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alphonse gerhardstein
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Alphonse Gerhardstein is a civil rights attorney in Cincinnati, Ohio, and the president of the Prison Reform Advocacy Center. In this interview, he discusses his work on behalf of mentally ill prisoners. "We tend to want to just lock people up and think about our own safety," he tells FRONTLINE. "But when I pick a jury and I remind people that in Ohio 19,000 prisoners are released every year, they seem surprised. And then the question is, so what kind of neighbor are they going to make?" Gerhardstein also discusses his involvement in the Dunn v. Voinovich lawsuit and the reforms that came from that litigation, including adequate mental health care staffing, fixing communication between the medical, mental health and treatment staffs, and improved training to help both the staff and the inmates understand their illnesses. This is an edited transcript of an interview conducted on Oct. 23, 2004.

I think it's a great challenge to society to figure out how to treat someone that's wronged society in a way that when they get out, they're going to be good citizens.

... Is litigation a bedrock of what we need to do for prison reform?

Prisoners have absolutely no political base. In this country, people respond to power. So the power of a bunch of voters, that's moving. We'll listen. The power of a lot of money, I'm all ears. Prisoners don't have either of those, so they go to lawyers. And lawyers have the power of the courts and the power of the court orders at the other end, hopefully. And it's about the only way, outside of total guilt-tripping, to make prisoner rights and equitable living conditions a cause that anyone would rally to.

And without that?

Without that, you've got way too many people in too little space, with no programming and barely enough to eat, and everybody just building the places further and further away so that we can all just forget about them.

Somebody else's problem?

Well, you certainly don't see a meaningful political movement around minimizing the amount of people that we lock up. We seem very proud, in this country, of being one of the leaders in the world of locking people up. We have the greatest percentage of people in our country under lock and key of any nation in the world, and we don't seem to mind. We think that's OK, and I think it's terrible.

And even if [they're] mentally ill?

Well, with the mentally ill, we haven't changed our construct. As I look at it, criminal justice is all about bad guys. It's about finding fault. So the criminal laws say, "If you do this, you've committed a crime against society, and we prosecute you."

And then we have very high thresholds for relieving people of criminal responsibility. You have to be insane. You have to be criminally insane under a very high standard, where you don't even know the difference between right and wrong. If you don't meet that standard, then you're guilty, and that makes you a bad guy, and that makes you subject to criminal justice sanction, sentencing. So a lot of people get swept into that. ...

If somebody says, "Why should I care about that?"

The question of why you should care about a mentally ill prisoner is the same question that we ask about physically disabled citizens, about mentally retarded citizens, about old people, about poor people. There are lots of folks that don't contribute much to the GNP. There are lots of folks who, if we're just going to be brutal as a society, look like a drain. What do we get from them? And yet one on one, we learn so much from the folks that stretch us, from the folks that adapt and do the best they can with what they've got. ...

I think we are supposed to be -- and we certainly have a lot of legal documents that suggest that we are -- a society that cares about everyone. As long as their heart's beating, they have a right to life and liberty. And if we're going to implement that, it means that some people take more care than the strong and healthy. And that's OK. That's what it means to be human.

What is your role, and how did you become involved in Lucasville and SOCF [Southern Ohio Correctional Facility]?

I've been representing prisoners since I became a lawyer. ... But I think it's a great challenge to society to figure out how to treat someone that's wronged society in a way that when they get out, they're going to be good citizens. And we're pretty bad at this. We tend to want to just lock people up and think about our own safety. But when I pick a jury and I remind people that in Ohio 19,000 prisoners are released every year, they seem surprised. And then the question is, so what kind of neighbor are they going to make? Are they going to make a neighbor that is ready to pitch in and get a job and abide by the law because they've got skills and aspirations and hopes? Or are they going to make a neighbor that's just out to get you because they're so bitter and they have such a big chip on their shoulder, and they just need to get back at all these people that have treated them so badly over the last time they were in prison? ...

[What was your connection to] the Dunn [consent] decree?

I did a lot of work at Lucasville in the '80s. The prison opened in the mid-70s. It was supposed to be a model prison. It was immediately overcrowded.

When I started litigating in Ohio, we had seven prisons with 12,500 prisoners. The state population has not gone up in the 30 years since then, and now we have 32 prisons with 44,000 prisoners. And back in the early '90s and late '80s, we were almost at 50,000 prisoners. So we were dealing with lots of overcrowding. Lucasville was the only maximum-security prison, and it was the place that the mentally ill were gravitating to.

