A community resource for monitoring, navigating, surviving, and dismantling the prison industrial complex in Arizona.
Sunday, February 9, 2014
Complicity in SC: Legislators, governor, and medical profession silent despite reports of abuse.
This could be the story Cohen writes about Arizona's people,
legislature and criminal justice system someday soon, with the class
action suit Parsons v Ryan
going to trial this year. Don't wait for the courts to order it, AZ
LEGS. Demand accountability and oversight now, before more tragedy
strikes...
"And through all of this time, this 15-year stretch in the state's
history, no session of the legislature passed a comprehensive measure to
fix the obvious problems. No governor called a press conference to
lament the conditions of confinement and demand reforms from the
Department of Corrections. No one save a few lonely advocates held a
prayer vigil for the ill people who were being treated so poorly. No one
brought any ethics charges against the doctors who were supposed to be
treating these people or against the state lawyers who were defending
these indefensible policies and practices in the state's courts of law."
In
two months, America will observe the 50th anniversary of one of its
most dubious moments. On March 13, 1964, Catherine "Kitty" Genovese was
brutally murdered in Queens, New York. What made her case infamous—legendary, even—was
that nobody responded to her cries for help. "Please help me, please
help me!" she cried, over and over, and at least 38 people in her
neighborhood who heard those cries did nothing to help her. They did not
call the police. They did not come to comfort her. They did not, they
later said, want to get involved. "When good people do nothing" is a timeless moral question, indeed.
One could say the same thing about the citizens of the state of South
Carolina, who stand condemned today by one of their own. On Wednesday, in one of the most wrenching opinions you will ever read,
a state judge in Columbia ruled that South Carolina prison officials
were culpable of pervasive, systemic, unremitting violations of the
state's constitution by abusing and neglecting mentally ill inmates. The
judge, Michael Baxley, a decorated former legislator, called it the "most troubling" case he ever had seen and I cannot disagree. Read the ruling. It's heartbreaking.
The evidence is now sadly familiar to anyone who follows these cases:
South Carolina today mistreats these ill people without any evident
traces of remorse. Even though there are few disputed material issues
of law or fact in the case, even though the judge implored the state to
take responsibility for its conduct, South Carolina declared before the
sun had set Wednesday that it would appeal the ruling—and thus likely
doom the inmates to years more abuse and neglect. That's not just
"deliberate indifference," the applicable legal standard in these prison
abuse cases. That is immoral.
But what makes this ruling different from all the rest—and
why it deserves to become a topic of national conversation—is the
emphasis Judge Baxley placed upon the failure of the good people of
South Carolina to remedy what they have known was terribly wrong since
at least 2000. Where was the state's medical community while the reports
piled up chronicling the mistreatment of these prisoners? Where was the
state's legal community as government lawyers walked into court year
after year with frivolous defenses for prison policies? Where were the
religious leaders, the ones who preach peace and goodwill?
No one in power came forward. Even as the evidence became more clear
and compelling that something horrible was happening inside those
prisons. The most telling reaction to Judge Baxley's ruling came from
State Senator Mike Fair, who chairs the Senate Corrections and Penology
Committee. On Wednesday, after the ruling, he said:
"I didn't know that we had a problem with any particular aspect of
mistreating or not treating inmates who have a diagnosis of mental
illness." But Senator Fair knew. His fellow lawmakers knew.
Yet like
Kitty Genovese's neighbors, they did nothing, even as the cries for help
became louder.
The History
To understand Wednesday's ruling—to understand the extent to which
South Carolina ignored what was in front of its very nose—it's important
to look at the history of the problem.In the 1980s
and early 1990s, South Carolina did a reasonably good job of caring for
its mentally ill prisoners. That changed in the mid 1990s. Michael
Moore, a renowned prison administrator, came from Texas and implemented a
series of harsh reforms that vitiated mental health services for
inmates. Jobs for prison psychiatrists were cut.
Programs that had
helped the mentally ill were shelved. And conditions, predictably, got
worse in a hurry.
Moore left for Florida in 1999, but
state lawmakers and prison officials in South Carolina never undid the
damage he had caused even after they began to appreciate the scope of
that damage. Sentencing reform even came to South Carolina, in 2010,
courtesy of Governor Mark Sanford and his fellow Republicans in the
state legislature, but no reform ever came to the state's mental health
programs for inmates. No meaningful influx of money came to fix the
problem. No reformers were commissioned to help. Judge Baxley, in his
ruling this week, picks up the story from here. He writes:
The evidence is overwhelming that SCDC
(South Carolina Department of Corrections) has known for over a decade
that its system exposes seriously mentally ill inmates to a substantial
risk of serious harm.
In 1999, SCDC retained Dr. Patterson (who
became the Plaintiffs’ expert in Judge Baxley’s case), through a grant,
to inspect its mental health program. His report, issued in 2000,
characterized the program as being in a state of “profound crisis.”
