In the United States, people with severe mental illness are three times more likely to be in a prison instead of a mental health institution. Forty percent of people with severe mental illness will also spend time in a jail, prison, or correctional facility. There are many people with mental health issues who are being punished, including being executed and kept in solitary confinement.
Even though people with intellectual disabilities may not be executed under the Eighth Amendment, the Supreme Court has held that people who are mentally ill may still be executed, including people will severe mental illnesses, and only that the insane may not be executed. The “insane” is defined as “those who are unaware of the punishment they are about to suffer and why they are to suffer it.” But the Court has also said that the Eighth Amendment requires prison officials to provide a system of ready access to adequate medical care, including mental health care. However, states have not always followed the Court’s guidance, particularly when it comes to solitary confinement and the death penalty. Between 2010 and 2017, twenty-six percent of prisoners who were executed had a history of mental illness or were treated with psychotropic medication. Currently, between five and ten percent of death row prisoners are estimated to be suffering from a mental illness.
In October 2018, Yale Law School issued a report that over 4,000 prisoners in solitary confinement have a mental illness. Solitary confinement can often exacerbate or even trigger a prisoner’s mental health issues. Prisoners are kept in total isolation for twenty-two hours per day for at least fifteen consecutive days. In New Mexico, for example, sixty-four percent of prisoners with mental health issues were kept in solitary confinement. Unfortunately, prisoners who are kept in solitary confinement often leave more mentally damaged than when they entered, and are less likely to successfully reenter society.
The prison system must change to help prisoners who have a history of mental illness, and not further criminalize them. Many states are considering legislation to end the practice of executing prisoners with a mental illness and there are other states that are ending or restricting solitary confinement. For instance, in the fall of 2017, Colorado established a procedure to immediately provide prisoners with treatment rather than place them in segregated lock-up.
Prisoners can also have difficulty obtaining treatment because their insurance may no longer cover their medications and they also do not have reliable access to therapy while in prison. Mental Health America made suggestions to improve mental health access for the incarcerated, including investing in mental health courts and creating systems of support for people who are incarcerated or recently released and who need access to a community-based service. States can also reevaluate Medicaid exclusions on prisoners, so prisoners can still obtain their medications and their mental health issues will not be exacerbated while incarcerated. Authors of an article in the American Journal of Public Health have additionally suggested providing telemedicine, integrated family counseling, and cognitive-behavioral therapies to complement medication and also reduce levels of reoffending. There also need to be better transitional plans for prisoners to reintegrate into the community and still obtain mental health treatment. Prisoners who received a professional diagnosis of a mental health disorder were seventy percent more likely to return to prison when they did not have any correctional intervention and treatment.
It may also be prudent to determine whether a new mental health standard should be established for prisoners who develop mental health issues while in prison. The Supreme Court will soon decide a case about the execution of a man who developed severe mental health issues will in prison, in which case there may be an answer soon.