by Jo Ellen Nott

On December 27, 2021, four years after calling Alabama’s treatment of mentally ill prisoners “horrendously inadequate”—due largely to chronic understaffing—a federal judge issued a new mandate to the state Department of Corrections (DOC), saying in effect: “Start hiring.”

That was a key takeaway from a massive 600-page opinion and order by Judge Myron H. Thompson of the U.S. District Court for the Middle District of Alabama, handed down in a long-running suit, Braggs v. Dunn, which was filed in 2014 and granted class-action status to cover all of DOC’s mentally ill prisoners before the Court found in their favor and approved a partial settlement in 2017. [See: PLN, Nov. 2017, p. 28.]

Judge Thompson previously set a deadline of February 2022 for DOC to hire enough guards to allow these prisoners to receive necessary treatment, programming and recreation which they are now routinely denied as a guard shortage leaves them locked in their cells.

Understaffing and overpopulation throughout DOC have combined to produce extreme, uncontrolled violence. In 2019 the federal Department of Justice (DOJ) issued a damning report on the state’s prisons, with “graphic accounts of prisoners who were tortured, burned, raped, sodomized, stabbed and murdered in largely unsupervised dorms,” as the New York Times reported. In hundreds of cases of reported sexual abuse no guards intervened, being so outnumbered by prisoners that they remained huddled for their own safety.

Added to that violence is egregious treatment of mentally ill prisoners, leading to regularly occurring suicides, almost 30 in the four years since the Court’s initial 2017 ruling in the case. As noted by the plaintiffs’ supervising attorney, Maria Morris of the Southern Poverty Law Center (SPLC), “[the] suicide rate has grown worse since the federal court ruled for [us].”

At a rate of 37 suicides per 100,000 prisoners when the case was first adjudicated in 2017, DOC’s rate was already over twice the national average of 16, and Morris said that “right now it’s 60 per 100,000.”

“Prisoners do not receive adequate treatment and out-of-cell time because of insufficient security staff,” Judge Thompson agreed. “They are robbed of opportunities for confidential counseling sessions because there are too few staff to escort them to treatment, forcing providers to hold sessions cell-side. They decompensate, unmonitored, in restrictive housing units, and they are left to fend for themselves in the culture of violence, easy access to drugs, and extortion that has taken root in [DOC] facilities in the absence of an adequate security presence. The resulting sky-high rates of suicidality divert scarce mental-health resources from treatment provision to crisis management, exacerbating the deficiencies in care.”

As a result, plaintiffs in the case asked the Court to set benchmarks to ensure DOC met its guard-staffing goal on time. DOC, on the other hand, asked for an extension of the deadline to July 2025 with no benchmarks. Recognizing that the state has “never reported an increase” in guards since it started documenting the number to the Court in 2018, Judge Thompson attempted to split the difference between the parties’ goals: DOC now has until July 2025 to meet staffing targets, with benchmarks set along the way.

That was just one of the concessions the Court made in the case, which is so complex that Thompson split it into three phases, with a three-part ruling on the most recently decided Phase 2A (see History sidebar on page 40).

It was the last part of this ruling that the Court said would be most instructive to the special monitoring team appointed to track DOC’s progress. Along with the accompanying order, it addresses deficiencies in DOC prisons that have led to violation of prisoners’ Eighth Amendment mental-health care rights in several areas: staffing; restrictive housing; intake; record coding; referrals to higher levels of care; confidentiality; treatment teams and plans; psychiatric and therapeutic care; and suicide prevention.

Staffing

Because DOC facilities are so chronically short-staffed with guards, prisoners are in constant danger of physical violence or, in the case of mentally ill prisoners, decompensation and suicide. As a result, the Court had ordered DOC to reach the level of 3,826 full-time-equivalent correctional staff necessary to man “mandatory and essential posts,” as established by defendants’ regulatory and compliance experts, Margaret and Merle Savage.

At the 2021 hearings, however, it was noted that the defendants had made “little to no progress.” In fact, DOC filings revealed it had just 1,914 guards and supervisors on June 30, 2020, a 50 percent vacancy rate. That number fell to 1,837 by June 30, 2021, boosting the vacancy rate to 52 percent. At this point, Thompson admitted, the target of reaching full staffing by February 2022 was “out of reach.”

DOC then proposed an extended target date of July 1, 2025, “to fill 85 percent of the mandatory posts.” Plaintiffs, on the other hand, wanted to maintain the original February 2022 deadline for full staffing, with benchmarks to ensure that DOC was making progress in hiring.

The Court decided on a hybrid approach, extending the deadline for filling all mandatory positions to July 1, 2025. It also ordered the defendants, in consultation with the Savages, to propose realistic benchmarks for the level of correctional staffing DOC will attain by December 31 of 2022, 2023, and 2024. While not enforceable, those benchmarks were proposed to prevent “having to scramble to ensure that DOC complies with the court’s correctional staffing order” or, worse, “to extend the deadline for doing so by another four years,” Thompson wrote.

