Fish Row Born Out Of Mark Walker Case
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COMMENT: MENTAL HEALTH TREATMENT AND
MISTREATMENT IN PRISONS
Joyce Kosak†
I. INTRODUCTION……………………………………………………………. 389
II. AN EXAMPLE OF MENTAL HEALTH TREATMENT IN PRISON .. 390
III. AFFECTED POPULATION………………………………………………… 395
A. Rates of Mental Illness in Prison…………………………………. 396
B. Impact of Mentally Ill Offenders………………………………….. 397
IV. INADEQUACY OF TREATMENT IN PRISONS ……………………….. 399
V. RIGHTS OF PRISONERS TO TREATMENT …………………………… 405
A. Constitutional Rights of Prisoners ……………………………….. 405
B. Constitutional Rights of Prisoners to Healthcare …………….. 406
C. Right to Object to Treatment Methods …………………………… 410
D. Legislative Impacts on Prisoners’ Right to Mental Health
Treatment ………………………………………………………………. 413
E. Impact of Guidelines and Court Orders ………………………… 415
VI. MANDATED RESOLUTIONS …………………………………………….. 416
VII. CONCLUSION ………………………………………………………………. 417
I. INTRODUCTION
As the population in prisons grows, and correspondingly the
need for mental health services increases, reports continue to show
that mental health treatment provided in most prisons falls below
acceptable standards ethically, morally, and constitutionally.1 Not
† J.D. Candidate 2006, American University Washington College of Law;
B.S., Decision Sciences, Miami University, 1991. The author thanks Professor
Susan Schmeiser for her encouragement and guidance. She also thanks Alyssa
Zucker for her support as well as editing assistance. The author’s course taken in
Mental Health Law spurred the development of this Comment.
(1) See generally HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND
OFFENDERS WITH MENTAL ILLNESS (2003), available at
http://www.hrw.org/reports/2003/usa1003/usa1003.pdf [hereinafter ILLEQUIPPED]
(reporting on widely observed problems with adult prisoners in the
U.S. who suffered from mental illnesses).
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only do prisoners rarely receive the necessary treatment, many
times the prison system worsens the condition of the offender
suffering from a mental illness. (2) Not only do prison inmates have a
constitutional right to treatment, doctors have an ethical obligation
to provide adequate care to their patients, and society has a moral
obligation to provide the resources necessary to adequately staff
and supply prison health care systems. (3) Additionally, society’s
greatest opportunity to modify future behavior occurs when the
mentally ill offender is in prison, because rarely do other treatment
alternatives exist for the offender after release from prison.
(4)In an effort to demonstrate the devastating nature of
inadequate mental health treatment in prison, this Comment
reviews the case of Mark Walker. (5) a prisoner in the Montana prison
system. (6) By discussing the size of the prison population and
estimated burden of the mental health needs in the prison in Part
III, the author hopes to establish the scope of the impacted
population, thereby providing a foundation for the importance of
this issue in Part IV.
(7) Focusing on the constitutional rights of prisoners, in Part V
this Comment reviews the major case law regarding prisoners’
rights to mental health treatment, how prisoners can use the court
system to enforce these rights, and the roadblocks to this
enforcement—both those established by Congress and those that
exist simply by the nature of our distributed court system. (8) Finally,
in Part VI, this Comment reviews a sampling of court cases that
have resulted in improved mental health treatment programs in
prison systems.9
II. AN EXAMPLE OF MENTAL HEALTH TREATMENT IN PRISON
Mark Walker arrived at the Montana State Prison (MSP) on
February 5, 1999, after having spent seven months in the Colorado
2. Id. at 153.
3. See generally Fred Cohen & Joel Dvoskin, Inmates with Mental Disorders: A
Guide to Law and Practice, 16 MENTAL & PHYSICAL DISABILITY L. REP. 462 (1992)
(presenting a model and rationale for mental health treatment in prisons).
4. ILL-EQUIPPED, supra note 1, at 192.
5. Walker v. State, 68 P.3d 872 (Mont. 2003).
6. See infra Part II.
7. See infra Parts III, IV.
8. See infra Part V.
9. See infra Part VI.
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prison system.10 While incarcerated in the Colorado system, Walker
was diagnosed with bipolar disorder and stabilized on 900
milligrams of lithium a day.11 His mood was stable and the prison
staff did not file any major disciplinary write-ups.12 Unfortunately,
Walker’s experience in the Montana system was more eventful.
Almost immediately upon arriving at MSP, Walker began
complaining of stomach pains due to the lithium and requested
food to take with his medication.13 Dr. David Schaefer, a MSP staff
psychiatrist, was told of this as early as February 20, 1999, two weeks
after Walker’s move to MSP.14 Not until March 11, 1999, did Dr.
Schaefer actually see Walker, however, and then for less than thirty
minutes.15 By this time Walker had stopped taking the lithium.16
After reviewing Walker’s medical file and without any psychological
testing, Dr. Schaefer stopped prescribing lithium for Walker.17 Dr.
Schaefer believed that Walker had an antisocial personality with
narcissistic traits rather than bipolar disorder.18 Soon after, Walker
began receiving write-ups for serious disciplinary issues, starting at
two a month and increasing to eleven a month.19
Dr. Schoening, another doctor at MSP, diagnosed Walker as a
self-mutilator and explained that self-mutilators in prison generally
injure themselves to get to a less restrictive setting in the prison.20
Even though Walker’s self-harm always resulted in a transfer to a
more restrictive area, Dr. Schoening determined that Walker’s
actions were an attempt to control his situation.21 Dr. Schoening
also attributed Walker’s action of yelling all night long, and then
being assaulted by the inmate at whom he was yelling, to poor
judgment, not psychosis.22
Over a five-day span in October 1999, Walker attempted
suicide three times.23 Dr. Schaefer evaluated Walker again after the
10. Walker, 68 P.3d at 874.
11. Id.
12. Id.
13. Id.
14. Id. at 880.
15. Id.
16. Id.
17. Id.
18. Id.
19. Id. at 874-75.
20. Id. at 880.
21. Id. at 881.
22. Id.
23. Id. at 875.
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first suicide attempt and determined that Walker was at chronic
