ANYONE interested in understanding the U.S.’s commitment to mental health care need only look to the nation’s largest single-site mental health facility: the Cook County Jail in Chicago. Cook County has an average population of around 9,000 inmates, 35 percent of whom are estimated to have mental illnesses. With a rate almost twice the national average, Chicago’s primary jail isn’t unusual, with roughly 64 percent of people in U.S. jails reporting mental health concerns. Historically, as the government has cut funding to mental health services, a process of trans-institutionalisation has occurred, with many individuals who once received treatment in mental health facilities now being shunted into correctional centers. In effect, America’s prisons and jails have become the de facto safety net for many Americans living with mental illness.
These attempts to charge disciplinary institutions with providing compassionate mental health care has been facing challenges. An estimated 33 percent of individuals with chronic mental illness have not received any form of treatment since their admission to state prisons. Instead, individuals with a mental illness have up to 170 percent increased odds of experiencing extended solitary confinement relative to peers without mental health conditions.
In 2020, Nils Melzer, the UN Special Rapporteur on Torture deemed the use of prolonged solitary in U.S. prisons to be torture. Given both the lack of care and the increased use of extreme punishment, it comes as no surprise that suicide rates – already 62 percent higher among previously incarcerated individuals than the general population – are even higher among people with a diagnosed mental illness. Taken together, there is a growing body of evidence demonstrating the incompatibility of carceral institutions as sites of mental health care.
The situation is likely to only worsen. With rising healthcare costs across the board and sharp cuts in government funding, correctional healthcare has only suffered, with most states contracting out care to for-profit companies. Jails that have privatised their healthcare have higher death rates than facilities where government agencies provide care. In Illinois, where the majority of state prisons have private, for-profit care, a recent class-action lawsuit resulted in the creation of an independent monitor to oversee the improvement of healthcare delivery in the state’s correctional facilities.
The monitor found that, since 2017, some aspects of care have actually gotten worse. In their most recent report, the monitor describes a number of incidents in which mental health conditions went untreated: a man with schizophrenia denied care because officials thought he was malingering; another with bipolar disorder sent to solitary during manic episodes rather than being treated; numerous suicide attempts improperly handled. Despite the monitor’s critical findings, the Illinois Department of Corrections renewed the contract of private, for-profit Wexford Health Sources for $4 billion in 2024.
Morally, people experiencing incarceration represent a vulnerable group that requires certain protections. Deprived of the ability to procure their own healthcare, inmates must have their health needs met by their captors, something that has long been acknowledged in international human rights law.
In America, however, the legal structures meant to protect such rights have fallen short, resulting in the abysmal state of care prevalent.
The right to mental healthcare in prisons and jails
Surprisingly, people in U.S. carceral facilities are the only group in America with a right to healthcare. Internationally, the right to health is grounded in a number of agreements, first articulated in the Constitution of the World Health Organization, 1946, in Article 25 of the Universal Declaration of Human Rights, 1948 (UDHR) and Article 12 of the International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR). Though the US is party to the first two, it has not signed on to the latter, and notably does not acknowledge a constitutional right to health for the general population. America is also the only developed country without a universal healthcare scheme or a right to healthcare as such.
Exceptionally, however, in Estelle v. Gamble (1976), the Supreme Court established that both state and federal carceral facilities must provide medical care for the incarcerated. Failure to do so would constitute “cruel and unusual punishment,” violating an individual’s Eighth Amendment rights.
This landmark case established three rights for individuals behind bars: the right to access to care, the right to care that is ordered, and the right to a professional medical judgment. In establishing such rights, Estelle offered people in prisons and jails a legal avenue to pursue better care.
The effect has been twofold. Individually, American inmates have been able to sue for medical neglect, both to acquire greater care and win settlements into the millions. Correctional systems must now deliver a certain threshold of care, and there exists a legal accountability mechanism when they fail to do so. Without Estelle, the Illinois class-action case could not have created a healthcare monitor to force systemic changes in Illinois.
Clearly, however, all signs suggest that incarcerated individuals in the U.S. are not able to exercise their right to health care adequately. Some scholars have ascribed this to the difference between positive and negative rights. Countries that recognize the right to health as outlined by Article 12 of ICESCR acknowledge it as a positive right - a right requiring overt government action, such as establishing a healthcare system and taking steps to ensure accessibility and quality, among others. In the US, on the other hand, the right to healthcare for people in carceral settings is based in the Eighth Amendment, which has elements of a negative right - one that restrains others from certain actions that affect an individual.