Of course in 1993, in April, we had a prison riot at Lucasville, which was the longest prison riot in U.S. history and the third most deadly. So we did some litigation on behalf of the inmate victims of the Lucasville riot -- that is, those inmates who were just in the wrong place at the wrong time and who were locked down for more than a year afterwards, who were treated as if they had caused the riot -- and brought a damage and reform lawsuit on behalf of those who had been murdered and on behalf of those who had been injured and on behalf of those who were still living there and still locked down. And in the course of that, we became aware of a lot of mentally ill prisoners that were double victimized.

Walk me through that vis-à-vis the mentally ill, and what emerged in your understanding.

Well, really, in the late '80s, early '90s, I saw very vividly across Ohio lots of examples of mentally ill inmates gravitating to the hole. Our classification system in the prisons [was] totally based on inmate conduct, and there was no insanity defense to a ticket. So if you committed a violation, you were going to the hole. There also was just not much sensitivity or awareness of a mentally ill inmate.

In 1990, I think we had six psychiatrists for almost 50,000 prisoners. We had psychiatric nurses you could count on your hand. There was no real treatment. And there was some level of drug therapy. There was some attempt to give people some psychotropics. It was almost all outpatient because there wasn't any inpatient capacity. …

The pill distribution system wasn't very good. Just checking on inmates wasn't working, in terms of, well, does this med even work for you? And there was no talk therapy at all. There was no inmate programming for [the] mentally ill. There was nothing to catch them, so they were still going down to the hole.

It was a very scary place at Lucasville in the hole. The slammer cells in particular, it was like a dungeon for the mentally ill inmate. After a whole bunch of tickets, you have to go to the worst of the worst place, and that puts you in a slammer cell. And the slammer cell deprives you of absolutely all sensory stimulation. The door is shut; you're in total darkness. Once in a while the light will come on if the custody staff wants it to. The food slot is a metal door which is controlled by the outside, so that can be shut, and then you're in total darkness. And the deprivation of light and of human interaction would send the mentally ill inmates even further down the hill.

We saw so many examples of inmates, when that food slot came open, throwing human waste at custody staff, throwing urine. And I didn't understand it. I mean, what could get a person to a level where they'd engage in that conduct? And in one of the units at Lucasville, the guards actually would walk behind a Plexiglas shield that hung from a track in the ceiling in order to service the inmates, to hand out the mail, to give the food to them. And it was operating at such a bizarre and dysfunctional level, and the inmates -- and the guards -- were then acting like animals.

One of the first lawsuits I brought involving the administrative control unit at Lucasville was to try and get the guards to stop using the high-pressure water hose on inmates who were locked in their cells, who had engaged in human-waste throwing or something. You knew that the inmate was nuts in order to even do this. And then our response, the custody staff's response, was to do an equally brutal thing, [which] was to stick the hose in the cell and blast away. So kidneys, body parts, whatever, we'll just blast away. Legal papers, family Bible, just blast away. So we were at a very bad place in the '80s and early '90s. ...

What was happening to some of the inmates named in the [Dunn] lawsuit?

... [W]e had staff-on-inmate assaults; we had inmate-on-inmate assaults; we had self-destructive conduct on inmates. And then we had all the inmates being labeled as manipulative, which was a term that I just didn't get, when we were first involved with the mentally ill, because these people were so sick that manipulation, to me, assumed some level of savvy: "I know what I want, so I'm going to figure out how to get that from this guy by doing a strategy which is deliberate, focused, intelligent and successful." And I just saw a lot of mentally ill people who didn't seem focused at all. They just seemed pathetic. And yet they were labeled manipulative, and therefore punished even more.

What happens to start to change, and how is it happening?

There's no right to treatment under constitutional law. All we have for inmates when we sue is the Eighth Amendment, which prohibits cruel and unusual punishment. And the courts in 1976 finally ruled that that meant that it was cruel and unusual to deny an inmate medical care. What the assumption was there is that inmates are totally captive. They can't go out and hire their doctor; they can't even go to the drugstore to get aspirin. So if you're totally dependent on the state for your care, and then you get sick on the state's watch, the Supreme Court finally said, all right, it's cruel and unusual to deny that inmate medical care. And then it expanded to include mental health care as part of medical care. So the question is, what level of care will get you over that very low unconstitutional barrier? You have to give enough care if you're a state system in order to determine that indeed, inmates aren't being treated in a cruel and unusual manner.

