by Kevin W. Bliss

The Montana Department of Corrections (DOC) and Montana State Prison (MSP) entered into an agreement with Disability Rights Montana, Inc. (DRM) on March 10, 2022, settling a lawsuit DRM filed on behalf of state prisoners with serious mental illnesses (SMI) with a major overhaul to the way they are treated.

DRM filed the suit in federal court for the District of Montana in 2015, accusing Defendants of violating the Eighth Amendment’s guarantee of freedom from cruel and unusual punishment for prisoners with SMI who were disciplined with solitary confinement for actions that were actually manifestations of their illnesses. They were also given “behavior modification plans” that included deprivation of food, clothing, bedding and even functioning toilets.

Under the settlement, DOC and MSP agreed to rewrite policies within three months to provide more humane treatment than that. Among the changes: Any prisoner with SMI placed in restrictive housing, suicide watch, segregation, or disciplinary confinement must receive four hours per day out-of-cell time, along with meaningful access to a qualified mental health professional (QMHP), plus an individualized treatment plan complete with scheduled rewards and recognition for goal achievement, as well as access to clothing, footwear, and toiletries not previously permitted.

Technicians who work in DOC’s mental health department but lack the requisite training will not be able to serve as QMHPs. Guards also have new restrictions that prevent them from withholding water from prisoners in solitary confinement as a disciplinary measure. If a prisoner is determined to be abusing water to destroy property or threaten the health and safety of himself or others and the water must be cut off, policy now dictates that water access will still be provided for five to ten minutes every hour for toiletry and cleanup.

Plans for the possibility of disciplinary confinement and potential uses of force against prisoners with SMI will be individually formulated upon intake by a QMHP, whose presence and/or input is also required upon disciplinary confinement or use of force, along with personnel trained in crisis intervention and de-escalation techniques.

The agreement also requires that within six months all cells for prisoners with SMI will have working toilets and sinks, beds with built-in pillows, as well as natural light, except in “safe cells” designed for those on “Close Watch”—being checked every 15 minutes—or on “Constant Watch.” Video monitoring may augment these categories, but it may not replace in-person staff observation.

Though the parties agreed that current staffing is minimally acceptable, Defendants agreed to seek funding from the state legislature for three additional licensed therapists, three more mental health technicians and two new activities coordinators. Guards must also receive 30 hours of additional training in the new policies and procedures.

As part of the settlement, the parties had two weeks to appoint an Independent Monitor, or if they failed to agree on one, to submit candidates to an independent selector. The Monitor’s initial term will run for months six through twelve of the agreement, with Defendants to bear all associated costs and fees. The Monitor may not be dismissed, however, without the agreement of both parties. The parties also agreed to bear their own attorney’s fees and costs in the lawsuit.

DRM was represented by in-house counsel Roberta Zenker, with additional representation provided by attorneys Alex Rate of the state chapter of the American Civil Liberties Union, as well as Kyle A. Gray and Jeffrey A. Simmons of Holland & Hart LLP in Billings and Madison, Wisconsin, respectively. See: Disability Rights Montana, Inc. v. Michael, USDC (D. Mont.), Case No. 2:15-cv-00022.

After a 1991 riot at MSP, when officials imposed draconian restrictions, prisoners sued and a settlement was reached that included “retention of a part-time psychiatrist to develop a comprehensive mental health services plan,” as PLN reported. [See: PLN, Mar. 1995, p.10.]

This new settlement, DRM Executive Director Bernadette Franks-Ongoy said, “represents huge gains for the humane treatment of inmates with severe mental illness, [who] will now be provided appropriate care, treatment, and housing not to mention access to mental health experts.”

But “most importantly,” she added, the agreement “restricts the use of solitary confinement.” 

Additional source: AP News

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