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Sight and Sound Separation: PREA Compliance Harms Juveniles in Adult Facilities

Solitary confinement, or the practice of isolating incarcerated people in a cell for up to 23 hours a day, is a controversial practice often reserved for punishing the bad behavior of adult inmates. Both psychologically and emotionally damaging, the research on solitary confinement as an effective disciplinary measure is limited. Its usage is especially dangerous for juveniles and has been prohibited in many states. So why does this practice persist despite the risk of permanent damage to the developing adolescent brain?

The answer is complicated. In states lacking policies that prevent minors from being sentenced to adult facilities, juveniles can be housed with adult inmates and are often immediately victimized upon entry. Youth incarcerated under these conditions are more likely than any other subset of the American prison population to suffer sexual violence. Incarcerated youth are also 36 times more likely to commit suicide than youth housed separately from adult populations.

Considering these statistics, in 2003, Congress passed the Prison Rape Elimination Act that aimed to curb instances of sexual assault in all correctional facilities. It took the Department of Justice nine years to approve and begin implementing the standards established by the National Prison Rape Elimination Commission. The PREA contains a provision requiring “sight and sound separation,” or mandatory segregation of inmates under the age of 18 from older prisoners. While this provision can be satisfied by measures such as constant supervision or preventing minors from sharing cells with adults, it sometimes manifests in isolation as a penalty for minors, which is not wholly prohibited.

The Justice for All Reauthorization Act of 2016 imposed a six-year deadline on states to fully comply with PREA standards. Faced with the option of either losing federal grant funding or exhausting the designated prison funding they receive from the Department of Justice for alternative-compliance efforts, some facilities subject youth to solitary confinement instead. The majority of the youth detainees, already deprived of the beneficial rehabilitative programming they likely would receive at a youth facility, are non-violent offenders.

Amid the debate over the constitutionality of solitary confinement, then-President Barack Obama announced a ban on the practice for juveniles in the federal prison system in 2016. As of January 2020, seventeen states as well as the District of Columbia limit or prohibit solitary confinement for minors. Other states would do well to follow suit. Not only is solitary a poor solution, but it makes incarcerated minors more likely to experience depression and anxiety, especially among those already suffering from trauma or mental illness at the time of conviction. Exacerbating the conditions that contribute to youth incarceration rates will worsen rates of recidivism.

This reality is particularly troubling for minors forced into solitary confinement for safety reasons rather than as a disciplinary measure. Solitary is categorized in two ways: disciplinary or administrative segregation. Administrative segregation is the inverse of what youths face; it is intended to isolate an inmate who is deemed to pose a threat to the rest of the population. Instead of using this safety measure to isolate predators, the potential victims are isolated instead. The effects of prolonged isolation pose physiological threats to juvenile development. The prefrontal cortex, the area of the brain primarily responsible for impulse control and decision-making, is still developing while these minors are in isolated lock-up. The cognitive disturbances, psychosis, and sleep deprivation (which can all accompany solitary confinement) may permanently inhibit these brain functions in incarcerated youth. When the mental health needs of minors are not being met in adult facilities, hope for rehabilitation is significantly reduced.

Sexual violence against minors in adult facilities must be addressed through comprehensive reform and preventative measures. However, isolating juveniles in solitary confinement is not an acceptable way to achieve PREA compliance. In fact, due to the health risks associated with this practice, it may be just as dangerous as housing minors and adults together. One productive solution to this problem would be taking precautions around adolescent brain malleability, such as assessing evidence which supports the benefits of raising the age of criminal responsibility. 

If we operate a separate legal system for minors in this country, why are we undermining it by allowing them to end up in the same place as adult offenders?

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Misadventures in health reporting: Coronavirus 2020

Since the beginning of 2020, the Centers for Disease Control Prevention (CDC) has been mounting a response to a respiratory disease, that, at present, has been declared a public health emergency in 80 countries, including the US. The SAR-CoV-2 virus, also known as the Coronavirus (COVID-19), has elicited the concern and attention of public health authorities, the healthcare community, and the public-at-large. As the Coronavirus continues to grow globally and begins to emerge through cases in parts of the US, the greatest dilemma is who and what to believe. Social media has exploded over the recent conflicts in reporting between leaders in government and public health officials.

