Just Mercy (27 page)

“I don’t know,” I told Michael, “but we have to press on, man, we have to press on.”

We both sat there in silence, watching the sun fade into darkness. More fiddler crabs emerged from their holes, scurrying crazily and getting closer to where we sat. I turned to Michael in the approaching darkness.

“We should go.”

America’s prisons have become warehouses for the mentally ill.

Mass incarceration has been largely fueled by misguided drug policy and excessive sentencing, but the internment of hundreds of thousands of poor and mentally ill people has been a driving force in achieving our record levels of imprisonment. It’s created unprecedented problems.

I first met Avery Jenkins over the telephone. He called me, but he was pretty incoherent. He couldn’t explain what he had been convicted of or even clearly describe what he wanted me to do. He complained about the conditions of his confinement until a random thought caused him to abruptly switch topics. He sent letters, too, but they were just as hard to follow as his phone calls, so I decided to speak with him in person to see if I could make better sense of how to help.

For over a century, institutional care for Americans suffering from serious mental illness shifted between prisons and hospitals set up to manage people with mental illness. In the late nineteenth century, alarmed by the inhumane treatment of incarcerated people suffering from
mental illness, Dorothea Dix and Reverend Louis Dwight led a successful campaign to get the mentally ill out of prison. The numbers of incarcerated people with serious mental illness declined dramatically, while public and private mental health facilities emerged to provide care to the mentally distressed. State mental hospitals were soon everywhere.

By the middle of the twentieth century, abuses within mental institutions generated a lot of attention, and involuntary confinement of people became a significant problem. Families, teachers, and courts were sending thousands to institutions for eccentricities that were less attributable to acute mental illness than resistance to social, cultural, or sexual norms. People who were gay, resisted gender norms, or engaged in interracial dating often found themselves involuntarily committed. The introduction of antipsychotic medications like Thorazine held great promise for many people suffering from some severe mental health disorders, but the drug was overused in many mental institutions, resulting in terrible side effects and abuses. Aggressive and violent treatment protocols at some facilities generated horror stories that fueled a new campaign, this time to get people out of institutional mental health settings.

In the 1960s and 1970s, laws were enacted to make involuntary commitment much more difficult. Deinstitutionalization became the objective in many states. Mental health advocates and lawyers succeeded in winning a series of Supreme Court cases that forced states to transfer institutional residents to community programs. Legal rulings empowered people with developmental disabilities to refuse treatment and created rights for the mentally disabled that made forced institutionalization much less common. By the 1990s, several states had a deinstitutionalization rate of over 95 percent, meaning that for every hundred patients who had been residents in state hospitals before deinstitutionalization programs, fewer than five were residents when the study was conducted in the 1990s. In 1955, there was one psychiatric bed for every three hundred Americans; fifty years later, it was one bed for every three thousand.

While these reforms were desperately needed, deinstitutionalization intersected with the spread of mass imprisonment policies—expanding criminal statutes and harsh sentencing—to disastrous effect. The “free world” became perilous for deinstitutionalized poor people suffering from mental disabilities. The inability of many disabled, low-income people to receive treatment or necessary medication dramatically increased their likelihood of a police encounter that would result in jail or prison time. Jail and prison became the state’s strategy for dealing with a health crisis created by drug use and dependency. A flood of mentally ill people headed to prison for minor offenses and drug crimes or simply for behaviors their communities were unwilling to tolerate.

Today, over 50 percent of prison and jail inmates in the United States have a diagnosed mental illness, a rate nearly five times greater than that of the general adult population.
Nearly one in five prison and jail inmates has a serious mental illness.
In fact, there are more than three times the number of seriously mentally ill individuals in jail or prison than in hospitals; in some states that number is ten times. And prison is a terrible place for someone with mental illness or a neurological disorder that prison guards are not trained to understand.

