by David M. Reutter

On February 7, 2022, the U.S. District Court for the Northern District of California approved a Consent Decree in a class-action lawsuit filed against the Alameda County Jail in Santa Rita that accused officials there of subjecting “individuals with mental health diagnoses and/or other psychiatric disabilities” to “cruel and unusual use of isolation” as well as failing to respect their due-process rights by not providing “adequate mental health care” and “reasonable accommodations” to those with mental disabilities.

Jails and prisons have become the largest provider of mental health care in the U.S. Without adequate treatment in the community, people can suffer psychological breakdowns. Then there is the group of people who suffer with mental illness. When these people fail to receive proper treatment and care, their behavior can become criminal. Or, put another way, mental illness among the poor has been criminalized.

Jails and prisons are often ill-equipped to deal with those suffering mental illness. With a primary focus on custody and control, guards are rarely trained in de-escalation tactics or to recognize when mental illness is the cause of a behavior being exhibited. The normal course of action when confronted with an unruly detainee or prisoner is to place him in confinement and, if necessary, to use force.

The federal Department of Justice (DOJ) Civil Rights Division released a report in April 2021 that found mental health care in Alameda County’s jail system likely violates the Eighth and Fourteenth Amendments to the U.S. Constitution, as well as the Americans with Disabilities Act (ADA), 42 U.S.C. ch. 126 § 12101 et seq.

DOJ’s investigation is separate from the jail lawsuit, but the agency has been monitoring negotiations in the case. Its investigation focused on the county’s entire mental health care system. The lawsuit deals with just the jail.

The 104-page Consent Decree finalizes an August 2021 settlement, under which the County Sheriff’s Office (ACSO) agreed to revamp how it provides mental health care at the jail. ACSO was required to change its policies and procedures, hire new staff at the jail, build a new “therapeutic housing unit,” and put in place new oversight structures.

The settlement resolved Class claims that the jail failed to provide minimally adequate mental health care and conditions of confinement by relying on excessive use of isolation, providing insufficient amount of out-of-cell time and programming, maintaining inadequate classification systems, and permitting a lack of due-process protections. The complaint further alleged the jail discriminated against individuals with psychiatric disabilities by denying them equal access to programming, services and/or activities offered.

Prior to reaching their settlement, the parties agreed to a panel of Joint Experts, which issued a report in March 2020 on the jail’s policies, procedures, practices, and conditions. Based on that, the settlement enshrined in the decree now enjoins ACSO in several ways.

Provisions of the Agreement

The first provision for injunctive relief pertains to COVID-19 measures, requiring mask use and provision of masks to detainees, who must be tested upon entry to the jail and 10 days later. Procedures for quarantine and isolation were also detailed in the agreement.

The settlement also requires the jail to maintain “sufficient mental health clinical staff to provide for adequate 24-hour coverage, seven days a week, and sufficient custodial staff to ensure that programming, recreation, transportation and movement, out-of-cell and outdoor time, and all other jail functions can proceed safely.”

The jail must also implement a new classification system, including an initial face-to-face, in-person interview to determine a detainee’s placement within the jail. New rules governing Administrative Housing prevent those with severe mental illness from placement in Restrictive Housing or on “Recreate Alone” status unless outlined criteria and safeguards have been met.

Those detainees in Restrictive Housing/Recreate Alone status are required to receive at least 14 hours of out-of-cell time per week, which may include at least five hours of Structured Time for programming or religious services. For those in Restrictive Housing/Recreate Together status, out-of-cell time rises to at least 21 hours of per week with at least 11 hours of Structured Time. Detainees in general population shall be offered at least 28 hours per week of out-of-cell time.

A plan was created to reconfigure the Recreation Space to provide outdoor recreation. Adequate space is also required to be provided for programming.

The Consent Decree then focused on use of force and disciplinary measures. Under a new policy, the “use of force shall only be authorized in the type, amount, manner, and circumstances authorized by that policy” and only in an amount that is “objectively reasonable” to service “a legitimate correctional objective.” Restraint devices can never be used as punishment or as a substitute for treatment, and they “shall be applied only for the amount of time reasonably necessary.”

