Idaho keeps some psychiatric patients in prison, even though they haven’t been convicted of crimes

(ProPublica) — One night in March 1976, a young advocate for people with mental illness arrived at the Idaho Statehouse with a warning.

Marilyn Sword urged lawmakers not to ratify a system that would ultimately lock away some of Idaho’s most debilitated psychiatric patients in the tiny, concrete cells of a maximum security prison — a kind of solitary confinement with no trial, no conviction and often no charges.

Idaho didn’t have any psychiatric hospitals secure enough for patients whose break with reality made them lash out in fear, anger or confusion. What it did have was a maximum security prison.

Sword said putting prison officials in charge, as lawmakers were contemplating, could violate the civil rights of patients committed by the court for hospitalization. She said it would burden them with “the double stigma of being mentally ill and then being placed in a maximum security unit at the penitentiary,” minutes of the meeting show.

Idaho leaders plunged forward with the legislation anyway.

In the five decades since, Idaho has continued to ignore warnings over and over that its law fails mental health patients by sending them to a cell block, ProPublica found in a review of legislative records and news clips.

“I think it’s really tragic that it has been this many years, and we’re still at this point,” Sword, now 77, said in an interview this summer.

Governors, lawmakers and state officials have been put on notice at least 14 times since 1954 that Idaho needs a secure mental health unit that is not in a prison.

They also have been told publicly at least eight times since 1974 that Idaho may be violating people’s civil rights by locking them away without a conviction, and that the state could be sued for it.

The most recent warning came this year, when Idaho’s corrections and health and welfare directors wrote that the practice was a problem “not only because of our lack of appropriate levels of care for this population but because the treatment violates the patients’ civil rights.”

Idaho will soon be the last state to legally sanction the practice of imprisoning patients who are “dangerously mentally ill,” to use Idaho’s parlance, but who are not criminals. New Hampshire is phasing it out.

State leaders repeatedly have defended Idaho’s approach — in 1977, 2007 and 2017 — as a temporary measure while the state worked on a standalone clinical unit or a permanent secure wing in a hospital. Those facilities never materialized.

At the start of this year, the Legislature refused to use any of Idaho’s $1.4 billion surplus to build a $24 million mental health facility for patients, opting to continue holding them without charges at the state’s maximum security prison south of Boise.

In placing patients who have not been charged with crimes in prison instead of in a treatment facility, Idaho is at odds with the U.S. Substance Abuse and Mental Health Services Administration. Holding prisoners with mental illness in prolonged seclusion also goes against recommendations of the American Psychiatric Association, the American College of Correctional Physicians, federal courts and the United Nations.

ProPublica and Mississippi Today have reported on a related issue recently: how Mississippi keeps hundreds of people with mental illness in county jails as they await appropriate hospital beds.

Idaho’s practice touches far fewer people and typically addresses more extreme behaviors. But it also stands apart because the Idaho patients are locked up longer — an average of 110 to 160 days in recent years — and in solitary confinement, in a maximum security facility, under a program fully endorsed in Idaho statute.

Joe Stegner, a former Republican leader, helped bring Idaho closer than ever toward building a hospital to replace the cell block in 2007 and 2008. Yet the project he championed was no match for Idaho’s inertia and austerity.

The defeat helped seal his retirement from politics.

“I started thinking, ‘You know, if you can’t have some wins in the Legislature, why are you kicking yourself around?’” Stegner, who served as a senator, said in an interview this summer.

“I set out to make a difference,” he said.

‘The damned and the forgotten’

“The mental equivalent of putting an asthmatic in a place with little air.”

Two men sat in the Idaho Maximum Security Institution’s C Block near Boise on a recent day, neither of them convicted or charged in a crime.

The cell block was silent. An occasional face peered through a cell-door window the size of a computer keyboard. Inside each cell, another tiny window offered a view of razor wire, floodlights and rocks on the prison grounds.

About a half-dozen civilly committed psychiatric patients a year are housed here and at a women’s prison in eastern Idaho under the Idaho Security Medical Program, state data shows.

The men share a block of nine cells with patients facing criminal charges and needing treatment before they can stand trial. Occasionally, a convicted felon with mental illness joins the mix. The women’s prison has one isolated cell.

