SUMMARY OF CLOSING ARGUMENTS
I. Overview
The Plaintiffs are a class of approximately 3,000 inmates with serious mental illness imprisoned in the South Carolina Department of Corrections (SCDC). They, along with Protection and Advocacy for People With Disabilities, a South Carolina nonprofit organization, filed suit in June 2005. The suit alleges that SCDC's mental health system violates Article I § 15 of the South Carolina Constitution, which prohibits cruel and unusual punishment.
Plaintiffs' attorney Dan Westbrook of Nelson Mullins Riley & Scarborough argued at closing that the evidence presented at trial proved that SCDC's mental health system was constitutionally deficient in such areas as crisis intervention, solitary confinement, clinical staffing, record keeping, mental health screening, use of force, and medication administration. Westbrook further argued that SCDC knows of the deficiencies and has failed to correct them.
SCDC attorney Andrew Lindemann of Davidson & Lindemann argued that the court should dismiss the case on a variety of legal grounds, including lack of standing and the separation of powers doctrine. Lindemann also argued that SCDC should not be held liable when it cannot control its funding. Lindemann further argued that SCDC has improved mental health services in recent years.
II. Details of Plaintiff's Closing Arguments
Plaintiffs allege that SCDC has violated the South Carolina Constitution's prohibition against cruel and unusual punishment. In order to prevail, Plaintiffs must prove that:
1) SCDC's mental health system exposes MI inmates to a substantial risk of serious harm;
2) SCDC knows of that risk; and
3) SCDC has failed to take reasonable steps to abate the risk.
A. Substantial Risk of Serious Harm
Plaintiffs' psychiatric expert witnesses testified that SCDC's systems exposes MI inmates to a substantial risk of serious harm in a number of ways.
1) Suicide Prevention – SCDC places suicidal inmates naked in "crisis intervention" cells. They often are not given a blanket and never given a mattress. They are forced to sleep on a concrete bunk. Cells are old and dirty, often with the blood and feces of previous occupants encrusted on the floors and walls. Unlike other state correctional systems, SCDC does not provide continuous observation of suicidal inmates.
At Lieber Correctional Institution, for at least a two-year period from 2008-2010, suicidal inmates were placed naked into shower stalls, "rec cages," and small interview booths for hours and days at a time. These spaces typically did not have toilets and were not suicide resistant.
Evidence suggests that such practices were not limited to Lieber and were not limited to 2008-2010. For example, SCDC's own mental health director testified she believed that other such incidents had occurred. But SCDC presented no evidence that it has ever investigated these practices, no evidence that it has ever issued directives condemning such practices, and no evidence anyone has ever been reprimanded for such practices.
2) Barriers to Access of Higher Levels of Treatment – Many of SCDC's sickest inmates are denied access to higher levels of hospital care. In recent years the number of inmates receiving hospital, intermediate, and area mental health services has declined precipitously, while the number of inmates classified as outpatients has risen. Outpatients require less staffing and fewer services than higher levels of care. This denial of access has been particularly detrimental to women inmates and to inmates sentenced to "lockup" units for disciplinary infractions.
3) Lockup (Solitary Confinement) – Mentally ill inmates are twice as likely to be placed in lockup units as non-mentally ill inmates. Inmates placed in lockup remain in their cells 23-24 hours a day. Inmates testified that lockup cells were typically cold, vermin-infested, and filthy. SCDC's own medical records show that lockup inmates often do not see psychiatrists or MH counselors on a timely basis and that sessions typically are not confidential.
Until the weeks before the trial started, SCDC correctional officers received little training in how to deal with MI inmates. Given their sparse training, it is not surprising that correctional officers use pepper spray and physical restraints far more often on mentally ill inmates than those without MI. For example, of the 30 inmates most frequently subjected to the use of force at SCDC, 26 are diagnosed MI. Twenty-seven percent of MI inmates have been subjected to use of force, while only 11 percent of non-MI inmates have.