risk of harming himself, but reported that hopefully Walker “will
fall short of killing himself.”24 He ordered Walker return to the
maximum security area of the prison.25 To address his dangerous
behavior, the prison ordered a series of Behavior Management
Plans (BMPs).26 In a BMP, Walker was put in isolation and
“privileges.” His clothing, mattress, pillow, and all of his personal
items were taken away.27 During some BMPs, the water to Walker’s
sink and toilet would be turned off, depriving the inmate of
drinking water, except during regular intervals determined by
prison guards.28 Walker’s BMPs lasted days at a time, and
sometimes for weeks.29 The privileges would be returned one by
one as his behavior improved.30
All BMPs were implemented in the isolation area of the prison,
where each cell had only a cement bed, a cement table or desk, a
stainless steel sink, a stainless steel toilet, and a stainless steel plate
that served as a mirror.31 The cell did not have a window to the
outside, so no natural light entered the cell.32 The cells were rarely
cleaned, even when an inmate left and a new inmate was placed in
the cell.33 Blood, vomit, feces, and other debris had often
contaminated the cells for long periods of time.34 During one of
Walker’s stays, a large amount of dried blood was on the wall
because the previous inhabitant of that cell had smashed his head
against the wall until he required hospitalization.35 No recreation
yard time was allowed for inmates in this area.36 When a BMP was
in force, an inmate was served only cold food that was unwrapped
and passed through the same cell entry-slot as did the toilet
cleaning tools.37
Throughout his stay at MSP, Walker was placed on BMPs, and
24. Id. at 880.
25. Id.
26. Id. at 875.
27. Id.
28. Id. at 876.
29. Id.
30. Id.
31. Id. at 875.
32. Id.
33. Id. at 883.
34. Id.
35. Id.
36. Id. at 875.
37. Id. at 877.
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with each BMP his behavior deteriorated.38 At one point he
screamed for two days straight.39 He received over 100 write-ups
and spent six months in lockdown.40 In January 2000, while on
another BMP, Walker filed a pro se petition by dictating it to a
neighboring inmate who was allowed the privilege of a pencil and
paper.41
In preparation for the hearing, Walker, along with his
treatment history, was reviewed by two psychiatrists.42 During the
hearings, each of these doctors gave the opinion that Walker was
effectively treated with lithium while in Colorado, but was
neglected and ignored at MSP.43 One doctor described the
treatment Walker received as negligent and scandalous.44 Another
found it “absolutely clear,” based on the psychological records from
Colorado and Montana, as well as the depositions of other inmates
regarding Walker’s behavior, that Walker suffered from a serious
mental illness.45 That same doctor found it to be “inexcusable” that
Walker was not medicated, especially considering the effectiveness
of his treatment by medication in the past.46 The doctor concluded
that MSP’s diagnosis that Walker did not have a serious mental
illness was “preposterous and fell below the ethical standards for
practicing medicine . . . .”47
The Montana Supreme Court was outraged. It found that,
under the state constitutional right to human dignity, the prison
deliberately disregarded the risk of harm to Walker by providing
what the prison knew to be constitutionally inadequate mental
health treatment.48 This state right to human dignity provides even
greater protection than the federal and state prohibition against
cruel and inhumane punishment.49 The court held that violations
of basic rights under the federal and state constitutions would
continue as long as the prison policies regarding BMPs remained
38. Id. at 882.
39. Id.
40. Id. at 877.
41. Id.
42. Id.
43. Id. at 881.
44. Id.
45. Id.
46. Id.
47. Id.
48. Id. at 884.
49. Id. at 883.
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in place.50 The court also held that prison officials at MSP created
conditions that exacerbated the inmates’ mental illnesses or
destroyed their sanity.51 The court remanded the case to the
district court for entry of an order directing MSP to make
operations conform to the ruling and to provide a report on
changes made within 180 days.52
So what happened? No further decisions have been published
from this case, from the district court, the Montana Supreme
Court, or other courts. However, the Montana Department of
Corrections (DOC) released a statement just two days after the
Montana Supreme Court’s decision was issued.53 The DOC’s
statement disputed the findings of the court: “The prison uses such
management plans to try and control inmates’ disruptive,
dangerous behavior,” and “[t]he Court based its decision on the
premise that Walker was mentally ill, but the DOC’s correctional
experts who evaluated the inmate concluded he was not mentally
ill.”54 The statement complained that the courts should not
interfere with prison management, but then went on to say that
“[t]he Court ruled that behavior management plans violate
inmates’ rights to human dignity, but did not give the prisons any
realistic alternative to control these behaviors . . . .”55 Despite the
medical findings of the doctors in the Colorado Prison System and
two doctors whose opinions were relied upon by the Montana
Supreme Court, the DOC continued to deny Walker’s illness and
stood by the inhumane BMP methods.56
However, the Montana Department of Corrections 2005
Legislative Report indicated that changes in the mental health
treatment for prisoners had occurred. First, a new intake facility
was created, at three times the size of the previous unit, allowing
the prison to “assess the needs of each offender and strategically
place that individual in the appropriate facility.”57 The funding for
50. Id. at 885.
51. Id.
52. Id.
53. See DIANA KOCH, MONT. DEP’T OF CORR., CORRECTIONS RESPONSE TO
MONTANA SUPREME COURT DECISION (May 1, 2003), available at
http://www.cor.state.mt.us/news/NewsReleases/Archives/ResponsetoSupremeCo
urtDecision.htm.
54. Id.
55. Id.
56. See id.
57. MONT. DEP’T OF CORR., A REPORT TO THE 2005 LEGISLATURE 18 (2005),
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this new unit was provided by the fifty-eighth session of the
Montana Legislature,58 which met in 2003-2004, but it is unclear
whether the funding was a result of this case decision. The report
also notes that “[c]orrections in Montana faces some stiff
challenges in the area of . . . mental health services for offenders,”
but does not provide any explanation about what those challenges
are or how they will be addressed.59 In addition, in Montana
Women’s Prison, Medical and Mental Health Services became one
unit in an effort to “provide more comprehensive health care to
the prisoners.”60
Mark Walker’s experience in MSP illustrates several of the
issues commonly faced by prisoners in need of mental health
treatment. These issues include the delay in receiving mental
health treatment,61 the inadequate time mental health staff spend
with prison inmates for both diagnosis and treatment,62 and the
failure of prison guards to identify and refer prisoners in a mental
health crisis.63
III. AFFECTED POPULATION
How often can something as extreme as what happened to
Mark Walker really occur? Most people are aware that the U.S.
prison population grew significantly in the 1980s and 1990s.64
Today that population continues to increase. In 2004, the prison
and jail population in the United States grew to over 2,100,000.65
Surprisingly, the prison population is greater than the total
population of fifteen separate states or the District of Columbia.66
available at http://www.cor.state.mt.us/Resources/Reports/2005Legislative
Report.pdf.
58. Id.
59. Id. at 5.
60. Id. at 21.
61. See infra text accompanying notes 128-133.
62. See infra text accompanying note 139.
63. See infra text accompanying notes 134-135.
64. In fact, the prison population grew by more than a factor of four during
this period, from 302,000 in 1979 to 1,319,000 in the year 2001. THOMAS P.
BONZCAR, U.S. DEP’T OF JUSTICE, SPECIAL REPORT: PREVALENCE OF IMPRISONMENT IN
THE U.S. POPULATION, 1974-2001, 2 (2003) available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf.
65. PAIGE M. HARRISON & ALLEN J. BECK, U.S. DEP’T OF JUSTICE, PRISON AND JAIL
INMATES AT MIDYEAR 2004, 1 (2005), available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/pjim04.pdf.
66. U.S. CENSUS BUREAU, ANNUAL POPULATION ESTIMATES 2000-2004 (2004),
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From July 2003 through June 2004, the population of prisons
under state jurisdiction grew by 1.6%, and those under federal
jurisdiction grew by 5.1%.67 At midyear 2004, the United States
incarcerated one out of every 138 of its residents, either in prison
or jail.68 As the number of inmates increases, so does the demand
for services, including mental health care.
A. Rates of Mental Illness in Prison
The ever-increasing size of the prison population indicates a
growing need for treatment of mental illness in prisons. At any one
time in the United States, approximately 5% of the population
suffers from a mental illness.69 Compared to the general American
population of similar age, prisoners are two to four times more
likely to suffer from a psychotic illness or major depression, and
about ten times as likely to have an antisocial personality disorder.70
In a study based on self-reporting by state and federal inmates, as
well as those in local jails, the Bureau of Justice Statistics reported
that in 1997, 16% of those in state prisons and local jails suffered
from a severe mental illness.71 The rate in federal prisons was
lower, at 7%.72 In a study of a smaller group of incarcerated
parents, the percentages for both state (14%) and federal (6%)
prisons were similar.73 No studies indicate why the rate of mental
available at http://www.census.gov/popest/states/tables/NST-EST2004-01.pdf.