Americans should be concerned about the credibility and timeliness of reporting as this emergency continues to trend in the news. Here are some tips for those of you want to know if Coronavirus is happening the way it’s being reported.

  • Consider the source. There are many internet and social media outlets reporting on every facet of news, so it is easy to be compelled by a flashy headline or a credible name reference. An agency like the CDC and organizations such as the World Health Organization (WHO) are tasked with protecting the health of the public nationally and globally, and in many ways are responsible for the preparedness of their respective officials and effectiveness of subsequent responses at every level. Specifically, the CDC, in collaboration with the WHO, confirmed COVID-19 emerged as a virus spread by person-to-person contact—and was first detected in travelers from the Wuhan Province of China.
  • Remember news changes rapidly. Try not to get hung up on the evening news or trending social media updates about the virus, because these are likely to change within hours (sometimes minutes). Since January 21, the WHO released 42 “situation reports” on the Coronavirus, providing the most up-to-date and accurate developments concerning the virus. The purpose of these reports is to monitor the number of  confirmed cases and deaths globally, and to provide the public with routine updates on the WHO’s efforts to deliver supplies to support the global response to the Coronavirus. Similarly, the CDC continues to provide health notices to debunk the fear and stigma around the origin of the virus and the severity of the risk of its spread. Ultimately, you should expect to see changes in travel patterns, stories about the increased use of protective gear, and local and state officials making regular statements to the public.
  • At a White House Press Conference last month, Vice President Mike Pence made a statement on the impact of Coronavirus in America. Pence reported the risk to Americans as “low” while the incidence of Coronavirus grows in different regions of the country. Pence also assured Americans that the administration rolled out a new Coronavirus Taskforce to streamline information to the public and coordinate efforts with partnering countries to track the progress of the global response. Nonetheless, CNN reports that the CDC urges Americans to prepare themselves for the worst. The report goes on to suggest how daily life will change in the face of a Coronavirus epidemic. CNN reports an uncertain future based on conflicting remarks during the White House Press Conference.
  • Observe standard precautions. While the risk remains low, Americans are planning for the worst. California has declared a state of emergency after a recent Coronavirus-related death. Moreover, NBC News reports that President Trump signed an $8 billion spending package for CA to use in wake of the virus outbreak. To date, states affected by the virus have begun rolling out guidelines for treatment and possible quarantine of patients as new cases emerge. For instance, local health authorities in New York have implemented screening procedures for citizens returning to the US from countries affected by Coronavirus. Other states continue to publish statements of their efforts to prevent the transmission and spread of the Coronavirus through universities and schools in various communities.

What should be taken from the CDC and other state and local health authorities is that you should observe standard precautions, which can reduce the transmission of the virus. Health.gov posted a simple statement about preventing human-to-human spread of the virus by suggesting washing hands, covering mouths, and staying home if you’re sick. In the wake of uncertainty of the trajectory of the virus, Americans can be certain that our coverage of and reporting on the Coronavirus will be driven by how the administration, health authorities, and media want to frame the national and global response.

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Administrative Segregation in Mississippi Prisons

Since late December, the eighteenth inmate of Mississippi’s prison system died at Central Mississippi Correctional Facility in Rankin County, Mississippi. While this inmate had no obvious signs of injury on his body, most of the other deaths were the result of violence or suicide.

These deaths occur as the result of conditions that have been in place for some time in the state’s prison system. Reports of dehumanizing occurrences like murders, rapes, beatings, and torture often targeting inmates of racial minorities are not uncommon. Many prisons have open sewage, a polluted water supply, and kitchens with rodent and insect infestations.

Such conditions are inherently damaging to all inmates’ mental health, and even more so for inmates with a history of mental illness. Interestingly, in 2009, the ACLU identified the mental health program at Parchman Prison in Mississippi as the gold standard for prison-based mental health treatment. The program focused on administrative segregation, or solitary confinement. Prison guards typically use administrative segregation to punish inmates for violent or disruptive behavior.Inmates are isolated in their cells for twenty-three hours per day with only one hour outside the cell for exercise and a shower.

