Should High-Security Prisons Be Punished?
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Check out Note After all, insurance policies can cover some losses. Of course, these excuses are just smoke screens. When an insurance company has to pay for a claim arising from a crime, the insurance company is injured, as are the victim and society at large. Similarly, the fact that wealthy people or businesses do not notice embezzlement immediately does not mean that they are not entitled to retain their property. Crime undermines confidence in social order and the expectations that we all have about living in a civil society. No crime is victimless. A crime A public injury. At the most basic level, criminal statutes reflect the rules that must be followed for a civil society to function.
Crimes are an offense to civil society and its social order. In short, crimes are an offense to the public, and someone who commits a crime has committed an injury to the public. Criminal law differs from civil law in several important ways. See Figure For starters, since crimes are public injuries, they are punishable by the government. In fact, private citizens may not prosecute each other for crimes. When a crime has been committed—for instance, if someone is the victim of fraud—then the government collects the evidence and files charges against the defendant. When someone is charged with committing a crime, he or she is charged by the government in an indictment A formal document in which the government accuses a legal person of a crime. The victim of the crime is a witness for the government but not for the prosecutor of the case.
Note that our civil tort system allows a victim to bring a civil suit against someone for injuries inflicted on the victim by someone else. Indeed, criminal laws and torts often have parallel causes of action. Sometimes these claims carry the same or similar names. For instance, a victim of fraud may bring a civil action for fraud and may also be a witness for the state during the criminal trial for fraud. Figure In a criminal case, the defendant is presumed to be innocent unless and until he or she is proven guilty. This presumption of innocence The presumption made about any criminal defendant prior to verdict.
Criminal defendants do not have to prove their innocence. If the state cannot prove its case, then the person charged with the crime will be acquitted To be found not guilty of a crime. This means that the defendant will be released, and he or she may not be tried for that crime again. The burden of proof A duty to prove. In a criminal trial, the burden of proof is on the prosecution. This means that the defendant does not have to prove anything, because the burden is on the government to prove its case.
To be convicted of a crime, someone must possess the required criminal state of mind, or mens rea A guilty mind, or a criminal state of mind. Likewise, the person must have committed a criminal act, known as actus reus The guilty act, or the criminal action. Compare this to the standard of proof in a civil trial, which requires the plaintiff to prove the case only by a preponderance of the evidence The standard of proof in a civil trial.
It means that the evidence that supports the claim is more likely than not. This means that it is much more difficult to successfully prosecute a criminal defendant than it is to bring a successful civil claim. Since a criminal action and a civil action may be brought against a defendant for the same incident, these differences in burdens of proof can result in verdicts that seem, at first glance, to contradict each other. Perhaps the most well-known cases in recent history in which this very outcome happened were the O.
Simpson trials. Simpson was acquitted of murder in a criminal trial, but he was found liable for wrongful death in a subsequent civil action. Richard Scrushy of HealthSouth was acquitted of several criminal charges relating to accounting fraud but was found civilly liable for billions. He was subsequently found guilty in a later criminal case for different crimes committed. This extra burden reflects the fact that the defendant in a criminal case stands to lose much more than a defendant in a civil case. Therefore, more protections are afforded to the criminal defendant than are afforded to defendants in a civil proceeding. Because so much is at stake in a criminal case, our due process A constitutional guarantee of fairness by procedure.
Due process procedures are not specifically set out by the Constitution, and they vary depending on the type of penalty that can be levied against someone. For example, in a civil case, the due process requirements might simply be notice and an opportunity to be heard. If the government intends to revoke a professional license, then the defendant might receive notice by way of a letter, and the opportunity to be heard might exist by way of written appeal. In a criminal case, however, the due process requirements are higher. This is because a criminal case carries the potential for the most serious penalties. A person accused of a crime has several rights, which are guaranteed by the U.
