Jail Suicides in Massachusetts Point to National Crisis: Part 2

Individual Lawsuits are Unlikely to Produce Needed Reform

Advocates cannot rely on lawsuits regarding individual suicides to address the problem. Pursuit of such claims is often thwarted by legal hurdles, individual plaintiff suits typically do not seek or result in systemic reform, and monetary awards have not produced needed changes in jail operations.

Furthermore, plaintiffs must overcome substantial hurdles when bringing actions in response to prisoner suicide, making it difficult to mount legal challenges. Suicide litigation brought against carceral officials often relies upon a claim of a violation of the prohibition on cruel and unusual punishment of the Eighth Amendment (applied to the states through the Fourteenth Amendment). The U.S. Supreme Court held, for convicted prisoners in Estelle v. Gamble, 429 U.S. 97 (1976), and for pre-trial detainees in Bell v. Wolfish, 441 U.S. 520 (1979), that officials violate the Eighth Amendment when they exhibit “deliberate indifference” to a prisoner’s serious medical needs.

Further, in Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme Court held that officials violate this prohibition when they exhibit deliberate indifference to a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it. As Brad Taylor explained recently in “Professional Judgment or Deliberate Indifference? Suicide Under the Eighth Amendment”: “The risk of suicide lies at the intersection of these two duties.” Federal courts have routinely applied the “deliberate indifference” standard to a known substantial risk of harm in prisoner suicide cases.

To prove that an official exhibited deliberate indifference, Farmer requires that a plaintiff must meet both an objective and subjective test:

We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.

Plaintiff must first demonstrate an objectively substantial risk of serious harm. In a claim regarding suicide, this test is the easier of the two to surmount. As Taylor writes, “the risk of suicide is ‘an objectively serious medical condition, and it is well established that inmates have the right to be free from deliberate indifference to this risk while in custody.’”

The second, subjective test is more difficult. Plaintiff must show that prison officials acted with deliberate indifference toward the risk of serious harm. To do so, plaintiff must demonstrate that the defendant was aware of the risk and failed to take reasonable measures to abate it.

There are two ways for a plaintiff to prove that a carceral official acted with deliberate indifference. First, a plaintiff could present factual evidence to show that the prison official had actual knowledge of a substantial risk of serious harm. Second, even if one cannot show actual knowledge, a plaintiff could show that the knowledge of the risk can be inferred from existent circumstances because the risk is so obvious. Then, plaintiff must prove a failure to act reasonably in face of the risk.

Therefore, a plaintiff will not succeed if an official can show the performance of some reasonable, although ultimately insufficient, action in response to the risk. Deliberate indifference “does not require that every conceivable thing possible be done to prevent each suicide.” Thus, as the Farmer Court wrote: “It is not, however, every injury suffered . . . that translates into constitutional liability for prison officials responsible for the victim’s safety.” In other words, a plaintiff likely will not be able to prove “deliberate indifference” when a carceral employee makes “good faith efforts to respond appropriately to indications that the prisoner may be a suicide risk.”

Public Officials and Qualified Immunity

Qualified immunity, available to public officials and their employees, poses another barrier to litigation. As the Supreme Court has articulated in Harlow v. Fitzgerald and the First Circuit in Penn v. Escorsio and Elliott v. Cheshire County, N.H., qualified immunity protects public officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Thus, plaintiffs will not prevail if they cannot claim that carceral officials violated an established right.

Moreover, qualified immunity is broad. Liability will be difficult to prove if the right is not clearly protected by the Constitution or statute. The Supreme Court’s 2015 decision in Taylor v. Barkes is instructive.

Overturning the Third Circuit, the Court declined to hold prison officials liable for a prison suicide, rejecting plaintiffs’ argument that prisoners have a Constitutional right to the proper implementation of suicide prevention protocols. In that case, a contracted nurse’s suicide screen of the prisoner resulted only in a routine referral to mental health services and the next morning the prisoner hung himself in his cell.

