The Real Lethal Punishment: The Inadequacy of Prison Health Care and How It Can Be Fixed
Wallace, G. Nicholas, Faulkner Law Review
There are over two million people incarcerated around the country in local, state, and federal jails and prisons. (1) Although prisoners do not have the full slate of constitutional rights as most American citizens, they do have some. (2) Prisoners have the right to due process, to be free from discrimination, to have access to parole, and to be free from cruel and unusual punishment. (3) However, inmates also have one right that no other American citizen enjoys: the right to health care. (4) Therefore, it is up to the Government to fund, staff, and administer health care for all incarcerated individuals. However, most of the health care provided at correctional facilities can hardly be considered adequate. (5) Many facilities are understaffed, poorly funded, and severely overcrowded. (6) Thus, the question becomes whether the health care provided to prisoners is adequate and, if not, whether prisoners are entitled to relief under the U.S. Constitution, particularly the Eighth Amendment. (7)
However, the problems that plague the prison health care system can likely be improved without much intervention from the legislature. First, physicians can be encouraged to work in prisons with steadier pay and more flexible hours. Second, funding for prisons has been a perennial problem for many years. Privatization of health care can reduce costs while providing better health care to prisoners. Finally, overcrowding is a problem that has recently arisen due to a "crack down" on crime across the country. Governments can alleviate this problem without jeopardizing criminal enforcement by instituting various measures of sentencing reform.
Part I of this article focuses on the quality of health care that is to be provided to prisoners and reasons why the health care that is currently being provided is inadequate. Part II examines the issue through an ethical lens and summarizes Kantian ethics and how that theory shapes this issue. Part III focuses on exactly what quality of health care prisoners are entitled to and what their remedies are if the health care is found to be inadequate. Part IV focuses on three primary reasons prison health care is considered inadequate: understaffing, underfunding, and overcrowding. Additionally, each of these problems will be analyzed and possible solutions to the problems will be offered. Lastly, Part V will examine a particular group of prisoners: the mentally ill. This focus provides a more detailed view on a specific group of individuals in prison, how the inadequacies directly affect them, and what the Government has done to fix the inadequacies of the care provided to them in prison.
II. WHY SHOULD INMATES RECEIVE ADEQUATE HEALTH CARE?
Although people in prison need to be punished for their wrongdoing, they still deserve respect as living people. Immanuel Kant is famous for his "Categorical Imperative," which placed moral demands on all persons to perform. (8) Kant also believed that all human beings possess dignity because of their rational autonomy and because they follow various moral laws. (9) Kant's theory "demands equal respect for all persons and forbids the use of another person merely as a means to one's own ends." (10) Thus, regardless of a person's appearance or past acts, that person should be treated with the same respect and dignity as everyone else.
Kant's theory serves as the basis on which most of this article is founded. Murdering or raping another individual does not waive the right to be treated and respected as a person. Richard Jaffe, a prominent criminal defense attorney in Birmingham, Alabama, wrote, "no one is as bad as his worst acts or as good as his best. We are all human beings with relative coping skills, flaws and imperfect personalities." (11) Providing medical care to inmates may seem nominal, but in reality, it is usually not implemented in a manner that promotes Kantian respect. Too often, judges, politicians, and other community leaders believe that the guilty should be punished by inhumane and barbaric treatment. More often than not, inmates have only made one mistake that cost them severely; yet, they are punished as if they are some kind of creature rather than a human being. Kantian ethics places someone who runs a red light on the way to work in the same category as a serial rapist, because ultimately, both are still people who deserve respect.
Rehabilitation and deterrence are the main focuses of the prison system. People need to be punished; nevertheless, they also need to be rehabilitated so, in theory, they will not commit the same acts that led them to prison. Additionally, inmates should not be afforded the same rights that they are entitled to on the outside; however, the list of deprived rights should not include respect and dignity. Those rights, as Kant believes, are unconditional.
III. INMATES' ABILITY TO CHALLENGE HEALTH CARE AND THE STANDARD THEY MUST MEET
While the Eighth Amendment prohibits unjust punishment, 42 U.S.C. [section] 1983 allows a prisoner to challenge unjust punishment on a civil rights basis. The standard an inmate must meet to succeed on such a claim was not clear until an inmate's guaranteed right to health care was first recognized in 1976 by the U.S. Supreme Court's holding in Estelle v. Gamble. (12) While the right was deemed fundamental, the extent as to the quality of care was largely left undecided. Therefore, the progeny of Estelle has had the difficult task of deciding exactly what prisoners are afforded in regards to health care and what their remedy should be if there is a finding of inadequate care.