Parchman Prison’s program involved three parts: (1) identify inmates in administrative segregation who needed mental health treatment, (2) reward inmates in administrative segregation for good behavior by allowing them to return to the general population, and (3) create humane conditions in the general population to prevent the need for administrative segregation. The response to this program showed a decrease in violence and gang activity throughout the prison. The number of inmates in administrative segregation decreased by eighty percent.

This program is no longer in place in Parchman or any prison in Mississippi. One reason for the falling conditions may be due to a loss of funding. With inadequate funding, staffing and the maintenance of facilities becomes difficult.

Parchman Prison’s program was the result of heavy litigation by prisoners who challenged the administrative segregation classification and the lack of mental health services. Following various court orders, the population in administrative segregation was reduced and violence decreased. Mental health staff worked closely with custody staff to ensure that inmates with severe mental health issues were receiving appropriate treatment and an avenue to return to the general population. These programs were monitored by the federal courts until 2011.

In addition to violence within prisons, failing to provide adequate mental health treatment for inmates who need it will cost states more after releasing inmates, through recidivism and health care costs.

Overcrowding is another cause of violence in prisons. A Mississippi health inspector recently visited a Parchman Prison housing unit and declared it unsafe for habitation due to crumbling infrastructure and unsanitary conditions, meaning that 1,500 inmates needed to be moved to adequate cells. Currently, 625 inmates still need cells.

If Mississippi wants to prevent more deaths, then it must increase funding to provide sanitary and humane conditions and adequate mental health treatment for its inmates. Failing to do so will likely cause more housing unit condemnations, overcrowding, and violence.

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Addressing Native American Health Disparities

American Indians and Alaskan Natives continue to have worse health outcomes and a wide mortality disparity compared to the rest of the United States’ population. This includes higher rates of heart disease, cancer, diabetes, alcohol addiction, suicide, sexual assault and a life expectancy of five and a half years lower than all other racial and ethnic groups in the United States. Why is this, and what are the possible solutions policymakers are proposing to address these disparities?

Historical trauma through colonization and federal laws such as the Indian Removal Act led to generational trauma and contribute to present-day health disparities. The United States Commission on Civil Rights has attributed “the failure of the federal government to adequately address the wellbeing of Native Americans over the last two centuries” to these health disparities. These generational traumas are developed through continued suppression of indigenous cultures and a long-term lack of resources dedicated to addressing these disparities. The Indian Health Service, which is supposed to fulfill the United States’ treaty obligations to provide healthcare for American Indians and Alaskan Natives, is consistently underfunded. In 2013, only fifty-nine percent of the projected need for the Indian Health Service was funded, demonstrating a severe lack of priority for addressing Native American health disparities. The National Congress of American Indians has called on Congress to commit an additional $2 billion per year to address this funding gap.

The IHS needs to receive more funding, but also needs to diversify where services are provided. The majority of Native Americans live in urban areas because of federal government relocation policies following a history of colonialism. Native Americans in both urban and rural areas need access to IHS services, and the increase in funding can go to addressing the needs of these geographically separate populations. Increased funding is only one part of the solution—addressing mental health outcomes continues to be one of the most persistent problems among Native Americans and Alaskan Natives.

Solving this problem not only includes advocating for more mental health providers in traditionally underserved areas but also, as one study found, that “participation in traditional cultural activities” is associated with positive mental health outcomes. The United States can encourage positive mental health outcomes by respecting tribal sovereignty and recognizing traditional cultural practices. Tribal governments should be partners in addressing these disparities and respecting traditional cultural activities and sovereignty must be part of the solution. Tribal governments are leading the way with innovative solutions to bring low-cost and high-quality healthcare to their members. Partnering with state governments to create new and collaborative programs often combine the expertise of tribal governments with funding from programs like Medicaid and have the potential to lead the way in addressing these disparities.

