The plaintiffs contend that “it is common for BOP to place an incoming prisoner taking psychotropic medication in the Control Unit, where such medication is not permitted.” The result is predictable. Paragraph 49 of the complaint:
BOP justifies this in Orwellian fashion: it discontinues the prisoner’s medication, thereby making the now non-medicated prisoner “eligible” for placement in the Control Unit. Then, when this newly eligible prisoner requests medication needed to treat his serious mental illness, he is told that BOP policy prohibits the administration of psychotropic medication to him so he should develop “coping skills” as a substitute for medicine being withheld.
Instructing a prison confined in long-term segregation and who has schizophrenaia or bipolar Illness to self-treat this disease with coping skills is like demanding that a diabetic prisoner learn to “cope” without insulin.
There is the legal requirement to provide medical treatment for mentally ill prisoners. And then there are the practical realities. Paragraph 63 of the complaint alleges that “only two mental health professionals — both psychologists — are responsible for the mental health of approximately 450 prisoners housed at [Supermax], many of whom have serious chronic mental illnesses or other mental health issues, and many others of whom experience periodic acute mental health crises.”
The result, contend the prisoners, isn’t just that they don’t get appropriate mental health therapy or adequate medication. Even when they are allowed to take pills, they allege, the Supermax “staff distributes medications on an irregular schedule that is often inconsistent with the instructions for consumption of the medication.” The distribution of the medicine is “haphazard and sometimes reckless” and “frequently” results in the wrong medicine being given to the prisoners.
MORE ON SUPERMAX
The complaint alleges that the “disciplinary model at ADX is often an instrument of terror and abuse, deployed by staff members who sometimes provoke the very conduct they punish and who lack the training and skills necessary to manage mentally ill prisoners safely and effectively.” This is not uncommon at prisons all around the country. But paragraph 70 of the complaint alleges specific details of the effects of such “grossly inadequate training” on mentally ill prisoners at Supermax:
Thus, mentally ill prisoners, including those in the throes of a psychotic episode, frequently are subjected to barbaric treatment and physical torture more suited to the dungeons of medieval Europe than to a modern American prison. For example, mentally ill prisoners are routinely “four pointed” — chained by the arms and legs to a concrete block — often for extended periods. While chained, mentally ill prisoners often are left to urinate and defecate on themselves, and are denied basic nutrition.
Here’s another example of life for mentally ill prisoners at Supermax. From paragraphs 71 and 72 of the complaint:
In some cases, ADX staff turn the simple (although cruel and unusual) refusal to feed a prisoner into a deceptive hoax. ADX prisoners, including those in four point restraints, sometimes are put on a disciplinary “sack lunch” nutrition program in which they are fed not standard prison trays but a paper bag containing a sandwich or two and a piece of fruit.
Many mentally ill prisoners at ADX who are placed on sack lunch restriction have received sacks (suitably videotaped) being delivered to their cells. But when they open the bags (off camera) they sometimes are empty. Through this ruse ADX staff produce false video evidence of feeding, raising (if only for a minute) the prisoner’s hope for basic nutrition, then smash the often-chained and always hungry prisoner’s hopes with a bag of air. …
As a result of this type of abuse, other prisoners in nearby cells and ranges are often subject to the shrieking and suffering of prisoners undergoing such abuse.
And from paragraph 60:
Likewise, in 2010, a severely and chronically depressed prisoner who had attempted to kill himself a few months earlier was escorted to the ADX [Special Housing Unit] after throwing milk at a corrections officer. He was placed in a cell just vacated by another chronically ill prisoner who had smeared the cell’s floors, walls, bed and mattress with feces. The prisoner was given no cleaning supplies, and was not issued a blanket, towel or sheet. He used a roll of toilet paper in the cell to try to wipe the feces off of a spot on the floor that was large enough to enable him to lie down. For two days, he remained lying on that single “clean” space.
Upon information and belief, ADX staff knowingly chose to place the seriously mentally ill prisoner in the feces-caked cell just vacated by another seriously mentally ill inmate and left him there for two days for the purpose of punishing him by means of another prisoner’s excrement.
When there is mental health counseling, the plaintiffs allege, it is often a “farce.” From paragraph 68 of the complaint:
Members of ADX mental health staff occasionally talk to prisoners, but even those occasional counseling sessions are almost invariably conducted through the bars of the prisoner’s cell, in the immediate presence of a correctional officer and within earshot of other prisoners housed in the same range. This process turns psychological counseling into a farce. …
Although a safe, secure and private room for psychology counseling is available within steps of the cell of virtually every cell at ADX, staff members routinely ignore prisoner requests to discuss serious psychological problems in private.
