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May 27, 2013

Another guest post from Prof Lea Johnston concerning mentally ill inmates

Lea Johnston here again.  In my first guest blog, I discussed the mental health findings of a recent Department of Justice report on sexual victimization in prisons and jails in 2011-12.  In a nutshell, the report found that inmates with current symptoms of serious psychological distress — and those who had received diagnoses of, or treatment for, mental health problems — reported rates of sexual victimization that were 1.6 to 9 times higher than those experienced by other inmates.  Thus, mental disorder is a potent risk factor for sexual victimization in correctional facilities.

This guest blog will explore the sentencing ramifications of these findings. In the interest of full disclosure, my recent work — inspired by the important contributions of Professors David Enoch, Adam Kolber, and others — takes the position that the state has the moral obligation to factor foreseeable, substantial risks of serious harm, proximately caused by the state, into sentencing.

A number of states and the federal government (to some extent) recognize vulnerability or excessive offender hardship as a mitigating factor for purposes of sentencing. Many state statutes frame the mitigating factor in general, source-neutral terms (i.e., whether “the imprisonment of the defendant would entail excessive hardship to the defendant”), while other states only consider hardship from certain sources, such as an “obvious and substantial mental or physical impairment or infirmity.”

Under these statutes, an offender’s likely hardship in prison may affect his sentence in one of two ways. First, his vulnerability to harm may militate towards a suspended sentence of incarceration with probation.  Some offenders will not qualify for probation, however, given the seriousness of their crime, their criminal history, or the threat they pose to the public if released.

Second, some jurisdictions allow sentencing discounts, in the form of shorter prison terms, for the anticipated severity of a vulnerable offender’s sentence.  Sentencing discounts cohere with the equal-impact principle, articulated by Professors Andrew von Hirsch and Andrew Ashworth, among others. The equal-impact principle acknowledges the foreseeable, typical, and serious side-effects that penalties like incarceration hold for vulnerable populations and seeks to adjust sanctions so that members of vulnerable classes receive penalties of roughly equivalent severity as non-vulnerable individuals. Applying this theory, scholars have suggested that reduced terms of incarceration would be appropriate to effectuate proportionate punishment for mentally ill individuals, the physically disabled, and the elderly.

However, shortening a prison sentence on the basis of anticipated harm would only be morally permissible if a legitimate aim of punishment could justify that anticipated harm.  For instance, as Professor Mary Sigler has argued in this article, courts that grant reduced prison sentences for vulnerability to sexual assault may, in practice, be sentencing those individuals to prison terms “at rape.”  Since sexual victimization can never be justified, a sentencing judge should not predicate a discounted term of confinement on its occurrence. 

So then how can a judge, mindful of an offender’s vulnerability to serious harm if incarcerated, structure a just sentence that will avoid the foreseeable (and unjust) harm to the offender, when the offender’s crime calls for a term of confinement? Judges today have few options.

As I have argued in this new working paper, legislatures should consider authorizing judges to tailor conditions of confinement to ensure that the sentences imposed are humane and to effectuate the purposes of sentencing.  Conditions of confinement, as long as they surpass constitutional minima, are typically the province of prison authorities.  However, legislatures have delegated the placement of prisoners to courts in the past and possess the inherent authority to provide for the proper care and treatment of inmates.  Recognizing the unique needs and obvious harms that incarceration poses to some mentally ill offenders, legislatures could authorize courts to identify offenders in need of special treatment in prison and even tailor their conditions of confinement to meet these needs.

A number of possibilities for tailoring conditions of confinement are possible, each infringing on correctional affairs to a different degree and carrying varying efficiency benefits.  For instance, evidence suggests that correctional authorities fail to detect some inmates’ mental disorders, resulting in a withholding of treatment and perhaps placement in an inappropriate environment.  As a partial remedy to this problem, judges could designate seriously disordered individuals as presumptively in need of treatment, or require comprehensive mental health evaluations by qualified mental health professionals at intake.  More intrusive options could include disqualifying facilities particularly likely to exacerbate an individual’s disorder as potential sites of confinement, designating facilities with certain treatment or protective options, and mandating that offenders receive — or not receive — certain treatment in prison.