Unlike DOC’s poor guard staffing, the Court recognized the agency had made progress in mental-health care staffing, with five of its 15 prisons sufficiently staffed. Yet it also noted that none of them had the number of mental health staff anticipated in an earlier 2019 order, and as soon as the COVID-19 pandemic abates and new-prisoner intakes resume historical levels, this would once again become an area of deficiency.

Restrictive Housing

The Court took the next one hundred pages in its opinion to discuss the second most pernicious deficiency in DOC after understaffing: the frequency with which ‘exceptional circumstances’ send mentally ill prisoners into restrictive housing units (RHUs), more commonly known as solitary confinement or “the hole.” Calling this “seriously problematic,” Judge Thompson said the problem starts with a “lack of clearly defined exceptional circumstances,” which allows DOC “to keep prisoners with serious mental illnesses in segregation under any circumstances it sees fit.”

Its order favored the defendants’ definition of ‘exceptional circumstances’ as being those in which the prisoner cannot be placed in alternative housing because of safety or security issues, such as having enemies in the alternative housing, or a lack of available beds.

Other deficiencies the Court found include the lack of a functional process to identify a prisoner’s risk of self-harm if placed in segregation, and then, tragically, if the system does identify a high-risk prisoner, the fact is ignored when deciding to change his housing. Further aggravating the situation after the high-risk prisoner is placed in restrictive housing, DOC “fails to provide sufficient out-of-cell time and does not conduct routine mental-health rounds, security checks, or periodic mental-health assessments as required by court order and internal policy,” the Court said.

A 72-hour time limit in solitary was ordered for prisoners without safety concerns, as well as three hours daily out-of-cell time for those with safety and security issues who must stay in the restrictive housing for more than 72 hours. As the court noted, “placing inmates from suicide watch to segregation or placing inmates with serious mental illness (SMI) in segregation played a role” in DOC’s recent prisoner suicides.

The Court also ordered that, “until its correctional staffing improves,” DOC “must take certain steps to ensure that its stabilization unit, suicide watch, and restrictive housing cells” stop presenting opportunities for self-harm to prisoners suffering mental health issues. Frustrated that at least 27 more Alabama prisoners have taken their own lives since the case was first decided in 2017, Judge Thompson ordered DOC to hew much more closely to a ‘checklist’ for ‘Suicide-Resistant Design’ of prison cells authored by Lindsay M. Hayes, a suicide prevention expert recently retired from the National Center on Institutions and Alternatives.

Yet the Court also recognized that DOC has “limited resources” with which to address “this vast and multifaceted problem,” so it conceded that “the only adjustment that is necessary today” does not involve a thorough check of each cell at the time a new prisoner arrives in it. Rather the Court ruled that “a more cursory examination of the cell for tie-off points, visibility, and potentially dangerous items will suffice,” so long as DOC also performs a “thorough check of all such cells at least once a quarter.”

Intake

Here the Court found that DOC’s progress was, like its progress in mental-health staffing, “both commendable and incomplete.” It scolded the agency both for ignoring the Court’s earlier instruction to stop conducting intake using a Licensed Practical Nurse (LPN) and for sloppy record-keeping.

Instead it ordered that the lowest level of medical professional who may conduct intake is a Registered Nurse (RN) with mental-health training. And it ordered the intake documentation to be kept in the prisoner-patient’s medical record, noting that a failure to do so had been cited as a limiting factor in completing autopsies after several prisoner suicides. It did not order DOC to seek any mental-health records from other institutions—such as a county jail where the prisoner was held before—unless their existence was revealed during the intake process.

Record Coding

The Court acknowledged DOC’s “great effort” at improving record coding but said it still needed to do better in two ways. First, a code must be assigned to every patient-prisoner, not just some. Second, any SMI must be flagged on his record and it must reflect the judgment of the mental health professional, not the prisoner’s wish based on other factors (such as his desire for prison employment).

Referrals to Higher Levels of Care

Because prisoners on suicide watch often remain there for lengthy periods, the Court ordered that referrals to a higher level of care must be considered and documented after 72 hours and again after 168 hours. After 240 hours, the case must be evaluated by the director of psychiatry of DOC’s mental-health care contractor (currently Pittsburgh-based Wexford Health Sources).

Confidentiality

The Court turned to another problem caused by the guard shortage: With none to escort prisoners to receive mental health treatment, they are seen by a provider who visits and sits outside the cell, where the interaction can be overheard. This won’t do, the Court said. But in ordering DOC to adhere to a higher standard of confidentiality, it also carved out an exception for situations where security concerns interfered, so long as those were fully documented in the record.

