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Examining Two Fundamental Ethical Issues in U.S. Corrections
By Robert Winters, JD, Professor, School of Criminal Justice, Purdue Global University
Published: 12/23/2013

Mental health As 2013 draws to a close and we consider the year in corrections, issues like budgets and healthcare have been the main concerns for correctional administrators and staffs across the country. Ethics issues have not, by and large, been at the top of the priority list. It would be naïve, of course, to think that ethical concerns have magically vanished from our prisons and jails. Here we will consider two significant if unrelated issues that have drawn attention from those both inside and outside the U.S. corrections system: inmate mental health and prison privatization.

Mental health, and specifically mentally ill inmates, is hardly a new concern. But increasingly observers are wondering whether incarceration (or at least traditional incarceration) is the best solution, for multiple reasons. In a June 2013 PBS interview, Cook County, Illinois Sheriff Tom Dart criticized the practice of housing “people who are mentally ill in jails and prisons” as immoral as well as impractical from a fiscal standpoint. Given that his jail on any given day houses about 10,000 offenders and that roughly one quarter of those suffer some form of significant mental illness, he has plenty of real-world experience in the matter.

One bitter irony of the current situation is that it stems in part from the widespread closure in the 1970s of large state psychiatric hospitals like the one seen in the 1975 movie One Flew Over the Cuckoo’s Nest (and widely stereotyped elsewhere in television and movies). Yet popular images aside, conditions in these facilities, which had become dumping grounds for those with nowhere else to go, were for the most part genuinely terrible.

The problem arose when no system to replace them was created at the local level. The mentally ill who have no family or other network to provide support (or who in some cases have alienated their family through behavior stemming from their illness) are likely to run afoul of the law sooner or later. Today about 10 percent of the national offender population can be characterized as having a “serious” mental illness, and about 20 percent have some form of antisocial personality disorder as defined by the Minnesota Multiphasic Personality Inventory (MMPI).

Many of the mentally ill could be treated, but successful treatment for the majority of those would require an ongoing and regular medication regime. Those without adequate access to care or support rarely maintain their therapy for long, and the result is frequently a return to the criminal justice system. In his interview Sheriff Dart tells the story of an inmate who was released after the jail staff was unable to reach any family members to pick him up. “He then wandered down the street, took all his clothes off, and then picked [up] a large ashtray and threw it through a plate glass window at the courthouse and wandered through the broken glass, covered in blood….” Deputies had no choice but to take him back into custody.

Sheriff Dart estimates that his cost to house an inmate—already a stiff $143 per day—doubles or perhaps even triples for a mentally ill offender. The higher costs don’t stop there; studies estimate that the mentally ill remain incarcerated five times longer than the general inmate population and have a recidivism rate that is 80 percent higher.

One model program is Washington, D.C.-based Pathways. It uses a team made up of psychiatrists, nurses, social workers, and addiction specialists to provide treatment while placing the offender into an apartment. Established in 2003, thus far Pathways has experienced a success rate of about 85 percent. If this program could be replicated across the country, it would likely serve the mentally ill much better yet at a lower cost than incarceration.

Another perennial topic now drawing significant attention again from those on both sides of the correctional budget debate is privatization. What has made the subject particularly heated of late are various contractual provisions that often force state and federal agencies to give private facilities first priority when housing inmates and detainees.

In 2012 the “lockup quota,” formally known as a minimum occupancy requirement, made news when Corrections Corporation of America (CCA) made offers to 48 states to operate their correctional facilities under 20-year contracts. What raised eyebrows was that the contracts would have required that at least 90 percent of the beds be filled for the duration, with the state paying for any empty beds under that threshold. One public interest group reported in late 2013 that 65 percent of all private corrections contracts currently include occupancy requirements, with over half of those having a minimum between 90 and 94 percent.

Closely related and even more controversial is the statutory quota that since 2009 has been included in the funding bills for Immigration and Customs Enforcement (ICE). The law requires ICE to fill at least 34,000 beds at all times, with the rationale that the mandate motivates the agency to locate and detain illegal immigrants across the country. However, on average about two-thirds of those detainees are housed in facilities operated by the two largest U.S. private prison operators, CCA and Geo Group.

While a minimum occupancy standard in a contract negotiated by an operator is one thing, this quota was created by Congress. Moreover, Congress has been fairly aggressive in enforcing it. The House Homeland Security Committee chairman, Michael McCaul of Texas, called ICE on the carpet in February 2013 because its detainee headcount had fallen to 30,773, warning the agency that it was “in clear violation of the statute.”

Because ICE operates few facilities of its own, local governments also benefit from the detainee housing dollars. The remaining third of illegal immigrants are spread among county and state facilities, and many sheriff’s departments obtain additional funding by allocating extra beds to ICE.

The new year is likely to bring new challenges on all fronts. The issues of alternatives to incarceration for the mentally ill and the allocation of scarce dollars between public agencies and private companies are unlikely to be resolved anytime soon, however.

About the author:

Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.

Other articles by Winters



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