Again, the goal of such conditions would be to mitigate the risks of serious harm that prison poses to a particular vulnerable offender, rendering the term of incarceration a humane and just response to the offender’s criminal act. 

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When you force someone into a cage with other critters you should know that you are putting both this person and the other persons or critters at risk. To put an impaired person in with someone or a group who is more fit, more strong, more mentally strong, less insane, than this person then you are a fool if you think that this person wont be taken advantage of. Do you care? Do most Judges care? Do prosecutors care?
This young punk who is charged along with his brother for the Boston bombings is probably not insane or mentally retarded. But he suffers from another disadvantage. He is a punk. He will get punked if he is in general population. He is attractive to the worst perps in prisons. If he was mentally impaired it would be much worse.

Putting someone who is mentally impaired into a mental facility is not a solution that saves the person from abuse. There is another aspect to it as well. If you plead n.g.r.i. and get sent off to the Biggs Unit in Fulton, MO for example you may be in for life. You are in a trickbag. You have to get well to get out. You have to have treatment to get well. Do you have a right to treatment if you are committed to a nuthouse? It is not clear. Various federal statutes preclude mental inmates from challenging their life sentences to mental hospitals. Forty years ago there was a case called Eckerhart v. Hensely. A narrow decision in the class action inmates' favor made some changes. Federal statutes limit the inmate's right to seek right to treatment or release.

My general advice to young lawyers is that the defense of not guilty by reason of insanity is not something to recommend lightly. I know of one mental patient who assaulted his doctor. He refused to plead n.g.r.i. and got convicted. But he was only given a year in prison and once that was up they let him go. He would still be locked up as a mental patient had he not done the crime. Smart guy.

Posted by: liberty1st | May 28, 2013 12:12:16 AM

I would appreciate a disclosure of assumptions, the names, origins, and precedents for any innovative remedies.

I am guessing the idea of the author for prison is to punish, and to provide retribution. Thus extrajudicial, harsh conditions require a fair trade of a discount in sentencing.

An alternative is to see prison as a service to the owners, the public, by incapacitating and making the public safer. A definite discount in sentencing is being traded for a speculative, potential risk for being abused. This risk comes from the status of the person. Young, pretty, weak, mentally ill. Each feature raises risk and requires a discount. Would the author advocate a discount for being pretty?

The proper alternative is to sentence everyone the same for the same crime and damage. Then force prisons to keep everyone safe by tort litigation. Such litigation forced guidelins on prison suicides, and they were reduced by 90%

Posted by: Supremacy Claus | May 28, 2013 2:56:19 AM

I dont think that Tsarboy Boston Bomber should get a discount because he is a punk and the perps will want to rape him. He will probably do solitary for the next 30 years and then get released to general population with a cast iron diaper so they cant rape him. He will be mentally ill by then for sure. There are no easy answers.

Posted by: liberty1st | May 28, 2013 3:22:07 AM

The evidence is that segregation does not cause new mental symptoms. It may reduce stress, conflict and improve the mental state.


Posted by: Supremacy Claus | May 28, 2013 8:44:24 AM

Prof. Johnston --

Three questions. First, does the criminal have any responsibility to understand his vulnerability, or is all responsibility to be shifted to the state (i.e., the taxpayers)? For example, should a younger person (say, 22 or 23), and thus one more likely than average to find himself the target of prison rapists, be sentenced in light of the fact that he decided to commit a prison-eligible crime knowing, or being able to know, the widely publicized fact of prison rape? Can any responsibility be placed on the criminal who assumes the risk by committing his crime, or is it all on the state?

As you might remember, I say this having taken a stronger stand against prison rape (zero tolerance with full prosecution) than any commenter I have seen on this blog. So it's hardly that I'm indulging prison rape or wishing it on anyone. Instead, it's that it strikes me as at least a legitimate question whether some responsibility should be borne by the person who, by a volitional act, puts himself in a vulnerable position.