Many crimes are state law issues. However, many provisions of the U. This is known as the incorporation doctrine. The Sixth Amendment guarantees that criminal defendants are entitled to an attorney during any phase of a criminal proceeding where there is a possibility of incarceration. The Fifth Amendment guarantees the right to avoid self-incrimination. This right means that the government cannot torture someone accused of committing a crime. Obviously, someone under the physical and psychological pain of torture will admit to anything, and this might be a strong incentive to allow torture if the government wanted someone to confess to a crime. However, the Fifth Amendment guarantees that people can choose to remain silent. No one is compelled to testify against himself or herself to make self-incriminating statements.
The Eighth Amendment prohibits cruel and unusual punishment. We do not employ many techniques that were once used to punish people who committed crimes. For instance, we do not draw and quarter people, which was a practice in England during the Middle Ages. Recently, however, the question of the use of torture by the United States against aliens on foreign soil has been a hot topic. Many people believe that our Eighth Amendment protections should be extended to everyone held by U. The Fourth Amendment provides a prohibition against illegal searches and seizures. This means that if evidence were obtained in violation of the Fourth Amendment, then it cannot be used against the defendant in a court of law.
For Fourth Amendment requirements to be met, the government must first obtain a search warrant to search a particular area for particular items if there is a reasonable expectation of privacy in the area to be searched. The search warrant is issued only on probable cause The standard required for a search warrant to be issued. It arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the belief that someone has committed a crime. Probable cause arises when there is enough evidence, such as through corroborating evidence, to reasonably lead to the belief that someone has committed a crime.
If a valid search warrant is issued, then the government may search in the area specified by the warrant for the item that is the subject of the warrant. If a search occurs without a warrant, the search might still be legal, however. This is because there are several exceptions to the requirements for a search warrant. These include the plain view doctrine, exigent circumstances, consent, the automobile exception, lawful arrest, and stop and frisk. The plain view doctrine means that no warrant is required to conduct a search or to seize evidence if it appears in the plain view of a government agent, like a police officer.
Exigent circumstances An exception to the warrant requirement, specifically when an emergency exists, such as a hot pursuit. For instance, if someone is cruelly beating his dog, the state can remove the dog without a warrant to seize the dog. The exigent circumstances exception to the warrant requirement is used in hot pursuit cases. For example, if the police are in hot pursuit of a suspect who flees into a house, the police can enter the house to continue the pursuit without having to stop to first obtain a warrant to enter the house. Consent An exception to the warrant requirement, in which a person with valid authority permits a search to proceed without a warrant.
This does not necessarily have to be the owner of the location to be searched. For example, if your roommate consents to a search of your living room, which is a common area shared by you and your roommate, then that is valid consent, even if the police find something incriminating against you and you or your landlord did not consent to the search. The automobile exception An exception to the warrant requirement, specifically when the vehicle is detained pursuant to a lawful stop. When a police officer approaches a stopped car at night and shines a light into the interior of the car, the car has been searched.
No warrant is required. If the police officer spots something that is incriminating, it may be seized without a warrant. Additionally, no warrant is required to search someone who is subject to lawful arrest An exception to the warrant requirement, specifically referring to a pat-down search permitted when someone is lawfully arrested. This exception exists to protect the police officer.
For instance, if the police could not search someone who was just arrested, they would be in peril of injury from any weapon that the person in custody might have possession of. Similarly, if someone is stopped lawfully, that person may be frisked without a warrant. This is the stop and frisk An exception to the warrant requirement, specifically permitted when a person is stopped for some permissible purpose by law enforcement officers. In the business context, it is also important to note that administrative agencies in certain limited circumstances may conduct warrantless searches of closely regulated businesses, such as junkyards, where many stolen cars are disassembled for parts that can be sold.
In other words, it may not be used against the defendant in trial. You should know, however, that lying to the defendant, or using forms of trickery and deceit, are not constitutional violations. Another common defense arises under the exclusionary rule regarding confessions. This is when the government, while holding someone in a custodial interrogation Occurs when a suspect is in custody, which means that the suspect cannot leave, and subject to interrogation, which means that words spoken or actions undertaken by government officials are likely to induce a response.