A. How Can a Prisoner Challenge the Health Care Provided to Him/Her?
Any American citizen, including incarcerated individuals, enjoys the right to be free from "cruel and unusual punishment." (13) A proper challenge for infringement on one's Eighth Amendment rights should be made through 42 U.S.C. [section] 1983. A [section] 1983 petition is a civil action for the deprivation of rights. (14) [section] 1983 affords any citizen, including prisoners, the right to challenge a government actor who has denied them any rights, privileges or immunities as set forth by the U.S. Constitution. (15) Individuals who succeed on a [section] 1983 petition are entitled to any remedy available at law that will adequately redress the harm. (16) The Prison Litigation Reform Act demands that the prisoner exhaust all other administrative remedies prior to filing a [section] 1983 petition. (17)
B. The Kind of Health Care Prisoners are Afforded: The Deliberate Indifference Standard
Prior to the late 1960s, the few documented accounts of prison conditions and health care are barbaric. (18) It wasn't until the late 1960s when courts began taking notice of the deplorable health care being provided in American jails and prisons. (19) While there was a growing concern for prisoners' rights, no action was taken by the U.S. Supreme Court until 1976. (20)
1. Estelle v. Gamble
J.W. Gamble brought a civil rights action under 42 U.S.C. [section] 1983 complaining about the medical care he received after he suffered a back injury while on a prison work assignment. (21) For many weeks, Mr. Gamble was repeatedly misdiagnosed and mistreated. (22) Mr. Gamble was prescribed blood pressure medicine and was repeatedly required to go back to work or he would be placed on "administrative segregation." (23) After refusing to return to work, Mr. Gamble was brought before the prison disciplinary committee where a correctional officer testified that he was in "first class medical condition." (24) The disciplinary committee placed Mr. Gamble in solitary confinement where he experienced black outs and severe chest pains for four days until he was finally cared for by a doctor. (25)
Ultimately, the United States Supreme Court reviewed Mr. Gamble's petition and the Court acknowledged that the government had an "obligation to provide medical care for those whom it is punishing by incarceration." (26) The Court held that a "deliberate indifference to serious medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' proscribed by the Eighth Amendment" and thus, there is a cause for action. (27) The Court further held that any intentional denial of access to health care or interference with treatment by guards is also actionable under the Eighth Amendment. (28)
2. What Must a Prisoner Prove to Succeed on a [section] 1983 Claim?
Although the Court in Estelle established the "deliberate indifference" standard, there was not a great deal of clarity regarding what that standard encompassed. Courts did not shed light on the difficult burden a prisoner bears to succeed on a [section] 1983 claim until the 1980s and 1990s. (29)
The "deliberate indifference" standard has both an objective and subjective prong. (30) To meet the objective prong, the prisoner must show that the deprivation of medical treatment was "sufficiently serious." (31) An inmate's injuries "must significantly decrease his quality of life, or constitute a situation where death, permanent injury, or extreme pain has occurred or appears likely." (32) Also, any "wanton and unnecessary infliction of pain" will be found to be in violation of the inmate's constitutional rights. (33)
To succeed on the subjective prong, a prisoner must show that the prison official responsible for the harm acted with a culpable state of mind. (34) The U.S. Supreme Court has more clearly defined this subjective prong by holding that the conduct must involve "more than ordinary lack of due care for the prisoner's interests or safety" stating that "[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause ..." (35) Thus, an inmate bears a heavy burden when trying to prove that the acting official acted in a culpable state of mind by proving that the official "[knew] of and disregard[ed] an excessive risk to inmate health or safety" when they were punishing the inmate. (36)
3. Likelihood of Success
Both Federal and State courts have acknowledged the extreme burden a prisoner bears when challenging the health care they have received at a correctional institution. (37) Estelle and its progeny have established that as long as the prison official provides some sort of medical attention to the prisoner, the claim is unlikely to result in any kind of relief or remedy for the prisoner. (38) It has long been established that prisons are not meant to be comfortable and courts continue to suggest that the Framers of the Constitution intended for the Eighth Amendment to prevent barbarous or tortuous punishments. (39) Courts are reluctant to provide relief because prisons are meant to punish and amenities that are available to regular citizens are not to be afforded to those who are incarcerated. (40)
IV. WHY IS MEDICAL CARE INADEQUATE IN PRISONS? SOME PROBLEMS AND POSSIBLE SOLUTIONS
It is no secret that many of America's jails and prisons provide inadequate care to their prisoners. (41) Considerable attention has been given to improving care within prisons; yet, little, if any, progress has been made. The majority of all prisoner complaints involve inadequate health care. (42) Three problems lead to inadequate health care in prisons: (1) Poor quality and an insufficient supply of physicians, (2) insufficient funding, and (3) overcrowding. All three of these problems can likely be improved with minimal involvement from legislators and without requiring large sums of money.