That is, prison mental health officials are routinely ignoring such requests when they aren’t busy performing correctional functions — a bit of double-duty that effectively neutralizes whatever “trust” the mentally ill inmate may have formed with his mental health contact. It’s hard to bare your soul to your therapist and then see your therapist serving as a prison enforcer. Paragraph 71 of the complaint makes this startling allegation:
Upon information and belief, the BOP requires or encourages members of the mental health staff at ADX to perform correctional functions. Upon information and belief, such staff members have: performed prisoner escort duty within the prison while armed with weapons, openly brandishing those weapons in the presence of prisoners; worked shifts in the prison’s gun towers; appeared at the doorways of prisoners brandishing clubs in an aggressive fashion; and participated in violent acts toward prisoners, including, on at least one instance, participating in a violent cell extraction while wearing riot police protection gear.
It is a cycle. The men become mentally ill, or become more mentally ill, because they are not given proper medication or treatment. And the worse the mentally ill men behave without their medication and treatment, the worse they are treated by prison officials. For example, the plaintiffs allege that they were threatened by prison officials for their involvement in this case. “If you don’t drop this lawsuit they will fuck you over, trust me on this,” one Supermax staffer allegedly told one of the plaintiffs.
MEDITATIONS ON A DEFENSE
The Bureau of Prisons will soon have to respond to the allegations of the complaint — I promise I will write about that, too — and it is likely that federal lawyers will do so not on the merits but by claiming the lawsuit must be dismissed on procedural grounds. This is how the feds have responded virtually every other time Supermax prisoners have sought adequate mental health care by suing officials. Fourteen times the prison has been sued in the past nine years, the complaint alleges: more than one lawsuit a year.
Prison officials have successfully blocked the previous litigation by arguing that the prisoners had not exhausted their administrative remedies. This is a frequent and reasonable requirement in lawsuits against the government, requiring potential litigants to seek legal redress first with the agency with which they have a dispute. No federal judge will permit a case like this to proceed to discovery — much less a trial — unless that judge is convinced that no remedy is available directly from the offending government actors.
The complaint alleges that the plaintiffs have exhausted the avenues for grievance within Supermax. From paragraph 202:
Upon information and belief, and by way of illustration only, ADX staff members deny prisoners access for forms that BOP requires prisoners to use to submit complaints, “lose” administrative remedy paperwork or delay its submission so that prisoner appeals are deemed “untimely, fail to adequately investigate prisoner complaints, and fail to remedy obvious problems brought to BOP’s attention by means of those prisoner complaints that do evade the impediments imposed by BOP itself.
Perhaps you are wondering if the prison has an inside “watchdog” official who might be authorized to investigate allegations of misconduct by prison staffers. There is indeed such a person at Supermax, the complaint alleges. Her name is Dianna Krist. Her title is “Special Investigative Agent.” But Krist appears to be married to Captain Russell Krist, who is responsible for “all corrections functions” at Supermax. No court in the country would countenance such an obvious conflict of interest — and federal policy prohibits it.
Earlier this month, I wrote in depth about another new lawsuit brought against Supermax, Vega v. Davis, which seeks to require prison officials to answer for the 2010 suicide of an inmate named Jose Vega. In that case, Vega’s brother seeks money damages from the feds. Vega is not alone, either. At least five other prisoners have committed suicide at Supermax since it opened in 1994, the complaint alleges. Things have been bad there for a very long time, in other words, even as Supermax has been widely hailed as the pride of the nation’s penal system.
This class-action lawsuit seeks to have the federal judiciary order specific, fundamental changes to the mental health policies in place at the Bureau of Prisons as well as the mental health practices in play at Supermax. More training for prison staff. More counseling and medication for mentally ill prisoners. More effective safeguards to increase the accuracy of diagnoses and the commitment to sustained treatment. No more torture of the diagnosed ill. No more taunting of them.
These are not frivolous requests. They represent basic human rights to which even our nation’s convicted felons are entitled under the Constitution and the Bill of Rights. The Bureau of Prisons is not permitted to treat men like animals no matter what they have done. And if federal lawyers now say that Supermax’s mentally ill prisoners — who aren’t supposed to be there in the first place — don’t deserve answers and reform, then surely the rest of us do. We all will be judged by the level of inhumane treatment our prisoners receive — for they receive that treatment in our name.
This is the first in a three-part series about the new class-action lawsuit filed Monday against the Bureau of Prison and the officials who run ADX-Florence, the so-called “Supermax” facility that houses some of the nation’s most dangerous criminals. The second part will focus on the plaintiffs named in the lawsuit. The third part will focus upon some of the many legal issues involved in the litigation.