Failure to read Miranda warnings when someone is subject to a custodial interrogation may render statements uttered by the suspect inadmissible under the exclusionary rule. If someone is subjected to a custodial interrogation, he or she must first be read the Miranda warnings, which you have probably heard in the movies. Though the U. Anything that you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you by the state. Do you understand your rights? The purpose of the Miranda warnings is to ensure that people understand that they have the right not to make self-incriminating statements and that they have the right to have counsel.
If someone wants to invoke his or her rights, he or she has to do so unequivocally. The Miranda warnings are not required unless someone is in custody and subject to interrogation. Someone in custody is not free to leave. So if a police officer casually strikes up a conversation with you while you are shopping in the grocery store and you happen to confess to a crime, that confession will be admissible as evidence against you even though you were not Mirandized. Because you were not in custody and you were free to leave at any time. Likewise, if the police are not interrogating a person, then any statement made can also be used against that person, even if he or she is not Mirandized.
Someone is being interrogated when the statements or actions by the police or other government agent are likely to give rise to a response. Another defense provided by the U. Constitution is the prohibition against double jeopardy This means that the government may not prosecute someone twice for the same offense. It is prohibited by the Fifth Amendment to the U. The Fifth Amendment prohibits the government from prosecuting the same defendant for the same crime after he or she has already stood trial for it. They fear that accommodating mental illness will provide excuses for prisoner misconduct, encourage others to engage in similar misconduct, and promote a general breakdown in order.
Otherwise, this would lead to faking [of mental illness] by other inmates. According to one corrections expert with decades of experience, "the idea of ceding security authority to mental health personnel is pretty repugnant to most prison administrations. University of California psychiatrist Michael Krelstein surveyed the fifty state departments of corrections and the Federal Bureau of Prisons about their disciplinary systems and the role of mental illness. In Ohio, the prison disciplinary system considers whether a prisoner is competent to participate in the hearing. The mental illness can only be factored into sanction determinations.
Such alternatives may include placement in specific therapy or psycho-education groups, individual counseling or therapy, or placement in an intensive behavioral therapy unit. The same sanctions are used for everyone and are dependent on the seriousness of the conduct and the prisoner's prior disciplinary history. If punishment is supposed to help deter future misconduct, that goal is clearly misplaced when individuals have no meaningful control over their conduct. Punishment is particularly counter-productive-indeed dangerous to the prisoner-when it consists of placing mentally ill prisoners in prolonged segregation.
Typical sanctions for misconduct range from loss of canteen privileges, to loss of prison jobs, and to disciplinary segregation. Recreation typically consists of solitary exercise in a space with no equipment. In some prisons the cells are windowless. In many the segregation cells have solid steel doors with a slot through which food can be passed and the prisoner's hands can be placed for handcuffs, and a small window that guards can look into to check on the prisoner. The mentally ill are disproportionately represented among prisoners in segregation. Prisoners with preexisting psychiatric disorders are at even greater risk of suffering psychological deterioration while in segregation. Many are untreated or under-treated because staff dismiss their symptoms as manipulation to get out of segregation.
In many segregation units, mental health services are so poor that even floridly psychotic prisoners receive scant attention. Segregated confinement can provoke sufficient deterioration and exacerbation of the symptoms of mentally ill prisoners that they must be removed to in-patient psychiatric facilities for acute care. Correctional authorities claim punishment and safety considerations preclude group activities and therapy for prisoners in segregation. Though some prisoners are so dangerous and volatile that their interaction with others must be carefully controlled, "control" does not require all cessation of inter-personal interaction and mental health care treatment other than medication.
The failure of U. While U. The "deliberate indifference" requirement has significantly limited court findings of constitutional violations with regard to mental health services and thus the courts' ability to order improvements in those services. For example, plaintiffs' experts in a long-running class action lawsuit against the Texas Department of Criminal Justice "TDCJ" found system-wide deficiencies in the mental health care system, including "not recognizing or minimizing symptoms indicative of major mental illnesses," under-diagnosis of mental illnesses, inadequate access to psychiatric assessments, inadequate treatment of those found to be mentally ill, and "wholly inadequate" staffing. In this court's opinion, inhumane treatment should be found to be unconstitutional treatment.