The fifteen states are Alaska, Delaware, Hawaii, Idaho, Maine, Montana, Nebraska,
New Hampshire, New Mexico, North Dakota, Rhode Island, South Dakota,
Vermont, West Virginia, and Wyoming. Id.
67. HARRISON & BECK, supra note 65, at 1.
68. Id. at 2.
69. R. C. Kessler et al., A Methodology for Estimating the 12-Month Prevalence of
Serious Mental Illness, in MENTAL HEALTH, UNITED STATES 1999, at 99 (R.W.
Manderscheid & M.J. Henderson eds. 1999).
70. Seena Fazel & John Danesh, Serious Mental Disorder in 23,000 Prisoners: A
Systematic Review of 62 Surveys, 359 THE LANCET 545, 548 (2002).
71. PAULA M. DITTON, U.S. DEP’T OF JUSTICE, MENTAL HEALTH AND TREATMENT
OF INMATES AND PROBATIONERS 1 (1999), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/mhtip.pdf (the percentages were either
based on inmates reporting a mental condition or on inmates having had an
overnight stay in a mental hospital). Most studies defined “severe mental illness”
as psychotic illnesses, schizophrenia, mania, major depression, and antisocial
personality disorder. Id. at 2.
72. Id. at 1.
73. CHRISTOPHER J. MUMOLA, U.S. DEP’T OF JUSTICE, INCARCERATED PARENTS
AND THEIR CHILDREN 9 (2000), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/iptc.pdf.
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illness in federal prisons is less than half of that in state prisons, but
one possibility includes the types of crimes charged under federal
statutes. These include financial and large-scale trafficking crimes.
Those with mental illnesses may not be able to function at a high
enough level to be able to plan and commit these types of crimes.
Based on the population totals of June 30, 2004, the United
States held an estimate of 304,263 mentally ill prisoners.74 Because
these statistics are based on self-reporting studies, the actual
numbers may be even higher.75 Indeed, the National Commission
on Correctional Health Care reports higher rates of mental illness,
estimating that 2.3% to 3.9% of those in state prisons have
schizophrenia or another psychotic disorder, between 13.1% and
18.6% have a major depressive disorder, and another 2.1% to 4.3%
have a bipolar disorder.76 NAMI (formerly known as the National
Alliance for the Mentally Ill) reported in 1999 that the number of
inmates with mental illness in prison was three times that of the
number of non-incarcerated people hospitalized with such
illnesses.77
As the population that may suffer in prison through
inadequate treatment and indifference grows, so must our vigilance
in monitoring to ensure their right to treatment is met.
B. Impact of Mentally Ill Offenders
Besides the ethical, moral, and constitutional reasons for
providing treatment to prisoners, by treating inmates with a mental
illness, both prisons and the public can be made safer. Studies
have indicated that those with a mental illness may be more likely
74. This number was derived by using the population of prisoners in federal
custody of 169,370, multiplied by 6.5%, which is the average of the rates in federal
prisons, 7% and 6%, and then adding the population of inmates in state and local
jail custody, 1,241,034 and 713,990, respectively, multiplied by 15%, the average of
the rates in state prisons, 16% and 14%. See HARRISON AND BECK, supra note 65,
Table 1.
75. See COUNCIL OF STATE GOV’TS, CRIMINAL JUSTICE / MENTAL HEALTH
CONSENSUS PROJECT 105 (2002), available at
http://www.soros.org/initiatives/justice/articles_publications/publications/
cj_mh_consensus_20020601 (follow “Mental Health Consensus Project”
hyperlink) (noting that prisoners, particularly those with mental health issues, are
often unreliable in their reporting of factual information including that regarding
their mental illness).
76. NAT’L COMM’N ON CORR. HEALTH CARE, 1 THE HEALTH STATUS OF SOON-TOBE-
RELEASED INMATES: A REPORT TO CONGRESS 22 (2002).
77. NAMI, CRIMINALIZATION OF THE MENTALLY ILL 1 (2001).
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to commit a crime than those without such illness. For example, a
study conducted in the state of New York found that men in the
public mental health system were four times more likely to be
incarcerated than other men; women were six times more likely to
be.78 In state prisons, inmates with a mental illness are slightly
more likely to be incarcerated for a violent offense (53%) when
compared to inmates without a mental illness (46%).79 Although
some argue these studies do not show a significant link between
mental illness and violent crime, and many are concerned about
the stigma these studies may place on those with mental illness,
these studies provide an additional argument for treatment in
prison.
Treatment can improve safety in prisons by reducing the
number of disciplinary infractions. Inmates with mental illness are
more likely than other inmates to cause violent disciplinary
problems while in prison or jail, as Mark Walker demonstrated.80
One study showed that while 25% of state prisoners without mental
illness reported involvement in a fight, 36% of state prisoners with
a mental illness reported the same.81 In the local jail populations,
6% of those prisoners without mental illness reported being in two
or more fights.82 When examining prisoners with mental illness,
that percentage increases to 10%.83 Approximately 52% of
prisoners without mental illness report being charged with
breaking prison rules, compared to 62% of prisoners with mental
illness.84 A 1996 study reported that while inmates with a serious
mental illness made up 18.7% of the prison population, they
accounted for 41% of the infractions.85
Providing mental health treatment to those in prison may
impact the safety of the public in the future. Government studies
suggest that, although offenders with mental illness are no more
78. Judith F. Cox et al., A Five-Year Population Study of Persons Involved in the
Mental Health and Local Correctional Systems, 28 J. BEHAV. HEALTH SERVICES & RES.
177-87 (2001) (analyzing data from the mental health and criminal justice systems
of twenty-five New York counties).
79. DITTON, supra note 71, at 1.
80. Id. at 9.
81. Id.
82. Id.
83. Id.
84. Id.
85. ILL-EQUIPPED, supra note 1, at 59-60 (citing R. JEMELKA ET AL., PREVALENCE
OF PSYCHIATRIC DISABILITY AMONG PRISONERS (1996)).
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likely to be recidivists than offenders without mental illness, they
might be more likely to commit violent crimes after release. Of
repeat offenders, 53% of state inmates with a mental illness had a
current or past sentence for a violent crime, compared to 45% of
those inmates without a mental illness.86 The comparison among
state jailed inmates is 46% to 32%, and among federal prisoners, it
is 44% to 22%.87
Congressional findings, issued in the Mentally Ill Offender
Treatment and Crime Reduction Act of 2004, indicate that most of
the prisoners with a mental illness are responsive to intervention
that integrates “treatment, rehabilitation, and support services.”88
Because of this responsiveness, along with the likelihood of violent
recidivism, prisons should be taking advantage of the time available
to treat their inmates.
IV. INADEQUACY OF TREATMENT IN PRISONS
Despite these reasons for providing treatment, many inmates
with mental health needs do not receive the necessary treatment,
or even minimal treatment.89 Among state and federal inmates,
only 60% of those in need reported receiving treatment while
incarcerated.90 Half said they had received prescription
medication, and 44% received counseling or therapy.91 Roughly
one-quarter reported being admitted overnight to a mental
hospital or treatment program.92 Among those in local jails, only
41% of those with mental illness received any form of treatment.93
Of those receiving treatment, one-third had been given
medication, and only 16% had received counseling or therapy
while in jail.94
Prisons in the United States do not provide all aspects of an
effective mental health care system. In most prison systems, what is
86. DITTON, supra note 71, at 5.
87. Id.
88. Mentally Ill Offender Treatment and Crime Reduction Act of 2004, Pub.
L. No. 108-414 § 2(6). This Act was passed to establish mental health courts, but,
as of the writing of this Comment, it remains unfunded in the proposed federal
budget for 2006.