Supermax: The Faces of a Prison’s Mentally Ill
The Atlantic: June 19, 2012
In a lawsuit filed yesterday, these inmates at America’s most famous and secure prison allege a cycle of abuse and madness, neglect, and retribution. (The second in a three-part series.)
You don’t get to be an inmate at ADX-Florence, America’s most famous and secure prison, without having first achieved a measure of infamy in the nation’s penal system. Name a convicted terrorist, foreign or domestic, and there is a strong likelihood that he is serving a life sentence without the possibility of parole at the maximum security federal facility in southern Colorado. Terry Nichols. Ramzi Yousef. Ted Kaczynski. Zacarious Moussaoui. Eric Robert Rudolph. Richard Reid. They are all there — all the eggs in one basket, you might say.
But there are hundreds of other prisoners at the federal prison complex known to the world as “ADX” or “Supermax” you likely have never heard of and who have made it to the facility because they have run into trouble at other prisons around the nation. The Aryan Brotherhood is represented at the prison, for example, and so are members of other notorious prison gangs. As a prisoner, you may be assigned to Supermax if you attack another inmate, or if you injure a guard, or if prison officials otherwise believe you present a particular threat to prison staff or other inmates.
Each of five prisoners named as plaintiffs in a new civil rights case filed Monday against the Bureau of Prisons fall into this category. So do the six other inmates whose stories are chronicled in the long complaint, which alleges that prison officials are failing or refusing to adequately diagnose and treat mentally ill prisoners in their care. In some cases, these men were mentally ill, or retarded, before they came to Colorado. In other cases, the inhumane treatment of the men has made them mad, or at least exacerbated their preexisting mental health problems.
The lawsuit, styled Bacote v. Federal Bureau of Prisons, seeks to force the federal officials to provide better mental health care for these inmates. But the litigation also raises fundamental questions about how the Bureau of Prisons treats these men. They are felons, violent felons in most cases, but even so they are entitled to be treated in a humane way by government officials. The Eighth Amendment, with its prescription against “cruel and unusual punishment,” commands this. And so do explicit federal laws and policies.
No evaluation of this new case, or of the fate of America’s mentally ill prisoners more generally, can be complete without a look into the narratives of the lives of the men who are being punished in this fashion. It is a haunting view. Their madness begets cruelty and indifference from prison officials and doctors. And the cruelty and indifference from the officials and doctors begets more madness. In the meantime, the American taxpayer pays for all of it; the alleged abuse and neglect, and even torture, is done in our name.
In our name — but not necessarily done for our own good. “One common misconception about ADX is that everybody there is never getting out of prison. That’s not true, and it’s one of the main problems with failing to treat the mentally ill while they are there,” says Ed Aro, a partner at Arnold & Porter, the venerable law firm that brought the lawsuit, along with the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. Aro adds:
We currently represent almost 50 inmates who are or recently have been housed at ADX. One is already in the community and was released with no transitional assistance whatsoever. 11 more will be released within 5 years, 18 within 10 years and 28 within 20 years. Without treatment, these people will have a very difficult time reentering society safely and successfully.
Part I of this series offered a close look at the story of Jack Powers, a current Supermax inmate who alleges in vivid detail how he went mad in custody because of the mistreatment he received from prison officials. Here, below, is a brief summary of the stories of each of the other 10 prisoners named in the complaint — how they came to Supermax and why they allege that they are owed more from the law than their captors currently provide them. Judge for yourself whether these men should be in this place at this time.
Michael Bacote: He is the first named plaintiff in the case. Age 37, functionally illiterate, and deemed “mildly mentally retarded” a decade ago by a prison psychologist, Bacote was sent to ADX in 2005 after pleading guilty to murder in a case involving the death of a fellow inmate at the federal prison in Texas. (Evidently, he did not kill the victim but rather stood guard while others did.) Bacote has been diagnosed as suffering from “major depressive disorder with psychotic features” as well as from “paranoid ideations,” and he also may suffer the after-effects of severe closed-head injury.
Bacote refuses to take medicine that has been ground up from pill form by prison officials. And they, in turn, refuse to allow Bacote to take his medicine in pill form. Bacote has repeatedly tried to transfer out of Supermax. Over and over again, his requests have been denied. Despite the prior diagnoses from prison doctors, for example, paragraph 138 of the complaint alleges that ADX officials in April 2009 told Bacote that “a review of your file does not indicate you are mentally ill or mentally retarded.”
