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There weren’t many letters. He hadn’t been in jail that long. But the last one Victoria Nelson received from her 19-year-old son Robbie betrayed a bleak state of mind: I am doing a 30-day sentence in Solitary Confinement for assault. I have 20 days left. I am in this little cell for 22 hours and 40 minutes a day. . . . I’m preparing myself for prison because that’s where I’m going. I am trying to get as big as I can before I go. Because when I get there . . . I have to fight for everything. In prison . . . It’s killed or be killed. And nobody is going to kill me. Robert Allen Nelson would be released from solitary soon after and returned to the general inmate population of the St. Mary’s County Detention Center in Southern Maryland. A couple of weeks later, he was dead. He was found in his cell hanging from a noose fashioned from bedsheets knotted together. He died in fear. He was afraid of the guards and his fellow inmates. Most of all, he seemed pervasively conscious of the life in prison that he believed awaited him. But it wasn’t just an understandable fear of the intimidating world of corrections that was at work. Nelson had a history of mental illness and suicide attempts, something his mother, who is poised to file a lawsuit against the county and the state of Maryland, alleges that the jail knew — or should have known — about. She charges that Nelson had been taken off so-called suicide watch and instead was treated like every other inmate, despite his background of emotional problems. Nelson had been in the St. Mary’s County jail awaiting trial on burglary charges; it is unclear whether he’d had prior run-ins with the law. He hadn’t been sentenced for the burglary charge, but had died a young man in prison nonetheless. He is one of an estimated 400 to 600 inmates who die each year in jails and prisons in America by their own hand — more than four times the number of inmates who are executed. Their deaths pass largely unnoticed, reported in the back pages of local newspapers when chronicled at all. The overwhelming majority of them die in city and county jails, typically within the first few days of their incarceration. Suicide is the leading cause of prisoner death in jails. “When we’re talking about jails, we’re talking about people who haven’t been convicted of anything. They’re presumed innocent,” says David Fathi, a staff attorney with the American Civil Liberties Union’s National Prison Project in Washington. “They shouldn’t be sentenced to death by conditions so extreme that they are driven to suicide.” There is little outrage when a prisoner dies, except the expected shock and rage that comes from family members like Victoria Nelson, who says she believed her troubled son was in “the safest place” he could be. “He was just being held,” says Nelson, a registered nurse from Mechanicsville, Md. “He was supposed to be in protective custody.” Sheriff’s Department officials in St. Mary’s County conducted their own internal investigation of Nelson’s death and concluded that the 19-year-old’s death could not have been prevented. The county denies any negligence. Robert Nelson fits the profile of most victims of prison suicide. He was young, white, male, and entering the criminal justice system at the most basic level. He suffered from severe mental and emotional illnesses, as do more than one-fifth of the general prison population, according to the National Institute of Corrections. And he was placed in solitary confinement, or “special unit” housing, as it is known in the corrections industry — another risk factor for suicide. Whether deaths such as Nelson’s can be prevented is a question, on one level, of training and resources. But first, enough people have to be interested in trying. “When you’re an inmate, there’s no sympathy for you from the general public because you’ve done wrong, or allegedly done wrong,” says Lindsay Hayes, a Massachusetts researcher who helped conduct comprehensive studies in 1980 and 1988 of jail suicides. “No one cares about prisoners who are locked up.” A NUMBERS GAME But before those questions can even begin to be addressed, there is the matter of defining the problem in the first place. That in and of itself is difficult. It isn’t entirely clear whether the incidences of jail and prison suicide in the United States are increasing or decreasing. Some experts believe that suicides are on the rise again after declining through much of the late 1980s and early 1990s. Suicides in jails have dropped precipitously during the last 10 years as jail administrators and corrections officers have focused on the problem. But last year in California, a record number of state inmates — 38 — killed themselves. The majority of those victims, too, had yet to be convicted at trial. Hayes says the statistics aren’t necessarily contradictory. The rate of suicides in jail is decreasing, but the number of deaths is increasing as the prison population rises exponentially. As of August 2001, according to the Bureau of Justice Statistics, a research arm of the U.S. Department of Justice, the national suicide rate for local jails was 54 per 100,000 inmates. That’s still about six times the national average for suicides in prisons and 10 times more than suicides among the general public. The Justice Department relies on jails to report their own numbers. And some in the prisoner advocate community are convinced that the problem is getting worse. Terry Kupers, an Oakland, Calif., therapist who works with inmates, says, “I think it’s on its way back up. I’m hearing about more suicides. I’m hearing it from all directions.” But statistics usually don’t garner the attention of sheriff’s offices and state appropriators anyway. Lawsuits do. They are the primary vehicle by which change is