89. See supra Part II.
90. DITTON, supra note 71, at 9.
91. Id.
92. Id.
93. Id.
94. Id.
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provided is ineffective due to lack of funding, inadequate staffing
to meet the needs of the entire prison population, lack of training
for the health care and security staff, and lack of procedures to
identify and track the needs of prisoners.95 Even with the best
intentions, a prison system that does not have the necessary
resources, adequate training, and skills, cannot provide effective
mental health treatment to its prisoners.96
Organizations, such as the National Commission on
Correctional Health Care (NCCHC), individual correctional
mental health experts, and courts, have defined general guidelines
regarding what is needed for a positive mental health treatment
program; however, no prison system meets all of those guidelines.97
Specifically, NCCHC’s guidelines include screening all prisoners
for mental illness at the time of entry to identify mental illness that
arises during incarceration, providing a range of mental health
treatment services including therapeutic interventions other than
medication, maintaining adequate and confidential clinical
records, and providing different levels of care, including
emergency psychiatric services, intermediate levels of care, and
“outpatient” services.98 The American Psychiatric Association
indicates that mental health therapies provided to offenders should
be multidisciplinary and also consistent with generally accepted
mental health practices seen outside of the prison system.99 These
services include verbal interventions, individual and group therapy
as appropriate, and “[p]rograms that provide productive, out-ofcell
activity and teach necessary psychosocial and living
skills . . . .”100
The Supreme Court has not provided detailed guidelines
regarding what is constitutionally required. Circuit courts are more
likely to lay out specifics for the prisons to follow. For example, in
95. ILL-EQUIPPED, supra note 1, at 94.
96. Id.
97. Id.
98. Id.; see also FRED COHEN, THE MENTALLY DISORDERED INMATE AND THE LAW,
apps. A-1 to 31 (1998) (comparing standards for mental health treatment and due
process issued by the American Bar Association, American Correctional
Association, American Psychiatric Association, American Psychological
Association, American Public Heath Association, and the National Commission on
Correctional Health Care).
99. AM. PSYCHIATRIC ASS’N, PSYCHIATRIC SERVICES IN JAILS AND PRISONS 46 (2d
ed. 2000).
100. Id.
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Ruiz v. Estelle, the United States District Court for the Southern
District of Texas laid out six minimum standards for complying
with the Eighth Amendment regarding mental health treatment.101
First, a systematic program for screening and evaluating inmates
must be utilized to identify those who require mental health
treatment.102 Second, the treatment provided must be more than
just segregation and close supervision.103 Third, the prison must
have a sufficient number of trained mental health professionals
participating in the treatment of prisoners, who must be treated in
an individualized manner.104 Fourth, complete and accurate
records of the mental health treatment process must be
maintained.105 Fifth, prescription and administration of behavioraltering
medications in dangerous amounts is not an acceptable
method of treatment, without appropriate supervision and periodic
evaluations.106 Finally, a program of identification, treatment, and
supervision of inmates with suicidal ideations is necessary.107
Psychiatrists, psychologists, counselors, nurses, and
recreational/occupational therapists are all necessary to provide
effective mental health services for the wide range of mental health
issues found in the prison system.108 But no specific requirements
exist as to the number of these professionals needed for each
prison or prisoner. According to the American Psychiatric
Association, the goal should be to “provide the same level of mental
health services to each patient in the criminal justice process that
should be available to the community.”109 Therefore, for example,
the caseload of each full-time psychiatrist would be no more than
150 patients on psychotropic medication at any one time.110 Other
experts have recommended anywhere from 75 patients to 200
101. Ruiz v. Estelle, 503 F. Supp. 1265, 1339 (S.D. Tex. 1980), aff’d in part, rev’d
in part, 679 F.2d 1115 (5th Cir. 1982), reh’g granted, amended in part, vacated in part,
688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983).
102. Id. at 1339. But see, e.g., Estate of Novack v. County of Wood, 226 F.3d
525, 532 (7th Cir. 2000) (holding that the Eighth Amendment was not violated
even though prison officials failed to properly evaluate an inmate’s mental health
and prevent him from committing suicide).
103. Ruiz, 503 F. Supp. at 1339.
104. Id.
105. Id.
106. Id.
107. Id.
108. ILL-EQUIPPED, supra note 1, at 95.
109. AM. PSYCHIATRIC ASS’N, supra note 99, at 6.
110. See id. at 7-8.
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402 WILLIAM MITCHELL LAW REVIEW [Vol. 32:1
patients per full-time psychiatrist.111 Such a caseload provides
adequate time for diagnosis and development of individualized
treatment plans.112 A study by Human Rights Watch (HRW) of U.S.
prisons, however, found almost no prisons that approached this
staffing level.113
HRW found that the Iowa Department of Corrections had
three psychiatrists and thirty psychologists to treat the estimated
1800 to 2000 mentally ill prisoners.114 At the Wyoming State
Penitentiary, one psychiatrist works on-site for two days a month.
In those two days, he sees twenty-five prisoners, while an average of
thirty-two new prisoners are referred to him each month.115 A 1997
report on New York state prisons found that the staffing had not
kept pace with the rise in the prison population and that resources
had not increased in years.116
Questions also exist regarding the qualifications and
competence of the prison mental health staff.117 The most recent
study of this issue, in 1988, found that 40% of mental health staff in
prisons had less than a master’s degree.118 The HRW report also
raised the concern that mental health crises arise on weekends and
evenings, when the mental health staff is not working.119 Usually
the only alternative for prison guards is to isolate the prisoner,
which often exacerbates the condition.120
Identifying which prisoners need treatment is another trouble
spot. Logically, identification of mental health needs would take
place at intake, when a prisoner is first admitted to a facility after
conviction or transfer from another institution.121 The intake
process provides the prison staff with the information necessary to
determine the proper placement of the prisoner in the prison
community, such as gang affiliation, personality, and propensity for
111. ILL-EQUIPPED, supra note 1, at 95.
112. Id.
113. Id.
114. Id. (citing Telephone Interview with Harbans Deol, Medical Director,
Iowa Department of Corrections (June 14, 2002)).
115. Id. at 96.
116. Id. (citing NEW YORK STATE OFFICE OF MENTAL HEALTH, TASK FORCE ON THE
FUTURE OF FORENSIC SERVICES—REPORT OF THE SUBCOMMITTEE ON PRISON MENTAL
HEALTH SERVICES 9-11 (1997)).
117. See id. at 99.
118. Id.
119. Id. at 100.
120. Id. at 43.
121. See id. at 101.
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violence.122 Because each prisoner automatically goes through
intake, many prisons have found this time to be appropriate to
screen inmates for mental health needs as well.123 However,
according to the Department of Justice, as of 2000, thirty-two
percent of state correctional facilities do not provide mental health
screening of each inmate at intake.124
Although the recommended guidelines indicate that screening
of every prisoner should be done, no standards exist regarding how
this screening should occur. Often, screening for mental illness
consists of a questionnaire for the prisoner to complete, but no
standards exist for the questionnaires used, or for the training of
staff who administer the process.125 The screening questionnaire
can vary from system to system or even prison to prison. In a stateof-
the-art program, the Michigan Bureau of Forensic Mental
Health Services created a comprehensive prison-screening
infrastructure.126 However, even this agency reported that, despite
its efforts, six to eight inmates a month were processed through
screening without a proper identification of their need for mental
health treatment.127
Prison systems across the nation have consistently been found
not to provide timely access to mental health care, presumably
because of lack of mental health staff. Prisoners complain of
waiting anywhere from days to months to see a mental health
professional after requesting a meeting or to have their
medications adjusted.128 A 1998 report on the Wyoming State
Penitentiary found that out of ninety-five people referred for
mental health services over three months, only six were actually
evaluated.129 In Alabama, where mental health services are
outsourced to a private company, mental health staff is present at
122. See PATRICIA L. HARDYMAN ET AL., NAT’L INST. OF CORR., PRISONER INTAKE
SYSTEMS: ASSESSING NEEDS AND CLASSIFYING PRISONERS 8-12 (2004),
http://www.nicic.org/pubs/2004/019033.pdf.