Plaintiffs' correctional expert, Steve J. Martin, has evaluated the use of force at hundreds of jail and prison systems throughout the U.S. and abroad, often as a court-appointed monitor or as a consultant with the U.S. Department of Justice. Mr. Martin testified that he had never seen any correctional system where such massive amounts of pepper spray are used on inmates as in SCDC. Mr. Martin further noted that SCDC correctional officers used the spray in manners inconsistent with the manufacturers' instructions. For example, videos demonstrate that SCDC officers sprayed inmates at much closer range than the manufacturer instructed.
Mr. Martin also testified that correctional officers used restraint chairs in ways that violate SCDC policies. Until just before the trial started, correctional officers placed MI inmates in restraint chairs for a minimum of four hours and often much longer, even when the inmate was not a threat to himself or others. At one prison correctional officers routinely stretch inmates' arms behind them in a painful, crucifix position.
4) Clinical Staffing – SCDC currently employs or contracts with 5.5 FTE psychiatrists and psychiatric nurse practitioners. Under standards of the American Psychiatric Association they should have 21.
The vacancy rate for SCDC nurses is 34 percent.
In the Kentucky Department of Corrections, where SCDC's expert psychiatric witness hails from, the ratio of psychologists to inmates is 1:800. In SCDC, it's 1:70,000.
MH counselors are equally understaffed, and many of the counselors SCDC does employ are unqualified. Hiring unlicensed, unqualified counselors led to a meltdown in mental health services at Perry Correctional Institution in 2009-2010. Within a period of a few months, all of Perry's counselors either were fired or resigned. As a result, for months Perry's MI inmates went with greatly reduced MH services.
Another indicator of the poor quality of counseling services at SCDC are internal audits from 2010-11. These audits show serious deficiencies in a wide range of areas. For example, the audits show that:
1) MI inmates often do not see psychiatrists or counselors on a timely basis;
2) Medical records often are poorly kept; and
3) Treatment plans often are not current.
5) Records and Medications – SCDC's antiquated computer system is unable to store or retrieve basic information, such as the names and numbers of MH clinicians, and the names and numbers of inmates referred to psychiatric hospitals or for special MH services. Medication Administrative Records are incomplete and unreliable. MI inmates at some institutions must stand in outdoor pill lines at 3:30 a.m. to receive medications.
6) Mental Health Screening – National studies show that 15-20 percent of a prison population suffers from serious MI. SCDC's own expert puts the figure at 18 percent. Yet only 12-13 percent of SCDC's population is diagnosed MI. Many inmates with MI, therefore, are going undiagnosed.
B. SCDC Knows of the Risks MI Inmates Face
From 2000-2003, four major studies were conducted of SCDC's mental health system. Each of the resulting reports described in detail the serious systemic deficiencies at SCDC. In 2003 SCDC's own director requested technical assistance from the Department of Justice, saying that SCDC's MH system was in a state of "crisis."
This lawsuit was filed in 2005. Since then, an abundance of evidence has surfaced to prove that SCDC is aware of the state of its MH program. Such evidence includes:
1) Numerous site inspection reports from Plaintiffs' experts.
2) A 2007 letter from an SCDC psychiatrist complaining of conditions.
3) The 2008 death of an MI inmate under atrocious conditions in the notorious Lee Supermax.
4) The meltdown of MH services at Perry C.I. in 2009-10.
5) The documented use of shower stalls, rec cages, etc., for suicidal inmates at Lieber C.I.
6) A 2010 letter from the U.S. Department of Justice threatening litigation over conditions.
7) SCDC's internal counselor audits and staffing data.
C. SCDC Failed to Take Reasonable Steps to Abate the Risks
Having known since at least 2005 of the substantial risks of serious harm facing MI inmates, SCDC waited until the months before trial to start taking corrective action. Even then, the action it took was – in SCDC's own words – merely "band aids."
SCDC's steps to correct the systemic deficiencies in its MH program are too little, too late.