So we sued and said Ohio is terrible; that there's only six psychiatrists, we have all these mentally ill prisoners, everybody's in the hole, there's all this damage going on. And we were prepared to bring in experts and prove that the whole system was unconstitutional.

And on the other side of the fence was a prison administration that in their hearts, I think they knew we were right. They didn't need us to tell them that. So very early on, rather than bring in all kinds of experts and take a bunch of depositions and be confrontational, we agreed on an expert team. And we said, all right, let's see if we can pick an expert team that would go through the whole system, determine the facts and reserve our right to go back to court and clobber each other with depositions and experts, but also listen. And if we both agree that this expert team has got it, they've figured it out, this is the status, then let's use those facts to see if we can negotiate a resolution. We were lucky.

The expert team we picked was great -- Fred Cohen, head of the excellent team. They knew what they were doing. They weren't going to give away the store. They weren't finding frivolous things as if they were unconstitutional. They were looking at the hard facts, and they did a thorough, comprehensive review. Plaintiffs' attorneys, we came along on a lot of that and watched and made sure that our clients were being well presented, and the state had their attorneys watching as well. But in the end we all read his report, which did find many instances of care that was well below constitutional standards. And we said, all right, this is a good basis upon which to talk. ...

The principles that we were operating from were that, first, we needed continuity of care, just like on the outside. You need hospitals, you need step-down units, and you need support in the general population. So what's that mean in prison? That means in Ohio, we looked at Oakwood [Correctional Facility], which was our hospital for the criminally insane, and we weren't able to change the state law there. You only get admitted to Oakwood if you are a danger to yourself or others, just like on the outside. You have to be probated.

But we made the place a lot more treatment-oriented, more appropriate for the type of inmate they were getting from across the state, and expanded it so that they could serve inmates who needed inpatient care more thoroughly. So we agreed on that.

And then we said, well, there's all these people that aren't really ready just to be in general population; they just can't handle it. So they need a residential treatment unit, which is around mentally ill people with some real supportive services: activity therapy, talk therapy, someplace where they can talk through their issues, and monitoring of their medication so that we get it right. We don't turn them into zombies; we don't send everybody out manic. We really kind of watch the medication as well.

And we split up the whole state geographically, set up catchment areas just like on the outside, and had residential treatment units at selected prisons where you would be sent, depending on your security classification, if that's what was appropriate for you. And there are different levels in the residential treatment units so that you could work your way up, and finally you get to a level where you're functioning at a capacity that allows you to go into general population, and then you're on the outpatient caseload. So you're seen just like you would be on the outside, where you go and see your doctor and have your medication checked, and you receive your meds in a manner that is appropriate for that type of living. …

Did you hope to move from an unconstitutional level of care to a community standard of care? What is a community standard of care?

Well, all we can win in a court suit is a constitutional level of care. But it's hard to describe that if you don't look to the community and say, "All right, well, what would happen on the outside?" So we're not saying that absolutely everything you could get on the outside you can get in prison. We are saying that the types of treatment that we've come to know that mentally ill people need have to be available on the inside. If you have a medication that can take those nightmares away, and it will make a delusional person a member of his community again, we've got to have that on the inside. That's constitutionally required. ... That's just basic humane care. So we kind of worked through a formulary that would achieve that.

Staffing is in a similar manner. You just can't deliver mental health treatment without some level of training of the patient as to what to look for in side effects, without some level of education on the patient on how to take care of themselves. A lot of psychiatric medications make you gain weight, [so] you have to figure out how to stay active so that you don't become lethargic and develop diabetes and heart conditions. All of those things are true on the outside and have to be true on the inside as well, because that's part of restoring basic health to a person who's plagued with a mental illness.

For the corrections end, what motivated them to accept this negotiated settlement?

I think that we have sophisticated leaders in the department. Reggie [Wilkinson] has been around a long time. ... Reggie came up through the system. He was the south regional director. He supervised Lucasville in that capacity. He knew. And if you just spend any time with grayshirts at all, there's a level of bonding among those who hang out in the prison with the inmates where you learn a lot from them. And they knew.