effected in city and county jails across the country. “Jails are reactionary in nature,” says Hayes. “They wait for something to occur.” Something sufficiently notable occurred in October, when a federal court jury in Wisconsin returned a $1.8 million verdict in favor of the family of a 26-year-old mentally ill inmate who hanged himself in a state prison in 1998. The jury found that two prison mental health care professionals were liable for ignoring the inmate’s threats of suicide and taking him off beneficial medication. The amount is believed to be the largest ever awarded in a prison suicide lawsuit. “That’s coming out of somebody’s budget,” Hayes says. David Lesh, a lawyer and law enforcement consultant in Oregon who helps train jail administrators and corrections officers in suicide prevention, says that sheriffs with whom he has dealt have found themselves frustrated by declining budgets and increased jail populations. They know, Lesh says, that a lack of funding can mean liability down the road. “The counties are under bigger budget constraints. As a result, a lot of jails are understaffed. You need a certain guard-to-inmate ratio to adequately observe inmates,” Lesh says. “People like to give money to law enforcement, but it’s not popular to give money to inmates.” Indeed, adequate staffing is one issue raised by the family in the death of Robert Nelson in St. Mary’s County, Md. Stephen Mercer, a Rockville attorney retained by the Nelson family to bring suit against the county, says the jail had not filled a staff position known as a “classification specialist” — someone with expertise in identifying suicidal inmates — at the time of Nelson’s death. Whether jail officials knew of Robert Nelson’s history of mental and emotional problems will also be a contentious issue in the case. Both Mercer and Nelson’s mother, Victoria, allege they did. Victoria Nelson points to hospital records at the time of Nelson’s death that indicate the inmate was taking three different psychotropic medications, Neurontin, Zoloft, and Zyprexia. But mere notice of Nelson’s mental condition alone likely won’t be enough for his family to prevail. October’s outcome in Wisconsin notwithstanding, courts haven’t made it easy for the families of suicidal inmates to receive compensation. “The courts approach suicide with some skepticism,” says Tom Rosazza, a criminal justice consultant in Colorado. JUMPING THE WALL Federal courts, historically the most sympathetic forum for civil rights claims involving prisoners, are more inclined to side with correctional officers and jail administrators when it comes to prison suicide. The measure of conduct for liability in cases involving allegations of substandard prison conditions is something that the courts term “deliberate indifference” — a thing apart from a common law negligence standard. The U.S. Supreme Court in 1994 defined “deliberate indifference” as when a correctional official or employee “knows of and disregards an excessive risk to inmate health and safety.” In other words, the official must know of facts that would lead him to believe the inmate was in jeopardy and must fail to act to alleviate that risk. Simply making an error isn’t enough. “Deliberate indifference is a very high standard,” says Rosazza, who for years served as a warden and administrator in Maryland’s penal system, rising as high as inspector general of the state Commission on Correctional Standards. A case from Virginia Beach, Va., bears that out. Robert Brown was arrested on a drug probation violation and incarcerated at the Virginia Beach General Jail. The arresting officer would later testify that she told a supervisor at the jail that Brown was suicidal. Brown was placed in a cell with 24-hour video surveillance, but was not examined by medical staff or clothed in a “suicide gown.” He hanged himself with his shoe laces, apparently while no jail employee checked the video monitor. In October 2001, the U.S. Court of Appeals for the 4th Circuit held the jail’s act of placing Brown under surveillance was enough to escape liability. “At most, [jail officials'] failure to take additional precautions was negligent, and not deliberately indifferent,” the appeals court said. The ACLU Prison Project’s Fathi says that suicidal inmates are more likely to die as a result of a lack of training and funding rather than by the kind of purposeful act that would trigger liability under the federal standard. “You see cases where indifference seems to rise to the level of actual intent, but I really don’t think that is typical,” he says. “Really, it’s a question of enough resources, not enough attention to the situation.” State courts are inhospitable to jail and prison suicide cases in a different way. While plaintiffs often need only to establish negligence on the part of jail officials, most states have stringent caps on the amounts that can be recovered from government entities. In Maryland, for instance, a plaintiff can recover only $200,000 in state court for a negligent act — and only 25 percent of that can go to legal fees. It’s why, given the choice, most lawyers bringing suicide cases would rather try their luck in federal court. It’s also why no lawyer is getting rich off these kinds of suits. Another reason, as Rosazza says, is that “you’re dealing with a guy whose life wasn’t worth very much.” Cases frequently are settled for relatively small amounts. Of course, even if the evidence is strong enough to allow a case to make it to a jury, that’s another challenge. It isn’t easy to convince a juror (and a taxpayer) that the government should pay simply for allowing a suicidal inmate to finish the job. The question again that arises is: Is it a concern? Why should I care? Says Rosazza, who now works as an expert witness for both sides in jail suicide