Balkinization  

Saturday, April 26, 2008

A Million People Sentenced to Madness?

David Luban

Salim Hamdan’s lawyers argue that his prolonged isolation in Guantánamo has driven him out of his mind, according to this news story:


His defense team says he is suicidal, hears voices, has flashbacks, talks to himself and says the restrictions of Guantánamo "boil his mind."

"He will shout at us," said his military defense lawyer, Lt. Cmdr. Brian L. Mizer. "He will bang his fists on the table."

His lawyers have asked a military judge to stop his case until Mr. Hamdan is placed in less restrictive conditions at Guantánamo, saying he cannot get a fair trial if he cannot focus on defending himself. The judge is to hear arguments as soon as Monday on whether he has the power to consider the claim.
The government denies it, partly by arguing that terrorists are manipulating their gullible defense lawyers with lies, partly with a little dose of Newspeak: “Guantánamo, a military spokeswoman said, does not have solitary confinement, only ‘single-occupancy cells.’” Well, that’s a relief! And maybe waterboarding is really “extreme surfing.” But then comes an even more amazing argument:

In response to questions, Cmdr. Pauline A. Storum, the spokeswoman for Guantánamo, asserted that detainees were much healthier psychologically than the population in American prisons. Commander Storum said about 10 percent could be found mentally ill, compared, she said with data showing that more than half of inmates in American correctional institutions had mental health problems.

Hey, what are they complaining about? We've only driven 10% of them insane; in civilian prisons we drive 50% of the inmates insane.

U.S. prisons have 2.3 million inmates - - see Adam Liptak's recent column here. If Cmdr. Storum is right, that means more than a million people driven into madness or near-madness in the grotesquely-named "corrections system." Perhaps a lot of those inmates had some form of mental illness before they went to prison. But even on the wild assumption that half of them did, it still means that our prison system is driving half a million inmates into mental illness. Under any reasonable definition, that should count as one of the world’s major human rights disasters. We would surely call it that if half a million people emerged from prison with tuberculosis that they didn’t have when they entered.

My colleague James Forman has several times remarked that virtually everything wrong with Guantánamo is wrong on a far greater scale in the domestic criminal justice system. That doesn’t mean that outrage about Guantánamo should be any less – but it certainly means that we ought to be equally outraged about a Madness Archipelago that drives hundreds of thousands of inmates insane.


Comments:

You mean, we should complain when Democratic Attorneys General make jokes about prison rape? Somehow I don't think that's going to be the legal academy's next crusade.
 

"If Cmdr. Storum is right, that means more than a million people driven into madness or near-madness in the grotesquely-named "corrections system.""

The alternative, and rather conspicuous to my mind, interpretation is that those people were mad before they were imprisoned, a hypothesis which is quite plausible in light of this graph.

Oh, and I also think there's an obvious difference between solitary confinement and single occupancy cells: In the former you can neither see nor speak to others, in the latter you merely can't touch others. I recall hearing that the cell walls at Guantanamo are fences, not walls.
 

Moussaoui and Padilla already tried this tactic and did not get very far. I suppose we can expect that this will be SOP for the other war crimes defendants in an attempt to gum up the process. The military might as well have their psychs preemptively examine every war crimes defendant to head off these claims.

As for the observation that half of civilian convicts have mental health problems, why is this surprising?

Mental health problems range from simple depression to complete psychosis. I am surprised the number who suffer from some measure of clinical depression in prison would not be higher.

Moreover, criminals come into the system with far more than their share of mental illness. I would be very surprised if terrorists had a lesser rate of mental illness. Well adjusted people do not naturally gravitate toward crime in general or terrorist mass murder in particular.

However, the issue here is not simple mental illness but rather insanity. Hamdan's pleadings demonstrate that he is acting out, not that he is insane. These pleas fail nearly all of the time in civilian court. I doubt a military tribunal will be more willing to entertain them.
 

I find it extremely implausible that the inmates who have developed mental illnesses as a result of the prison environment have been driven to "madness or near-madness"—i.e., psychotic disorders like schizophrenia. Anxiety disorders, personality disorders, and depression seem like far more likely responses to the prison environment.

If you're simply equating mental illness with "madness or near-madness" you are completely ignorant of what mental illness is. At best.
 