Plaintiffs sued prison officials, arguing lack of adequate supervision as the nurse was using an out-of-date screening form, was not qualified under current standards to conduct the screening, and did not have access to the prisoner’s probation records containing mental health history. The Supreme Court concluded that the officers could only be found liable if a known right was violated. However, the Court held that it has never contemplated a right to a suicide prevention protocol and further noted that some federal courts had even held that such a right did not exist. Even the Third Circuit, the Supreme Court wrote, demanded only that prison officials not act with reckless indifference toward a known vulnerability of a prisoner and did not identify any minimum screening procedures or prevention protocols that facilities must use. For these reasons, the prison supervisors were entitled to qualified immunity.

As applied by the Supreme Court, the doctrine of qualified immunity not only creates a barrier in individual cases, but also starves future plaintiffs of potential legal theories. Professor Michael Dorf argues that, by conducting the qualified immunity analysis first, pursuant to its 2009 decision in Pearson v. Callahan, and dismissing claims due to immunity, the Supreme Court fails to reach questions of whether constitutional violations occurred. This process effectively precludes the development of new theories of liability for prison suicide.

Supervisory Liability

Bringing a case against carceral officials acting as supervisors, under a theory of supervisory liability, has its own challenges. In the First Circuit, supervisors may be found liable for deliberate indifference, or the even higher standard of reckless disregard for safety, only when they are: 1) directly liable in that they are placed on notice of a prisoner’s need for physical protection or medical care and they do not act; or 2) indirectly liable for the constitutional violation of a subordinate, if they failed to properly train, supervise, or discipline the subordinate and if that failure leads to the constitutional violation. As the First Circuit reiterated in Sanchez v. Pereira–Castillo, quoting the Supreme Court in Ashcroft v. Iqbal, government officials may be held liable only “on the basis of their own acts or omissions,” and not “for the unconstitutional conduct of their subordinates under a theory of respondeat superior,” the doctrine that an employer is responsible for the acts of their employees.

In the First Circuit, plaintiffs contemplating legal action against corrections officials should look to Penn, which succinctly articulates the evidence needed to meet the “deliberate indifference” standard, as well as for overcoming the qualified immunity that such officials may enjoy. “[A] plaintiff must show (1) a grave risk of harm, (2) the defendant’s actual or constructive knowledge of that risk, and (3) his failure to take easily available measures to address the risk.” In addition, in contrast to a negligence action, plaintiffs must show a strong likelihood that one would expect self-harm to occur given the circumstances. The Penn court continues: “The conduct must encompass acts or omissions so dangerous (in respect to health and safety) that a defendant’s knowledge of a large risk can be inferred.”

However, as attorney Jesse White of Prisoner Legal Services of Massachusetts cautions, a prison official could theoretically show deliberate indifference toward a substantial risk of serious harm and still avoid liability due to qualified immunity in certain cases, if prior case law did not clearly establish that the official’s action or inaction would be unlawful. She noted in an email to the author that some courts have declined to find officials liable absent prior case law where substantially similar behavior by a defendant was held to be unlawful.

Medical Professionals as Defendants

When the defendant is a medical professional, plaintiffs may raise Eighth Amendment claims of “deliberate indifference” to a prisoner’s serious medical needs, but there are issues of proof specific to these defendants. In such cases, plaintiffs must show that the defendant knew of the suicide risk and either intentionally did nothing to prevent it or responded so deficiently that no “minimally competent” medical professional would have so responded, as the Seventh Circuit wrote in Sain v. Wood. As attorney Brad Taylor writes, “a plaintiff must produce evidence that, in light of accepted medical practice, the defendant’s medical decision was not only erroneous, but so unreasonable under the circumstances as to demonstrate “a complete abandonment of medical judgment.”

Plaintiffs who pursue medical malpractice litigation against carceral medical providers face another challenge. In many states, medical malpractice cases require a preliminary presentation and success before a medical malpractice tribunal. For instance, for a medical malpractice case to proceed under Massachusetts General Laws Chapter 231, § 60B, a tribunal must find that the evidence presented, if properly substantiated, represents not “merely an unfortunate medical result” but “is sufficient to raise a legitimate question of liability appropriate for judicial inquiry.”