In its own words, the Eighth Amendment states: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This particular wording allowed the Supreme Court in Estelle to narrowly define the right to health, writing that “the Eighth Amendment does not outlaw cruel and unusual ‘conditions;’ it outlaws cruel and unusual ‘punishments.’ ”
In effect, the Supreme Court used the Eighth to outline not a ‘right to be provided’ quality healthcare, but rather a ‘right to not be punished’ through the deliberate withholding of care. This is referred to as the “deliberate indifference” standard, which requires that plaintiffs demonstrate that inadequate healthcare or poor conditions were the result of a criminally reckless mental state. As a result, plaintiffs have a much higher burden of proof to claim a violation of their Eighth Amendment rights.
Plaintiffs must also demonstrate that they have a “serious medical need,” a standard that has disproportionately impacted individuals with mental illness. When the Supreme court established this two-pronged requirement – called the Estelle test – they failed to define what constituted “serious medical need.” At the time, many courts were unclear as to whether mental illness even qualified, as the plaintiff in Estelle sued due to physical health needs. It wasn’t until a subsequent case, Bowring v. Godwin in 1977, that two criteria for defining serious medical need were established: either
(1) there was evidence of a prior diagnosis and treatment; or
(2) the need for treatment was so obvious that even a layperson would have recognized a need for treatment.
In both criteria, there is a bias towards legitimising physical health over mental health needs. Inequities in access to mental healthcare also means that individuals in prisons and jails are less likely to have received mental health diagnoses prior to admission. Lack of access to mental healthcare is also linked to higher rates of crime, creating a situation in which not being diagnosed or treated may be directly related to one’s incarceration. Further, the second criterion required to prove serious medical need – the ability for a layperson to recognize a need for treatment – likewise disadvantages individuals with mental illness. Laypeople often struggle to identify or define mental illness, especially given the extent to which it is still stigmatized. Taken together, this definitional requirement has created a legal situation in which individuals with mental health needs struggle more to pursue legal action when their needs go unmet.
Even though Estelle has created openings for individuals to seek legal action when they fail to receive adequate care, the hoops through which one must jump are burdensome and exclude many from seeking legal recourse.
Another option that has emerged since the COVID-19 pandemic for individuals with mental illness to gain access to adequate care is compassionate release.
Compassionate release and the turn towards mental health
Compassionate release is the temporary or permanent release of individuals from incarceration in situations when they either require care that cannot be delivered in carceral facilities, or when they are close to the end of life regardless of medical intervention. It is sometimes referred to as medical parole, medical furlough, or humanitarian parole.
It arose at the federal level in the U.S. in the Sentencing Reform Act, 1984, which established a provision for the early release of federal detainees. The specific language of the law was vague - individuals could only be released under “extraordinary and compelling” circumstances. Initially, the only person who could file for sentence reductions under the new compassionate release law was the director of the Bureau of Prisons (BOP). Within this kind of king’s pardon system, very few individuals were granted release, with most still dying behind bars.
The First Step Act, 2018, broadened the application, allowing for individuals to directly file a motion in sentencing court for release, rather than wait for the BOP director’s approval. In the first year, 1,833 people applied; the following year, that number jumped to almost 10,000.
Opening cases up to the direct discretion of the courts also expanded the working definition of “extraordinary and compelling.” When the BOP had discretion over which cases to recommend to the court, they interpreted this almost exclusively as applying to terminal medical conditions. With individuals now able to appeal directly to sentencing courts, the number of cases has increased, and the conditions that qualify as “extraordinary and compelling” have likewise increased.
During the pandemic, as prisons and jails became COVID-19 hotspots, compassionate release became a mechanism for decarceration. The number of people granted compassionate release in 2020 exploded, with 2,611 released from federal prisons, up from 55 the prior year. During the pandemic, as scholars noted, “individuals were being considered for release due to the risk, rather than the existence, of serious illness.”
The Department of Justice conceded that the medical criteria for compassionate release could be met if an individual had one or more conditions listed by the Centres for Disease Control and Prevention as increasing risk for severe COVID, including common chronic illnesses like hypertension. Mental health conditions thus began to appear as legitimate reasons for compassionate release.
In a number of cases, compassionate release was granted to individuals with mental illnesses on the grounds that such conditions weakened their immune response, rendering them susceptible to COVID infection. In U.S. v. Pina (2020), for example, the Court accepted that lockdown conditions of COVID prevented the plaintiff from self-managing his mental health through exercise.
In 2023, the U.S. Sentencing Commission, responsible for defining “extraordinary and compelling”, specified compassionate release’s application to only people “suffering from a serious functional or cognitive impairment” or those with declining “mental health because of the aging process.” Thus, court decisions and top-down recommendations of the Sentencing Commission have opened the door for individuals with mental illnesses to use compassionate release and receive better care in the community.