A. Poor Quality and an Insufficient Supply of Physicians
Upon graduating from medical school, the notion of having a physician use his expertise to provide health care in one of America's prisons is not especially appealing. Some of the main reasons why working as a prison physician is not an attractive option are: safety concerns, lack of career advancements, and an undesirable working environment. (43) As a result of this seemingly unattractive job, there are a low number of physicians in prisons and the quality of care provided is poor. (44)
1. Poor Quality of Doctors
The unattractiveness of being a prison doctor leads to institutions hiring doctors who are not capable of providing adequate care to prisoners. In 2009, the California Corrections Crisis Conference sent four experts to California prisons to observe the quality of medical care that was being provided to prisoners. (45) Some of the experts' findings regarding the quality of doctors in the institutions were horrifying. (46) The experts found that "many of the prison physicians have prior criminal charges, have had privileges revoked from hospitals, or have mental health related problems." (47) As a result of under-qualified doctors, the experts also found that review of the medical care being provided and review of prisoner deaths "show[ed] repeated gross departures from even minimal standards of care." (48) The experts went on to say that the medical care provided "too often sinks below gross negligence to outright cruelty." (49)
Richard L. Lichtenstein conducted a study in 1979, which examined the demographics of the physicians that were providing health care in American prisons. (50) Seventy-seven percent of the doctors who responded graduated from an American medical school while twenty-three percent of the responding doctors graduated from a foreign medical school. (51) Only thirty-seven percent of prison doctors were board certified for a specialty, which is a sharp contrast from the nearly fifty percent of doctors outside the prison system that are board licensed for at least one kind of specialty. (52) Full-time, board certified physicians were receiving approximately twenty-three dollars per hour for their work and were working an average of forty-two hours per week. (53)
2. Insufficient Supply
The American Corrections Association (ACA) requires that a sufficient number of doctors and professional staff are available to provide "24-hour care for chronic and convalescent cases and emergency situations and other services on a level comparable to those available to the general public." (54) Every prison that was reviewed by the General Accounting Office was found to be inadequate in both of the areas specified by the ACA. (55) The reasons why the institutions had an insufficient supply of doctors and staff were all the same: a persistent inability to attract and retain the necessary number of doctors and staff. (56) The listed reasons why facilities were having a hard time attracting capable physicians and staff were "low salaries, antiquated facilities, lack of assured malpractice liability protection, and low job status." (57)
The problem is not limited to state and federal prisons. In a detailed study of medical care in jails, experts found that only thirty-eight percent of jails had one or more doctors on hand. (58) A dismal eighteen percent provided nursing care. (59) Less than half of the responding jails provided dental services, which were primarily provided elsewhere in the community. (60)
3. Possible Solutions
In today's economic recession, enticing people to unattractive jobs is relatively easier than when the economy is running on all cylinders. Despite some unappealing qualities, providing health care in prisons and jails does have some attractive qualities. For example, most states offer a steady and competitive salary, flexible hours, retirement benefits, and most importantly, no malpractice liability. (61) A typical physician's salary, with normal working hours, averages $180,870. (62) Some doctors who have chosen prison health care rather than private practice have seen an increase in their income since changing clients. (63)
A negative stigma has been attached to being a prison doctor for a long time; however, with a recessing economy, filling jobs should not be a problem. Bringing positive attention to the field will promote more willingness to accept the position. At Massachusetts Medical School, twenty-two students chose to complete a clerkship at correctional facilities, which is more than double the number of students in any other year. (64) By getting more students involved, the negative stigma may eventually subside and working as a prison doctor may not seem as bad as it has in the past. By promoting the field to newly commissioned doctors, it provides the doctors a steady income with no additional costs for malpractice insurance. For many new doctors, the amount of student loans is daunting. If a new doctor accepts a position at a correctional facility, they can concentrate on paying off some of their loans while not incurring any other debt.