Harold Cunningham: At age 41, Cunningham is serving a life sentence plus 380 years for a series of crimes, including murders and robberies. In 1996, representing himself in a state trial, he suddenly stabbed a witness — in open court, in front of judge and jury. Long before that incident, Cunningham had been diagnosed with “conduct disorder, under-socialized aggressive needs, and major depression.” Following the courtroom attack, Cunningham was diagnosed by a renown psychiatrist with “paranoid schizophrenia,” “antisocial personality disorder,” and “borderline intellectual function.”
Cunningham arrived at ADX/Supermax in 2001, was taken off his existing medication, and was promptly placed in the prison’s ultra-secure Control Unit, a place where prisoners are not permitted to take psychotropic medication. Once, in 2004, he was given a “telepsychiatry” session whereby he was able to speak via video conference with an off-site psychiatrist. During the “session,” Cunningham was allegedly handcuffed from behind with shackles on on his legs and surrounded by corrections officers. He has received no mental health treatment since 2001, the Supermax complaint alleges.
Ernest Norman Shaifer. Age 49, with a family history of mental illness that is both tragic and shocking, Shaifer has been in and out of prison for decades. Long ago diagnosed with bipolar disorder, in 2002 Shaifer attacked a prison chaplain at one of the ADX facilities next to Supermax. For that he was prosecuted — and also reevaluated by several mental health experts, each of whom diagnosed him as mentally ill and recommended medication as a treatment for his disorder.
But after Shaifer was sent back to Colorado, he was soon was sent to its Control Unit and thus deprived of any psychotropic medication. As paragraph 165 of the complaint alleges, a Supermax prison psychologist who looked at the Shaifer family’s history of major mental illness — including suicide and murder — decided that the inmate had used that history to “fabricate” his own symptoms. Barring any new incidents, Shaifer is expected to be released from prison in 2014 — having been untreated for over a decade.
Jeremy Pinson. Age 26, with a history of epilepsy, bipolar disorder, and schizophrenia, he is at Supermax for making threats against the president of the United States and others. When he was first sentenced, Pinson’s trial judge recommended that he serve his sentence at a federal prison designed for mentally ill prisoners. Instead, the Bureau of Prisons assigned Pinson to another prison. Pinson then threatened another official. Again, he was convicted. This time, a federal judge “strongly recommended” that he be sent to a suitable facility. Again, the Bureau of Prisons rejected the recommendation.
Here, from paragraph 182, is a list of the medications Pinson has been given while in custody: “psychotropic medications, including Olanzapine, Quietapine, Risperidone, Fluphenazine, Haldol and Perphenazine, antidepressants Amitriptyline, Bupropion, Mirtazapine and Sertraline, antimanic Depakote, and the anti-anxiety medication Buspirone.” No mentally ill prisoners are supposed to be housed at Supermax pursuant to federal regulations. Yet prison officials there have repeatedly refused to transfer Pinson, who has not received adequate treatment for his illness.
John W. Narducci Jr. Now 43, Narducci was home with his father at the age of four when the latter was shot and killed. At 11, Narducci was with his home alone with his mother when she had a heart attack and died. Since then, Narducci has had a long history of mental illness as well as a litany of violent episodes resulting in arrest, prosecution, and conviction. He has been diagnosed with a “mood disorder” and a “mixed personality disorder.” In prison, he tries to dress like a woman.
As was the case with Pinson, the Bureau of Prisons ignored a judge’s recommendation, in 2000, that Narducci be sent to a federal facility “which has programs sufficient to deal with his mental, emotional and psychological problems.” Instead, Narducci was sent to a successive series of prisons where he lashed out at prisoners and guards. At Supermax now since 2007, Narducci alleges that he has not been treated for his mental illness. Untreated now for nearly five years, he is scheduled to be released in 2015.
THE FUTURE PLAINTIFFS
Marcellus Washington. Age 39, functionally illiterate, mentally retarded, and suffering from the “presence of a congenital brain impairment,” Washington was treated in prison for mental illness as early as 1996. His condition did not improve, and by 2002 he sought medical care for suicidal tendencies. Prison officials did not immediately treat him and Washington shortly thereafter assaulted a prison guard. He was subsequently diagnosed again with mental illness, and he attempted suicide before he was transferred, in 2004, to Supermax.
At Supermax, where he again tried to kill himself, Washington was punished for cutting his wrists with razor blades — but was not treated for his obvious mental illness. Placed into the Control Unit, where no psychotropic medicine is administered by prison staff, Washington has sought repeatedly to obtain mental health treatment. Supermax officials have consistently refused his requests. This is despite earlier prison diagnoses (at other prisons) that he suffers from a “severe antisocial personality disorder.”
