Ending Restrictive Housing in Prisons for People With Mental Disorders

The U.S. criminal legal system has a long history of denying adequate care to people with serious psychiatric disabilities—a population that, according to several empirical estimates, represents between a quarter and a third of the 2.3 million people in jails, prisons, and other carceral settings (1–4). A recent federal investigation in prisons across Massachusetts has offered some of the latest documentation on this disturbing trend (5). The investigation focused on how the Massachusetts Department of Correction (MDOC) treats individuals on “mental health watch.” Mental health watch is a practice where prison staff remove those who are considered at risk for self-injury or suicide and place them in a cell—usually situated in a prison’s health services unit or restrictive housing unit—that allows for sustained supervision. The investigation’s findings have revealed that mental health watch is in practice merely a form of restrictive housing that is overly punitive at best and life-threatening at worst. This column examines the investigation’s procedural underpinnings, highlights its central findings, and touches on recent developments and implications, including MDOC’s recent decision to stop its use of restrictive housing completely.

Investigatory Process and the Civil Rights of Institutionalized Persons Act

The investigation of MDOC was conducted under a federal law called the Civil Rights of Institutionalized Persons Act (CRIPA). Congress passed CRIPA in 1980 to allow the federal government to investigate allegations of civil rights violations in state institutional settings, including the thousands of jails, prisons, and other carceral facilities scattered across the United States (6). As relevant here, the civil rights covered by CRIPA include the right to adequate mental health care while in prison, which the U.S. Constitution protects under its Eighth Amendment prohibition against cruel and unusual punishment (7).

Despite its broad civil rights protections, CRIPA is specific in the kinds of investigations it authorizes. The federal government can pursue an investigation only if a “pattern or practice” of civil rights violations appears to be occurring (5). Congress was thus intentional in designing a law tailored to respond to widespread and systematic instances of civil rights abuses, not isolated cases of constitutional violations best addressed by other laws (8).

CRIPA also lays out a step-by-step framework under which investigations must occur. The first step begins when the U.S. attorney general receives allegations that a state has violated the civil rights of institutionalized persons. If the attorney general finds grounds for these allegations and is convinced that an investigation is worth pursuing, the U.S. Department of Justice (DOJ) can begin the formal investigatory process. At this stage, channels for information collection are vast. Federal investigators can field complaints from incarcerated people themselves, facility staff, and even concerned family members. They can also tour facilities and make firsthand observations to assess the credibility of the allegations. Once the investigation is completed, the federal government issues a “findings letter” that notes observed deficiencies and recommends remedial measures necessary to address them (6). At least 49 days must pass after the issuance of the findings letter before federal officials can pursue further actions, including the filing of a lawsuit. During these 49 days, the state under investigation may choose to follow the recommendations to avoid facing a lawsuit in federal court.

The CRIPA investigation of the MDOC was a joint effort between the DOJ’s Civil Rights Division and the U.S. Attorney’s Office for the District of Massachusetts, and it was conducted from October 2018 until at least the end of 2019 (5). The investigatory team included three experts, including a former state prison commissioner, a forensic psychiatrist, and a physician who managed the health and mental health department at one of the country’s largest jails. Together, they toured nine prisons across Massachusetts and interviewed a broad swath of people with knowledge of the MDOC’s mental health watch practices, including security staff, mental health professionals, and hundreds of incarcerated persons. They also reviewed departmental documents and data, such as mental health records, incident reports, and training materials.

The MDOC Investigation and Its Finding

Through these efforts, the federal government deemed the MDOC’s treatment of people on mental health watch a violation of the Constitution’s prohibition against cruel and unusual punishment for two core reasons. First, those on mental health watch experience near-total neglect from staff and, more troublingly, have regular access to objects that allow for self-harm and mutilation. Second, they can be confined in isolation for weeks, even months, during which time they are in their cells for at least 23 hours per day without meaningful mental health care, recreation, or human contact.

Absent supervision.

The investigation found that people on mental health watch have ready access to injurious objects, such as razors, batteries, and debris (e.g., paint shards). In fact, several persons who had previously experienced mental health watch reported that these objects were already in the watch cell. Some even said that the staff had provided them with razors to enable them to self-harm. On the basis of data collected during the investigation, the federal government found that the following incidents had occurred in the span of about 13 months (i.e., from July 2018 to August 2019): 217 cases of self-mutilation, 85 cases of individuals “inserting objects in their bodies,” 77 attempted hangings, 34 cases of “ingestion of foreign bodies,” and 17 attempted asphyxiations (5).

Despite these repeated occurrences, the investigation revealed that the MDOC has no meaningful policies in place to prevent such incidents and that it offers no specialized training for staff assigned to mental health watch. These problems are further compounded by the fact that staff often do not know the reasons why persons are placed on mental health watch in the first place, nor are they aware of the kinds of behaviors that the incarcerated individuals have exhibited since being placed on watch. Furthermore, MDOC has no process for removing dangerous objects from those on mental health watch. It also provides no instruction on how staff should search cells before and during the confinement. Worse yet, the investigation confirmed that safety measures are so cursory that razors and other dangerous objects can be smuggled in and out of mental health watch cells without staff noticing.

