Inmates with mental illnesses are at serious risk of harm in Florida. On a given day, Florida houses approximately 16,000 prisoners and 15,000 jail detainees with a serious mental illness. In large part, these surging numbers reflect Florida’s failure to invest in adequate community mental health care.  Florida ranks 49th in its spending on mental health services. In a recent award-winning article by the Tampa Bay Times and Herald-Tribune, psychiatrist Stephen Bloomfield, the former head of the Florida Psychological Association, observed, “There’s nothing, absolutely nothing for the mentally ill in Florida. It doesn’t even rise to the level where it can be judged against other states.” Without access to mental health services in the community, some Floridians with mental illnesses degenerate, are arrested for nuisance or other offenses, and wind up in jail or prison.

Correctional institutions are dangerous and damaging places for individuals with mental illnesses. These high-stress environments exacerbate the symptoms of many mental disorders and can cause cognitive deterioration. Recent studies demonstrate that mentally ill individuals, unable to sufficiently assess danger and modify their behavior to ward off attacks, are more prone to physical and sexual victimization than those without impairment. In addition, strict compliance with rules can be difficult for individuals with mental and behavioral limitations, and disordered inmates are more likely than non-disordered peers to violate correctional rules. As a result, mentally ill inmates are disproportionately punished in solitary confinement, where they are especially susceptible to decompensation, psychotic break, and suicide ideation.

I have argued that judges should do more to acknowledge the vulnerability of individuals with serious mental illnesses and should sculpt their sentencing orders to protect this population from predictable harm. In Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness, I laid the theoretical groundwork for the consideration of vulnerability due to mental illness as a morally relevant element in sentencing decisions. And in Conditions of Confinement at Sentencing, I built the case that a judge should be able to order any condition of confinement if she believes it critical to the humaneness of an offender’s carceral sentence or to the effectuation of its objectives.

But we must do more. In the May 2 issue of The New Yorker, Eyal Press in “Madness” documents the torture of mentally ill inmates in the mental health ward of the Dade Correctional Institution, about 40 miles south of Miami. The mental health ward should have been the place most safe for inmates with mental illnesses: away from the general population, they could receive needed treatment in a therapeutic environment. Yet, in a tale that seems pulled from Dante’s inferno, Press tells how correctional officers in that ward burned prisoners in a shower rigged to provide 180-degree water, beat and stomped on handcuffed prisoners, starved inmates for days, and taunted inmates who had been sexually assaulted until they decompensated.  All of this was done with relative impunity. Harriet Krzykowski, a psychiatric technician in the ward, witnessed some of these events, but it was the voices of the inmates—particularly Harold Hempstead, a convicted burglar with obsessive-compulsive disorder—that were most compelling.  Complaints were ignored, and those who filed them were retaliated against. What emerges from Press’s powerful and well-documented account is a picture of a corrupt system where correctional officers run the show, correctional mental health professionals cower, and mentally ill inmates suffer and sometimes die. Press questions the quality of the mental health services provided by Wexford Health Sources, a private contractor, and rightfully notes the disincentive this for-profit company has to acknowledge abuse.

In September 2014, Disability Rights Florida filed a lawsuit alleging that the Florida Department of Corrections repeatedly failed to protect mentally ill inmates at Dade from abuse. According to the terms of a settlement reached in May 2015, the Department of Corrections agreed to provide specialized training for correctional officers who work with mentally ill inmates, upgrade video monitoring equipment, hire an assistant warden of mental health at Dade, and create a Mental Health Ombudsman position to provide leadership and supervision over the correctional system’s mental health care. In addition, the Civil Rights Division of the Department of Justice recently launched an investigation to determine whether the death of Darren Rainy, who died from his scalding in the 180-degree shower, contributed to a broader pattern of abuse at Dade. I hope that the settlement—and the brighter spotlight that may be cast by the Department of Justice inquiry—will result in needed changes for this vulnerable and underserved population in Florida’s prisons.

Lea Johnston

Lea Johnston is a leading expert on mental health and criminal law and procedure. Her scholarship has explored the theoretical underpinnings of mental health courts, the sentencing of mentally disordered offenders, and competency standards for self-representation. Recent publications include Communication and Competence for Self-Representation, 84 FORDHAM L. R. __ (2016); Modifying Unjust Sentences, 49 GA. L. REV. 433 (2015); Conditions of Confinement at Sentencing: The Case of Seriously Disordered Offenders, 63 CATH. U. L. REV. 625 (2014); Vulnerability and Desert: A Theory of Sentencing and Mental Illness, 103 J. CRIM. L. & CRIMINOLOGY 147 (2013); Theorizing Mental Health Courts, 89 WASH. U. L. REV. 519 (2012); Representational Competence: Defining the Limits of the Right to Self-Representation at Trial, 86 NOTRE DAME L. REV. 523 (2011); and Setting the Standard: A Critique of Bonnie’s Competency Standard and the Potential of Problem-Solving Theory for Self-Representation at Trial, 43 UC DAVIS L. REV. 1605 (2010). In 2012, the California Supreme Court quoted Johnston’s proposed standard for representational competence and endorsed its use by courts and experts. Johnston’s theory of sentencing formed the theoretical framework for presentencing evaluations in Principles and Practice of Forensic Psychiatry, the standard textbook for forensic psychiatry fellowship programs. Her work has been widely cited by scholars and appears in leading treatises in criminal law, constitutional law, and criminal procedure.

Professor Johnston earned her A.B. from Princeton University and her J.D. (cum laude) from Harvard Law School. She previously served as a litigation associate at Arnold & Porter LLP in Washington, D.C., and director of the Maryland Public Interest Research Group in Baltimore, MD. Johnston clerked for Judge Richard Tallman of the U.S. Court of Appeals for the Ninth Circuit. Johnston is currently a Professor of Law and Assistant Director of the Criminal Justice Center at the University of Florida Levin College of Law.

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