My second question is this: What percentage of those being sentenced to prison would qualify for the shorter sentences (among other things) you recommend? It's one thing if, for example, the percentage is 3% or 4%. But if it's 30% or 40%, doesn't your suggestion amount to a rather widespread, offense-oblivious, recommendation for lower sentences generally? If so, is it not fair to view it as a more refined version of the view, much in vogue among the legal academy (and defense lawyers and criminals) that sentences are simply too long and should be reduced for any reason or no particular reason?

My third question takes root in this premise: A inmate who is vulnerable for one of the typical reasons -- youth, emotional deficits, maladaptive behaviors, etc. -- may in fact be more dangerous to the public on release than a more typical inmate. In the cases where that is true, what is the morality, vis-a-vis future victims, of allowing such an inmate an early release? Does the state not owe a duty of protection to innocent future crime victims at least as morally weighty as its duty to protect those whose intentional behavior has put them behind bars?

Posted by: Bill Otis | May 28, 2013 12:52:21 PM

Thank you for your comments! My responses:

SC: Yes, I subscribe to a retributive view of punishment, where the severity of an offender’s punishment should reflect his blameworthiness and the harm that he caused through his criminal act. If an offenders’ attributes (such as being mentally ill, gay/transgender, young, or physically disabled), in conjunction with conditions of confinement, pose a foreseeable, substantial risk of serious harm, then, yes, I believe that offender should receive either (a) a reduced term of confinement (if the anticipated harm can be justified – which is dubious), or (b) assurance that measures will be taken to prevent the incremental, unjustified, disproportionate harm. To achieve (b), I argue that legislatures should authorize judges to individualize conditions of confinement.

As for origins/precedents for innovative remedies, one could look to problem-solving courts (mental health courts, drug courts) and some judges’ efforts to guarantee treatment in prison through guilty but mentally ill verdicts or simply by predicating carceral sentences on the availability of treatment programs. One could also look at the treatment of juveniles; in some states, judges have the authority to designate certain juveniles as “youthful offenders,” a designation that carries certain treatment and housing consequences.

And yes – though my arguments are developed squarely in the context of mentally ill offenders, one could extrapolate to other vulnerable populations. I hasten to argue that I’m not necessarily arguing that *all* mentally ill, young, gay, or otherwise vulnerable inmates should receive special sentencing measures. I anticipate that vulnerable offenders will need to establish at sentencing hearings that they surpass some threshold of vulnerability to demonstrate that such measures are warranted. (One thing to keep in mind: offenders often possess multiple risk factors.)

Also to SC: Until recently, the “research” on the experience of prisoners with pre-existing, serious mental illness confined in prolonged isolation pointed in one direction: psychological deterioration and exacerbation of mental disorder. I say “research” because much of the evidence on this score was anecdotal or derived from studies with flawed methodologies. The recent article helpfully posted by SC suggests that confinement in administrative segregation may not take a psychological toll. More research is necessary, however, to determine the extent to which the conditions of confinement in that study dictated its results. The study was conducted in a facility in Colorado, where inmates have access to library services, education courses, and treatment programs; inmates are permitted to leave their cells for at least one hour of recreation 5 times per week and to shower for 15 minutes 3 times per week; and inmates are provided incentive-based behavior modification programs that allow them to accumulate privileges over time (beginning with TV privileges in about a week). The study concludes: “Replication is needed in other prisons to determine whether these findings hold true when conditions of confinement vary.”

Liberty 1st: I agree that the NGRI verdict carries substantial dangers, particularly that of indefinite confinement, which may stretch beyond the maximum sentence an offender would have faced if he had pled guilty. My proposal is that legislatures permit judges to mandate treatment (and possibly other conditions) for offenders found guilty and sentenced to a term of confinement.

Bill: Q1: Some scholars have argued that we should hold a vulnerable offender responsible for the assumption of known or foreseeable risks of confinement. I question the extent to which average people accurately anticipate risks of confinement; to the extent they do, I suspect that offenders with serious mental illnesses – especially those that distort perceptions of reality – are particularly poor at accurately anticipating risk.