In a continuing effort to build the number and quality of physicians at prisons, one state began offering an "as-needed" contract to doctors and nurses in the community. (65) This allows both doctors and nurses to earn the majority of their incomes in private practice while supplementing their income with additional income by providing correctional care as-needed. (66) This maintains the doctors' and nurses' professional standing in the community while also providing some community service in the communities' prisons and jails. (67) National and local medical boards as well as legislatures can further encourage this practice by instituting a requirement of pro bono for doctors to fulfill each year in order to maintain their license. If the entire medical community volunteered their time, as a requirement to maintain their license, the quality and quantity of prison and jail physicians would likely dramatically increase.
B. Insufficient Funding
In 2008, the operation costs of America's prisons were estimated to be in excess of $50 billion. (68) As a result of the recent fiscal crisis, state and federal governments have been forced to reduce funding for prisons and jails. (69) Because health care costs account for approximately ten percent ($3.7 billion annually) of the budget for corrections, substantial cuts have been made for prison health care funding. (70) At least nine states reported that funding was substantially decreased for health services at prisons. (71) The cost of health care in prisons has risen for a variety of reasons; however, significant efforts are currently being made to ensure quality health care is provided without increasing costs.
1. Why are Costs Increasing?
While numerous factors have contributed to the increase of prison health care costs, perhaps the most significant factor is the rise in prison population. (72) From 1998 to 2001, state prison populations increased approximately two percent each year. (73) Additionally, operation costs for those facilities increased an average of eight percent each year. (74) Health care costs accounted for ten percent of that increase. (75) In 2000, a survey was completed to determine the daily cost of providing health care to a prisoner. Not surprisingly, some of the lowest per prisoner costs were in the South. (76) Alabama had the lowest per diem health care cost of $2.74 with Mississippi and Kentucky within close range. (77) Other studies have suggested that the average cost of providing health care to a prisoner for a year is $2,300-$3,700. (78) After multiplying these figures by the thousands of inmates under a particular state's control, one can see that the increasing inmate population is causing prison health care expenditures to soar.
Another factor contributing to the increase in prison health care costs is the rise in sexually transmitted diseases (STDs). Diseases such as Syphilis, Gonorrhea, HIV/AIDS, and Chlamydia run rampant through jails and prisons. (79) Experts estimated that the number of confirmed HIV/AIDS cases in jails and prisons is approximately six times higher than in the general population of the United States because of poor maintenance of hygiene areas in prisons as well as poor diagnosis and attention to diseased inmates. (80) In 1997, approximately 200,000 inmates had some form of STD. (81) It is estimated to cost upwards of $475 million per year in order to effectively treat these cases of STDs. (82) The spread of other communicable diseases, such as Hepatitis B/C, also contribute to higher per annum inmate health costs. (83) The number of inmates with some version of Hepatitis has exponentially grown as the number of inmates has increased. (84) Because Hepatitis is easily transmitted, (85) experts estimate that twenty to sixty percent of inmates have some version of Hepatitis. (86) The cost to treat an inmate for Hepatitis typically ranges from $24,000-$30,000. (87)
Lastly, another factor that has increased the cost of inmate medical care is the large population of inmates with mental illnesses. (88) In 1999, roughly sixteen percent of all inmates in the United States suffered from some degree of mental illness. (89) This figure has continued to rise as a result of the increase in inmate population. (90) The expenditures used to treat mentally ill inmates are astronomical. For example, it costs taxpayers approximately $15 billion to treat inmates with mental diseases. (91) Such expenditures will likely continue to increase as the prisoner population continues to grow.
2. Insufficient Funding Leads to Eighth Amendment Violations
While prison health care accounts for a large amount of corrections' expenditures, the insufficiency of funding has lead, and will likely continue to lead, to Eighth Amendment violations against prisoners in need of care. The fiscal crisis presents a quandary. On one hand, prisoners need to be punished, and hopefully, rehabilitated; conversely, the severe fiscal crisis, which affected nearly the entire country, has forced state and federal governments to make budget cuts in places that are considered less of a priority. (92) However, just because states are in dire financial straits, it does not mean that they can refuse to treat and care for inmates that are under their control. (93)
Courts have recently intervened to suggest that governments will be penalized if a "we can't afford it" approach is taken. (94) California federal courts have taken a stand against the appalling state corrections system. (95) Although the main issue for California corrections was overcrowding, the district court noted in two merged cases (96) that the medical care given to prisoners falls well below the necessary standard. (97) As a result of the severe problem in California prisons, the court ordered a release of 50,000 prisoners in order to meet the necessary minimum standard. (98) Such releases are cause for great concern. Releasing prisoners back into the general public who have not been properly cared for is a serious danger to the community at-large. (99) Experts estimate that roughly 1.5 million prisoners carrying serious, life-threatening diseases are released from custody every year. (100) If courts are willing to take drastic measures, such as prisoner release, to improve prison conditions, a significant problem is presented to the community at-large because not only are prisoners who have not served their complete sentence being released, but such prisoners are also carrying potentially deadly diseases as a result of not receiving adequate care while in prison. Change is necessary.