When public carceral officials contract out medical and/or mental health care to private providers, further legal analysis is needed. In the First Circuit, it is possible for plaintiffs to bring deliberate indifference claims against private providers as they would against a local governmental entity. In Leavitt v. Correctional Medical Services, Inc., the First Circuit concluded that a private carceral medical provider could “be held liable as a municipality” for Eighth Amendment violations. Likewise, plaintiffs could proceed against the provider’s employees: “‘[a] damages suit against an official in an official capacity is tantamount to a suit against the entity of which the official is an agent.’ … Thus the question is whether there is any basis for imposing liability against the entity.”

Massachusetts Tort Claims Act

Plaintiffs who pursue tort actions in Massachusetts courts as a remedy for suicide face additional challenges under the Massachusetts Tort Claims Act. Section 2 of the Act provides that public employers may be found liable “for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission.” However, § 10 contains exceptions to § 2, including § 10(j) which exempts “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”

In Brum v. Town of Dartmouth, the Massachusetts Supreme Judicial Court interpreted § 10(j) to mean that public employers may be liable for harm only where “the condition or situation was originally caused by the public employer.” And, the Court explained in Kent v. Commonwealth that a condition meets this requirement if it arises from “an affirmative act (not a failure to act) by a public employer that creates the condition or situation.” That case and a Massachusetts Appeals Court decision in Harrison v. Mattapoisett hold that the employer’s act must contribute “materially” to creating the situation resulting in harm.

One problem is that in many cases, it can be difficult to pinpoint affirmative acts by public employers as a basis for suit. This is particularly true in suicides, which often arise from failures of employees to act rather than from some specific action.

Nonetheless, it is possible to present such claims under the Massachusetts Tort Claims Act. In a number of instances, Massachusetts courts have determined that a public employer took an affirmative act when an employee made illegal or unwise decisions that contributed to a harm. Several of these cases have involved actions of employees toward those placed in their care. In Devlin v. Commonwealth, the Massachusetts Appeals Court held that illegally placing prisoners as workers in a treatment center was an “original cause” of a prisoner’s attack on patient, even absent direct connection between agency and action causing harm. In Bonnie W. v. Commonwealth, the SJC found that a parole officer’s exercise of discretion to recommend a convicted rapist for employment at trailer park was an affirmative act potentially conferring liability for a resident’s harm.
It is worth noting, however, that even if a claim succeeds, liability of public employees under the state’s Tort Claims Act is generally capped at $100,000.

Even When Successful, Litigation Typically Has Not Produced Systemic Change in Massachusetts County Jails

Many of the recent lawsuits challenging suicides in Massachusetts jails have been individual damage actions and likely do not seek systemic change to practice as an explicit remedy. These cases are often brought by a family member of the deceased to uncover the events leading up to their loved one’s death and/or to obtain compensation for loss. When these plaintiffs find attorneys to take such cases, it is typically because the attorney thinks the case could generate a settlement award, some portion of which would go to counsel. This arrangement makes these cases financially viable for lawyers.

While most likely sympathetic to the plight of future prisoners, these plaintiffs and their lawyers often lack the resources to undertake the considerable additional work involved in seeking systemic reform. Such actions require showing a pattern and practice of behavior and far more extensive fact-finding on the uncertain promise of an increased settlement award or statutory attorney fees. While individual plaintiffs could seek elements of systemic reform as a remedy for their personal lawsuit, with or without having presented evidence of a larger pattern or practice, they may lack the leverage to obtain such a remedy in negotiation.

One notable exception is the accomplishment of the family of Sandra Bland, a Black activist who committed suicide in a county jail cell in Texas three days after being arrested during a traffic stop. Her family’s 2016 settlement with a county and the state Department of Public Safety included not only a substantial monetary award, but also multiple policy changes, including automated electronic sensors to ensure accurate and timely cell checks, an additional nurse or EMT for all shifts at the jail, a pledge to seek passage of state legislation providing for more funding for jail intake, booking, screening training, telemedicine, and other jail supports, and new, ongoing officer training on booking and intake screening.

In 2017, the Sandra Bland Act took effect, requiring that diversion of prisoners with mental illness to treatment, independent investigation of jail deaths, and timely cell checks.