123. See id.
124. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, SOURCEBOOK OF
CRIMINAL JUSTICE STATISTICS 529 (2003), available at
http://www.albany.edu/sourcebook/pdf/section6.pdf [hereinafter CRIMINAL
JUSTICE STATISTICS 2002].
125. ILL-EQUIPPED, supra note 1, at 101.
126. Id.
127. Id.
128. Id. at 103-04.
129. Id. at 104.
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the prisons only one to two days per week.130 When a prisoner has a
mental health emergency on a day when the staff is not present, he
or she is placed in isolation until the staff’s next scheduled day.131
As of June 2002, fewer than half of all state prisons provided twentyfour-
hour mental health care.132 Three states did not provide
twenty-four-hour care in any of their prisons: Rhode Island (seven
prisons total), Nebraska (nine prisons), and Missouri (twenty-eight
prisons).133
Prisoners often go untreated because security staff, or
under-qualified and/or understaffed medical personnel, believe
the prisoners are either faking their symptoms or are being
manipulative.134 These prisoners are often improperly diagnosed as
“malingering.”135 When prisoners do receive treatment, it often
consists only of medication.136 For example, an investigation at the
Putnamville Correctional Facility in Indiana found that eight of
twelve prisoners whose health records were examined were taking
psychotropic medication, and they were without individualized
treatment plans.137 On average, 9.7% of all inmates in the United
States were receiving psychotropic medications in June 2000, but in
the most extreme states, over 20% received these medications.138
The HRW report also details instances where effectiveness of
medication is not documented or followed up on, prescriptions are
written by doctors who have never seen the patient personally,
medications are administered inconsistently, side effects are not
monitored, and medications are discontinued rather than tapered
off, giving rise to serious reactions from withdrawal.139 Although
this treatment may not meet the ethical obligations of the doctors
that provide this “treatment,” it is constitutional.
130. Id. at 105 (citing KATHRYN BURNS & JANE HADDAD, MENTAL HEALTH CARE IN
THE ALABAMA DEPARTMENT OF CORRECTIONS 66 (2000)).
131. Id.
132. CRIMINAL JUSTICE STATISTICS 2002, supra note 124, at 529.
133. Id.
134. ILL-EQUIPPED, supra note 1, at 106.
135. Id.
136. See id. at 109.
137. Id. at 112 (citing Kevin Corcoran, Prison Mental Health Care: “Absolutely
Atrocious,” INDIANAPOLIS TIMES, Sept. 17, 1997).
138. CRIMINAL JUSTICE STATISTICS 2002, supra note 124, at 530. The percentage
of inmates receiving psychotropic medication in the four most extreme states were
Montana, at 21.4%, Maine, at 23.5%, Vermont, at 28.3%, and North Dakota, at
39.3%. Id.
139. ILL-EQUIPPED, supra note 1, at 115-20.
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V. RIGHTS OF PRISONERS TO TREATMENT
A. Constitutional Rights of Prisoners
Although inmates have a right to treatment of their mental
illnesses, the prison staff must run an entire prison system, and
therefore balance the needs of all the prisoners as well as enforce a
safe environment. In Pell v. Procunier,140 the Supreme Court
explained the concerns that arise about legal challenges to the
treatment of prisoners:
An important function of the corrections system is the
deterrence of crime. The premise is that by confining
criminal offenders in a facility where they are isolated
from the rest of society, a condition that most people
presumably find undesirable, they and others will be
deterred from committing additional criminal offenses.
This isolation, of course, also serves a protective function
by quarantining criminal offenders for a given period of
time while, it is hoped, the rehabilitative processes of the
corrections system work to correct the offender’s
demonstrated criminal proclivity. Thus, since most
offenders will eventually return to society, another
paramount objective of the corrections system is the
rehabilitation of those committed to its custody. Finally,
central to all other corrections goals is the institutional
consideration of internal security within the corrections
facilities themselves. It is in the light of these legitimate
penal objectives that a court must assess challenges to
prison regulations based on asserted constitutional rights
of prisoners.141
Prisoners do not enjoy full constitutional protection.
Furthermore, there is continued infringement of the constitutional
rights they do have, “for the sake of proper prison
administration.”142 The Supreme Court wrote elsewhere, “Lawful
incarceration brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
140. 417 U.S. 817 (1974).
141. Id. at 822-23.
142. Johnson v. California, 125 S. Ct. 1141, 1149 (2005) (citing Turner v.
Safley, 482 U.S. 78, 89 (1987)); see also Bell v. Wolfish, 441 U.S. 520 (1979)
(finding that measures limiting a prisoner’s rights for the purpose of ensuring the
security and order of the institution are not unconstitutional).
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considerations underlying our penal system.”143 Unfortunately, the
Prisoner Litigation Reform Act144 further limits the ability of
inmates to find relief when their rights are violated.145
B. Constitutional Rights of Prisoners to Healthcare
The cruel and unusual punishment clause of the Eighth
Amendment requires the government to provide care for
prisoners’ serious medical needs, including mental health care:146
An inmate must rely on prison authorities to treat his
medical needs; if the authorities fail to do so, those needs
will not be met. In the worst cases, such a failure may
actually produce “physical torture or a lingering
death” . . . . The infliction of such unnecessary suffering is
inconsistent with contemporary standards of
decency . . . .147
Despite their right to treatment, prisoners do not have a right
to define the timing or the type of medical care they receive. In
Mark Walker’s situation, he wanted to continue taking his
medication.148 After drawing attention to himself by discontinuing
the lithium, he was given a different diagnosis.149 He suffered
inhumane treatment and attempted suicide three times before
filing a lawsuit and finally being diagnosed correctly again.150
143. Price v. Johnston, 334 U.S. 266, 285 (1948); see also Cruz v. Beto, 405 U.S.
319, 321 (1972) (“[R]acial segregation, which is unconstitutional outside prisons,
is unconstitutional within prisons, save for the necessities of prison security and
discipline.”).
144. 42 U.S.C. § 1997e (2000).
145. Id. § 1997e(e) (“No Federal civil action may be brought by a prisoner
confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.”).
146. Estelle v. Gamble, 429 U.S. 97, 102-04 (1976); see also Bowring v. Godwin,
551 F.2d 44, 47 (4th Cir. 1977) (arguing that failure to provide treatment may
violate the Eighth Amendment, as well as the Fourteenth Amendment’s Due
Process Clause, for deprivation of life); Ruiz v. Estelle, 503 F. Supp. 1265, 1328
(S.D. Tex. 1980), stay denied in part, granted in part, 650 F.2d 555 (5th Cir. 1981),
stay denied in part, granted in part, 666 F.2d 854 (5th Cir. 1982), aff’d in part, rev’d in
part, 679 F.2d 1115 (5th Cir. 1982), opinion amended in part, vacated in part, 688 F.2d
266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) (arguing the duty to provide
medical care mandated by the Eighth Amendment “is a direct consequence of the
state’s legitimate power to deprive a person of his freedom for a violation of its
penal laws”); Cohen & Dvoskin, supra note 3, at 462.