In October 2000, a Joint Legislative
Proviso Committee report concluded that “inmates with mental illness are
not receiving adequate treatment… and oftentimes leave prisons worse
off than when they entered."
In April 2003, a South Carolina Task Force
whose members included three former SCDC Directors issued a report that
concluded Gilliam Psychiatric Facility was “clearly inadequate."
In May 2003, the South Carolina Department
of Mental Health issued a report on SCDC’s mental health program,
noting “[t]he lack of psychiatric coverage has resulted in a critical
situation, with extremes of poor care, inhumane treatment, and
dangerousness…”
In September 2003, SCDC Director Jon
Ozmint, in a application for technical assistance, stated that “[t]he
current plight of persons with mental illness at SCDC is at a crisis
level.”
In June 2005, the Plaintiffs filed their Complaint in this case, alleging constitutional deficiencies in SCDC’s program.
From June 2006-2010 Plaintiffs’ experts issued eight site inspection reports criticizing conditions in SCDC facilities.
In October 2007, SCDC psychiatrist Dr.
Michael Kirby wrote a letter to his supervisor noting several serious
problems with SCDC’s mental health system…
In January 2010, a United State Department
of Justice report was highly critical of SCDC’s medication management
and administration practices.
And through all of this time, this 15-year stretch in the state's
history, no session of the legislature passed a comprehensive measure to
fix the obvious problems. No governor called a press conference to
lament the conditions of confinement and demand reforms from the
Department of Corrections. No one save a few lonely advocates held a
prayer vigil for the ill people who were being treated so poorly. No one
brought any ethics charges against the doctors who were supposed to be
treating these people or against the state lawyers who were defending
these indefensible policies and practices in the state's courts of law.
Here is the link to Dr. Patterson's initial report. Here is the link to the Joint Legislative Proviso report. Here is the link to the 2003 Task Force Report.* Here
is the link to the May 2003 Department of Mental Health memo. Take the
time to read these documents and then decide for yourself whether the
good people of South Carolina knew or should have known what was
happening inside their prisons all those years. And keep those officials
warnings in mind as you read next what Judge Baxley found happened to
so many of the mentally ill prisoners caught in the vise of this callous
system.
SCDC/Trial Exhibit The Ruling
He started with the basics. "The evidence in this case has proved,"
Judge Baxley wrote, "that inmates have died in the South Carolina
Department of Corrections for lack of basic mental health care, and
hundreds more remain substantially at risk for serious physical injury,
mental decompensation, and profound, permanent mental illness." There
are not enough mental health professionals working on the state's
prisons and those who are working are not adequately doing their jobs.
Meanwhile, punitive prison policies, and poor communication, exacerbate
the problems of the mentally ill. The judge wrote:
First, the mental health program at SCDC
is severely understaffed, particularly with respect to mental health
professionals, to such a degree as to impede the proper administration
of mental health services….
Second, seriously mentally ill inmates are
exposed to a disproportionate use of force and segregation (solitary
confinement) when compared with non-mentally ill inmates…
Third, mental health services at SCDC lack
a sufficiently systematic program that maintains accurate and complete
treatment records to chart overall treatment, progress, or regression of
inmates with serious mental illness.
Fourth, SCDC’s screening and evaluation
process is ineffective in identifying inmates with serious mental
illness and in providing those it does identify with timely treatment.
Fifth, SCDC’s administration of psychotropic medications is inadequately supervised and evaluated.
Sixth, SCDC’s current policies and
practices concerning suicide prevention and crisis intervention are
inadequate and have resulted in the unnecessary loss of life among
seriously mentally ill inmates.
Those are the antiseptic words judges often use to describe
unconstitutional conditions. What do they mean?
They mean that one
mentally ill inmate, James Wilson, was kept in solitary confinement for
at least 2,491 consecutive days. It means that an intellectually
disabled (and schizophrenic) man named Jerome Laudman was abused and
neglected, and then left to rot in his own feces and vomit, until he
died of a heart attack. It means that force was used 81 times on a
severely mentally ill inmate named James Howard. It means that some
mentally ill inmates were restrained at length in what they called a
"crucifix position."
It means some mentally ill prisoners were "routinely placed" naked
"in shower stalls, 'rec cages', interview booths, and holding cells for
hours and even days at a time." It means that suicidal prisoners who
were supposed to be receiving anti-psychotic medication were not
receiving them. No surprise, the judge wrote, since SCDC's "computer
system cannot retrieve the names or numbers of all inmates referred" for
mental health treatment, "the number of inmates who have made serious
suicide attempts; or the number of inmates whose psychotropic
medications have expired without being timely renewed."
It means that mentally ill inmates are routinely caged for days in
their own feces and urine, having to eat literally where they shit. It
means, Judge Baxley wrote, that "the deposition testimony of some
psychiatrists reveals an alarming lack of knowledge about the policies
and procedures at SCDC." One such psychiatrist did not know "what mental
health counselors do, and had 'no idea' who drafted treatment plans"
for inmates.
