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NAMI Challenges WA State Law in Federal Court: Transfer of Mentally Ill Patients from Hospitals to Prisons

May 12, 2010

Washington, D.C. —The National Alliance on Mental Illness (NAMI) and NAMI Washington State have joined a lawsuit in federal court challenging a law signed by Governor Chris Gregoire on March 31 that allows the Washington Department of Social and Health Services (DSHS) to move persons found not guilty by reason of insanity (NGRI) from state hospitals in which they currently reside to prisons.

"The purpose of prisons is to punish, not treat," declares the NAMI amici curiae brief  to the court. Prison conditions are "particularly noxious" for persons living with serious mental illness.

"The notion that a person found NGRI who is transferred from a hospital to a prison will receive appropriate psychiatric treatment in the prison setting is a fallacy."

The law does not provide for a hearing, legal counsel or any other means to delay or stop DSHS from moving acquitted patients to prison.

The lawsuit has been filed in the U.S.  District Court for the Eastern District of Washington (No.  CV-10-00088-EFS) located in Spokane.


Frequently Asked Questions (FAQs) and full text of the NAMI amici brief follow below.

FAQ: Challenge to new law that would send those found 'not guilty' to prison; Prepared by Disability Rights Washington

 

Background

On Wednesday, March 31, Governor Chris Gregoire signed a new law that allows the Secretary of the Department of Social and Health Services (DSHS) to move persons found not guilty by reason of insanity (NGRI) from the hospital, in which they currently reside, to prison. Section 2 of Senate Bill 6610 does not provide for hearing, legal counsel, or any other means to stop DSHS from moving acquitted patients to prison. The law only requires DSHS make a written statement that the person can’t be managed in the hospital because of security concerns. This does not give the patient an opportunity to disagree with the secretary’s decision.  

What’s wrong with this law?

This law is a violation of very basic civil liberties, such as:

  • Imprisoning people who have been found not guilty by a court of law
  • Depriving individuals of due process and assistance of counsel
  • Singling out and punishing individuals for mental illness
  • Punishing people for crimes for which they were acquitted (double jeopardy)
  • Creating new law to punish people retroactively (ex post facto)
  • singling out a group of people for punishment without the protection of judicial review (bill of attainder)
  • Unnecessarily institutionalizing people in settings that are more restrictive than necessary

This law gives DSHS the authority to place individuals with acute mental health needs in prison, where they may receive substandard treatment, no treatment, or be met with indifference to treatment needs. These patients were placed in hospitals so that they could recover from mental illness.  Prisons are not designed or equipped to promote recovery. Instead, imprisonment and prison discipline can undermine recovery and rehabilitation, potentially prolonging confinement. In prison, people with mental illness are at increased risk of violence, rape, assault or disability-based discrimination.

What is the purpose of the lawsuit?

DRW filed the lawsuit in Federal Court in Spokane, Washington, on Wednesday, March 31.  The lawsuit asks the court for an injunction to stop the state from moving NGRI patients into prisons, until the court decides if the new law is constitutional.      

Who are the plaintiffs?

The lawsuit is brought as a class action, with several named plaintiffs. The proposed class includes all individuals who have been found NGRI and those who are be found NGRI in the future.  This includes many people who are currently patients at Western and Eastern State Hospitals.  This includes not only patients with mental illnesses, but also individuals with traumatic brain injuries and developmental disabilities.  One of the plaintiffs has resided at Eastern State for 22 years. Any person hospitalized – now, or in the future - as a result of being found not guilty by reason of insanity could potentially be sent to prison as a result of this law.

Who is DRW suing? 

DRW is suing the Governor of the State of Washington, Christine Gregoire; The Washington State Department of Social and Health Services and its Secretary, Susan Dreyfus; and the Washington State Department of Corrections and its Secretary Eldon Vail. 

What about security concerns?  

The Department of Social and Health Services (DSHS) should address any security concerns it has regarding state hospital patients within the hospital. This is a primary task of the state hospitals – maintaining the security of persons who are a danger to themselves or others. Persons who have been determined not guilty by reason of insanity have long been served in locked, secure hospital “forensic units”. 

Who opposes this new law?

There is substantial – and growing – opposition to moving NGRI patients to prison. The national and state chapters of National Alliance on Mental Illness (NAMI), American Civil Liberties Union of Washington (ACLU),  Washington Defender Association, and the Washington Association of Criminal Defense Lawyers have publically opposed the new law. Recently, Mental Health Action and Community Transformation Partnership passed resolutions in support of this lawsuit.

DRW contacts for more information:

David Carlson, DRW attorney              206-324-1521 x 240   davidc@dr-wa.org

David Lord, DRW attorney                  206-324-1521 x 219   davidl@dr-wa.org

 

NAMI BRIEF

 

G.R., et al, Plaintiffs, vs CHRISTINE GREGOIRE, Governor of the State of Washington, et al., Defendants. U.S. D..C. for Eastern Washington, CV-10-00088-EFS

AMICI CURIAE BRIEF OF THE NATIONAL ALLIANCE ON MENTAL ILLNESS (NAMI) AND NAMI WASHINGTON SUPPORTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

 

INTEREST OF AMICI CURIAE

The National Alliance on Mental Illness (NAMI) is the nation’s largest grassroots organization dedicated to improving the lives of individuals and families affected by mental illness.  The national NAMI organization has state and local affiliates in more than 1,100 communities across the country.  NAMI Washington is a state level affiliate that represents 25 local NAMI affiliates located in Washington State.  Individual NAMI members include mental health care consumers and their families and friends as well as mental health care providers and many others.