Patients who end up here have conditions that can trick them into believing strangers are aliens who must be destroyed, or that the phlebotomist drawing their blood is implanting something in their arm, or that a nurse intends to infect them with a lethal virus. They react with violence.

A part-time psychiatrist, a part-time nurse practitioner and a dozen full-time staff members are expected to bring the patients back from shattered realities.

Civilly committed patients with the most severe symptoms spend as much as 23 to 24 hours a day confined to cells the size of a parking space.

Confinement can become necessary because it takes time to find effective medications that stabilize a patient before cognitive and behavioral therapies can begin, corrections spokesperson Jeff Ray said in an email. Until then, he said, “it is in the patient’s best interest they be kept safely in their cell, so they do not hurt themselves or others.”

Every patient gets checked on at least twice an hour, according to the corrections department. They can leave to shower, handcuffed, shackled and accompanied by guards.

Patients who take their medications, follow the rules and remain calm are allowed to spend time in the common area. There, they can watch television, use a microwave or sit in caged-in phone booths to make calls and send email on a terminal designed for prisoners. There are metal “restraint desks,” designed for shackling a person ’s ankles, bolted to the floor.

“There’s no color. There’s no nice pictures. There’s no couches,” said Kacey Abercrombie, a statewide coordinator for the Idaho Department of Health and Welfare, whose job includes regular in-person visits to these patients at the prison.

“It is prison,” Abercrombie told a roomful of attorneys and judges at a July Idaho State Bar meeting. “And when you think about this population in that setting, it is probably dawning on you how wild this is.”

The men spend hours peeling paint from the walls of their cells, a habit so universal that prison workers debate whether it makes sense to repaint between patients.

“We try to do what we can with what we’re given,” said Mallory Logan, a prison social worker who works with civilly committed patients. But she said her unit can’t match the resources of a true forensic hospital.

Prison employees keep an imaginary barrier between convicted inmates who are in C Block for mental health care and the other patients with no convictions or charges.

There’s a “C” taped to the door of “civil” patients, a reminder that the person inside is not there as punishment. Signs around C Block remind staff members not to let the “civils” commingle with the inmates when they’re out of their cells.

Little else separates patients. They are guarded, medicated and fed by the same prison employees. They have the same rules and reward systems that can allow them to have a radio or buy candy from the commissary.

Like many other states, Idaho can hospitalize people against their will under a court-ordered involuntary mental health commitment. At least two professionals must agree that such patients are likely to injure themselves or others or are “gravely disabled” due to mental illness.

If patients lash out — maybe punching or threatening to kill hospital workers — Idaho’s law says the state can ask the court to declare them “dangerously mentally ill” so they can be moved to a maximum security facility.

The typical patient isn’t a character who “really tugs on your heartstrings,” says Walter Campbell, chief psychologist for the Idaho Department of Correction.

“These are the damned and the forgotten,” he says.

Idaho is one of two states known to put people with mental illness in a prison without a criminal charge. The other, New Hampshire, just broke ground on a 24-bed secure mental health facility that will allow the state to end the practice — but not before a patient died last spring.

Psychiatrists and legal scholars commissioned by SAMHSA, the federal government’s main mental health agency, say it shouldn’t happen, period. In a 2019 report prepared for the agency that describes “principles for law and practice” in treating mental illness, the authors wrote, “Unless already incarcerated for a criminal offense, or facing criminal charges … no person who has been committed should be placed in a correctional facility for treatment services.”

One former patient’s mother provided ProPublica with copies of her son’s medical records and documentation of 15 uses of force on him during his stays in the Idaho Security Medical Program while under civil commitment. ProPublica is not naming the 38-year-old man to protect his privacy.

The records show that he was alone in his cell for days on end, aside from showers and short check-ins from staff. He didn’t always take his medications as required under his court-ordered commitment, so officers were called to hold him down for the drugs to be injected. Once, they fired pepper spray through a hatch in the cell door before entering.

His mother said she believes his confinement in a prison cell made it harder for him to recover. It was months before he was released last June to a state psychiatric hospital, where he remains.

The number of times force was used on the patient is unusually high, according to Ray, the prisons spokesperson.