It sounds like defense lawyers are lying. Surprise, surprise.
 

wow... i don't think i have ever come across a single blog that points out how low we have fallen than this. a post which mentions as a proposition that our national corrections system results in approximately fifty percent of the populaion developing some form of mental illness, and the first five responses represent some form of "so what, who cares". what is the matter with you people?
 

"No, it doesn't." is not some form of "So what, who cares?" There is much I don't like, even despise, about our penal system; The outrageous casual acceptance of prison rape, and other forms of assault. The simple fact that we're imprisoning people for 'offenses' which are none of the government's business to begin with.

But our prison system driving a large fraction of inmates nuts is not one of them. This has the causality backwards: They're there because they're too nuts to refrain from crime.
 

Various differences between our domestic prison system and Gitmo. There is more interaction with the outside, people close to you, lawyers, the justice system and often more of a chance to get out a lot sooner. And, probably more clearly guilty people.

Defining exactly what is occurring is tricky, but the human animal breaks down after awhile under certain conditions. This is the POINT to certain techniques used by the gov't. Confine a perfectly 'normal' person in these conditions, yes, it will cause great damage.

It is not just because they are crazy when they go in, though I'm sure there is some disproportionate numbers involved. Given Brett thinks many of our "crimes" are unjust, the fact they are "nuts" to the degree of breaking the law isn't really too nuts, huh? For instance, use of drugs many use w/o any difficulty.

But, some still suggest they are just "lying." Such people are lying to themselves.
 

You can end up in prison because you're too 'nuts' to refrain from crime, or resort to it because you're too 'nuts' to hold down a legal job, or because you're too 'nuts' to avoid detection. Either way, that a very large proportion of criminals are mentally ill or otherwise mentally compromised is well established, and not a recent development. In fact, it's so widely understood, I have a difficult believing David wasn't aware of this when he wrote this essay.

I frankly would not be surprised if a mere 10% of terrorists really were nutcases to begin with. It wouldn't make them much less sane on average than the general population...
 

I wonder how some of the commenters to this post might comment if the subject were white collar criminals, including corporate executives, attorneys, CPAs and other professionals, about doing the crime even if they get no or little jail time. Are these white collar criminals nuts? How many of them might have been nuts to begin with?
 

"Are these white collar criminals nuts?"

Sure. A lot of white collar criminals are high achieving sociopaths. That counts as "nuts", doesn't it?
 

I don't think Hamdan is crazy. I think Hamdan wants to avoid losing at trial. I think his defense attorneys are helping their client.
 

Both Brett and Bart de Palma point out that we should expect a large number of prison inmates to be mentally disturbed, because mentally disturbed people are more likely to commit crimes. I agree, and said so in the original post (without adding their explanation), where I was willing to concede for the sake of argument that half the inmates had mental health problems prior to imprisonment. That still leaves hundreds of thousands of inmates developing mental health problems while in prison. (The Liptak article I linked to states that 500,000 inmates are in prison for drug-related crimes. The drug trade is a business run largely by rational economic actors. There is no reason to suppose that a large number of people deal drugs because of personality disorders or other mental health problems.)

Brett: I have no idea what the graph you linked to is supposed to show. It shows us a rate of imprisonment that was more or less flat (150 inmates per 100,000 adults) from the mid-1930s until the beginning of the war on drugs, at which point it began to climb steeply to 600 inmates per 100,000 adults in the year 2000 – just what one would expect. And it shows a rate of residence in mental hospitals that began dropping in the early 1960s and has kept dropping ever since, to what looks like about 20 per 100,000 adults. That too is what we would expect, as a result of deinstitutionalization and better meds which permit more people to function outside mental hospitals. (The Community Mental Health Act passed in 1963, and deinstitutionalization has been the reigning mental health ideology ever since.) Unless I’m missing something, the two graphs don’t have anything to do with each other, and they certainly don’t show any correlation between mental illness and crime. I think you goofed and compared the imprisonment graph with the third graph (the solid line), and noticed they nearly coincide. Of course they do: the third graph is the sum of the other two. As the number of prisoners shot up, and the number of people in mental hospitals diminished to 3% of the number of prisoners, the sum of the two necessarily approximates the number of prisoners. That’s not a correlation between crime and mental illness; that’s arithmetic.