3. Possible Solutions
With the cost of prison health care at an all time high and at a time where money is tight, the need to change the way prison health care is funded is great. State and federal governments, will likely never lose their responsibility to care for the individuals who they have made wards of the state; therefore, expenditures for providing health care will always be an issue for governments when trying to meet a certain budget. Privatization and prisoner co-payment systems are two proposed solutions, which can likely alleviate some of the stress on governments to provide increasingly costly medical care.
Privatizing prison health care has been around since the 1980s. (101) The idea is that a government contracts with an outside firm to provide all of the medical services inside its institutions. (102) The outside vendors provide their own doctors, nurses, equipment, and services. (103) Perhaps one of the greatest benefits of hiring private companies to administer health care inside prisons is that it allows states to establish "hard spending limits." (104) The state can set the amount of money it wishes to spend on health care and the private company must work within that budget; thus, the private company is responsible for any overage costs that result from its care. (105) Many state contracts with outside vendors provide established performance objectives requiring the vendor to achieve certain performance standards or it risks losing the contract. (106) This allows a government to efficiently manage expenditures for correctional systems while not jeopardizing the quality of health care provided to prisoners.
The privatization of prison health care has been implemented across the country. In 2000, at least thirty-four states had some form of privatized health care, while twenty-four states had completely outsourced all of their institutions to private companies. (107) Corizon, one of the largest correctional healthcare contracting companies in the United States, boasts that they provide health care to over 400 institutions in twenty-nine states. (108) The company also claims to provide service to over 340,000 inmates across the country. (109) Success has been widespread with the incorporation of private vendors. For example, Illinois began outsourcing their prison health care in 1991, and now has one of the lowest per inmate costs in the country. (110) Other studies suggest that the outsourcing of prison health care can save a state ten to twenty percent on its annual correctional healthcare expenditures. (111) With the ability to customize a contract with a private vendor to reduce overall costs, privatization of health care is an excellent solution to a government's fiscal crisis in providing adequate health care to inmates.
Contracting out for prison health care has been met with some adversity. Opponents of privatized prison health care argue that the private companies have no incentive to provide quality health care. (112) They allege that doctors and professional staff come into the prisons, provide basic care without paying attention to larger concerns, and then leave without any interest in providing adequate care. (113) Other opponents argue that there has been no increase in the quality of care provided to inmates through private health care companies. (114) In a study conducted at UC Santa Barbara, figures showed no decrease in the inmate mortality rate when private companies provided health care. (115) While costs are being reduced through private prison health care, the quality of health care being provided continues to suffer. (116) As Kinsella notes, this seems to be "the exception and not the rule." (117) Most state contracts now require companies to be accredited through various, prominent national medical organizations; further, the contracts require implementation and maintenance of performance objectives. (118) Courts have even directed states, which are consistently providing inadequate care, to temporarily contract the services out until conditions could be improved and maintained. (119)
b. Inmate Co-Payment Systems
Most Americans go to a doctor, receive treatment, and pay some sort of co-payment that is set by their insurance company or the service provider in lieu of paying for the entire bill. In 1981, Nevada was the first state to enact a bill that allowed for a prison health care co-payment system. (120) The problem Nevada and likely every corrections institution in the country was facing is that inmates would make numerous, unnecessary trips to the prison hospital with no health problems whatsoever. (121) In an effort to slow this practice, Nevada instituted a four-dollar payment for routine medical services, such as dentistry, optometry, and psychiatry. (122) If the health issue were an emergency or a follow-up visit, then the fee would be waived. (123) Nevada saw a fifty percent decline in annual inmate visits for the state's entire correctional program. (124) As a result, thirty-seven states implemented a co-payment system by 1998 in which inmates were required to pay a nominal fee for routine visits to a doctor. (125) Compelling an inmate to pay a small fee for medical services is certainly not going to completely repair the severe fiscal crunch; however, it reduces the amount of doctors' hours, supplies, and visits to an already overloaded service provider since co-payment systems serve as a rationing device. (126) If inmates are forced to use their personal money for medical services, it will likely cause them to think twice before running to the doctor just to avoid working. (127)
Since 2000, the prison population in the United States has increased at a rate of fifteen percent while the general population for the country has increased 6.4 percent during that same time. (128) In the 1980s, most American states began cracking down on crime, which ultimately led to an increase of 300% in prison population from 1985 to 2000. (129) In 2000, twenty-one states and the Federal prison system reported operation capacities at 100% or greater. (130) As a result of severe overcrowding in America's prisons, the health care provided to inmates has suffered dramatically. (131) Most notably, in California, severely overcrowded prisons led to the release of prisoners. (132) Like the other problems previously mentioned, overcrowding in American prisons can likely be repaired.