Individual Damage Actions Often Do Not Provide Sheriffs With Financial Incentive to Alter Practices

When county sheriff departments are not responsible for compensating prevailing plaintiffs in actions for damages, the threat of litigation may not provide sheriffs with a financial incentive to improve practices. In Massachusetts, damages may be paid out of a sheriff’s budget but there are other payors as well. If the defendants are employees of the sheriff’s department, their obligations are frequently paid by the Office of the Comptroller or out of the “Liability Management and Reduction Fund.” In addition, some damage awards are covered by the companies that insure private medical providers operating in jails. In rare cases, an award might be paid by an officer who was sued in an individual capacity and found personally liable for a constitutional violation.

In many cases, sheriffs are not the ones paying. WBUR reporters Beth Healy and Christine Willmsen estimated that, in the eight years leading up to 2020, sheriffs paid damages totaling approximately $1.6 million. They noted, however, that that sum was only a small portion of the $8 million that they estimated taxpayers paid for sheriff settlements of all types over the previous decade. Litigation is less likely to change sheriff behavior when sheriffs are paying only a fraction of the damages they cause.

An Increasingly Privatized Mental Health System Removes Sheriffs From Needed Oversight

As mental health services in jails are increasingly privatized, county sheriffs remove themselves from involvement in mental health care and suicide prevention activities and place these responsibilities in the hands of subcontractors. That transfer of duties can make it difficult for sheriff departments to provide effective oversight. It also can create cost-saving incentives that curtail suicide reduction work.

Like correction administrators of all types, county sheriffs increasingly contract out the operation of mental health services in their facilities to private entities. In Massachusetts, nine of the state’s 13 counties with jails now contract out their part or all of their jail medical and mental health care to for-profit companies: Wellpath, Correctional Psychiatric Services, Inc. and NaphCare, Inc. The remaining counties have a mix of arrangements, with some having direct employees and some working with local nonprofits.

Individual sheriffs theoretically oversee the actions of private companies through contract provisions, but that oversight is variable, sometimes minimal, and hard to ascertain in practice. There is no DOC or other centralized state oversight of these contracts. The increasingly fragmented system of care that exists due to privatization makes a complex system even more hard to navigate.

Some jails have also subcontracted mental health services. Those that have providers that hold multiple contracts have different contract terms with different counties. Finally, oversight over for-profit companies requires special expertise and resources.

Additionally, the for-profit companies that provide mental health care in many county jails have an incentive to keep expenditures low. To the extent that providers can reduce costs, they can increase profits. While these providers are responsible for meeting the terms of their contracts, the incentive structure does not reward the devotion of additional resources to combat suicides.

Sheriffs’ Reliance on Accreditation Standards to Prevent Suicides Is Insufficient

When asked about their efforts to prevent suicides, Massachusetts sheriffs sometimes cite their reliance on accreditation standards. Accreditors create these standards in part to reduce the risk of suicide and, thus, litigation arising out of such deaths. As DeGroote observes,
“[m]any of the most important suicide prevention standards have been developed and implemented in an effort to avoid liability.”

The most widely adopted accreditation standards in U.S. jails and prisons are those of the American Correctional Association (ACA) and the NCCHC. The majority of Massachusetts jails are accredited by these two organizations.

In addition to the ACA and NCCHC standards, there are other guidance applicable to county jails, but most are out of date. The American Jail Association, which focuses exclusively on issues specific to the operations of local carceral facilities, issues no standards for health services in jails, but endorses the NCCHC standards covering this topic. The AJA also publishes Jail Operations Bulletins, which include titles directly relevant to suicide prevention. However, the only bulletin among the package for sale that is updated to current standards is “Preventing Suicides in Jails and Police Lockups,” Patty Vermillion of the AJA told the author in a December 7, 2020, phone conversation.

Limitations of Standards

Regardless of their source, accreditation standards are of limited value. Writing in January 2020, the Massachusetts watchdog group Bristol County for Correctional Justice (BCCJ) contends that even facilities facing allegations of abuse and poor conditions are routinely cleared for accreditation. This outcome is possible, BCCJ argues, because accreditation is based on a paper review rather than an evaluation of whether the facility is following its policies in practice. This distinction is critical because in many cases, policies may be reasonable, but staff deviate from their requirements.