Elliott: You’re right that “madness or near-madness” was literary overkill. I’m perfectly well aware that anxiety disorders and depression aren’t schizophrenia. But they are often very severe conditions – and I don’t think that “near-madness” is too much of an exaggeration – of their suffering, of how incapacitating the conditions are, or even of the fact that people with these conditions often behave very strangely.
 

Small correction to my last comment: The (prisoner + mental hospital) graph more or less coincides with the prisoner graph in recent years; before the 1960s, it nearly coincided with the mental hospital graph, because at that time the number of people in mental hospitals was far greater than the number of inmates.
 

Prof. Luban,

The problem isn't your correlation/causation mix-up, but rather that there is absolutely no proof that Hamdan is in fact being driven batty, mad, nutty, or crazy by the conditions at Guantanamo; those are simply claims made by his defense attorneys to have his trial put off. Presuming Hamdan innocent before being proven guilty is one thing; taking as Gospel the zealous advocacy of defense attorneys to the valets of terrorists is quite another.
 

there is absolutely no proof that Hamdan is in fact being driven batty, mad, nutty, or crazy by the conditions at Guantanamo

I'm tired of hearing this. What would constitute undeniable proof?
 

What would constitute undeniable proof?

Let's start with an independent doctor's evaluation. More than defense attorney claims, would be a start.
 

Can the defense attorneys have qualified doctors examine their clients for expert opinion and testimony purposes? Or do the special rules thwart the defense attorneys in preparing their clients' cases?
 

Let's start with an independent doctor's evaluation. More than defense attorney claims, would be a start.

Right, so I suppose Emily Keram's examinations don't count because she was hired by the defense.
 

Prof. Luban:

Hey, what are they complaining about? We've only driven 10% of them insane; in civilian prisons we drive 50% of the inmates insane.

CUm hoc ergo prompter hoc.

There's a resonable case to be made that, in the U.S., people end up convicted of crimes, in prison (at least in part) because they have mental problems.

OTOH, in Guantánamo, there's a resonable argument to be made that they're there because we were handing out big money bounties for warm bodies....

Cheers,
 

Dr. "Bart" DePalma diagnoses from the videotape:

Hamdan's pleadings demonstrate that he is acting out, not that he is insane.

Cheers,
 

Mortimer Brezny:

It sounds like defense lawyers are lying. Surprise, surprise.

Well, of course they are. They're defending Islamo-fasci... -- oh, sorry, forgot the latest 'talking points memo', "violent extremists". Of course anything they say must be a lie.

Cheers,
 

Prof. Luban:

There is no reason to suppose that a large number of people deal drugs because of personality disorders or other mental health problems.

There is more that anecdotal evidence to suggest that people get involved with drugs in part as "self-medication"....

The drug trade is a business run largely by rational economic actors.

Your evidence for this? And being "run [] by rational economic actors" doesn't mean that the vast majority of those incarcerated are such.

Cheers,
 

The topic is important and needs much airing and discussion. However, there is a lack of a health care provider perspective to explain and provide definitions of mental illness, insanity (legal and medical definitions), and causative factors versus relational factors.

Several points to keep in mind about the incarceration people with mental illness: over 50% of ALL inpatient psychiatric care is delivered in prisons in the US. Most often, people with acute symptoms of mental illness are unable to access appropriate mental health services in the right setting in a timely manner unless they are so wealthy that they can pay full cost out of pocket and access private resources. Quite often, families call police over their concerns for the suffering person's safety and welfare. Without appropriate healthcare providers and services to access, police take them into custody and often charge them with crimes such as disorderly conduct so that they will be in a supposed supervised safe place. Judges quite often remand people who should be receiving health care services instead into the prison system so that they can access some sort of health care and possibly medication administration monitoring. For those of you on the legal side, please speak to the mental health courts and their functions.

Add to that the people who are incarcerated with concomitant substance abuse and addictions, and that percentage of the overall prison population soars to around 75%.

We have effectively criminalized, permanently stigmatized and ostracized those with mental illnesses by defunding and withdrawing resources from mental health services and infrastructure while discarding the most vulnerable into the prison system where they are out of sight and out of mind.