William Concepcion Sablan. Age 47, severely mentally ill and suffering from post-traumatic brain injury after he was struck in the head by a machete, Sablan is a career criminal with a long history of arrests and convictions. In 1997, delusional and paranoid, he was diagnosed with “temporal lobe epilepsy” by a prison doctor. Despite this history, in 1999 when he arrived at the federal prison in Florence adjacent to Supermax, Sablan was given only a cursory mental health evaluation and his medication was not checked. A few days later, as the third man in a two-man cell, he killed one of his cellmates.
Mental health evaluations following the murder convinced a federal trial judge in 2004 to find Sablan incompetent to stand trial. But in 2005, Sablan did stand trial, was convicted of murder, and was sentenced by the same judge with a recommendation that he receive significant mental health treatment, including medication. The Bureau of Prisons ignored this recommendation, too, sending Sablan back to the U.S. Penitentiary adjacent to ADX, and then to Supermax itself, where paragraph 261 of the complaint alleges officials have continued to refuse to adequately treat him.
Jaison Leggett. Age 41, seriously mentally ill and with a long history of suicidal ideation, Leggett has been at Supermax since 2002. In 2003, suffering from osteomyelitis in his leg, Leggett refused amputation and instead swallowed a razor blade after cutting into his leg. Later, he was transferred to a federal mental health prison in Missouri where his leg was amputated and he was placed on suicide watch. The prosthetic he received from prison doctors did not fit — so he again tried to cut his leg and then damaged (and swallowed part of) his prosthetic.
Supermax officials have refused to replace his prosthetic. Paragraph 268 of the complaint alleges that prison officials force Leggett to hop around from place to place or simply to crawl on the floor or up and down stairs within the prison. All of this despite a finding, by a prison doctor in 2003, that Leggett suffers from a mental disorder. Prior to 2005, Leggett was routinely treated with psychotropic medicine. Paragraph 275 of the complaint alleges that he has not received this medication since 2005.
David Shelby. At 47, and diagnosed by state prison officials as early as 1989 as suffering from acute psychotic episodes, Shelby has for decades believed that he hears voices, including the voice of God. In 1997, while in federal prison in Atlanta, he attempted to commit “suicide by cop” by taking a prison staff member hostage with a knife. Following the episode, he was repeatedly diagnosed as being mentally ill — and his sentencing judge recommended he be placed somewhere where he could receive mental health treatment.
Once again, the Bureau of Prisons ignored the judge’s recommendation and Shelby was transferred to Supermax and placed within the prison’s general population. In 2009, he again tried to commit suicide and was again diagnosed with mental illness. Later that year, paragraph 296 of the complaint alleges, Shelby says he heard God’s voice telling him to eat a finger. So Shelby amputated his left pinkie, cut the finger into small pieces, added it to a bowl of ramen soup and ate it.
Herbert Isaac Perkins. Age 36, suffering from serious mental illness and perhaps the effects of closed-head injuries, Perkins as a young teenager was on the telephone with his father when his father shot himself in the head and died. Before Perkins came to Supermax in 2008, he was successfully treated at other prisons for with psychotropic medicine. At Supermax, however, he was refused mental health treatment. Predictably, his condition worsened.
In 2008, Perkins tried to commit suicide. After he returned from the hospital, he was placed back in the same cell in which he had made an attempt on his own life — his own blood was still splattered on the floor and the razor he had used to slash his throat was still resting on the sink. Later in the day, Perkins again tried to commit suicide. He was eventually given Zoloft, but then that medicine was revoked. Paragraph 304 of the complaint alleges that until he became involved in the new lawsuit, the Bureau did not provide him with mental health treatment. Instead, he alleges, he has been harassed by prison officials for his involvement in this lawsuit.
This is the second in a three-part series about a new class-action lawsuit filed Monday against the Bureau of Prison and its officials who run ADX-Florence, the “Supermax” facility in Colorado that houses some of the nation’s most dangerous criminals. The first part focused upon the complaint, which alleges the torture, abuse, and neglect of the prison’s mentally ill prisoners. The third installment will focus on some of the legal issues involved in the litigation.
Supermax: The Constitution and Mentally Ill Prisoners
The Atlantic: June 20, 2012
The first two parts of this series begin to tell the tale of the way a handful of mentally ill prisoners allege they are being treated at ADX-Florence, widely known as “Supermax” and commonly perceived as the most secure federal prison facility in America. So far, officially, the story is just a series of dramatic prisoner allegations of abuse, cruelty, and torture against prison officials and medical personnel. Soon, the Justice Department, on behalf of the Bureau of Prisons, will answer the long complaint filed Monday by five inmates at the southern Colorado prison.