And even if the mental health professionals knew what they
were doing, they wouldn't have been able to do much. The ratio of
inmates needing treatment to professionals able to provide it was
astronomically high.
The Response
But those horrific facts aren't to me the worst of it. The worst of
it is that South Carolina officials both before and after the filing of
the lawsuit-- the 2005 filing of the lawsuit, remember-- have
refused to accept responsibility for their conduct or to move swiftly to
fix the deplorable conditions that still plague the mentally ill
inmates in their care. "The evidence shows," Judge Baxley wrote, "that
from 1999 until the filing of this action in 2005, SCDC did virtually
nothing to address, much less eliminate, the substantial risks of
serious harm to which class members were exposed."
And since the filing of the lawsuit more than eight years ago? Judge
Baxley wrote: "What limited action SCDC has taken since the filing of
this lawsuit has had little to no effect in abating the unconstitutional
deficiencies this Court has found." And then the judge cited an old
proposition of law that has rarely been more applicable than it is in
this case. "Patently ineffective gestures purportedly directed toward
remedying objectively unconstitutional conditions do not prove a lack of
deliberate indifference, they demonstrate it." South Carolina's "band
aids," Judge Baxley wrote, were both too little and too late.
It is one thing to violate the constitutional rights of others in the
fashion proven here, day after day, year after year, tortured moment
after tortured moment. It is another thing to be caught violating the
constitutional rights of people in a manner that shocks the conscience,
as we see in this case. But it is something else altogether, something
unethical and immoral surely but bordering on something profoundly
cruel, to be caught violating the rights of others in this fashion and
to then show no regret or remorse for having done so. If those abused
inmates have ever received an apology, I have not seen it.
There's been plenty of scorn, though. The last page of Judge Baxley's ruling is perhaps the most profound. He wrote:
We are now eight years into this
litigation. Rather than accept the obvious at some point and come
forward in a meaningful way to try and improve its mental health system,
Defendants have fought this case tooth and nail—on the facts, on the
law, on the constitutional issues, portraying itself as beleaguered by
the burdensomeness of Plaintiffs' discovery, and generally harrumphed by
the invasive nature of Plaintiffs’ counsels’ tactics and strategies.
This Court has spent dozens of hours in
hearings and conferences in an effort to resolve discovery disputes,
most of which involved delay, missed deadlines, and recalcitrance on the
part of the Defendants.
Over and over again, Judge Baxley chronicled, state lawyers sought to
minimize the extent of the problem. Specific incidents of inmate abuse
or neglect were called "anecdotal" or "outliers" by prison officials.
Likewise, the state even failed or refused to find competent experts.
The judge noted "the wide disparity between Plaintiffs' and Defendants'
experts in case preparation and particular knowledge of the SCDC
system." Ponder that for a moment: South Carolina's prison "experts" in
this case didn't know as much about South Carolina's prisons as did the
experts for the inmates. And yet South Carolina pledges an appeal.
Postscript
This is unacceptable. We would consider it unacceptable if a private
litigant were to act in this fashion—that person or corporation might
even be sanctioned by the court and forced to pay fines or fees. And we
ought to consider it even more unacceptable for a public litigant to
behave like this given the overwhelming evidence presented in this case.
The judge clearly believes that state officials have considered this
epic case a mere nuisance, an inconvenience, which is precisely the sort
of cavalier attitude about constitutional rights that accounts for the
abuse, neglect, and mistreatment of the inmates in the first place.
"Justice in this case is not really about who wins or loses this
lawsuit," Judge Baxley wrote. He's right, of course. Justice will come
in this case only when South Carolina finally spends the time and the
money necessary to give these ill people the baseline levels of care and
treatment they are entitled to receive as a matter of law—and as a
matter of common human decency. But where are the good people of South
Carolina today, the ones who know must now, if somehow they didn't
before, that this monstrous thing is happening in their midst and in
their name?
This epic ruling forces South Carolina, and the rest of us, to make a
choice about what we want our prisons to say about who we are as a
people and what we represent as a civilized society. And also to make a
choice about the extent to which we respect our rule of law and the
measure of justice it is intended to represent. So far, I have failed to
get any state official to explain to me the basis for the appeal in
this case. Not the crass, political basis for the appeal. But the legal
and the moral and the ethical basis for the appeal. That's because there
is none. Now that Judge Baxley has written what needed to be written,
now that he has made a record, there are only right and wrong. And deep
down inside somewhere I reckon the decent citizens of South Carolina
know it.
* Chaired by none other than Senator Mike Fair, the lawmaker who
said Wednesday he did not know "we had a problem with any particular
aspect of mistreating or not treating inmates." I sought comment from
Senator Fair on Thursday. He has not responded. Nor has anyone from
Governor Nikki Haley's office.
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