Q2: I’m not sure what percentage of individuals would qualify for shorter sentences or sentences with tailored conditions of confinement. It would depend what threshold judges require for risk of harm and whether the anticipated harm could be justified. (Certainly a substantial proportion of prisoners have serious mental illness – current estimates hover around 16%. But, again, just having serious mental illness will probably not suffice to trigger sentencing accommodations.)

Q3: As a retributivist, I believe that a person should only be punished to the extent of his just deserts. He should not be confined – beyond his blameworthiness for past acts - for fear of what he might choose to do in the future. Of course, if a person is mentally ill and, because of that illness, poses a danger to themselves or others, the state can civilly commit the person in most jurisdictions.

Doug Berman: Thank you for inviting me to guest blog. I enjoyed the exchange!

Posted by: Lea Johnston | May 28, 2013 3:52:03 PM

Prof. Johnston --

Thank you for your responses. Ever the appellate lawyer, I have some follow-up questions.

Q1: It's true that not everyone anticipates the risks of imprisonment. But if, as you say, individualized attention is due the offender, why should there not also be an individualized determination at sentencing as to the particular defendant's awareness of what goes on in prison?

More broadly, it seems to me that, at exactly the time they can least afford it, the taxpayers are being put on the hook for more and more expensive in-prison treatment -- treatment that would not be necessary to start with had the defendant not decided to make a quick buck by selling meth or carjacking Granny or what have you. It seems to me that a retributivist theory would shift more of the costs to the person who created the need for them, and who will benefit from them (if there is any benefit, something that remains to be seen).

Q2: It would seem that having a pretty good idea of the percentage of offenders who would require the special (and costly) treatment you recommend is essential before we adopt your prescriptions as policy. We are seeing now the consequences of adopting one government program or another (everything from incarceration to Medicare) without taking a hard look at how many people are going to be affected and how much it's actually going to cost.

Beyond that, whatever the percentage turns out to be, it's certain to increase. That is, if your proposals were to be adopted on a large scale, every defendant and his brother would hire a psychiatrist or some other "mitigation specialist" to testify that he was a "vulnerable person" in one or many ways. This happens now, of course -- a great deal of sentencing practice is devoted to portraying the criminal as the victim and the actual victim as a nonentity -- but that perverse practice would certainly skyrocket under your plan.

Q3: Just desserts is surely the primary goal of sentencing, but hardly the only one. Incapacitation is widely agreed to be one of the others, and incapacitation is ONLY forward-looking.

Moreover, you appear to be willing to take a look around the corner, but only if it will benefit the offender, and not his future victim. Thus, you say, "[A] person should only be punished to the extent of his just deserts. He should not be confined – beyond his blameworthiness for past acts - for fear of what he might choose to do in the future." But isn't the whole premise of your work that the offender should receive special treatment and/or a shorter sentence for fear of what might happen to him in the future? Mentally defective prisoners may well be more likely to become rape victims, but "more likely" is not "certain."

In other words, you seem willing to encourage sentencing courts to make an estimate about future behavior, but only if that estimate (possibly) affects the inmate rather than (possibly) the inmate's future victims.

Posted by: Bill Otis | May 28, 2013 7:39:48 PM

Bill: Traditional assumption of risk involves the risk of an accident, carelessness, or hazardous, but always legal activity. Hitting a baseball into the stands is legal, so the risk is of an accident if it hits a person. I am not aware one may assume the risk of crime victimization. I am robbed and beaten in a motel in a high crime area. I bring a negligent security claim. Is there a defense of assumption of risk by staying in this hotel? Is that an established defense to liability? Or is the reverse true? Knowledge of prior crimes increases the liability and is an aggravating factor if the hotel failed to hire more security guards after knowing the high crime rate.

I hope you really mean your opposition to extra-judicial brutal punishments in jail. I hope you decide to start suing prisons that allow it. I hope you become filthy rich doing so, because it would be highly beneficial to all of us. Suicide litigation resulted in guideline development and a reduction of prison suicides by 90%. Tort liability works (I have swallowed that lawyer propaganda wholesale). A litigator at your level would be like a shark going through a school of fish.