1. Factors Leading to Overcrowding
When America took a tougher stance on crime, the country's prison population grew exponentially. (133) The kind of sentencing reform that was introduced was referred to as "truth-in-sentencing acts." (134) The goal of these acts was to provide stricter penalties for felons; further, the acts place repeat felons in prison for life after two or three felonies. (135) As a result of the sentencing reforms, court-imposed sentences have increased by an average of fifteen months. (136) In 2003, one out every eleven inmates was serving a life sentence. (137) Imposing a life sentence on a defendant can potentially cost American taxpayers approximately $1 million per inmate. (138) Many experts believe that the rise in the prison population is not a result of increased crime rates, but is instead directly caused by the enactment of stricter laws and policies. (139)
As a result of longer prison terms, fewer inmates are being released and the costs of maintaining such aging inmates are also increasing. (140) The "baby boomer" generation represents a proportionally large population group in American prisons. (141) In 2007, there were approximately 74,000 "baby boomers" incarcerated. (142) Because many of these inmates grew up in poverty and did not have access to adequate health care prior to their prison sentence, many tend to suffer from age-related illnesses quicker than other inmates. (143) Additionally, because many of these "baby boomers" are serving longer sentences, governments are forced to bear the costs of their health care, which has a taxing effect on the institution's resources. (144)
2. Overcrowding Leads to Eighth Amendment Violations
Overcrowding has many effects on prison health care. In particular, overcrowding reduces the amount of resources that are available to individual inmates, including access to medical supplies and care. (145) Overcrowding also limits an inmate's access to facilities that promote proper hygiene, such as showers. (146) With higher traffic in these areas, disease spreads uncontrollably, which leads to an increase in the need and use of medical care. (147)
The most dramatic display of how overcrowding can result in Eighth Amendment violations occurred in California. In 2006, Governor Arnold Schwarzenegger issued the Prison Overcrowding State of Emergency Proclamation, which declared that California's prison system was in a state of emergency. (148) At the time of this proclamation, all thirty-three of the state's prisons were over capacity and twenty-nine of those institutions were found to be extremely dangerous to the health and safety of the prisoners. (149) Two cases challenged the prison conditions in California as a result of overcrowding. (150) Coleman, originally filed in 1990, was brought by mentally ill inmates who challenged the medical care they were receiving as inadequate and in violation of their Eighth Amendment rights. (151) Plata, originally filed in 2001, alleged that all medical care in California state prisons was constitutionally inadequate. (152) In response to the original filing in Plata, the court mandated that the state undergo "fundamental reform" in order to comply with prison medical conditions and the minimum standards set by the Eighth Amendment. (153) By 2006, the state had failed to implement any new procedures and both of the plaintiffs in Coleman and Plata filed a motion to convene a three-judge panel to consider the release of prisoners. (154)
On August 4, 2009, a three-judge panel ordered the state to reduce
their capacity in its prisons to 137% within two years, which equated to a reduction of approximately 50,000 prisoners. (155) The three-judge panel found that overcrowding was the main cause of the prison systems inability to provide adequate medical care. (156) Most horrifying to the panel was the treatment space allotted to health care. (157) The panel stated that the problem of adequate treatment space is "endemic" to the prison system and the space that does exist is "woefully inadequate." (158) Due to the extreme level of overcrowding, the court stated that it was "impossible to provide adequate medical and mental health services to inmates." (159) The court then considered whether there were any alternatives to a prison release. (160) The panel determined that the release of prisoners was the least intrusive remedy available and decided that reducing the capacity to 137% was a narrowly tailored remedy, such that the state could reasonably be expected to provide adequate medical care. (161) Although the California state prison system is the most extreme example to date, the state was forced to release prisoners in order to comply with Eighth Amendment standards. It caused great concern for the members of the community, but it was the only alternative the court had to prevent cruel and unusual punishment as a result of overcrowding.