While not explicitly cutting back on prisoners' constitutionally protected rights, the PLRA creates formidable obstacles to judicial protection and enforcement of those rights by applying with equal force to meritorious as well as frivolous cases. In contrast to U. In addition, ICCPR Article 7 states that no one "shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Equally important, a prisoner's right to be free of cruel treatment does not depend on the state of mind of the officials mistreating him. An official may be remiss in his obligations under Article 10 if he fails to provide decent mental health services, and the absence of services may amount to treatment prohibited by Article 7, regardless of whether he acts negligently or deliberately.
Various United Nations documents explain how governments may comply with their international legal obligations vis-a-vis the men and women incarcerated in jails and prisons. While these instruments are not treaties, they constitute authoritative guides to the content of binding treaty standards and customary international law. All affirm the obligation of prison officials to treat prisoners humanely-including providing mental health care to those who need it. The Standard Minimum Rules go beyond mandating proper mental health care for prisoners. They recognize that some prisoners with serious mental illness should not be confined in prisons at all. Persons found insane should be confined in mental institutions, and prisoners "who suffer from other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management.
As to punishment itself, human rights law precludes the use of any punishment that may be torture or otherwise cruel, inhuman, or degrading. The Standard Minimum Rules state that no prisoner shall be subjected to any punishment "that may be prejudicial to [his] physical or mental health. All too often the implicit-if not explicit-predominant goal of U. They accept the minimum standards for prison conditions and the treatment of prisoners set by the Supreme Court as both a ceiling and a floor. In contrast, international human rights law sets affirmative goals for prisoner mental health that challenge prison officials to provide the best mental health services they can to mentally ill prisoners. The human rights perspective mandates that corrections officers not only be given progressive standards for prisoner care, but also the resources to do this job well.
Corrections officials recognize the challenge posed to their work by the large and growing number of mentally ill prisoners. They know there is much more they should do to respond to the needs of the mentally ill, to alleviate their suffering, and to prevent deterioration in their conditions. If legislatures provided sufficient financial resources as well as political support, prisons could offer effective, quality mental health care for those who need it. They could provide sufficient specialized facilities for acute care needs.
And they could retain independent experts to undertake careful and continuous quality of care reviews. But insufficient funding is not the only reason mentally ill prisoners do not receive the treatment they need. The culture of prisons plays an important role as well. The growing influx of mentally ill prisoners challenges corrections officials to incorporate rehabilitation and respect for human dignity into a paradigm currently circumscribed by security, safety, and discipline. If inmates' rights are to be respected, prisoners should not be punished for conduct they cannot meaningfully control.
When punishment is imposed on them, it should further-or at least not undermine- the prisoners' mental health and treatment plans. Most importantly, corrections officials must develop options for responding to dangerous or disruptive individuals who are mentally ill other than simply putting them into segregation. If such individuals require extensive security precautions, they should be housed in specialized secure units where they can participate in purposeful activities, have human interaction, and receive the services that mental health professionals deem therapeutically appropriate. Corrections officials should also provide more and better mental health training to line staff and imbue them with the mission of protecting and serving inmates' needs during incarceration.
Whatever improvements are made, prisons will never be a good place for the mentally ill. As the World Health Organization "WHO" has recognized, imprisonment by its very nature has an adverse effect on mental health. The U. A serious rethinking of the purposes of incarceration is also required. Human rights principles affirm the goal of increasing the ability of the prisoner to lead a productive, law-abiding life upon return to society. Placing the mentally ill in a brutal environment that they are not equipped to navigate without the aid of robust mental health services promotes neither rehabilitation nor prison security.
It smacks more of cruelty than of justice. Metzner et al. Wittstein ed. Ditton, U. The Bureau identified prisoners as mentally ill if they met one of two criteria: they reported a current mental or emotional condition, or they reported an overnight stay in a mental hospital or treatment program. Data from individual prison systems confirms national estimates. The Pennsylvania Department of Corrections estimates that Dep't of Corr. This number is based on research by R. See Karen H. Bourdon et al. Henderson eds. But in prisons, "studies and clinical experience indicate that percent of prisoners have significant psychiatric or functional disabilities and another percent will require some form of psychiatric intervention during their incarceration. Metzner also provides a summary of research on the prevalence of mental disorders in jails and prisons.