Addressing these health disparities also calls for addressing the persistent issue of sexual violence and missing and murdered indigenous women. Even the IHS is facing allegations of sexual abuse that resulted in a civil suit. The first steps to address this issue include a presidential task force dedicated to studying and producing a report as the full-sight of the problem has yet to be understood. Additionally, Congresswoman Deb Haaland—one of the first Native American women elected to Congress—has introduced multiple bills to address this issue. These bills include the Not Invisible Act of 2019, the SURVIVE Act, the Justice for Native Survivors of Sexual Violence Act, and provisions to address sexual violence against Native women in the Violence Against Women Act reauthorization. While the federal government takes these important first steps, and leaders like Congresswoman Haaland introduce bills aimed at ending sexual violence against Native Americans, ending health disparities will take a coordinated and deliberate effort. Tribal, federal, and state governments must work as partners to draw down health disparities and coordinate their efforts to make sure long-term gains are addressed. It will take acknowledgment of historical trauma, new funding and innovation to ensure that Native Americans and Alaskan Natives receive the high-quality care that they are owed through historic

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Here We Go Again: The Return of Medicaid Block Grants

            Last month, the Trump Administration unveiled a new demonstration program that has the potential to dramatically overhaul the way Medicaid operates.  Currently, Medicaid is designed as a federal-state partnership in which the federal government matches the money a state spends to cover its Medicaid population. The new program, Healthy Adult Opportunity (HAO), would provide a route for states to receive a capped amount of federal dollars (i.e., a block grant) in exchange for fewer restrictions on determining who qualifies and what services are available to them. Seema Verma, the Administrator of the Centers for Medicare and Medicaid Services (CMS), celebrated this plan as an innovative approach to ensure the long-term financial sustainability of Medicaid. While Medicaid’s financial maintenance is an ever-present concern, HAO may reduce access to important healthcare services, create greater financial risk for states, and present significant legal barriers.

            Changing Medicaid’s financing scheme creates greater financial risks for states that pursue HAO. Medicaid’s current open-ended financing structure was designed to broaden states’ ability to provide healthcare coverage to their low-income residents by adjusting federal funding depending on the state’s level of need. For example, if a recession hits and Medicaid enrollment grows, federal funding would increase to cover most of the additional costs. However, states adopting the new approach must accept responsibility for costs higher than the caps. This change would shift financial risk to states, with federal funding cuts likely to occur when states have the least ability to accommodate them— such as during recessions, public health emergencies, and other instances when states must balance high demand for coverage and budgetary strain. The risk of hitting the funding caps would put pressure on states to control spending by cutting coverage.

            States that adopt HAO will likely face litigation. By offering funding through a capped fund scheme, the Trump Administration claims expansive authority to overturn explicit statutory requirements for Medicaid eligibility, cost sharing, and financing. The legal basis of HAO lies in the “expenditure authority” outlined in section 1115 of the Social Security Act. This section authorizes federal matching funds for expenditures not typically allowed under Medicaid, if these expenditures are needed to implement an experimental project likely to assist in promoting Medicaid’s objectives. However, two legal problems exist for this framework. First, the ability of block grants to promote the objectives of Medicaid, the legal standard for the authorization of these waivers, is unclear. The U.S. Court of Appeals for the D.C. Circuit recently affirmed that Medicaid’s main objective is to provide health coverage to low-income people, but block grants would incentivize coverage of fewer people. Second, the part of the Medicaid statute that governs its open-ended financing structure is not listed as a provision that is alterable through waiver.

            The heightened discretion offered by the demonstration program may reduce access to services and impact millions of people. To receive federal matching funds, states must provide core benefits (e.g. hospital services) to mandatory populations (e.g. low-income pregnant women) without imposing waitlists or enrollment caps. States may also receive matching funds to cover “optional” benefits, such as prescription drugs. Conversely, states that adopt HAO would receive broad, and in some instances unprecedented, authority to change benefits. The demonstration project encourages states to include the millions of low-income adults without children who obtained coverage through the Affordable Care Act’s Medicaid expansion under capped funds, which would likely negatively impact their ability to access health care. Moreover, states would also gain the ability to deny coverage for costly but necessary prescription drugs, including those for diabetes and cardiovascular conditions. Finally, states may impose new out-of-pocket costs for physician visits and prescription drugs on low-income enrollees. Cost sharing in Medicaid, even in the amount of a $1 copay, has been shown to deter people from accessing care.   

            The idea of capped funds to meet Medicaid’s financing challenges is far from new. Policymakers have discussed block grants for Medicaid since the Nixon Administration and as recently as the 2017 repeal-and-replace. In light of this history, the Trump Administration should consider why prior administrations and congresses have chosen not to take up this policy, as well as its potential to create financial risks, lead to litigation, and reduce access to healthcare for millions of low-income people.

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