ARGUMENT

On March 31, 2010, Governor Christine Gregoire signed Engrossed Substitute Senate Bill (ESSB) 6610, authorizing the Washington State Department of Social and Health Services (DSHS) to transfer individuals hospitalized pursuant to not guilty by reason of insanity (NGRI) verdicts from secure state psychiatric hospital forensic units to prison if DSHS determines that the individual “presents an unreasonable safety risk … not manageable in a state hospital setting.”  Amici assert that placement in correctional facilities despite not having been convicted of crimes subjects individuals with severe mental illnesses to grave risks.  Amici further assert that Section 2 will impede effective treatment and rehabilitative service to insanity acquittees, impeding their successful reentry into society.

The Purpose of Prisons is to Punish, not Treat.

Prisons are not designed to provide psychiatric treatment.  Prison conditions are particularly noxious for those with schizophrenia, bipolar disorder, and major depression.  Jamie Fellner, A Corrections Quandary: Mental Illness and Prison Rules, 41 HARV. C.R.-C.L. L. Rev. 391 (2006).  As prisons are not equipped to respond to the treatment needs of inmates with severe mental illnesses and correctional staff generally do not have the training or inclination to respond compassionately to such inmates, their symptoms tend to worsen while there.  In fact, deviations from expected behaviors or rules are often treated as disciplinary infractions, regardless of whether they are or are not attributable to psychiatric disorders. See, e.g. Coleman v. Wilson, 912 F. Supp. 1282, 1320 (E.D. Cal. 1995); Goff v. Harper, Findings of Fact and Conclusions of Law, No. 4-90-CV- 50365 (S.D. Iowa, June 5, 1997) (unpublished). 

Prisons Do Not Have Adequate Mental Health Staff To Effectively Provide Psychiatric Treatment to Inmates with Severe Mental Illnesses.          

Under ESSB 6610, any person found NGRI who is transferred from a psychiatric hospital to prison pursuant to the provisions of this law "shall receive appropriate mental health treatment governed by a formalized treatment plan targeted at mental health rehabilitation needs … ."  ESSB 6610, Section 2(1).  The notion that a person found NGRI who is transferred from a hospital to a prison will receive appropriate psychiatric treatment in the prison setting is a fallacy.

Washington State’s prison system, like most states, struggles with inadequate resources to provide appropriate treatment to inmates with severe mental illnesses.  Human Rights Watch research has concluded that there is no prison system in the country able to provide the necessary mental health care components defined by the National Commission on Correctional Health Care (NCCHC).  S. Abramsky and J. Fellner, Ill Equipped: U.S. Offenders and Prisoners with Mental Illness, at 94 (2003).  Problems identified by Human Rights Watch include low mental health staffing levels, unqualified and poorly trained mental health staff, lack of access to mental health staff, lack of mental health coverage during overnight and weekend hours, the use of medications as the sole form of treatment, lack of capacity to provide follow-up treatment and continuity of care, and inability to ensure medication compliance.  Id. 94-134.

It is highly unlikely that individuals transferred from treatment facilities to prison pursuant to ESSB 6610 will receive treatment necessary to alleviate their symptoms.  Instead, their symptoms are likely to worsen in prison facilities, frustrating the objectives of alleviating dangerousness and enhancing public safety.

Incarcerated Individuals With Severe Mental Illnesses Are Frequently Subjected to Punitive Sanctions That Exacerbate Their Symptoms.

Correctional staff often respond to inmates experiencing severe psychiatric symptoms in punitive ways that further exacerbate these symptoms.  Indeed, there is evidence that inmates with severe mental illnesses in Washington have far higher infraction rates than other inmates.  David Lovell and Ron Jemelka, When Inmates Misbehave: The Costs of Discipline, 76 The Prison Journal 165-179 (1996).  Often, the consequences for inmates with mental illnesses who deviate from the rules are dire – including placement in segregation units or solitary confinement, transfer to super-max facilities, or other forms of administrative segregation.  Jeffrey L. Metzner and Jamie Fellner, Solitary Confinement and Mental Illness in U. S. Prisons: A Challenge for Medical Ethics, 38(1) Journal of the American Academy of Psychiatry and the Law 104, 105 (2010). 

Inmates in segregation units are generally held 23 to 24 hours per day in their cells, with little chance for out-of -cell exercise or contact with others.  Administrative segregation presses “the outer bounds of what most humans can psychologically tolerate”, whether they have mental illnesses or notMadrid v. Gomez, 889 F.Supp. 1146, 1267 (N.D. Cal. 1995).  For inmates with severe mental illnesses, administrative segregation is “the mental equivalent of putting an asthmatic in a place with little air to breathe.” Id. at 1265.

ESSB 6610 Contains No Protections Against Abuse Of The Secretary’s Authority.

ESSB 6610 contains no protections for individuals subject to the transfer provisions.  Complete discretion is vested with the Secretary to determine who is to be transferred on the basis of being not manageable in the state hospital setting.  The law contains no guidelines for making this determination or procedures for carrying out such transfers.  The Secretary apparently may order transfer without a hearing, legal representation for the individual subject to the transfer, or opportunity for the individual to provide information about why he or she should not be transferred.  It is inconceivable that a law authorizing measures as extreme as ESSB 6610 would contain no due process protections.

Conclusion.

For these reasons, Petitioners’ request for Injunctive and Declaratory relief should be granted.

Respectfully submitted this 12th day of May, 2010.

MELODY D. FARANCE 

STAMPER RUBENS, P.S.

720 West Boone Avenue, Suite 200

Spokane, WA

509-326-4800

Attorney of record for Amici Curiae

 

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