I used to blog about it and related issues - link here
 

N=1: Thanks for your comment - I didn't know this stuff. A couple of questions: First, is the fact that more than 50% of in-patient mental health care is delivered in prisons simply a product of the fact that there has been such a drop of in-patient care nationwide, and prisoners are automatically in-patients? Or does it mean that in absolute terms there are a hugely disproportionate number of people with mental health problems in prison? Second, do you have any idea how many people are in prison because they were sent there to receive treatment? (That seems to be illegal in the federal prisons: Congress has declared “the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed ...medical care....” 28 U.S.C. §944(k).)
 

In response to the criticism my comments have received, my answer is: Yes, more is necessary.

1. The doctor who evaluates Hamdan should evaluate him for an extended period of time.

2. Be hired by an independent organization, rather than his defense attorneys, like the International Red Cross.

3. Should produce a real medical report, rather than simply submit a lawyer-drafted affidavit.

4. Should be able to show a causal link between the symptoms observed and the conditions at Gitmo, rather than pre-existing conditions or other sources.

5. Actual documentation that shows that single-cell occupancy is in fact solitary confinement. A cell without a cohabitant is different than cell without a window, a drain instead of a toilet, and no bed.

The affidavit is weakest at points 4 and 5. Hamdan may have those symptoms for other reasons. For example, Hamdan may have always had a bad memory. Or may have PTSD because of terrorist acts he has seen his al-Qaeda brethren commit.
 

Of course anything they say must be a lie.

I take it you are not a defense attorney.
 

Is there a suggestion that the legal advocacy system does not function well for determining legal madness? Should the medical experts be limited to those hired by an independent organization? Who determines the appropriate independent organization and who pays its expenses? And how can the independent medical expert's opinion/testimony be challenged? Would due process (assuming it applies) then revert to the traditional legal adversary system? Or should there be a system like arbitration that often turns out not to be so independent, as with the securities industry?

The problem here is that the Bush Administration fears the results that might flow from the traditional legal adversary system. To update Willie Shakespeare "First, let's neuter the defense lawyers." (A next step might be to treat DUI cases outside the traditional legal advocacy system, starting in Colorado.)
 

Professor Luban wrote:

"....is the fact that more than 50% of in-patient mental health care is delivered in prisons simply a product of the fact that there has been such a drop of in-patient care nationwide, and prisoners are automatically in-patients?"

I'm looking for the figure -ah - here it is, but I believe that about 65% of all national inpatient adult psychiatric beds have been closed across acute care hospitals due to their cost or operation versus the abysmally low to zero reimbursement rates (if any).

"According to data cited in The Shortage of Hospital Beds for Mentally Ill Persons, in 1955 there were 340 public psychiatric beds available per 100,000 U.S. citizens. By 2005, the number plummeted to a staggering 17 beds per 100,000 persons."

"To determine a minimum number of beds needed, a consensus of experts involved in the study looked at specific criteria such as number of individuals who need hospitalization, length of hospital stay, and current state and federal financing structures. They also were asked to assume that effective community based services and assisted outpatient treatment (AOT) programs are available in all 50 states. Using these criteria, the panel concluded that 50 public psychiatric beds per 100,000 individuals is the absolute minimum number required to meet current needs. Eight states still don’t have AOT and many states are in need of additional community mental health services, making 50 public psychiatric beds per 100,000 people a minimum requirement."

This was one of the driving forces in the recent Mental Health Parity Bill. Anecdotally, it is nigh unto impossible to find a bed for patient who does not have private health insurance, and only them if the patient meets medical clearance guidelines and very narrow admission acceptance symptom criteria. For the violent, unstable, medically fragile patient - it's usually a prolonged stay in a stripped holding bay in an understaffed and overcrowded emergency department until Haldol or other potent injectable antipsychotic drugs take effect, and then discharge - most times to the street and without follow-up care or access to care.

"Or does it mean that in absolute terms there are a hugely disproportionate number of people with mental health problems in prison?"

Yes, and the link to a former post outlines this in more detail. There is also a NYT op-ed with graphic which illustrates the extreme rise in the prison population with the concomitant extreme decline in inpatient psychiatric admissions.

"Second, do you have any idea how many people are in prison because they were sent there to receive treatment?" (That seems to be illegal in the federal prisons: Congress has declared “the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed ...medical care....” 28 U.S.C. §944(k).)

The graphic gives a rough estimate of that, but this link provides evidence from the psychiatric literature, and this link is from the DOJ study, Mental Health Problems of Prison and Jail Inmates.

Thanks very much for your interest, Prof. Luban.
 

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