They knew that there was a caliber of inmate who really weren't evil people; they were just sick. And so what do you do with them? Do you keep treating them like they're evil and keep putting them in the hole and watch them get even sicker? Or do you wait for somebody to sue you and hope that maybe you can work something out that will help your staff -- nobody likes to have human waste thrown at them -- while you help the inmates? Maybe we could reduce the amount of really bizarre-acting people if we do this right. And I think that's part of what was motivating them, is that they could sell it to all the powers that be as right for staff, as right for the inmates and as right for citizens, because these are going to be better citizens when we let them out. ...

What central reforms came out of the Dunn decree?

The most meaningful reforms that we got out of Dunn were staffing at adequate levels. We have enough psychiatrists, enough psychiatric nurses, enough activity therapists, that we have this continuity of care all the way down to the general population level so that the inmate population is really attended to. The mentally ill, the seriously mentally ill inmates are really on somebody's watch list, and that's the most important thing.

The second most important thing is just streamlining and fixing the medical end of it. When a doctor orders a blood level and says, "See me in 30 days," and then the inmate comes and the lab report's there, and so the doctor can now determine whether this is the right medication or whether we should tweak it, that sounds simple, but it wasn't happening. And it's incredibly important to [have] adequate care of people on psychotropic drugs.

The third major thing that we achieved was a high level of training of everyone, inmates and staff alike. So inmates know a lot more about the medications they're on, about the illness that they suffer from, are more accepting of their situation and therefore more open to the appropriate programming. And staff, likewise: They know what the conditions are; they know what to look for. ...

And we've had huge tragedies in the past. One of the simplest side effects that everybody has to know about in some of these psychotropic medications is the inability to sweat, and if you're not sweating, you can be a very high-risk victim of heat stroke. And the prisons are not air-conditioned. And so you get these hot summers; you get an inmate in a small cell, and windows not open, and the food slot is closed, and the cell is just getting hotter and hotter. The inmate, if he's not trained, he doesn't know that you could die of heat stroke. If the guard isn't trained, nobody's checking in on him. And I've had those clients. I've fought those cases on behalf of inmates who died of heat stroke on psychiatric medication, where nobody knew what to do. It wasn't on their radar. And that's the kind of thing that we've achieved with Dunn, where people know that these are big deals, and you've got to check it out.

What resentment did you find? Clash of cultures?

Actually, that's a good question. The question is, what about the clash between the mental health treatment culture and the custodial staff culture? And actually, you step back, and there's another clash that we had to deal with, which was the medical treatment culture and the mental health culture. In the name of privacy, when we started Dunn, we realized that the mental health treatment people didn't talk to the medical treatment people, and neither of them talked to the custody staff. So the custody file was separate from the medical file, which was separate from the mental health file. And some privacy is really important, and as an inmate advocate, I'm totally into that. But I certainly want the medical doctor to know what psychotropics the inmate's on. I want people doing programming with inmates that are designed to bring the inmate into the mainstream of the general population to know what the problem is -- you know, if he's got a diagnosis, if he's acting out, what his major symptoms are. People who are in supportive capacities need to know this. So we worked hard to try and get the departments to work together -- and that did happen as part of the Dunn decree -- so that there was a seamless combination of mental health and medical treatment that was totally appropriate to helping the inmate[s] help themselves.

And then between corrections and treatment?

Well, that took a lot of training. When we first started, we had a seniority system that caused a lot of officers to be placed in posts where they had to deal with mentally ill inmates and they didn't want to. They didn't view the inmates as deserving of any special care. There's just a lot of suspicion that inmates are manipulating, that this is coddling; there's something wrong with spoon-feeding an inmate with the types of treatment that were happening. ...

We got the union to agree to [a] "pick-a-post" provision in the contract, which allowed, when an opening came up, for a guard to bid for it. If he had highest seniority, he could get it. And we got custody staff in the RTUs [residential treatment units] that wanted to be there. And that was great. That made all the difference in the world, because in the end, I can write any kind of decree you want, and it can have all the stuff in the world, and I can sue to get all kinds of money spent, but if we don't have people who want to be working with the inmate, if we don't have really good people that are really trained, we'll fail. ...

Even within that core group, did you find resentment over changes coming out of a decree that comes out of the riots?

We steered clear of tying the Dunn case to the Lucasville riot. We had been working on mental health issues long before the Lucasville riot came up. We had identified the administrative control unit as a magnet for mentally ill prisoners long before Lucasville. We had litigated at Lucasville the deprivations of the administrative control unit and secured a court order that caused recreation pods to be built out in the yard, all in order to attempt to relieve some of the most bizarre behaviors and address them with minimally adequate environmental changes. So I think people knew that this wasn't just a payback to inmates who had rioted. ...