Some offer a more cynical explanation. Writing in Prison Legal News in 2004, C.C. Simmons described the ACA as an agency “that offers a veneer of respectability” in exchange for “payment of the obligatory and substantial fees.” He continued “That some of the worst, most brutal, violent and decrepit prisons are ‘accredited’ by the ACA should cast doubt on whether the accreditation has any real world meaning.”

One area where accreditation standards do not seem to be effective at all is in the reviews required upon a prisoner’s death. In practice, the mortality reviews triggered by a suicide are often of questionable value. They are compromised by the partiality of those conducting them and their cursory nature. They may lack a fair assessment of wrongdoing and recommendations for reform. Psychological autopsies may be missing entirely.

The deficiencies in the internal review processes are evident in media accounts regarding Massachusetts county jails. WGBH reporters Chris Burrell and Jenifer B. McKim observe, “There is no state office that collects death data in county jails or any regulator that requires county sheriffs to report the results of internal mortality reviews.” The result is reviews that, as attorney Hector Pineiro puts it, are “all self-congratulatory” and often blame the inmate’s death on a “bad lifestyle.” Healy and Willmsen from WBUR raise an additional concern with these internal reviews – a lack of transparency that stifles external responses to prisoner deaths:

Sheriffs are required to conduct investigations when inmates die. But they’re often incomplete, with critical findings hidden from view. Not only do these reports rarely make their way to families or the public, but they generally are not acted upon by a higher authority in government.

To the extent that Massachusetts sheriffs have sought to reduce suicides, these efforts have largely been conducted at the county level rather than statewide. For example, in 2018, Sheriff Peter Koutoujian of Middlesex County, facing a high number of suicides in the 2010s, engaged expert Lindsay Hayes to conduct an audit and issue recommendations.

Hayes had already consulted in Massachusetts to reduce prisoner suicides. In his 2018 report to Koutoujian, Hayes recommended increasing initial suicide prevention training for staff from 45 minutes to a four-to-eight-hour workshop and two hours of additional training annually, improving mental health screening, and ensuring privacy during interviews. Sheriff Koutoujian followed up on most of Hayes’ recommendations. The jail increased training for staff, employing eight trainers, including two role-playing actors from the NIC, to conduct a week-long crisis training for jail staff.

It also improved mental health screening by asking more questions about mental health and began conducting screenings in private. Jail administrators increased checks on suicidal prisoners, encouraged family members to contact the jail if they are worried that an imprisoned family member is at risk of self-harm, and added a message providing a suicide prevention hotline phone number that plays when a prisoner makes or receives a phone call. Additionally, Koutoujian reported that they had “covered wall ventilation grates and fixed holes in the metal frames of bunks to prevent hangings in cells.”

However, this work was limited to Middlesex County. As of October 2018, while Koutoujian had shared his work with other Massachusetts sheriffs, he did not know if any other sheriffs had undertaken similar reforms. Hopefully, Koutoujian encouraged such reforms while he was president of the MSA from 2017 to 2020 and will do so in his current term as head of the Major County Sheriffs of America.

Some sheriffs clearly need prodding. In the March 2019 WGBH report, Barnstable County Sheriff James Cummings was quoted as saying that his jail has made no substantial policy changes to prevent suicides.

It is important to recognize that some Massachusetts sheriffs, to varying degrees, are pursuing efforts within their counties to improve their overall mental health services. Some have expanded mental health and substance abuse services and some have opened mental health units within their facilities. Legislation (and litigation) also resulted in the establishment of a medication-assisted treatment pilot program, involving seven sheriffs’ offices, to treat substance use disorders. These broad, proactive reforms are fundamental to tackling the problem of jail suicide.

Current Oversight of County Sheriffs Is Inadequate

In many parts of the U.S., county jails function without significant oversight. David Fathi of the ACLU’s National Prison Project has commented on the troubling consequence of this arrangement, contrasting it with carceral systems in other countries:

I’m convinced that a major reason for the often-appalling conditions in U.S. prisons and jails is the lack of independent oversight. Most other democracies have an independent body whose function is to monitor and report on prison conditions. These bodies have “golden key” access — they can show up unannounced at any time, go anywhere in the prison, and talk to anybody. There’s no such oversight in the U.S. Prisons are closed environments that house disempowered, politically unpopular people. When you combine that with a lack of oversight, it’s a recipe for neglect, mistreatment, and abuse.