“This is an extreme case which is not representative of the typical patient’s experience,” Ray said, adding that the use of pepper spray “is rare but on some occasions necessary.”

While acknowledging that prison is not the most therapeutic environment for people with severe mental illness, Ray described corrections officers assigned to the unit as “carefully selected, specially trained and expected to consistently meet high performance standards.”

“They are some of the best correctional professionals in our department,” he said.

According to psychiatrists and researchers, forced solitude can exacerbate conditions for people with profound mental illness, making them lash out more.

“Solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinically distressing as physical torture,” Jeffrey L. Metzner and Jamie Fellner wrote in 2010 in The Journal of the American Academy of Psychiatry and the Law.

It is “the mental equivalent of putting an asthmatic in a place with little air,” according to a ruling by the 9th U.S. Circuit Court of Appeals, which covers Idaho.

Legal experts said Idaho is on shaky legal footing with its practice.

When told about Idaho’s system by ProPublica, David Fathi, director of the American Civil Liberties Union National Prison Project, called it “shocking beyond belief” and a likely violation of patients’ constitutional rights.

“I think the state has considerable exposure here,” Fathi said, “and I would urge them to discontinue this practice before they get sued over it.”

Megan Schuller, legal director for the Judge David L. Bazelon Center for Mental Health Law, said Idaho may also be violating the Americans with Disabilities Act and should invest in community-based care that keeps people from needing a secure facility.

“The bottom line is, you’re imprisoning people for having a mental health condition — for the manifestations of that condition,” Schuller said. “And that is just absolutely not equal treatment to how we treat any other type of health condition or even mental disability.”

Decades of warnings

The idea of locking Idahoans with mental illness in a penitentiary was around as far back as 1954, when the Idaho Statesman reported that a county prosecutor had pressed for a place to incarcerate the “criminally insane.” At the same meeting where the prosecutor spoke, an influential Republican suggested putting the ward in the state prison. But Idaho’s health director argued a prison ward wasn’t appropriate; people with illnesses belonged in a hospital.

In the 1970s, a new generation of Idaho health and law enforcement officials offered an alternative. They would jointly operate a secure mental health facility, on the grounds of the new Idaho state corrections complex that was going up south of Boise.

The state health agency would provide psychiatric care, furniture, medical equipment and first aid; the state corrections agency would take care of security and room and board. The unit would house up to 17 patients including “persons considered mentally ill and dangerous” but who committed no crime.

Health and corrections leaders called it “a historical first” and “a new era” for Idaho. The Legislature approved, and the joint unit was open by 1972.

The collaboration quickly unraveled. In 1976, citing “numerous problems with management and operation,” the state prisons director pushed legislation that would give him full control over the unit.

Corrections officials were poised to start running the show, and critics were stunned.

Sword and other mental health advocates quoted in legislative records that year urged the state to keep a separation between civil patients and prisoners.

Marilyn Dorman, a regional behavioral health board chair, argued that mental health care decisions should not be made by corrections officials but by someone “who has the training in mental health and mental hygiene needed to best represent the patients.”

A supervisor at the psychiatric unit, Jeffrey Toothaker, was so outraged that he spoke out publicly against his boss, Idaho Health Director Milton Klein. In a letter to the editor of the Idaho Statesman, Toothaker said he found it “difficult to work with a good conscience for a department that has at its head a director that supports such a bill.”

Klein acknowledged to lawmakers that the arrangement wasn’t ideal. Without money to build a new secure psychiatric facility, he said, placing patients in the state pen was the best compromise available.

And that approach was designed to be temporary, authorized for only one year. In 1977, legislative minutes show, lawmakers said a secure unit for civilly committed patients would open in 1978 at Idaho’s State Hospital South, replacing the prison ward.

One senator said that while the U.S. Supreme Court might not look kindly upon placing civilly committed patients in prison, it would probably give Idaho a pass if a better solution was in the works.

It’s unclear what happened to construction at the hospital. But in 1979, a year after the ward was supposed to have opened, the Legislature made the civil commitment unit at the state penitentiary permanent.

It’s drawn criticism ever since.