[Talk about] inmate rights and inherent tension in corrections.

The typical defendants in a prisoner rights lawsuit are the corrections officers, or the grayshirts, as I call them. And they're the line people, and they come into this work to preserve order: "These are inmates; they've committed crimes; we're going to keep the prison tight, and they're going to follow the rules." Their training, the regimen of the prison is all about keeping order. So we don't make excuses for people who don't maintain order. So sure, if you come in with some sort of fuzzy attempt to make it easier for somebody to break a rule, you'll find some push-back. And we did.

So how do we deal with that? First you've got to recognize it for what it is. Prisons are about being orderly. OK, got it. Now we have to decide about what we're going to do with people who break rules but there are mitigating circumstances. And even some of the toughest grayshirts will say: "Yeah, OK. That guy, I know him." They've seen him; they've seen him alone in his cell, doing bizarre things; they've seen him banging his head; they've seen what happens when the meds don't work.

So I think what we've done with Dunn is given them a construct for absorbing that slightly complicating piece of information about the inmate population. If an inmate breaks a rule who's on the caseload, and there is some idea that the rule he's broken is done in such a way that it relates to his illness, the mental health team is called. Now, he's not going to get off. He's still going to have that ticket. He's going to be convicted if he did it, and it's going to be on his record. But maybe he won't just be sent to 10 days in the hole. Maybe everybody will agree, even the grayshirt who caught him, that that would make him worse, and that would destroy order. So we're even feeding back into their philosophy that we need to maintain order. ...

So treatment is also good security?

Treatment's excellent security. I think we have seen a much reduced incidence of inmate-on-guard violence, at least by inmates in the mental health caseload, and inmate-on-inmate violence, because if we have inmates in RTUs who would otherwise be easy prey to inmates who have bad intents for them, we'd have a lot more violence in the inmate population. Have we solved the whole problem? Absolutely not. Have we chipped away in a meaningful way? Sure. And that's good. ...

I'd compare this to how sensitive we are to end-of-life issues in prison. We actually have prison units now for people who are going to die in prison -- older people, aged people. And I think that even beyond the residential treatment unit, even beyond the outpatient caseload, we should really be thinking about prisons with units that just have the mentally ill, even if they don't qualify for RTU, in order to keep them safe.

Explain what a ticket is, and explain how Lucasville gets the worst of the worst.

In the prison setting, life is ruled by a whole bunch of conduct orders. Inmates get a handbook when they come in, and the handbook says: Thou shalt not disrespect an officer. And thou shalt not have contraband in your cell. And you will not tattoo. You won't be part of a group that advocates violence. There's a whole bunch of rules. You have to show up for work; you have to get up and make your bed, and all these things. If you violate any one of those rules, you could get a conduct report. A small order, a small violation, gets a verbal reprimand. It's a Class III Rule violation. The guards carry around a little laminated thing in their hats that have all the rules on it. They figure out what to charge the inmate with based on that. If an inmate masturbates, that's a Class II Rule violation. So there's a lot of conduct that you'd think is pretty common in a prison that could be subject to a rule violation. And once you get a Class II Rule violation, that goes on your record as well.

The classification of you as a minimum-, medium- or maximum-security prisoner is driven entirely by the number of tickets you get. You have a little due process. ... You stack those up, and the inmate then goes to the next level of security. So you go from a medium-security prison to a close-security prison to a maximum-security prison. Along the way, privileges are drying out. You aren't going out to a farm anymore; you aren't having as much visitation; your packages are gone; your phone calls are reduced. Your programming and access to people from the outside are reduced at each security level.

When you're at Lucasville, you've got the fewest number of privileges. You've got the most uptight life. You're spending the most time in your cell. If you're mentally ill, that's not good for you. And then, if you break rules in Lucasville, what are they supposed to do with you? Well, that's when you go to the hole again. And the hole in Lucasville is even more contraindicated for mental illness, because you're deprived of so much that you go even crazier.

And then beyond that, there's the supermax. Supermax didn't open till '98. And we had mentally ill inmates going down the drain to the supermax. They acted out so severely in the incredibly deprived circumstances of the supermax that we quickly got an agreement that they would be kept away; that the sensory deprivation was so great that they wouldn't even be allowed to go to the supermax. They'd have to hold them in Lucasville. ...