147. Gamble, 429 U.S. at 103 (citations omitted).
148. See ILL-EQUIPPED, supra note 1, at 93.
149. Walker v. State, 68 P.3d 872 (Mont. 2003).
150. Id. at 875.
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The State is only obligated to provide treatment for “serious”
health issues, but various definitions exist for what is considered
“serious.” According to the Tenth Circuit, the obviousness test
defines a medical need as serious if it is “one that has been
diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity
for a doctor’s attention.”151 The Ninth Circuit defined a serious
medical need as a condition that “could result in further significant
injury or the unnecessary and wanton infliction of pain” if left
untreated, and “an injury that a reasonable doctor or patient would
find important and worthy of comment or treatment, [or] the
presence of a medical condition that significantly affects an
individual’s daily activities . . . .”152 Clearly the Ninth Circuit
definition provides corrections staff with a more detailed test and is
therefore easier to follow. But by either definition, the availability
of treatment may come down to the specific doctor, medical staff,
or even trained prison guard, and how that person views the
symptoms described or exhibited by the inmate.
Prison measures for providing medical treatment are evaluated
against a standard of deliberate indifference, including a
determination of whether there is an “unnecessary and wanton
infliction of pain.”153 According to case law, deliberate indifference
indicates an unnecessary and wanton infliction of pain, whether it
is “manifested by prison doctors in their response to the prisoner’s
needs or by prison guards in intentionally denying or delaying
access to medical care or intentionally interfering with the
treatment once prescribed.”154 When prison officials find an
obvious need for mental health treatment, a failure to provide
treatment constitutes deliberate indifference.155 This indifference
creates a cause of action under 42 United States Code section
1983.156 An inadvertent failure to provide adequate medical care,
however, does not create a cause of action, because it “cannot be
said to constitute ‘an unnecessary and wanton infliction of pain’ or
151. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S.
1041 (1981) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H.
1997)).
152. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992) (citing Wood
v. Housewright, 900 F.2d 1332, 1337-41 (9th Cir. 1990)).
153. Gregg v. Georgia, 428 U.S. 153, 172-73 (1976).
154. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976).
155. Farmer v. Brennan, 511 U.S. 825, 842 (1994).
156. Gamble, 429 U.S. at 105 (citing 42 U.S.C. § 1983 (1970)).
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to be ‘repugnant to the conscience of mankind.’”157 Deliberate
indifference means that the prison official was “aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”158
Therefore, if a prisoner is receiving medical treatment, even if the
treatment is not helping and better treatment options exist, the
courts will not find an Eighth Amendment violation. If the prison
is providing medical care, then there is no deliberate indifference.
A court will not consider the viability of other treatment options
because that is best left to the doctors. A difference in medical
opinion does not amount to deliberate indifference.159 Only where
the difference in medical opinion leads to such a serious illness
that even a lay person could identify it, such as what happened in
the case of Mark Walker, will the court find an obligation by the
state prison.160
For example, in Estelle v. Gamble,161 Gamble suffered from a
back injury and complained of the treatment he received.162
Although this case deals with physical ailments rather than mental,
the courts have held that the right to physical and mental health
treatments are the same.163 Gamble was seen by prison medical
personnel seventeen times.164 He was checked for a hernia, given
pain pills and muscle relaxants, and diagnosed with a lower back
strain, but the pain continued.165 After a month, despite Gamble’s
assertions that the pain had not diminished, he was certified by the
doctors for light work, although the doctors also continued to
prescribe pain medication.166 No additional steps were taken for
further diagnosis.167
157. Id. at 105-06.
158. Farmer, 511 U.S. at 837.
159. See Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); see also Franklin v.
Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981).
160. Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S.
1041 (1981) (quoting Laaman v. Helgemoe, 437 F. Supp. 269, 311 (D.N.H.
1997)).
161. 429 U.S. 97 (1976).
162. Id. at 98.
163. See, e.g., Jones ’El v. Berge, 164 F. Supp. 2d 1096 (W.D. Wis. 2001)
(holding that the Eighth Amendment similarly protects the rights of prisoners to
be treated both for physical and mental health ailments).
164. Gamble, 429 U.S. at 97.
165. Id. at 99.
166. Id. at 100.
167. Id.
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Gamble was taken before a disciplinary committee for refusing
to work.168 After hearing his complaints, the committee ordered he
be seen by another doctor.169 This doctor performed a urinalysis, a
blood test, and a blood pressure measurement.170 The doctor
prescribed medication for high blood pressure and continued the
back pain medication.171 After another two months of being
prescribed pain medication, Gamble was again brought before the
disciplinary committee for refusing to work.172 The original doctor
testified that he was in “first class” medical condition.173 The
committee placed Gamble in solitary confinement without any
further medical examination or testimony.174 Another month
passed before he was properly diagnosed and treated during a
hospitalization for an unrelated heart condition.175
Gamble filed suit, contending that the doctors should have
done more to diagnose and treat his back pain.176 An x-ray was
never taken, and he argued that other tests should have been
conducted “that would have led to an appropriate diagnosis and
treatment for the daily pain and suffering he was experiencing.”177
The court held, however, that the prison staff was not deliberately
indifferent to Gamble and his injury. “A medical decision not to
order an X-ray, or like measures, does not represent cruel and
unusual punishment. At most it is medical malpractice . . . .”178
Malpractice claims do not constitute an Eighth Amendment
violation, but rather fall under state court jurisdiction for torts.179
The Eighth Amendment does not require the most progressive
health treatment available.180
168. Id.
169. Id.
170. Id.
171. Id.
172. Id. at 101.
173. Id.
174. Id.
175. Id.
176. Id. at 107.
177. Id.
178. Id.
179. Id.
180. See Rhodes v. Chapman, 452 U.S. 337, 349 (1991) (noting that the
Constitution does not mandate comfortable prisons); Anderson v. Romero, 72
F.3d 518, 524 (7th Cir. 1995) (asserting that the Eighth Amendment does not
require the most humane and progressive prison administration possible);
Woodall v. Foti, 648 F.2d 268, 272 (5th Cir. 1981) (arguing that the Eighth
Amendment merely requires medical necessity, not desirability).
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The court condones the stance that malpractice by prison
doctors is constitutional. It is when the constitutional rights of
prisoners do not provide for adequate treatment, such as those in
Estelle v. Gamble, that the system truly fails. Although prison doctors
have an ethical duty to provide adequate treatment, a lack of
training, resources, and availability can hamper their efforts to do
so.181 The Prison Litigation Reform Act, discussed below, prevents
inmates from using the court system to obtain adequate care.182
C. Right to Object to Treatment Methods
Just like anyone else, prisoners have an opinion about their
treatment. They may believe they need treatment when their
doctor does not, may believe they would do better under a
different treatment plan, or may object to any treatment at all.
However, unlike people outside of prison, they cannot simply seek
a second or third opinion. How can prisoners object to the
treatment they are, or are not, receiving?
Procedural due process ensures that legitimate government
actions are administered fairly. Vitek v. Jones is the leading case
regarding the procedural due process rights of prisoners
questioning an ordered transfer from a prison to a mental hospital
for treatment.183 In Vitek, the prisoner did not want to be
transferred from his current prison environment.184 Noting that
commitment for ordinary citizens to a mental hospital triggers “a
massive curtailment of liberty” which requires due process
protection, the Supreme Court reviewed some of the liberty
impacts on a prisoner.185 When a prisoner is sent to a separate
mental treatment facility, the freedom that the inmate had is
further curtailed, and stigmatizing consequences also follow.186
The court recognized the major change to the prisoner’s life
caused by the transfer.187 To provide protection to the liberty
181. ILL-EQUIPPED, supra note 1, at 94.
182. See 42 U.S.C. § 1997e(a) (2000) (“[N]o action shall be brought with
respect to prison conditions . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are
exhausted.”).