Massachusetts’ county carceral system suffers from such lack of oversight. In the Commonwealth, county sheriffs are employees of the voters who elect them – every six years. These voters may or may not be attentive to, or selecting candidates based on, conditions in jails. In fact, it is an anomaly when Massachusetts citizens organize locally around jail issues. One of these exceptions is Bristol County for Correctional Justice which writes and protests about prisoner care in Bristol County facilities.

Even if voters were attuned to prisoner issues, Massachusetts sheriffs have great independence between elections. Of all states with elected sheriffs, only Massachusetts has such long terms of office. And, when these sheriffs are repeatedly re-elected, as some are, this may discourage new thinking about how to care for prisoners.

Historically, the Massachusetts Legislature has provided extremely limited oversight over the provision of mental health care in its county jails, through statute or through other forms of supervision. The inertia of the Legislature cannot be explained by the sufficiency of federal law. There are no federal statutes or regulations that either mandate SPPs in Massachusetts jails or establish an “industry standard” for federal carceral settings that Massachusetts sheriffs might emulate.

Massachusetts statutes regarding suicide prevention in carceral settings are sparse. The Massachusetts DOC has authority to issue regulations for county jails pursuant to Section 1(d) of Chapter 124, but it does not specifically address suicide or even mental health care. An enforcement provision (in Chapter 127) merely requires the commissioner or his delegate to inspect each county carceral facility for compliance with minimum standards at least every six months.

Reform Act of 2018

The Legislature did seek to provide some protection for prisoners from suicide and a degree of oversight through its passage of the Massachusetts Criminal Justice Reform Act of 2018. However, the legislation is narrowly tailored, applying only to prisoners with serious mental illness who are at risk of placement in, or are already placed in, restrictive housing units in jails or prisons. These are units where a prisoner is confined to a cell for more than 22 hours per day. While suicides certainly occur on such units, they also occur in other locations in jails.

Further, the ability of the statutorily-created oversight committee to function as the Legislature intended appears to be compromised. The statute requires periodic release of jail data regarding each DOC restrictive housing unit, including the number of prisoners on such units who committed suicide or committed non-lethal acts of self-harm. However, no data from sheriffs’ departments has yet been posted.

Additionally, because the statute requires reporting only on those forms of segregated confinement that meets the definition of “restrictive housing,” even when data is provided, it may be incomplete. Since the statute defines segregated housing as confinement for 22 or more hours a day, many sheriffs have now changed their practice so that prisoners in segregation units are out of cell just over two hours a day. For those prisoners, sheriffs claim no “restrictive housing” and report no data. Sheriffs also use this strategy to house people with serious mental illness in segregated confinement units that provide just over two hours a day of out-of-cell time, as these units are not classified as segregated housing.

The Legislature exerts fiscal control over jails by setting their budget amounts, but even when the Legislature turned its attention to county sheriff spending in the past, it did not require that sheriffs shift resources to prisoner services. Instead, the Legislature has allowed staffing costs to account for the bulk of spending in Massachusetts jails. This is problematic as high staffing allocation levels leave only a small percentage for other expenses, including health care, food, clothing, and administration – the services that might help combat prison suicides.

In an outside section of the Fiscal Year 2016 budget, the Massachusetts Legislature ordered the Executive Office for Administration & Finance (A&F) to develop a funding formula for the 14 county sheriffs’ departments. A&F engaged a consulting firm, Public Consulting Group (PCG), to do so, after considering the number of prisoners served, current staffing levels, and significant operating cost drivers for each of the sheriffs. PCG’s March 2016 report, presented to the Senate and House Committees on Ways & Means, found that the majority of spending in all sheriffs’ departments, across the U.S. and in Massachusetts, is for personnel. The national average was between 70% to 80% and the Massachusetts average was 77%. PCG found no problem with the percentage allocated on staffing, although it did recommend standardizing allocations to the various sheriff departments, consistent with, among other factors, numbers of prisoners.