Why is the suicide rate so high?

… [F]or the mentally ill in particular, you've got a huge challenge in avoiding suicides. Lawsuits haven't been very good at solving this problem, because a suicide is an individual event. There's a lot of resistance to the notion that somehow people should sue over the fact that they killed themselves. But lawsuits have been used, and we've used them, to try and encourage proper treatment, because a suicide is no different than an attack on a guard; just, they're acting out. It's an uncontrolled event.

At least for the mentally ill, it's often a product of a delusional state or a depressed state. The medication isn't working; the talk therapy didn't happen; the activity therapy didn't happen; the inmate's been hunkered down. Could have seen it, should have seen it, didn't, he's dead. ...

And yet we have a great challenge finding ways to get proper treatment for people at risk of suicide. We've worked on it in the Dunn protocols. People who are suicidal get observed more often. Staff are advised to observe. They're charted. The observations are charted. It's something we're working on, but it's a real tragedy when it happens.

Is it surreal to go into Lucasville and see a mental health treatment team within a corrections setting?

I am totally impressed by what we see still going on in Lucasville, even though the decree is gone. One of our big challenges is to make sure that only people who are seriously mentally ill are put into these settings, because they are still restrictive. But we're working on that. And boy, some of the inmates there just love it. They're so happy to have a regimented life. They know they need structure. They're happy not to be victimized by the general population, and they're feeling some sense of fulfillment with the appropriate goals that are set for them.

That same inmate I see in my jail litigation at the other end of the spectrum. ... And then you go to Lucasville, and you see that there's a way to deal with these persistent problems constructively, and you have some hope. And that's good.

[Describe the group therapy at Lucasville.]

... There's a series of cages in a semicircle, ... and treatment actually happens in these cages. Inmates will be brought out in shackles, one by one, placed in these cells, and the treatment team coordinator will sit out there, and they'll talk. Well, that could be shocking to people to see. How barbaric to have people sitting in these cells, trying to do therapy. I can only say that the alternative is that there would be nothing happening; there would be no group activity with that population. And the very fact that they figured out a way to provide talk therapy to these inmates that were so low-functioning, to me, is great.

I want to be vigilant about making sure we get people out of those restrictive settings as soon as they're well enough, but I don't want to deny to these really challenged people the opportunity to sort out their problems. And medication isn't the only answer. You need to find a way to work with each other. ...

In the group therapy, is their work actually making any difference?

... I think it makes a difference in the quality of their lives. They are less violent. They're less violent with each other and less violent with the staff. Every day is a better day for them. Is their prison time shorter? I doubt it. They're still max, and you don't get parole from max. Are they going to be successful on the outside? They'll be capable of receiving transitional programming much better than they ever would have before -- if we had transitional programming. We haven't solved all their problems. But every day's better now than it was before.

Is mental health treatment at Lucasville better than they've ever received before? What's likely to happen if and when they return to the community?

... Prison should be for people who need it because they need to be deterred. The mentally ill prisoner, that isn't about deterrence. By locking the mentally ill prisoner up and keeping him away from society, you're not teaching them to not do that bad thing anymore. That's about safety. Some of these people need to be kept separate from the rest of citizens. But if we were really designing [a] program to meet society's goals -- which should be rehabilitation, deterrence and safety -- the way we treat most prisoners, and therefore most mentally ill prisoners, just doesn't meet those goals. And we certainly need to hand people off in a way that would continue whatever good work might be happening in the prison system.

So we shouldn't be surprised at the recidivism rates for the mentally ill.

No. We really shouldn't be surprised when the mentally ill show up again at intake, because it was bound to happen. We knew that was their course of conduct before, because they were in prison earlier. We didn't do anything when they were released to divert them to a better course of conduct, and now they commit a crime, and the same thing is happening.

What surprises … [is] we seem to be so wedded to locking people up as the answer to our fear that we'll pay anything. And it's only very recently that we've started to cough, that we've started to think, boy, this is really expensive. And I think it's [that] we've locked up so many people and we have so many ex-offenders on the streets that we're also seeing that locking people up just isn't working. But that truly hasn't made its way into policy. Those awarenesses are -- I'd see it in the op-ed pages, I start to see it in letters to the editor, but I'm not seeing it in policy. We still have a very tough sentencing scheme, a classification scheme that doesn't recognize there's no good re-entry for mentally ill, and revolving door. It's still there. ...