A national mental health advocate in 1990 called the unit a “dumping ground” for those with severe mental illness. “Death Row is just down the hall,” said psychiatrist and mental health advocate E. Fuller Torrey, according to an Idaho Statesman article. “Their major crime is schizophrenia.”

The same year, a complaint from a disability rights organization drew a U.S. Department of Health and Human Services civil rights investigation, according to an Idaho Statesman report. The federal agency could find no documentation of the outcome when asked recently by ProPublica.

The state’s behavioral health administrator told lawmakers in 2006 that “Idaho desperately needs a secure psychiatric facility or facilities for these people” instead of prison.

None of the criticism seemed to make an impression. Only once since 1976 have Idaho’s political leaders been united in their desire to give patients the right treatment in the right place.

Stegner, the state senator, was among those leading the charge.

The hospital takes shape

Stegner ran his family’s grain-elevator business in north-central Idaho before jumping into politics. He ascended the Republican ranks to become the Senate assistant majority leader by the mid-2000s.

It struck Stegner as wrong when he learned Idaho was locking people with mental illness in prison without a conviction. In 2007, three decades after his predecessors assured people a new hospital wing for civilly committed patients was on its way, Stegner saw an opportunity to make it finally happen.

State mental health administrators who’d been making a renewed push to build a secure facility had fully scoped it out.

The building would house 300 beds for patients committed to the state as a result of their mental illness, as well as convicted criminals with severe mental illness and violent behaviors. The two groups would be kept in separate areas.

Stegner persuaded fellow lawmakers to set aside $3 million to design the facility. Construction was estimated at $70 million — roughly $101 million in today’s dollars.

Stegner still remembers driving out to the dusty sagebrush-covered land south of Boise to choose the site where the building would go: “a little low draw” behind a hill that would keep the prison out of view from the new psych unit.

State officials toured high-security psychiatric facilities in California, Kansas and Missouri.

Gov. C.L. “Butch” Otter put the project in his budget for the following year and highlighted it in his January 2008 State of the State address.

The House and Senate voted to allow bonds for the project, noting the demonstrated need for a standalone treatment facility.

Several legislators signed a resolution saying people placed in civil commitment and not serving a criminal sentence “should not be housed in correctional facilities.”

Stegner could see a future where Idahoans whose psychiatric diseases made them lash out would have a place to be safely treated. There was political support for it. There was money. There was even an architectural rendering.

And then nothing.

The governor’s office dropped its support, Stegner said.

Otter told ProPublica the plan stalled because of bureaucratic disputes over where to build the facility and, later, because of the 2008 financial crisis. “We all agreed we needed it,” he said of the new mental health facility, but there wasn’t enough money to go around. “And we all agreed we didn’t want to raise taxes,” he said.

Stegner believes one factor made it easier to kill the project. A year before, acting on a proposal from the Otter administration, legislators had tweaked wording in Idaho’s law governing the mental health unit to put corrections officials on firmer ground in the event of a lawsuit. It may have lessened the urgency to build a hospital.

“That was really a crushing defeat for me — one that changed my attitude about remaining in the Legislature, and one that is one of my biggest regrets in my legislative career,” Stegner told ProPublica.

Idaho officials went on to back away from or block the development of a mental health facility two more times.

Most recently, legislators this year failed to take up Gov. Brad Little’s proposal to use a fraction of Idaho’s record-breaking budget surplus to build a 26-bed facility on state land near the state prison.

One additional expense lawmakers did tack on to the budget: $750,000 to enable the execution of death row inmates by firing squad.

The next opening

Stegner and Sword, the activist who testified against imprisoning civilly committed patients in the 1970s, are looking to Little again in 2024. The governor made mental health care a focus of his administration when he took office in 2019. After getting nowhere on his proposal for a new secure facility this year, Little has signaled he plans to try again.

Based on a request from his administration, the state’s building advisory council gave its blessing Nov. 14 to a $25 million facility. That could bolster Little’s chances of legislative approval. Little’s press secretary told ProPublica the governor sees the building as “a critical part of our state’s behavioral health infrastructure.”

The Department of Health and Welfare would provide the mental health care for patients there. The Department of Correction would provide security. They would operate the facility together, and patients would no longer be held in prison cells.

It would be, by and large, just as state lawmakers envisioned more than 50 years ago.

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