Allegations are not evidence. But in this case, they raise profound questions about how the famous facility is run and whether it is wise as a matter of law and policy to have ceded so much power to the Bureau of Prisons, which controls, in near absolute terms, the treatment of the nation’s federal prisoners. The lawsuit seeks no money damages but instead aims to require federal officials to treat mentally ill inmates in accordance with existing law. The case demands a measure of accountability from a sprawling bureaucracy that seems to answer to no one.
The plaintiffs and others named in the lawsuit — there are 11 men in all and more will likely be added — live in a world recognizable more from the work of Kafka and Dostoevsky than from modern American life. In the name of prison safety, or in the name of nothing at all, they are often treated like animals and, when they complain, they are punished. The Eighth Amendment prohibits “cruel and unusual punishment,” and it’s hard to imagine anything more cruel than punishing a mentally ill person for the manifestations of his illness. Yet this allegedly occurs regularly at the ADX/Supermax facility.
Indeed, one of the fundamental concepts in American law is that we generally do not criminalize conduct by people whose minds do not have the requisite “criminal intent” at the time of the commission of the crime. This is why we don’t prosecute people who are adjudged to be mentally incompetent — think Jared Loughner, the Tucson shooter — and why “legal insanity” has for centuries been an affirmative defense to criminal conduct. A significantly mentally ill person, almost per se, cannot have the requisite intent to be culpable in any justifiable legal or moral sense.
The lawsuit is worthy of particular notice in part because it was spearheaded by serious attorneys like Ed Aro — a partner at a law firm, Arnold & Porter, that has a long and admirable tradition of pro bono work on behalf of the voiceless. Also filing the pleading was Deb Golden and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs, another organization with a long history of groundbreaking reform litigation. Dozens of other earnest, well-meaning women and men have devoted a great deal of time and effort to serve as a tribune for the Supermax prisoners.
Nor should the timing of the case be underestimated. It comes at a time when more participants in the criminal justice system, and especially the nation’s penal systems, are questioning the wisdom of America’s current obsession with the concept of “solitary confinement” and other harsh punitive measures. Yesterday, for example, Senator Richard Durbin (D-Ill.) held an important Senate Judiciary Committee subcommittee hearing on the topic. Here’s how the senator’s office framed the issue in a press release before the event:
The hearing will focus on the human rights, fiscal and public safety consequences of solitary confinement in U.S. prisons, jails, and detention centers. During the last several decades, the United States has witnessed an explosion in the use of solitary confinement for federal, state, and local prisoners and detainees. The hearing will explore the psychological and psychiatric impact on inmates during and after their imprisonment, fiscal savings associated with reduced use of solitary housing units, the human rights issues surrounding the use of isolation, and successful state reforms in this area.
Good questions, indeed. Our prison policies have evolved from generation to generation, but the law (and legal protections) don’t appear to have caught up. Here is a link from the Innocence Project detailing the Capitol Hill testimony of six people who were wrongly convicted and spent time in solitary confinement. And here is how Charlie Samuels, the director of the Bureau of Prisons, opened his remarks to the subcommittee:
Inmate safety and well being is of the utmost importance to the bureau, as is the safety of our staff and the community at large. As such, we do all that we can to ensure that we provide outstanding care, treatment and programming to federal inmates, giving them the best opportunity for successful reentry to their communities…
When inmates are placed in restrictive housing there are varieties of significant safeguards in place to ensure inmates’ due process rights are protected. Additionally, inmates’ mental health is always a factor in decisions regarding segregated housing. Bureau psychologists are integrally involved in the restrictive housing placement process, and all staff who work in these units receive training and input from psychology services above and beyond our general staff training.
Samuels still has to answer for Supermax. And Senator Durbin need look no further than to the Florence, Colorado, federal prison for some of the answers to his questions. The Supermax lawsuit, styled Bacote v. Federal Bureau of Prisons, suggests that America is failing to adequately treat its mentally ill prisoners and, worse, that the punitive prison methods employed at ADX/Supermax are actually making previously sane inmates mentally ill. Part I of this series focused upon just such a story, about Jack Powers, whom the Bureau of Prisons essentially turned mad and now won’t treat.
THE BUREAU OF PRISONS
Go to the Bureau of Prisons’ website and it tells you immediately that the goal of the massive federal bureaucracy is “Protecting Society and Reducing Crime.” Yet, as the lawsuit suggests, Supermax practices do neither. “Society” is left unprotected because the prison doesn’t adequately treat even those mentally ill prisoners who soon will be released back into the public. One of the named plaintiffs, John Narducci, is scheduled to be released in 2015, and another, Ernest Norman Shaifer in 2014.