Overcrowding has been a problem for many years and is showing no signs of disappearing. While the country remains tough on crime, overcrowding of American prisons will likely continue to get worse. Legislatures have been offered many potential solutions; however, none seem to be gaining much ground. If much of the country is going to continue to crack down on crime, then some sort of sentencing reform needs to take place in order to alleviate the severe overcrowding of America's prisons. Two possible forms of sentencing reform are (1) reducing the overall amount of prison time and/or (2) increasing the number of alternative programs.
a. Reducing Sentences
Since much of the 1980s and 1990s were spent increasing sentences and heavily penalizing criminal offenders, the latter half of the twentieth century has focused on reducing spending and inmate populations by shortening sentences. (162) States have enacted many different strategies in an effort to reduce the overall amount of prison time that an inmate will serve. (163) Reducing sentences can be found in a variety of forms such as acceleration of time served, removing statutory minimum sentences, and reducing sentences overall. (164)
By 2010, at least eight states had lifted or significantly decreased the mandatory minimum sentence for many of its offenses. (165) For example, in Minnesota and Rhode Island, new laws allow the sentencing court to have complete discretion for "low-level" drug convictions. (166) A few other states, including Indiana and Delaware, reformed their statutory scheme to decrease minimum sentences for petty drug defendants and instead concentrate on the defendants who were engaged in drug trafficking. (167) In 2003, Michigan's sentencing reform was projected to have saved approximately $41 million and allowed approximately 7,000 inmates to immediately become eligible for parole or release by loosening their statutory minimum sentences. (168)
A major concern for reducing sentences is the risk of recidivism and the lack of deterrence that is supposed to stem directly from the sentence imposed. (169) However, studies suggest that inmates who entered prison on a life sentence have a lower recidivism rate than the rest of the prison population. (170) Additionally, while those individuals may commit property or drug offenses, they are less likely to commit a violent offense. (171) While it is important to deter crime through corrections, longer sentences for more defendants equates to overcrowded prisons. The suggestion is not that petty drug and theft offenses should go unpunished rather an alteration in the system will allow for habitual and violent criminals to be punished more severely, which will likely result in more effective deterrence and rehabilitation for petty criminals. More effective deterrence and rehabilitation for petty criminals will likely allow the government to reduce the overall population in prisons.
b. Providing More (and Better) Alternatives to Prison
In order to assure that individuals who are released do not return to prison, an emphasis on preparing them for a life without crime is necessary. Alternatives such as drug court, educational programs in prison, and alternative facilities are just a few of the initiatives that have been tested by many states throughout the country. (172)
The most important function of corrections is ensuring that the inmate does not return to prison and is adequately prepared to be a productive member of society. Providing inmates educational opportunities and skills training has had a great effect on reducing recidivism. (173) A 2001 study indicated that alternative prison programs reduced recidivism rates by ten to thirty percent. (174) Although successful, prison rehabilitative programs have decreased because the increase in prison population has made the affordability of such programs a challenge. (175) Criminal-minded individuals need additional guidance to show them that they can be functioning members of society without committing crimes. (176) One way to teach them necessary skills is to provide them with opportunities in prison. (177) Education programs have shown to prepare an inmate for release in hopes that they will not return to prison; therefore, more focus should be placed on providing more (and better) educational and technical classes for inmates. (178)
Another alternative to prison is drug court, which acts as a rehabilitation facility. (179) Instead of being sent to prison, the individual enters the drug court program and focuses on curing their addiction. In 2003, Kansas enacted a law that mandated all non-violent drug offenders enter a drug rehab facility. (180) It is estimated that approximately 475 individuals, who would have otherwise gone to prison, successfully completed the program. (181) Drug rehabilitation programs provide an alternative to prison for many offenders while also providing them with education regarding their addiction and how to overcome it.
V. THE MENTALLY ILL IN PRISON: A LOOK AT HOW A LITTLE INTERVENTION MIGHT HELP
Mental illness is becoming more and more prevalent in today's society. (182) There is better research, better diagnosis, and better treatment than ever before. (183) As a result, more inmates have mental illnesses that do not require them to go to a mental hospital. (184) Health care of mentally ill inmates is essential to assuring that they are safe and not a threat to other inmates and prison staff. (185) While care for mentally ill inmates is not superb, great strides have been made to provide better treatment of mentally ill inmates through the passage of the Mentally Ill Offender Treatment and Crime Reduction Act of 2004. Although Congress finally responded in 2004 by dumping millions of dollars into correctional institutions, some of the problems could likely have been alleviated without spending much money.