183. 445 U.S. 480 (1980).
184. Id. at 484.
185. Id. at 491-92 (citing Humphrey v. Cady, 405 U.S. 504, 509 (1972)).
186. Id. at 492.
187. Id.
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interest of the inmates, prison officials must at a minimum provide
prisoners with procedures to protect their due process interests:
A. When a transfer to a mental hospital is being
considered, provide written notice to the prisoner,
providing effective and timely notice of all of his
rights;
B. Provide a hearing after a certain time frame from
the notice, giving the prisoner time to prepare, at
which disclosure of the evidence being relied
upon for the transfer and at which an opportunity
to be heard in person and to present documentary
evidence is given;
C. Provide the prisoner with an opportunity at the
hearing to present testimony of witnesses for his
defense, and to confront and cross-examine
witnesses called by the state, except upon a
finding, not arbitrarily made, of good cause for
not permitting such presentation, confrontation,
or cross-examination;
D. The hearing must be heard by an independent
decisionmaker, although not necessarily from
outside the prison or hospital administration;
E. After the hearing, a written statement should be
created by the factfinder as to the evidence relied
on and the reasons for transferring the inmate;
F. If the inmate is unable financially to hire his own
legal counsel for this hearing, the state must
provide him with one.188
The court explained that, even though treatment decisions are
inherently medical, the intricacies of a psychiatric diagnosis “justify
the requirement of adversary hearings,” which balance the State’s
strong interest in segregating and treating the mentally ill with an
inmate’s strong liberty interest.189
In Washington v. Harper, the Supreme Court addressed the
nature of a hearing held when a prisoner does not acquiesce to the
prescribed treatment.190 Certain factors guide the decision on
188. Id. at 494-95 (citing Miller v. Vitek, 437 F. Supp. 569, 575 (D. Neb. 1977)).
189. Id. at 495.
190. 494 U.S. 210 (1990). The same due process rights are extended to
inmates who are not yet sentenced but detained for trial. See Riggins v. Nevada,
504 U.S. 127, 134-35 (1992).
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whether or not due process requirements are met: “the private
interests at stake in a governmental decision, the governmental
interests involved, and the value of the procedural requirements in
determining what process is due under the Fourteenth
Amendment.”191 Although those factors have not changed since
Vitek, the court seems to have changed its mind on the adversarial
nature of the proceedings.
The procedures in Washington v. Harper provide the inmate
with twenty-four-hour notice of a hearing to determine whether or
not he will be forcibly medicated, during which time he will not be
medicated, and an opportunity to be heard at that hearing.192 The
hearing does not need to be conducted by the rules of evidence,
and the standard of proof may be a simple preponderance of the
evidence.193 The court also noted that state law provides the
prisoner with an ability to have judicial review of the committee’s
decision.194 The prisoner does not have a right to legal counsel.195
Due to the nature of the decision to be made, they found that
having a “lay adviser who understands the psychiatric issues
involved is sufficient protection.”196
The Court determined that the decision regarding forcible
treatment can be made by a panel of medical professionals, without
hearing any legal arguments regarding the liberty interest of the
prisoner.197 The Court explained that the “Constitution does not
prohibit the state from permitting medical personnel to make the
decision under fair procedural mechanisms,” and the Due Process
Clause does not require that the neutral trier of fact, a committee
in this case, be a judicial or administrative officer.198 Although the
committee members do not have to come from outside the prison
staff, the people cannot be involved in the inmate’s current
treatment or diagnosis.199 The Court also expressed concern
regarding the impact of requiring judicial hearings for these
191. Harper, 494 U.S. at 229 (citing Hewitt v. Helms, 459 U.S. 472, 473 (1983);
Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
192. Id. at 216.
193. Id. at 233.
194. Id.
195. Id.
196. Id.; see also Vitek v. Jones, 445 U.S. 499, 500 (1980) (Powell, J.,
concurring) (asserting the presence of a legal counsel is not necessary).
197. Harper, 494 U.S. at 227.
198. Id.
199. Id. at 233.
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decisions, stating that they would “divert scarce prison resources,
both money and the staff’s time, from the care and treatment of
mentally ill inmates.”200
The implication is that the decisions to be made at these
hearings, which are held in an effort to protect the legal rights of
prisoners, are medical, not legal ones. The court said as such in its
holding, when citing Walters v. National Association of Radiation
Survivors:201 “[I]t is less than crystal clear why lawyers must be
available to identify possible errors in medical judgment.”202 But
how can doctors balance an individual’s liberty right with their own
medical recommendations? Is the medical staff at these hearings
trained on liberty interests, or how to identify or balance opposing
interests? Why does the transfer of a prisoner for treatment
demand greater protection of liberty interests than forcible
treatment of a prisoner? Additionally, why does the exercising of a
liberty right have to be in someone’s personal best interest?
D. Legislative Impacts on Prisoners’ Right to Mental Health Treatment
Although the Constitution provides prisoners with a right to
health care and mental health treatment, their ability to use the
courts to enforce their rights is limited through the Prison
Litigation Reform Act (PLRA).203 The PLRA imposes significant
barriers to prisoners who try to file grievances with the courts, and
also limits the courts’ ability to address the issues they are able to
see.
First, PLRA takes several steps to inhibit the filing of claims by
prisoners. Prisoners must first exhaust their administrative
remedies within the prison system.204 Before filing a claim in court,
the prisoners must follow the grievance procedures in their prison,
even if the relief sought cannot be obtained through this process.205
Once those avenues have been taken, the prisoner must then pay
200. Id. at 227 (citing Parham v. J.R., 442 U.S. 605, 606 (1979)).
201. 473 U.S. 305 (1985).
202. Id. at 336.
203. 42 U.S.C. § 1997e (2000).
204. Id. § 1997e(a).
205. See Booth v. Churner, 532 U.S. 731, 731 (2001); see also Porter v. Nussle,
534 U.S. 516, 516-17 (2002) (stating that despite an agency’s inability to provide
relief sought, or that administrative rules prohibit most inmate claims, the total
exhaustion rule still applies).
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filing fees to bring his civil action to court.206 If the prisoner cannot
pay the total fees, a partial payment must be made, followed by
incremental payments until the filing fee has been completely
paid.207 The trial court must screen out prisoners’ civil complaints
that do not contain a physical-injury component.208 The court may
also dismiss cases through standard grounds, for example, the
court may finds them frivolous or malicious, because the case fails
to state a claim upon which relief can be granted, or the claim
seeks damages from someone with immunity.209 Finally, the PLRA
limits the amount of attorney’s fees that can be awarded when a
prisoner wins on his or her civil claim under 42 United States Code
section 1988, likely discouraging many attorneys from providing
assistance in these claims.210
Second, the PLRA curbs a court’s ability to provide relief. A
preliminary injunction ordered in an unconstitutional confinement
conditions case automatically expires ninety days after being
issued.211 Prospective relief ordered after a finding for the prisoner
must be narrowly tailored, extend no further than necessary, and
be the least restrictive means available.212 Any prospective relief
ordered will then terminate after two years upon motion of any
party.213 To continue the injunction, a court must issue:
206. 28 U.S.C. § 1915(b)(1) (2000).