From the website, here is how the Bureau of Prisons wants the world to perceive the core of its work:
The Federal Bureau of Prisons was established in 1930 to provide more progressive and humane care for Federal inmates, to professionalize the prison service, and to ensure consistent and centralized administration of the 11 Federal prisons in operation at the time.
Today, the Bureau consists of 117 institutions, 6 regional offices, a Central Office (headquarters), 2 staff training centers, and 22 community corrections offices. The regional offices and Central Office provide administrative oversight and support to Bureau facilities and community corrections offices. In turn, community corrections offices oversee residential reentry centers and home confinement programs.
The Bureau is responsible for the custody and care of approximately 217,000 Federal offenders. Approximately 82 percent of these inmates are confined in Bureau-operated facilities, while the balance is confined in secure privately managed or community-based facilities and local jails.
The Bureau protects public safety by ensuring that Federal offenders serve their sentences of imprisonment in facilities that are safe, humane, cost-efficient, and appropriately secure. The Bureau helps reduce the potential for future criminal activity by encouraging inmates to participate in a range of programs that have been proven to reduce recidivism. Approximately 38,000 BOP employees ensure the security of Federal prisons, provide inmates with needed programs and services, and model mainstream values.
I added the italics to illustrate how vast the gulf is between rhetoric and reality when it comes to Supermax’s mentally ill prisoners. The Bureau isn’t candidly telling Americans that it often treats some of its mentally ill prisoners like animals. Instead, even as prison officials “four point” such prisoners in their cells or deprive them of needed medicine or treatment, the Bureau is telling us that it is treating the men with “humane care.” This is not a new hypocrisy but rather an eternal truth of civilized life on this planet; prisons are always worse than the officials who run them say they are.
But websites are for marketers, not lawmakers, so we need to look further to identify relevant Bureau of Prisons policies with respect to mentally ill prisoners. In the Bacote complaint, the plaintiffs cite, among other Bureau regulations, BOP Program Statement 5100.08 (chapter 7, page 18). It states that prisoners within the federal system “currently diagnosed as suffering from serious psychiatric illnesses should not be referred to placement at … [ADX/Supermax].”
There are also federal rules that more broadly govern the responsibility prison officials have to treat the mentally ill prisoners in their care. There are rules that require prison officials to give medicine to prisoners in their care — yet the ADX prisoners claim they often are not given their medicine or are given the wrong medicine. There are rules for the formal way prison officials are supposed to evaluate the mental health status of incoming prisoners — the Supermax prisoners allege these evaluations are a joke.
Moreover, many of the plaintiffs in the new lawsuit, as well as the likely future plaintiffs, reside in Supermax’s “Control Unit,” its most secure unit. This is partially because of the dangerous, violent conduct the prisoners have exhibited in other prisons, or in other wings of Supermax, as a result of their mental illnesses. But the Code of Federal Regulation governing “institutional referrals” to federal prison “Control Units” appears to directly prohibit this.
The “Judicial Administration” section of the Code of Federal Regulations states that the “warden may not refer an inmate for placement in a control unit … if the inmate shows evidence of significant mental disorder or major physical disabilities as documented in a mental health evaluation or a physical examination.” Is schizophrenia a “significant mental disorder”? How about “delusional ideation” or post-traumatic stress disorder? Is it “significant” when a prisoner mutilates himself or tries to commit suicide?
Dostoevsky was right: How we treat our prisoners says more about us than it does about them
The Eighth Amendment to the Constitution prohibits the government from inflicting “cruel and unusual punishment” upon its citizens, even its convicted ones, and especially its mentally ill ones. Over the decades, vast groves of trees have been sacrificed papering prison-related litigation over the meaning of the phrase in the context of medical and mental health care. Some of the lawsuits, filed by inmates and others, has been frivolous. Many, however, have not. None like the one filed Monday has reached a point in litigation where a federal judge has issued a substantive ruling on its merits.
Much of this litigation has involved the conditions and lack of mental health care at state prisons. In Brown v. Plata, for example, decided just last May, the United States Supreme Court narrowly affirmed a lower court order that required California to release thousands of non-violent state prisoners to reduce unconstitutional overcrowding in the Golden State’s prison system. The lawsuit was based upon the inability of state prison officials to provide their prisoners with adequate medical and mental health care and treatment.
In his 5-4 majority opinion, which infuriated his conservative colleagues, here is how Justice Anthony Kennedy, the Reagan appointee, described the case’s mental health component:
Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had ” ‘no place to put him.’ ”
Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” (citations omitted by me).