Eighteen of twenty-five states that responded to the NIC survey reported increases in the size of prison population with mental illness. For example, in Connecticut, the number of prisoners with serious mental illness increased from 5. Dep't of Justice, Nat'l Inst. The Colorado report includes the results of its survey of prison mental health directors regarding the proportion of prisoners with serious mental disorders. Nineteen of thirty-one states responding to the survey reported a disproportionate increase in their seriously mentally ill population during the previous five years. Bonczar, U. A good overview of the changing nature of criminal justice policies and their impact on the U. The text includes a discussion of the more serious Axis I illnesses.
Whatever the diagnosis, the degree of impairment of thought, mood, and behavior can vary dramatically from individual to individual. In addition, individuals. So-called Axis II disorders, or personality disorders, might also include the experience of extreme dysfunction. See id. Curry, Ph. Johnson litigation Mar. As a result, they are less able to conform their behavior to the rigid expectations of prison life and often fall into self-defeating patterns of irrational opposition to the demands placed upon them. Researchers have found that "more often than not periods of high disciplinary involvement overlap with symptomatic behavior for seriously disturbed inmates" and "temporal coincidence does not necessarily.
It does suggest, however, that at some level different manifestations of coping problems are interrelated. An internal analysis of disciplinary data in Colorado prisons showed that offenders with serious mental illnesses were more likely than those who did not have such illnesses to receive tickets for such misconduct as disobeying a lawful order,. According to a psychiatrist who compiled the data, "it is certainly conceivable that the impairment in social skill and perception found in many mental illnesses contributes to this pattern of conduct.
Similarly, See Ditton, supra note 4, at 9. Wetherington, U. Snyder, 44 F. Wilkinson, F. Ohio No. Dennis Koson, D. Terhune, 67 F. Wilson, F. Williams III eds. Reginald Wilkinson, Dir. Adult Mental Health Servs. Krelstein also pointed out that mental health staff themselves are generally reluctant to go before a disciplinary committee and argue that a prisoner was insane at the time of his misbehavior. Jeffrey Metzner Feb. Mental health staff may be unwilling or unable to provide accurate diagnoses of inmates' conditions, or may not want to become involved in a conflict with custodial staff. In addition, some mental health staff "burn out" over time and come to share custodial staff's suspicions of and hostility toward prisoners. For some prisoners, this environment causes mental deterioration to the point of necessitating psychiatric hospitalization.
Mentally ill offenders average a total of months in state prisons, 15 months longer than other offenders. The largest differences in time served were among violent and property offenders. The mentally ill in state prisons serve an average of at least twelve additional months for violent and property offenses. Reginald A. Wilkinson, Dir. Their ability to communicate through these or other means varies depending on the facility. Gomez, F. In addition, "individuals whose internal emotional life is chaotic and impulse-ridden, and individuals with central nervous system dysfunction," are particularly unable to handle supermax conditions.
Stuart Grassian, Eng v. Coughlin, No. CIVS W. Terry Kupers, the conditions in segregation can cause someone with a vulnerability to psychosis:. People who are vulnerable to psychosis have a relatively fragile or brittle ego. When they are made to feel very anxious, or very angry, or very distrustful, their ego tends to disintegrate-in other words, as anger or anxiety mounts, their ego falls apart. They regress, lose control, can't test reality. And this is the beginning of a psychotic decompensation. If there's nobody to talk to then one is left alone to sort out one's projections, the reality-testing is more. Kupers has also explained that the impact of segregation or solitary confinement depends on the nature of the illness:.
Prisoners who are prone to depression and have had past depressive episodes will become very depressed in isolated confinement. People who are prone to suicide ideation and attempts will become more suicidal in that setting. People who are prone to disorders of mood, either bipolar.