The disciplinary process requires a “meaningful consideration of the relationship between the individual’s behavior and any mental health or intellectual disability” as well as “the efficacy of disciplinary measures versus alternative measures that are designed to effectuate changed behavior through clinical intervention.” The impact of disciplinary measures “on the health and well-being of prisoners with disabilities” must also be considered.

The Consent Decree provides for an extensive change in the provision of mental health care that includes a plan to develop new Therapeutic Housing Unit(s) at the jail. Upon intake, detainees will be screened for mental health concerns with a specific focus on suicidality and potential for self-harm. Detainees with mental health concerns will be classified as “Emergent,” “Urgent,” or “Routine.” Detainees who meet the criteria under the state Welfare and Institutions Code Section 5150 are to be deferred to psychiatric care and treatment and not admitted to the jail.

The Consent Decree recognizes that cell-side check-ins are inappropriate for clinical encounters, so absent appropriate extenuating circumstances, all mental health and psychiatric encounters are to be conducted in confidential settings. The Decree also provides for the development and implementation of mental health levels of care categorized by the detainee’s level of functionality.

Another section of the Decree outlines a “new mutually-agreed upon Suicide Prevention Policy” which provides that Safety Cells be used only “as a measure of last resort.”

“It is a primary goal of this Agreement to phase out the use of such cells to the maximum extent feasible as soon as it is safe to do so,” the parties determined.

The jail is to reconfigure and/or construct suicide-resistant cells, and working call buttons must continue to be provided in all cells.

New policies and associated training will also be created regarding the use of suicide precautions, with cut-downs tools secured in an area easily accessible to staff. The new policy also provides timelines for providing care and observation of detainees.

A progressive move is to implement systems between Alameda County Behavioral Health and the jail “to facilitate the initiation or continuation of community-based services for people with mental health disabilities while incarcerated and to transition seamlessly into such services upon release.”

A written plan for each detainee is to be developed to determine eligibility for public assistance and other social benefits and “to identify community services, provider contacts, housing recommendations, community supports (if any), and any additional services critical to supporting the individual in complying with the terms of release.”

The jail is required to hire a dedicated ADA Coordinator along with sufficient support staff, who will use requirements outlined in the Decree to identify detainees who fall under the ADA and require accommodations and care. The jail is to assure these detainees are properly housed and have access to out-of-cell time and recreation.

Numerous Objections Addressed

U.S. Magistrate Judge Nathaniel Cousins took time in his decree to respond to complaints filed by numerous objectors to the agreement, including a group of jail prisoners represented by attorney Yolanda Huang, who called it “a ‘sham’ and ‘sweetheart dance’ pointing to the Board of Supervisor’s Jail budget increase and Class Counsel’s undeserved fees award,” the Court noted.

“Approval of this Consent Decree is not intended to prevent Defendants or Alameda County from funding community-based mental health services,” the judge said, adding that “the Court cannot direct the County on how to allocate its finances.” But “if the County chooses to continue funding a jail, the Court seeks to ensure that the conditions in that jail are constitutional,” he promised.

ACSO acknowledged the settlement will require substantial changes in jail operations. “It’s been a good process, a difficult process, but it’s going to be of great benefit to the people in our custody,” said spokesperson Sgt. Ray Kelly, who added that the reforms “will take many years to finish.”

“Obviously, the more efficiently we do that the better off for everybody,” he said, “because ultimately it is going to be costly to the taxpayers, and at the end of the day we want to make sure we’re providing the treatment and care to the people who need it.”

Though the decree is expected to cost the County as much as $100 million annually, no monetary settlement was sought by the class. The Court awarded $2,150,000 in fees and another $35,364.39 in costs to the class counsel, the San Francisco law firm of Rosen Bien Galvan and Grunfeld..

The Court also approved the parties’ agreement to cap attorney fees during the monitoring phase of the decree at $550,000 the first year, $450,000 the second year, $375,000 the third year, $300,000 each of years four and five, as well as $275,000 per year for the sixth year and any additional term that the Court may decide to grant. See: Babu v. County. of Alameda, USDC (N.D. Cal.), Case No. 5:18-cv-07677.  

Additional sources: Davis Vanguard, Oaklandside

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