Treatment Teams and Plans

The Court recognized progress DOC has made since the liability findings in 2017, noting that each prisoner now has a treatment team. However, the Court found that the teams do not meet frequently enough nor long enough either to ascertain the prisoner’s mental health needs or to note what progress has occurred.

Since “treatment planning is essential to the provision of mental-health care, especially in the prison context, it cannot occur absent regular meetings,” the Court concluded, and ordered DOC to set a schedule that ensured prisoners receive “the minimal level of care required by the Constitution.” But it declined to mandate a schedule, noting that Court orders are required to be “minimally intrusive” by the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e.

To address evidence that some meetings lasted just a few minutes, though, the Court also ordered that “each treatment-team meeting must last for an adequate amount of time, based on the chair’s clinical judgement.” Citing the testimony of forensic psychiatrist and mental health expert Dr. Kathryn A. Burns, the Court said that “[U]nder normal circumstances a follow-up treatment-team meeting with no changes or unusual circumstances to consider will take at least 15 to 20 minutes.”

“A lack of pertinent information” in documents associated with a prisoner’s treatment plan was also addressed. Noting that some treatment teams did not have information about “attempts at self-harm that could have alerted the team” before some of prisoners committed suicide, the Court ordered that files must contain the prisoner’s housing status, disciplinary history and interactions with other prisoners, in order to help the team make appropriate clinical judgements.

Psychiatric and Therapeutic Care

The Court said this was an element of its 2017 liability opinion in which DOC “has made the least progress,” with prisoners provided “insufficient access to treatment” so that many who need therapy don’t get it. For those who do, therapeutic sessions are too short and too infrequent, patient-prisoners are left too long in their cells—“undermining the efficacy of any treatment they receive”—and the whole process is marred with more sloppy record-keeping.

As a result, the Court ordered DOC to establish “minimum frequencies with which inmates must meet with RNs, psychologists, counselors, psychiatrists, and [Certified Registered Nurse Practioners]” for a length of time to be determined by the provider. It also adopted plaintiffs’ guidance for minimum levels of treatment because, quoting Dr. Burns, it found that too many prisoner-patients in DOC were “falling through the cracks.”

The Court also ordered that prisoners held in a RTU (Residential Treatment Unit), SU (Stabilization Unit) or SLU (Structured Living Unit) “must have 10 hours of structured, therapeutic out-of-cell time and 10 hours of unstructured out-of-cell time per week, unless clinically contraindicated.” Those held in RTU Level Three, which features “open dormitories rather than cells,” do not have to have 10 hours of unstructured out-of-cell time per week. Appointments with a “treatment team, psychiatric provider, counselor, or a therapeutic group” count toward the requirement for “structured, therapeutic out-of-cell time.”

Suicide Prevention

Recalling that in at least one suicide, DOC staff waited 12 minutes before beginning CPR after discovering a prisoner who had hanged himself, the Court said this cannot happen. Addressing “systemwide failures to take necessary steps in the first minutes after discovering suicide attempts—minutes that are crucial to life-saving efforts”—the Court mandated that staff be provided cut-down tools, and anyone who observes a suicide in progress must immediately attempt to intervene and call for emergency responders at once.

Placing prisoners on suicide watch had also bedeviled DOC, the Court noted, with completion of suicide risk assessments that was “inconsistent, even in the face of a court order requiring compliance,” resulting in placement of some prisoner-patients “in clinically inappropriate environments.” The Court mandated this be corrected, and it also told DOC—though Judge Thompson was clearly mystified why he had to do so—that if a prisoner attempts suicide, he must be placed on the mental health caseload if he is not already on one.

The effective date of the order is February 7, 2022, which is 42 days after it was filed on December 27, 2022. Suffering from a lack of adequate care, supervision, and proper housing, prisoners with mental health issues are affected in all Alabama prisons, though most deaths by suicide occurred at Donaldson, St. Clair and Holman Correctional Facilities. The neglect of mentally ill prisoners has given Alabama prisons the sinister distinction of having the highest suicide rate in the nation, something the Court’s latest opinion will hopefully begin to address. It is worth noting the Alabama prison system spent around three decades under federal court injunctions and decades until the late 1990s when all the court supervision was vacated under the Prison Litigation Reform Act (PLRA). The orders were vacated not because conditions had improved but because the PLRA allowed the government to do so.

In the twenty plus years since then, prison conditions quickly deteriorated to the cesspool of humanity levels they had previously reached in the 1970s and earlier. For their part, the governor and legislature appear to be totally indifferent to the plight of prisoners and show a complete lack of will, interest or vision in improving prison conditions. 

Sources: Southern Poverty Law Center, WHNT-TV, New York Times, National Center on Institutions and Alternatives, Alabama Appleseed, Linkedin.com

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