From the high suicide rate to the inadequate “assessment, treatment, or intervention,” there are many similarities between the proven facts that compelled Justice Kennedy to side with California’s prisoners and the facts alleged in the new complaint against ADX/Supermax. But still we need to look a little further. The leading case in the area, the one closer on point, perhaps, than even the Brown v. Plata case, comes from litigation nearly two decades ago over California’s Pelican Bay State Prison.
The case, styled Madrid v. Gomez, represents what many consider to be the most comprehensive of all modern prison mental health care rulings. In it, U.S. District Judge Thelton Henderson (the first black judge to serve in the Justice Department’s Civil Rights Division) displayed another copious amount of courage for skewering prison officials for the way in which they were treating California prisoners. The gravamen of his order was that prison officials are required by law to provide reasonably adequate mental health care for inmates.
Perhaps the most efficient way to illustrate Judge Henderson’s meticulous analysis of the mental health care in those prisons is to look merely at the outline of this section of his long ruling. Even in just the titles and subtitles, you can see many of the same themes and issues raised by the new Supermax lawsuit. The decision is laden with the acknowledgement that prison officials simply fail or, worse, refuse to treat mentally ill prisons in a way demanded by the Eighth Amendment.
C. Mental Health Care
1. The Need for Mental Health Services At Pelican Bay
2. Systemic Deficiencies In the Delivery of Mental Health Care
1. a. Staffing Levels
b. Screening and Referrals
c. Psychiatric Records
d. Delays in Transfers for Inpatient and Outpatient Care
e. Lack of Procedures for Necessary Involuntary Psychiatric Treatment
f. Failure to Involve Mental Health Staff in Housing Decisions
g. Suicide Prevention
h. Quality Assurance
i. Treatment Provided
(Specific inmate cases were discussed here)
3. Defendants’ State of Mind
POSTSCRIPT AND PREVIEW
At the beginning of a lawsuit there are always more questions than answers. For example, how do law and policy permit the Bureau of Prisons to routinely ignore the recommendations of federal trial judges who, when sentencing mentally ill felons, specifically direct prison officials to ensure that the men are to be properly treated for their illness while in prison? The Bacote complaint alleges no fewer than four examples (Jeremy Pinson, John W. Naducci, Jr, William Concepcion Sablan, and David Shelby) where this disconcerting practice allegedly occurred.
How does the Bureau of Prison justify the expense of its punitive policies when compared to the cost of treating mentally ill prisoners properly in the first place? The Bacote complaint is filled with examples of crimes that could have been avoided had mentally ill federal prisoners been given the right medication, in the right form, with the right supervision by the prison medical staff? Do the American people know how expensive it is to treat these mentally ill inmates with such callous disregard?
How does the Bureau of Prisons justify the evident disconnect between the diagnoses of the mentally ill prisoners made at other federal prisons and the diagnoses offered at ADX/Supermax? The Bacote complaint is filled with examples of prior diagnoses being disregarded once an inmate arrives at ADX/Supermax. There are sound reasons why a defendant must be deemed mentally competent to stand trial — but why does such a competency determination not impact the severity of an inmate’s incarceration?
It is hard to predict how this lawsuit will play out. Federal judges are generally reluctant to force bureaucracies to justify their conduct. First, the Bureau of Prisons likely will move to dismiss the complaint on procedural grounds before prison officials are required to provide the plaintiffs with access to internal case files. Then, federal lawyers likely will argue over the scope of that discovery. If the case ever makes it to trial, it will be years from now.
And through it all, through all the years of briefing and hearings and argument ahead, the daily fate of Supermax’s mentally ill prisoners will continue to be at the whims and caprices of their captors. It would be one thing if federal law and Bureau policy explicitly permitted ADX officials to treat the mentally ill this way. But of course the American people would not countenance such inhumane treatment, even toward society’s least loved segment. That’s why Bureau Director Samuels had to tell the Senate yesterday that his officials give Supermax prisoners “outstanding care, treatment and programming.”
Dostoevsky was right: How we treat our prisoners says more about us than it does about them. Earlier this year, I read Pete Early’s bestselling book Crazy: A Father’s Search Through America’s Mental Health Madness. One of its many profound lessons is that America pays an enormous price for trying to sweep its mentally ill prisoners under the rug. Win or lose on the merits, the Bacote case represents a vital new opportunity to shed light on what is happening to these profoundly ill men — what is being done to them in our name.
This is the third in a three-part series about a new class-action lawsuit filed Monday against the Bureau of Prison and the officials who run ADX-Florence, the “Supermax” facility that houses some of the nation’s most dangerous criminals. Part I focused upon the complaint, which alleges torture, abuse, and neglect of the prison’s mentally ill prisoners. The second part focused upon the plaintiffs and other prisoners named in the lawsuit.