207. Id. § 1915(b)(1)-(2). To begin payment of the filing fee, the prisoner
must pay twenty percent of whichever is greater: (1) the average monthly deposits
to the prisoner's trust-fund account, or (2) the average monthly balance in that
account during the six months preceding the filing of the complaint or appeal.
Id. § 1915(b)(1). However, if the prisoner lacks the assets or the means to pay the
initial fee, he or she can still file the complaint or appeal. Id. § 1915(b)(4).
208. 42 U.S.C. § 1997e(e).
209. 28 U.S.C. § 1915(e)(2) (applying to persons proceeding in forma
pauperis in the district court or on appeal); id. § 1915A(b) (applying to prisoners’
lawsuits filed against a governmental entity or official); 42 U.S.C. § 1997e(c)
(applying to cases contesting the legality of prison conditions under 42 U.S.C.
§ 1983 or some other federal law).
210. 42 U.S.C. § 1997e(d).
211. 18 U.S.C. § 3626(a)(2) (2000). If the court makes the following findings
necessary to grant prospective relief, the preliminary injunction will not expire at
the 90 day mark: the injunction is (1) necessary to remedy a violation of a federal
right, (2) is narrowly drawn, (3) extends no further than necessary to remedy the
federal-right violation, and (4) is the least intrusive means of doing so. Id.
§ 3626(a)(1)(A), (a)(2).
212. Id. § 3626(a)(2). A defendant can move for immediate dismissal if the
court does not provide their findings of these requirements. Id. § 3626
(b)(1)(B)(2).
213. Id. § 3626 (b)(1)(A)(i).
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written findings based on the record that prospective
relief remains necessary to correct a current and ongoing
violation of the Federal right, extends no further than
necessary to correct the violation of the Federal right, and
that the prospective relief is narrowly drawn and the least
intrusive means to correct the violation.214
Although not directly attributable to the PLRA, the number of
cases brought by prisoners against the corrections system has
dropped significantly since PLRA’s passage in 1996.215 The number
of new prisoner cases filed in federal district courts dropped from
41,215 in 1996 to 25,805 in 2000.216
E. Impact of Guidelines and Court Orders
Prison officials are only required to provide the most basic
care to have a program considered constitutionally acceptable.217
Although guidelines are laid out for prison officials on what should
be done by various professional organizations, these guidelines go
beyond what courts have found to be constitutionally required, and
therefore no impetus exists for the prison officials to follow them.218
Additionally, court orders are only performed on prisons or prison
systems that have been found to have violated constitutional rights;
no court master looks to determine if that other prisons comply
with whatever new standard is set by a court decision. Also, because
most prisons are state prisons and the court decisions are made by
state courts, prisons in other states are not required to adhere to
them. Other state prisons have no need to worry unless one of
their inmates with a mental illness actually manages to have his or
214. Id. § 3626 (b)(3).
215. See Christopher E. Smith & Christopher E. Nelson, Perceptions of the
Consequences of the Prison Litigation Reform Act: A Comparison of State Attorneys General
and Federal District Judges, JUST. SYS. J. 295, 299 (2002), available at
http://www.findarticles.com/p/articles/mi_qa4043/is_200201/ai_n9026034/pg_
2.
216. See Todd Marti, From the Government’s Perspective: Has PLRA Worked? Yes!,
13 CORRECTIONAL L. REP. 69 (2002).
217. See COHEN, supra note 98, at 2-8. The minimal components are generally
understood to include a systematic program for screening, treatment consisting of
more than just segregation and close supervision, treatment by trained mental
health professionals, accurate and confidential record-keeping, prescription and
administration of medications as necessary, and a basic program for identification,
treatment, and supervision of inmates with suicidal tendencies. Id.
218. Compare supra text accompanying note 217, with supra text accompanying
note 98.
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her case heard on the merits by a court.
VI. MANDATED RESOLUTIONS
What have the courts done to address the claims raised by
inmates regarding access to mental health treatment once a
violation of constitutional rights has been found? With due process
violations, clearly they have developed resolutions through a clear
definition of minimum process requirements.219 But “[f]ederal
courts are not instruments for prison reform, and federal judges
are not prison administrators.”220
Where Eighth Amendment violations have been found, a court
generally points the way and leaves the details to the parties
involved. For example, in Casey v. Lewis,221 the federal district court
of Arizona ordered the parties to meet and discuss proposals to
remedy the areas in need within the state prisons’ mental health
care system.222 Four months were allowed for the parties to agree
upon a proposed remedy and file it with the court.223 Guidelines
were given for what the plan had to address, such as staffing levels,
facilities, medication administration, and monitoring.224
One of the most famous cases of prisoner abuse and neglect is
Madrid v. Gomez,225 dealing with the conditions at Pelican Bay State
Prison in California.226 The prison opened and operated for five
years without any psychiatrists on its staff.227 Systematic deficiencies
in mental health care delivery were found.228 Here, the Eighth
Amendment violation remedy was addressed through the
appointment of a special master to work with the parties in
developing a remedial plan.229 This master was appointed to work
with the parties in developing a remedial plan.230 Every thirty days,
the court was to receive a status update from the master, and at 120
219. See Vitek v. Jones, 445 U.S. 480 (1980).
220. Madrid v. Gomez, 889 F. Supp. 1146, 1279 (N.D. Cal. 1995).
221. 834 F. Supp. 1477 (D. Ariz. 1993).
222. Id. at 1553.
223. Id.
224. Id.
225. 889 F. Supp. 1146 (N.D. Cal. 1995).
226. Id.
227. Id. at 1214.
228. Id. at 1216-17.
229. Id. at 1282-83.
230. Id.
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days the parties were to jointly submit an agreed-upon plan.231
In another case, after finding Eighth and Fourteenth
Amendment violations of the rights of prisoners with serious
mental health disorders by the California Department of
Corrections, the magistrate’s recommendations were accepted by
the United States District Court.232 Again, a special master was
appointed.233 Development and implementation of two remedial
plans were required within thirty days.234 The first plan dealt with
the development and implementation of standardized screening
forms and protocols; the second concerned medication
protocols.235 Additional plans were required within sixty and ninety
days.236
The appointment of a special master allows for a monitored
environment, where the improvements made are studied and
documented. This allows for greater assurance that the mental
health treatment issues have improved, rather than the situation we
are faced with in the Mark Walker case. There we have only
assurances from the Montana State Prison, the prison that denied
Walker was ever mentally ill to begin with and the prison that put
him in an isolation cell contaminated with blood, vomit, and feces,
that they are providing adequate treatment.237
VII. CONCLUSION
The size of the prison population in need of mental health
treatment is staggering. We have a duty, constitutionally, morally,
and ethically, to provide treatment to meet the needs of these
inmates. We know what the needs are and how to meet them.
Organizations such as NCCHC and APA have provided detailed
guidelines regarding what is necessary to provide the necessary
mental health treatment, such as screening all prisoners for mental
illness at the time of entry and arising during incarceration,
providing a range of mental health treatment services including
therapeutic interventions other than medication, adequate and
confidential clinical records, and providing different levels of care,
231. Id. at 1283.
232. Coleman v. Wilson, 912 F. Supp. 1282, 1324 (E.D. Cal. 1995).
233. Id.
234. Id. at 1323.
235. Id.
236. Id.
237. See KOCH, supra note 53.
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including emergency psychiatric services, intermediate levels of
care, and “outpatient” services.238 The U.S. prisons must implement
these guidelines so we do not have more stories like that of Mark
Walker.
238. See supra Part IV.
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