cases: “At one point it’s a question that goes through every juror’s mind. It’s a hurdle that every plaintiffs attorney needs to get over.” WATCH AND LEARN An effective intake and screening system can go a long way to help a jail or prison escape liability. But that also means that jails cannot claim officials weren’t aware of an inmate’s psychological condition. “If you are on notice of a sometimes suicidal inmate, it puts you in a much more difficult position to defend your conduct,” says consultant Lesh. “You need to watch for signs and follow through — bed checks, clothing, and provide access to mental health care.” Over time, Lesh says, mistakes can happen. Guards, he says, “get cynical — like anyone would. Inmates are manipulative. It can be mentally challenging work. An inmate’s treatment of you wears on you. More than likely, a jailer’s treatment is going to slip.” But training corrections officers and administrators in suicide prevention may not be sufficient. Jailers have a legal duty to provide medical services — and those services include mental health care. “The corrections department tends to think that putting [suicidal inmates] in an observation cell and checking on them every 15 minutes is treatment. I don’t think it’s treatment,” says Kupers, the Oakland therapist who works with inmates. He contends the practice encourages inmates to “cover up” their suicidal tendencies. A report issued in August by the Justice Department’s Civil Rights Division describing conditions in the Baltimore City Jail criticized the jail’s failure to provide mental health services for suicidal inmates. At least five inmates killed themselves in the jail in the six months prior to DOJ’s investigation, the report said. In one incident, according to the report, an inmate who told a nurse he might be suicidal was told that if he said that, “they will strip you naked, throw you into a room, and call mental health.” Marie-Ann Sennett, executive director of the D.C. Prisoners Legal Services Project, says suicides at D.C. facilities have declined since the District turned its prison mental health services over to a private health care provider, the Center for Correctional Health and Policy Studies Inc. “The correction staff and the security staff aren’t trained to recognize the signs of a suicide,” Sennett says. “Mental health care is still necessary. They need treatment, they need someone to do an assessment.” Walter Smith, a former president of the American Jail Association and a division chief in the Denver Sheriff’s Department, believes that jails are the wrong place for many mentally ill people. They end up there, he says, because of a lack of services on the outside. ” Jails have become the single largest holding facility for the mentally ill,” Smith says, “ and we are not, funded, staffed or prepared to deal with their special needs.” A BREED APART Michael Welch, a professor of criminal justice at Rutgers University, examined claims in 77 prison suicide suits brought in the 1990s. More than half, Welch says, involved allegations of poor treatment or supervision. About a fifth charged that a lack of a developed suicide prevention policy caused an inmate’s death. The rest, he says, alleged a deficiency in the physical makeup of an inmate’s cell — an exposed pipe that could be used to support a noose, for example. Welch says one explanation for the divergent suicide rates between local jails and prisons lies in training and treatment. “Historically, jails are run by law enforcement personnel, more than corrections professionals,” Welch says. “Law enforcement personnel tend to be more punitive.” “The jails are usually a little more suffocating,” adds Lesh. “In prisons, you’re living there. You’re there for the long haul.” But prisons can be suffocating places too. Especially modern “supermax” prisons such as one in Wisconsin built to house, as one federal judge called it, “the worst of the worst.” In the facility, inmates are confined to a cell virtually 24 hours a day. The cells are lighted at all times. Inmates have no access to clocks, radios, cassette players, televisions, or watches. They are allowed only three showers per week. Inmates can be shackled in trips to an exercise room or the library. In October 2001, the ACLU obtained an injunction that prohibited the state from housing “serious mentally ill” inmates in the prison. The federal judge who issued the order noted that “lacking physical and social points of reference to ground them in reality, seriously mentally ill inmates run the risk of breaking down and attempting suicide.” The case ultimately settled earlier this year when the state agreed to keep from admitting seriously mentally ill offenders from the prison. Round-the-clock solitary confinement — or “special housing unit” — is becoming a favored tool in corrections. However, some prisoner advocates believe they significantly increase the risk of suicide. Researcher Hayes says two-thirds of all suicides take place in solitary confinement. A report released this summer by the Correctional Association of New York agrees. In a four-year survey of 25 of the state’s 71 prisons, the association found that incidents of “disruptive behavior and inmate self-harm” rose more than 50 percent as a result of the disciplinary housing. More than 50 percent of the suicides committed in the prisons occurred in solitary. Robbie Nelson’s suicide in St. Mary’s County, Md., occurred less than two weeks after his release from solitary confinement. Mercer, the lawyer for his family, calls Nelson’s environment at the time “de-sensitizing and de-humanizing.” Nelson’s mother, Victoria, is more plain-spoken about her son and the jail officials charged with keeping him. “They did everything but kill him,” she says.

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