The prison has total control over the bodies of the rapist and of the victim. They should exercise this control by preventing or responding to rape quickly and harshly. Indeed, the prison has far more duty, ability, and statutory obligation to keep its inmates safe than any hotel has to avoid negligent security. You should be able to make quick work of any legal obstacles to suing prisons or jails. None of your claims would be trivial, and prisons would immediately change procedures after the first verdict and payout.

Posted by: Supremacy Claus | May 28, 2013 9:20:23 PM

Professor, are you aware of 18 USC 4244 et seq.? At least at the federal level, it seems your concerns have already been addressed, no? One must also be cautious of granting TOO much day to day authority over the conditions of confinement to Judges - Judge A may have a much lower (or higher) threshhold than Judge B for what constitutes a person in need of "special treatment." Without claiming that prison mental health systems are perfect (heaven knows they're not) isn't it better to have a centralized authority making mental health dignoses for hundreds/thousands of inmates, rather than left to the whims (excuse me, individualized discretion) of various judges? Further, an order, e.g., that a particular inmate never be placed in special housing (i.e. solitary) could cripple correctional authorities when an inmate has committed a major rules violation (of which he was mentally capable of abstaining), OR needs to be removed from general population for his own protection. I would refer you to FMC Devens, where there is such a high concentration of sex offenders (and no, I'm not saying that a sex offender, or any other inmate, should ever be raped, extorted, etc. because of their offense) that THEY form the dominant "gang" in the prison.

Posted by: anon | May 29, 2013 3:14:58 PM

SC: You are quite right that 18 USC 4244 exemplifies, at least in some ways, the kind of reform I’m hoping to encourage. That statute allows a judge to commit a mentally ill defendant to the custody of the AG for hospitalization, in lieu of a sentence of imprisonment, when the court finds, by a preponderance of the evidence, that the defendant presently suffers from a mental disease/defect that requires his custody for care or treatment in a suitable facility. This commitment constitutes a provisional sentence at the maximum term authorized by the relevant criminal statute (not the maximum sentence under the Guidelines). The Fifth Circuit has surmised that this provision helps meet several government interests, namely those in “(1) protecting mentally ill prisoners who might be at substantial risk if placed in the general prison population; (2) ensuring the safety of other inmates; and (3) providing humanitarian treatment for mentally ill inmates.”

A number of states have special offender statutes for mentally disabled persons that allow for hospitalization. As under the federal scheme, commitment often results in a longer period of confinement than would have been permitted if the individual had been imprisoned. While these statutes are important, my argument is that judges should have broader authority, namely the ability to tailor conditions of imprisonment for mentally ill defendants (thus perhaps rendering hospitalization unnecessary).

As for your second point, the centralized administration of mental health services (including diagnosis) carries many obvious benefits, and I am not recommending that judges replace correctional authorities in this regard. I am merely suggesting that judges supplement correctional efforts.

Evidence suggests that mental health screenings at intake fail to identify all individuals in need of mental health treatment. A number of factors contribute to sub-optimal detection rates: the quality of screening instruments varies among facilities; initial assessments may rely almost exclusively on information communicated by the inmate to the evaluating professional; and intake evaluators often lack access to existing records or reports that could provide a more accurate picture of an inmate’s mental health status (such as prior psychiatric evaluations, medical records, and jail evaluation and treatment records), to name a few.

Moreover, internal classification processes used to identify at-risk individuals for protective custody often rely on subjective assessments of vulnerability and may yield arbitrary results.

Judges could serve an important function in helping to identify vulnerable, disordered offenders at risk of serious harm in prison. To allow correctional facilities flexibility in responding to the changing needs of -- and security risks posed by -- inmates, any judicial findings could be framed as rebuttable presumptions. Moreover, for reasons I expressed earlier, allowing judges to modify vulnerable offenders’ sentences would allow judges to better fulfill their institutional function (selecting and conveying the type and length of sentence warranted by an offender’s crime, within limits established by the legislative branch) and achieve the aims of punishment.