Moreover, although the MDOC policy requires staff to be in constant one-on-one contact with those on mental health watch, staff often ignore occurrences of self-harm. Staff routinely fall asleep during shifts, a problem that is perpetuated by personnel shortages. Staff have also avoided calling for medical attention even when they have observed individuals harming themselves. For example, the investigation noted an officer forgoing action for 45 minutes, despite having seen an inmate who had cut himself so badly that his blood had pooled all over the ground.

Untherapeutic and dangerous conditions.

The investigation also found that the MDOC not only fails to provide therapeutic and mental health resources to people on mental health watch, but it also fosters conditions that increase risks of injury. In the words of one incarcerated person, “There’s nothing therapeutic about [mental health watch] . . . it’s basically solitary [confinement]. At least at [the state psychiatric hospital], they actually have mental health [staff] and psychiatrists coming around and talking with you, [and] you actually get a magazine, a Walkman, crayons, and get out of your cell for things to do” (5).

Those on mental health watch can go a full day without interacting with a mental health professional, staying isolated in cells that measure on average 93 square feet (i.e., the size of a parking space). Furthermore, when clinical interactions do occur, they happen through the space of a cracked-open cell door, allegedly “because of space, time, or security staffing constraints needed to move the prisoner” (5). As a result, assessments and treatment attempts occur in front of other correctional staff and in earshot of neighboring cells, breaching ethical principles of confidentiality and privacy, as well as violating the MDOC’s policy that clinical assessments should happen outside the cell.

The MDOC’s chronic failure to deliver meaningful mental health resources is partly due to a clinical workforce that is spread thin. In January 2019, the Massachusetts legislature broadened the definition of what constitutes a “severe mental illness” in carceral settings, increasing the covered population by 300% (i.e., from 650 to >2,000 people). The legislative change, however, did not come with an increase in clinical hiring. The net result was that prison caseloads skyrocketed overnight, leading clinicians to spend very little time—commonly no more than 10 minutes—with persons on mental health watch.

What is more, despite a policy that caps the amount of time someone can be on mental health watch to 96 hours, the time one may spend on watch is frequently much longer. According to other data collected by the DOJ, between July 2017 and August 2019, 51 persons spent at least 1 consecutive month on mental health watch, and 16 stayed there for >3 consecutive months. Throughout these periods, individuals can seldom go outside, lack stimulation or recreation, and are often dressed in security smocks rather than in their own clothes, making them feel dehumanized and degraded (5). And because of the inhumane conditions created by mental health watch, instances of self-harm and attempted suicide occur frequently. For example, one man tried to hang himself with his security smock after being isolated in his cell for 50 straight days. Cases such as this one corroborate research (9) that has found that solitary confinement, restrictive housing, and other forms of punitive seclusion aggravate the symptoms of people in urgent need of mental health care, putting their safety and lives in jeopardy.

Developments Since the Investigation

Important developments have occurred since the DOJ considered the MDOC to be in violation of the Eighth Amendment because of the lack of supervision and mental health resources offered to those on mental health watch. Most notably, the MDOC has vowed to stop its use of restrictive housing completely (10). The agency’s decision stemmed at least in part from the recommendations (11) of a carceral behavioral health care consulting company, Falcon, Inc., which the MDOC commissioned to conduct an independent investigation. Massachusetts now finds itself in the company of a small but growing number of states, including New York State and Washington State, that have moved to curb the use of restrictive housing and other forms of solitary confinement.

The implications of these observations are at least threefold. First, the MDOC’s decision to end restrictive housing illustrates the continued importance of government and private civil rights enforcement to curb the inhumane treatment of incarcerated people with mental disorders. By the same token, it exposes the oft-forgotten mechanisms by which the federal government can use its investigatory and enforcement powers to ensure constitutional compliance in state carceral health and behavioral health systems. Second, it brings to light the impact of community mobilization on halting coercive and punitive practices to manage people with mental health disabilities in carceral settings. Falcon’s report itself (11) highlighted the catalyzing role that Massachusetts-based community organizations and formerly incarcerated persons played in influencing the policy direction regarding ending restrictive housing. Third, despite this ostensible progress, skepticism remains about whether the transition away from restrictive housing will result in meaningful change in how mental health care is delivered in Massachusetts prisons or whether the MDOC’s pronouncement will ultimately be one of only form and not substance (12).

Conclusions

Through its investigation of the MDOC, the federal government found strong evidence that persons on mental health watch in Massachusetts prisons are subject to cruel and unusual punishment. Mental health watch, according to the investigation, is but a form of restrictive housing, where those in crisis have ready access to instruments of self-mutilation, lack adequate supervision, and experience an absence of mental health care and resources. The MDOC’s subsequent decision to end its use of restrictive housing reveals that ending punitive seclusion practices in carceral systems across the country will require multipronged action, especially on the part of organized public and private legal organizations, community advocacy groups, and directly affected communities.