Compassionate release as a human rights mechanism
Compared to Estelle’s ‘right to healthcare’, compassionate release shows promise as a mechanism for respecting dignity grounded in human rights principles. Historically, compassionate release laws began in many states in response to the growing numbers of individuals with HIV/AIDS dying behind bars, marking its origin in an era when human rights were a central focus of medical advocacy.
In practice, compassionate release offers a more direct means for individuals to receive care, given the arduous hoops required to pass the Estelle test, as well as the slow rate of change of carceral facilities in response to lawsuits. In the language of human rights, Estelle’s right to healthcare is progressively realisable, meaning that individuals incarcerated in Illinois prisons – despite winning a lawsuit for better care – may not live to see that care provided.
By contrast, compassionate release is a tool for meeting immediate obligations. Of course, what qualifies as an “extraordinary and compelling” need is flexible, but within this flexibility there is space for movement towards a better-realisation of human rights. Over time, courts have shifted from only granting compassionate release for terminal illnesses to granting it for individuals with high risk levels of contracting certain diseases, opening the door for compassionate release to work for more people. In 2023, the Sentencing Commission also noted that they had used feedback from individuals affected by the criminal legal system while compiling a definition for what qualifies as “extraordinary and compelling”, indicating that participatory principles of human rights were respected.
From an international human rights perspective, compassionate release ensures the recognition of several rights that may otherwise go unmet within carceral contexts. Many European countries like France, Germany and the UK have compassionate release laws based on Article 5 of the UDHR, which prohibits torture, similar to America’s Eighth Amendment. Though in the U.S. compassionate release is based in statutory law, some have argued for the centrality of the Eighth in its application, making a similar human rights argument as the European nations that incarceration until death or in the absence of adequate treatment constitutes excessive punishment.
Legal scholars have argued that, to remain in accordance with rights such as Articles 3 and 25 of the UDHR, the U.S. must expand compassionate release to allow individuals to receive adequate treatment outside of prisons/jails, rather than suffer inside with inadequate care.
The limits and future avenues of compassionate release
Compassionate release is not without its current limitations. Firstly, it is a slow process, bogged down within federal prisons by an “exhaustion requirement” that forces individuals to complete an administrative appeals process with the BOP before applying for release. In a highly bureaucratic system, this can take months to years, time that people with serious illness may not have.
Further, despite expansions in who can file and what conditions are “extraordinary and compelling,” the number of compassionate release cases granted are still low, with a 13 percent grant rate in 2022. In reviewing cases that are denied, it becomes clear that medical necessity is of secondary concern to penological considerations.
Public safety is often the primary concern of judges in granting release. As a result, most of those granted compassionate release were convicted of non-violent offenses. This remains the case despite growing evidence that the three year recidivism rate among people released since the First Step Act is markedly lower than the general population, at 12 percent as against 45 percent. In the case of mental illness, the invocation of public safety seems more likely, as it is often noted (though not necessarily borne out in the data) that recidivism rates for individuals with serious mental illness (‘SMI’) tend to be higher.
Ultimately, the question of where individuals with SMI can expect to receive proper care outside prisons also looms large. Lacking a universal and affordable health insurance scheme, the US remains a place where mental health care is out of reach for many. As such, judges may block release petitions on the grounds that individuals may not actually receive better care outside of prison. Given all this, it is clear that compassionate release is still a limited tool, more applicable to people with physical than mental illnesses, to people with non-violent cases than violent ones, and slow even for those who it releases.
Despite these limitations, there is still space for compassionate release to grow into a meaningful tool for protecting human rights, and there are a number of steps that could help achieve that. On the ground, more can be done to educate individuals about their medical rights, especially as it relates to the expanded definition of compassionate release, as many may be unaware of their ability to petition for freedom on the grounds of health conditions. From a legal perspective, continuing to expand the envelope of what qualifies as “extraordinary and compelling” will be important, especially as it relates to mental health.
In the 2023 changes made by the Sentencing Commission, inadequate medical care was officially listed as a reason for compassionate release. From a mental health perspective, adequate care often requires more than simple medication – it must also entail adequate conditions for maintaining good mental health, as argued in Pina (2020).
On such grounds, could the release of more individuals with serious mental illness be secured? Further, could compounding global crises be leveraged for decarceration?
As global temperatures rise and more individuals die from heat in uncooled prisons – 41 in Texas in a 2023 heatwave – could the arguments of release on the grounds of vulnerability used during COVID-19 likewise be raised here?
Finally, and perhaps most importantly, given that at the state level, compassionate release laws vary widely, more must be done to bring them in line with federal policies.
In the long march towards ending the injustices of mass incarceration in America, tools like compassionate release may help to protect and honor the human rights of individuals caught up in the system.