Although Massachusetts may have average spending on personnel, its jails have lower prisoner-to-staff and staff-to-supervisor ratios than those in other states, reflecting a tendency to spend jail dollars on staff rather than on direct prisoner needs. And, comparing FY2011 to FY2017, the prisoner-to-staff ratio for the state’s jails has fallen. During that same period, the number of jail prisoners has declined by 20% while county employee salaries have risen by an average of 22%.

While sheriff departments’ health services spending climbed from $5,102 per prisoner per year in FY 2011 to $6,115 per prisoner per year in FY 2017, it is not apparent that more funding has been funneled to suicide prevention. One might suspect that funding has not increased for such prevention measures; while per prisoner spending increased, the overall health care spending stayed constant while prisoner populations declined. As the research nonprofit MassINC explains, “The degree to which these [spending] increases represented efforts to improve the services available to inmates (versus simply maintaining the provision of services with rising health care costs and an aging inmate population) is unclear.” MassINC was able to determine that spending across counties remains inconsistent, resulting in disparities in the funding of education and other services associated with recidivism reduction.

The Massachusetts Legislature recently took steps to re-examine sheriff spending on corrections. Created by Section 101 of the General Appropriations Act of Fiscal Year 2020, the Correctional Funding Commission is tasked with conducting “a comprehensive study to evaluate and make recommendations regarding the appropriate level of funding for the department of correction and each sheriff’s department.” It is expected to consider jail staffing ratios and employee costs, as well as sheriff department spending on mental health and substance use services and the funding needed to meet the need for those services in jails.

For the reasons discussed above, the examination of staff-to-prisoner and staff-to-supervisor ratios is welcome. Based on a review of documents compiled by the Commission, the members have not identified the relationship between funding and jail suicides as a focus of its work, but perhaps it can be encouraged to do so.

Massachusetts Doc Has Not Exerted Its Authority

While the Massachusetts DOC has authority to issue regulations for county jails pursuant to Section 1(d) of Chapter 124, regulations are not a preferred method of reform. They lack permanency and, often, enforceability.

Further, the DOC has established only minimal standards for counties thus far. DOC regulation 103 CMR 932.05(2) requires only that.

Each county correctional facility shall develop a written suicide prevention and intervention program that shall be reviewed and approved by qualified medical or mental health personnel. The facility shall require that all staff with responsibility for inmate supervision be trained in the implementation of this program.

And, while another applicable DOC regulation, 103 CMR 932.13(1), requires that jails have written policy and procedure for screening and care for mentally ill or developmentally disabled prisoners “whose adaptation to the correctional environment is significantly impaired,” the specific mandates are limited. The regulation only states that these prisoners may be, but are not required to be, referred for placement in non-carceral facilities or specially designed units.

Moreover, the DOC has proven itself unable to promulgate strong prisoner protections, most recently in the case of regulations to implement the Criminal Justice Reform Act. Advocates were extremely disappointed in the DOC’s regulations implementing the Act and the agency’s ongoing obstruction to pursuing its principles.

Even if the DOC were interested in expanding their oversight over jails, regulatory reform likely will not be adequate to address jail suicide. Administrative codes with detailed requirements for SPPs failed to adequately address jail suicides in Texas, Ohio or Wisconsin. Texas administrative code provision § 273.5 (1994) outlines the extensive components that the jail’s suicide prevention plan must address. However, in the five years before December 2014, prisoner suicides in Texas averaged 25 per year and the period between December 2014 to November 2015 saw 34 more. December 2015 to December 2016 saw 14, with the drop from the previous year attributed to a revised screening form and better observation, among other factors.

In 2019, Brandon Wood, executive director of the Texas Commission on Jail Standards, explained that state jails continued to regularly fail to conduct face-to-face checks of suicidal prisoners every 30 minutes, one of the requirements of the Texas regulation. Texas suicides even continued after the Sandra Bland Act became effective in September 2017. There were 17 suicides in Texas jails in 2018 and 22 between January and November 2019. Critics noted that the law came with no funding attached.