Posted by: Lea Johnston | May 29, 2013 6:16:08 PM

Professor, I appreciate your response, and this is the same "anon" who submitted the 3:14:58 post, not the buffoon who goes by Supremacy Claus to whom you addressed the response. I must again submit, based on over 20 years of former employ with the Federal Bureau of Prisons, that the vast majority of your concerns ARE already addressed in the federal system. Even aside from 4244 et seq., federal Judges are explicitly authorized to make recommendations in the J & C (now known as the "Judgment in a Criminal Case") on all sorts of matters, including place of confinement, specific treatment needs, etc. If a defendant/inmate's mental health was an issue at trial or pretrial, that fact (and supporting documentation) is included in the Presentence Investigation Report, which is relied upon HEAVILY in determining the inmate's initial designation. Specific recommendations to mental health centers (such as FMC Butner, FMC Devens, USMCFP Springfield) are taken into very strong consideration by BOP(substantial weight, tho not necessarily a rebuttable presumption). Again, don't get me wrong, the federal Courts and BOP's systems ain't perfect, but it seems that all of your concerns are already addressed.

Posted by: anon | May 29, 2013 7:15:58 PM

Anon: I apologize for addressing my response to the wrong person and appreciate your sharing your experience in the federal prisons. From what I understand, judges’ placement recommendations are followed around 75% of the time. I agree with your comment about the importance of the presentence report. However, initial assessments, particularly at the state level, may occur without it. A 2004 report by the National Institute of Corrections observed: “Information typically contained in a presentence investigation report is critical to conducting a comprehensive and complete initial assessment. . . . Ideally, this information arrives at the intake facility with the prisoner or shortly thereafter. Many states reported, however, that these data are not received in a timely manner . . . .”

Certainly federal and state prisons are doing a much better job of diagnosing mental disorders, supplying adequate treatment, and providing sufficiently protective/therapeutic accommodations to disordered inmates than in the past. Some judges, as evidenced in orders and opinions, still have concerns when sentencing particularly vulnerable individuals, however; and prison officials do not always follow judges’ recommendations. I am heartened by your experience, but I believe that judges should be authorized to respond to foreseeable, substantial risks of serious harm in order to fulfill their role in meting out just and humane punishments.

Posted by: Lea Johnston | May 29, 2013 9:14:38 PM

Anon: Ironic. Any federal worker calling a taxpayer a buffoon, when the taxpayer pays his salary. That worker should take another coffee break and calm down.

When we say, criminalize rent seeking, we are thinking of make work federal workers coddling and protecting criminals to generate jobs. I demand they utter the V word. Will never happen without choking on it.

Also, the federal worker is missing the professor's point. Her discount is before final sentencing, and it is for a risk factor, the status of the person, not for anything that has happened yet. I would like to know what you mean by, we are already addressing the concerns of the professor under 18 USC 4244. That applies to hospitalization for mental illness, after being in federal prison. Indeed, does time spent in the hospital even count toward completion of the federal sentence? It addresses none of her concerns.

sAs a retribution person, She wants a discount in sentencing for the higher risk of being molested in prison. She still has not answered whether being pretty merits a discount in sentencing.

If you are a federal lawyer, I would really like to see a giant aggregate claim, asbestos size, for all prison rapes caused by your carelessness. Your full knowledge of what goes on is malice, and justifies exemplary damages.

There is nothing the federal government does well, except collect taxes. All federal workers including our military, are poor performers until they leave. This is an universal principle of political science. The army of Saddam was roundly beaten when in the government. Kicked our asses out when they went freelance, with cheapo IED's, and some suicide bombings. We spent a $trillion. They defeated us spending next to nothing. Meanwhile, lawyers prosecuted our warriors who defended themselves, and intimidated them into not properly killing the enemy. I am not bashing government workers, since they get 10 times better upon leaving. I am bashing the lawyers running government, including Saddam, hobbling them with rules.

Posted by: Supremacy Claus | May 29, 2013 9:18:36 PM

Resolved: All mitigating factors are aggravating factors and require greater incapacitation.

I will debate any lawyer. The mentally ill criminal should get the death penalty as soon as possible, longer prison sentences, not shorter. Name any other mitigating factor. The same is true.

Posted by: Supremacy Claus | May 31, 2013 3:19:08 AM

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