Are jails and prisons now the de facto mental hospitals? Where are the mentally ill now?

The vast majority of the seriously mentally ill are either homeless -- unless they have resources and unless they have family that have stuck by them -- they're either homeless, they're in shelters, they're just barely making it in subsidized housing, or they're in jails and prisons. And the jails and prisons are choking with them. We're reinventing Dunn in jails all across Ohio. I'm in jails every day where mental health people don't talk to corrections people and don't talk to the medical people, and suicides occur because red flags weren't caught. There is no concept that they all should be working together.

I'm in jails every day where inmates are accused of manipulating in order to get into a single cell. Yes, there are some inmates who abuse the system. But what's the risk we want to guard against? Is it that somebody's going to take us for a ride and get a little softer bed or a single cell, and he should have been in the dorm, or is it that if we don't pay attention to that, he's actually going to be in the midst of a group of inmates in the dorm setting and start beating on them or attacking them, or attacking the guard? I think we have it backwards when we worry about that. And I think mental health professionals who are properly trained know how to sort out these issues. There are just too many facilities that still warehouse the mentally ill, and it's tragic. …

[Could] what you did in Ohio be a model for reform for [the] mentally ill in prison?

What we did in Ohio could certainly be a model, but it did require that the head of corrections wanted inmates to be treated securely and appropriately, and wasn't just reacting to the fact that he had been sued. I think that there are plenty of wardens out there that get so little support from the politicians that they would probably welcome civil rights attorneys who come in and understand what daily life is like in a prison. And it could be viewed as just helping them get the money to do the job right. ...

Deinstitutionalization: Where are we on its legacy if jails and prisons are the new dumping ground?

Well, mental institutions were closed because we were shocked as a people about abuses that occurred inside. So we committed ourselves as a society to, based on the rights of those inmates, of those patients, to [let them] live as freely as possible; we committed ourselves to serving them in our midst. We mainstreamed them. So if you look at the laws, they're great. The states are supposed to set up all these catchment areas; then we're supposed to have a continuity of care, and we're supposed to have free mental health services on a sliding scale if you have any money at all. If you don't have money, that's OK; you can still come. There's a psychiatrist for every mentally ill person in the law. There's a therapist for every mentally ill in the law. There are caseworkers that are supposed to help navigate the labyrinth of bureaucracy. And we don't fund it. We don't fund it enough to do the job. ...

I think, as a society, we are huge hypocrites. We have written the greatest set of rules and inspirational words about how we're going to treat people, the mentally ill in particular, when they can't help themselves. And then we quietly, subtly deny them exactly what we just promised them. And then, if they're in prison, we deny them even the right to sue, to go get it, because we don't really want to be held accountable. So we've just defrauded these citizens of their basic right to live safely among us. And we should be totally, thoroughly ashamed. …

Assess prison reforms across the country with the mentally ill.

We have had a huge slowdown in reform work in prisons across the country and in jails. Unfortunately, most of this type of work is litigation-driven, and those of us doing the lawsuits are having real trouble figuring out how, under current laws, we can do the type of work we've done for the last 20 years. And we are not being replaced by political forces that are making it happen for other reasons. ...

You'd like to think that people see the Dunn product and say: "That makes sense. Let's spread it." You have to remember that it came out of a lawsuit. And so the question is, can you file a lawsuit somewhere else and get the same thing done? And the answer, more and more across America, is no. The Prison Litigation Reform Act, this law passed by Congress, prevents lawyers like me from filing these cases and prevents judges from even taking jurisdiction over some of these cases. So there's no vehicle, because politics isn't going to work, because there aren't any other pressures. It's only lawsuits that have brought about prison reform.

Well, what about at the jail? Can we do it there? No. The PLRA applies to jails, too. What does that mean? That means that we have more and more mentally ill people coming into the jails, sitting with no treatment for up to 18 months. The jails are more crowded than ever, because there's fewer cases that are being brought, fewer judges that are looking at the jails, so they're more crowded than ever, without orders to reduce the population. That exacerbates the symptoms. A mentally ill person crowded into a stifling environment with no programming is going to be preyed on; [a mentally ill person] that's more violent is a much more difficult patient for the prison to handle when they're finally sentenced and they do their time in prison. We have tougher patients, we have more patients, and we have fewer remedies to solve it. And we're ignoring it. ...


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posted may 10, 2005

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