Similarly, a Wisconsin regulation also requires detailed jail SPPs. However, county jail suicides remain a problem there. Just one of Wisconsin’s 72 counties had 41 attempted or successful suicides in 2018, and 2019 was on track for the same or more as of October. Finally, the Ohio code requires a comprehensive SPP as well. Nonetheless, Ohio’s Cuyahoga County alone had five jail suicides over 11 months spanning 2018 and 2019.

Advocates Should Seek Legislation Regarding SPPs to Ensure Better Suicide Prevention

In Massachusetts, current legal authority has provided insufficient protection for those in jail from suicide risk. Reformers should seek legislation to codify the best practices for SPPs. Such a bill should promote better mental health services, improved prevention measures, and administrative features to monitor and improve practice. Specifically, a comprehensive SPP would address:
 

• admission screening and assessment;
• medication administration for those already prescribed and desiring continuance;
• access to individualized therapeutic models, including psychological interventions;
• treatment for substance use disorders and traumatic brain injury, which often go unaddressed;
• staff training on suicide prevention and mental health;
• prisoner environment and supplies to reduce suicide risks;
• limited use of isolation and increased social support;
• safe housing for those at-risk, including improved capacity, both in terms of staff and environment, for observation and monitoring during the initial hours and days in custody;
• reliance on and close observation during restrictive housing, isolation, or segregated confinement;
• mental health watch practices;
• administrative steps after each suicide or suicide attempt, including formal internal and external review processes and staff debriefing and support;
• prison management, to expand the access of mental health clinicians to leadership roles;
• requirements for data collection and sharing;
• mechanisms for external analysis, feedback, and intervention when needed.

These changes will require funding. Legislators should reallocate jail dollars away from carceral officer staffing, but it is likely that new funding also will be needed. Additionally, statutory reform should include the creation of a cause of action for violation of SPP requirements, in order to provide plaintiffs a feasible avenue for legal relief when county sheriff departments fall short.

Advocates might also consider legislation specifically designed to remove authority from sheriff departments and placing it in other entities. One possibility is legislation that would grant the Massachusetts Department of Mental Health (DMH) greater oversight over both the provision of mental health care and suicide prevention in county jails. Any oversight vested in DMH itself must be monitored to ensure that the agency is fulfilling its responsibilities. DMH currently has some oversight functions with respect to Massachusetts prisons and jails, but their involvement in the operations of these facilities has been unremarkable.

A more exciting possibility is to establish oversight outside of government. Criminal justice policy expert Michele Deitch favors legislation establishing an independent ombudsman, with authority to provide independent review of jails and of the agencies that should be overseeing them.

Voters in one Washington state county recently passed several amendments that shift power in this way. One requires an inquest following any deaths in a county detention facility. Another gives the power to subpoena witnesses, documents and other evidence needed for investigations to a civilian oversight office that had already been established. Other amendments returned the office of sheriff to an appointed position, to be named by the King County Executive and confirmed by the King County Council.

Interestingly, Washington state’s county offices historically fulfilled a dual function, serving both as local governments in unincorporated areas and as agents of the state to carry out its programs. This suggests that Washington sheriffs likely have more power than their Massachusetts counterparts with their largely abolished departments. It might be even easier to make a case to shift responsibilities to the state in Massachusetts, given its relatively weak county system.

In February 2021, spurred in part by the DOJ investigation of DOC facilities, Massachusetts state Senator James Eldridge filed “An Act to Ensure the Constitutional Rights and Human Dignity of Prisoners on Mental Health Watch.” It would mandate that the Massachusetts DMH promulgate regulations requiring jails and prisons to “have a written suicide prevention and suicide response policy” and conduct “independent reviews of completed suicides, attempted suicides and incidents of self-harm.” These requirements are excellent, although a  Boston Globe [ital] editorial rang true: “Eldridge’s bill would help. Legislation in combination with a court-appointed watchdog would be even better.”

The forces responsible for suicides in jails are complex. Many of the current approaches for tackling this problem are inadequate. Advocates should continue to promote diversion from the criminal justice system and increased allocations for mental health and other services to keep people out of jail. But to protect those persons in jail, advocates also should pursue comprehensive suicide prevention legislation. Change is long overdue. 

Original article by prisonlegalnews.org.