A. Quality of Care Provided to Mentally Ill Prisoners
There are roughly 200,000 to 300,000 mentally ill inmates in the American prison system. (186) Types of mental illnesses among prisoners include schizophrenia, bipolar disorder, and severe depression. (187) The Fourth Circuit extended the holding in Estelle to include the right of mentally ill inmates to be treated for their diseases while they are incarcerated. (188) While there are a significant number of mentally ill inmates, approximately one-third of them receive care for their illness while they are incarcerated. (189) Because many of these inmates' conditions go untreated, recidivism rates among the mentally ill are higher. (190) Most mentally ill inmates are never properly diagnosed or are treated as inmates without a mental illness. (191) However, even inmates that are properly diagnosed often do not receive the treatment they need while in prison. (192) While many mentally ill inmates desire to go to other facilities where better care can be provided to them, there are many procedural safeguards that the inmate must overcome to receive a transfer. (193) There are a multitude of reasons why mentally ill inmates are not properly treated while they are incarcerated. These reasons include a lack of resources, lack of properly trained doctors and nurses, and a lack of coordination among the prison administration. (194)
1. Effects of Improperly Trained and Insufficient Staff on the Mentally Ill
Although the goal of mental health services in prison is to assist in the recovery of the inmate and provide opportunities for a better life outside of prison, the mental health care provided in prison focuses on preventing crises and managing symptoms. (195) The need for adequate and continual care for mentally ill offenders is of the utmost importance. Mentally ill patients require a multitude of health professionals to ensure that they are being properly treated. Types of professionals needed are: psychiatrists, psychologists, counselors, nurses, and recreational/occupational therapists. (196) Numerous experts have found that providing individualized care to mentally ill inmates is most important even though nearly every correctional institution cannot provide the treatment because they are severely understaffed. (197) Numerous jurisdictions are too severely understaffed to provide mental health treatment because of their inability to attract and retain quality professionals. (198) Officials cite the unattractiveness of working in a prison, safety concerns, and low pay (199) as reasons for a low volume and high-turnover rate among mental health care professionals in the prison system. (200)
Coupled with an insufficient supply, there is also a great need for properly trained professionals to provide mental health treatment to prisoners. In 2001, a study published in the Correctional Yearbook found that nearly sixty percent of the mental health staff in America's prisons had received no mental health training or additional education. (201) In other studies, numerous correctional institutions were found to have unlicensed psychologists who were not being properly supervised by their superiors. (202) Untrained correctional officers are most often left to meet the needs of mentally ill inmates because many institutions have only a small number of doctors who can provide treatment to inmates and most of those doctors work only during the day and are often unavailable during the evenings and weekends. (203)
As a result of improperly trained and an insufficient supply of mental health professionals, many mentally ill inmates are not treated properly or go untreated altogether. (204) Unqualified personnel are forced to make serious diagnoses and authorize serious medication prescriptions. (205) Mentally ill patients, whether incarcerated or not, need much more treatment and continual attention than those without mental problems. This constant attention includes providing the appropriate medication, therapeutic group and individual sessions, and implementing individually developed treatment plans. (206) Correctional institutions already have an extreme shortage of medical personnel to cater to the general populations needs; therefore, one can see that this shortage may cause mentally ill inmates not to receive the proper care while incarcerated.
2. Effects of Insufficient Funding on the Mentally Ill
Because mentally ill patients require constant attention and continual treatment, the costs associated with these services are expensive. Inmates who have mental illnesses incur the same general expenses as other inmates, which make providing additional health care to them a costly endeavor for the government to shoulder. (207) If an inmate has a mental illness, it is estimated that the cost to properly treat them will add approximately sixty dollars per day to the cost it takes to treat inmates without mental illness. (208) As a result of increased costs and a countrywide fiscal crisis, resources for inmate mental health care have rapidly declined, which puts these inmates and everyone associated with them at risk. (209)
The main cutback that states are making is the number of professional personnel that are hired specifically to provide mental health care to inmates. (210) In 2002, Michigan cut fifty "mental health service positions" in prisons, as well as $5 million from their operating budget. (211) Similarly, Florida drastically reduced its mental health budget so much that an investigative committee found that the correctional institutions only had two treatment drugs on hand and had completely eliminated common "psychotropic medications." (212)
By cutting budgets and positions, inmates do not receive the treatment that they desperately need while in prison. All of the cutbacks present both medical and safety risks to other inmates and correc