For instance, when I still worked in Atlanta, our office sued Louisiana’s notorious Angola Prison for refusing to modify a policy that required prisoners in segregation cells to place their hands through bars for handcuffing before officers entered to move them. Disabled prisoners with epilepsy and seizure disorders would sometimes need assistance while convulsing in their cells, and because they couldn’t put their hands through the bars, guards would mace them or use fire extinguishers to subdue them. This intervention aggravated the health problems of the prisoners and sometimes resulted in death.

Most overcrowded prisons don’t have the capacity to provide care and treatment to the mentally ill. The lack of treatment makes compliance with the myriad rules that define prison life impossible for
many disabled people. Other prisoners exploit or react violently to the behavioral symptoms of the mentally ill. Frustrated prison staff frequently subject them to abusive punishment, solitary confinement, or the most extreme forms of available detention. Many judges, prosecutors, and defense lawyers do a poor job of recognizing the special needs of the mentally disabled, which leads to wrongful convictions, lengthier prison terms, and high rates of recidivism.

I once represented a mentally ill man on Alabama’s death row named George Daniel. George had suffered brain damage in a car accident that knocked him unconscious late one night in Houston, Texas. When he woke up, he was in an upside-down car on the side of the road. He went home that night and never sought medical assistance. His girlfriend later told his family that at first he just seemed a little off. Then he started hallucinating and exhibiting increasingly bizarre and erratic behavior. He stopped sleeping regularly, complained about hearing voices, and on two occasions ran out of the house naked because he thought he was being chased by wasps. Within a week of the accident he had stopped speaking in sentences. Just before his mother, who lived in Montgomery, was summoned to help persuade him to go to a hospital, George boarded a Greyhound bus in the middle of the night. He traveled as far as the money he had in his pocket would take him.

Disoriented and uncommunicative, he was forced off the bus in Hurtsboro, Alabama, after unnerving some passengers by talking loudly to himself and gesturing wildly at objects he imagined were flying around him. The bus had gone through Montgomery, where he had family, but he stayed on until he was thrown off, with no money and wearing jeans, a T-shirt, and no shoes in the middle of January. He wandered around Hurtsboro and eventually stopped at a house. He knocked on the door, and when the homeowner opened it, George walked inside without being invited and roamed around until he
found the kitchen table, where he sat down. The alarmed homeowner called her son, who came and physically removed George from the house. George went to another home owned by an older woman and did the same thing. She called the police. The officer who responded had a reputation for being aggressive, and he forcefully removed George from the home. George started resisting while being pulled to the police car, and the two men began wrestling and fell to the ground. The officer pulled his weapon and the two were grappling over the gun when it discharged, shooting the officer in the stomach. He died from the gunshot wound.

George was arrested and charged with capital murder. While in the Russell County jail, he became acutely psychotic. Officers reported that he wouldn’t leave his cell. He was observed eating his own feces. His mother visited him, but he didn’t recognize her. He couldn’t speak in complete sentences. The two lawyers who were appointed to represent him at his capital trial were primarily concerned that only one of them would be paid the $1,000 for out-of-court time that Alabama provided lawyers appointed in capital cases.
They began squabbling with each other, and one filed a civil suit against the other about who could claim the money. Meanwhile, the judge sent George to Bryce Hospital in Tuscaloosa for a competency examination. Ed Seger, the doctor who examined George, mysteriously concluded that he was not mentally ill but was “malingering” or faking symptoms of mental illness.

Based on that evaluation, the judge allowed the capital murder trial to proceed. George’s lawyers bickered with one another, presented no defense, and called no witnesses. The State called Dr. Seger, who persuaded the jury that there was nothing mentally wrong with George, even as he continuously spit in a cup and made loud clucking noises throughout the trial. George’s family members were distraught. George had been working at a Pier 1 furniture store in Houston before his car accident. He left town without picking up his check, which had been ready for collection for over two days before his departure.
His mother, a poor woman who knew the value of a dollar to someone like George, found this behavior more demonstrative of mental illness than anything else she could point to, and she authorized the lawyers to obtain the unclaimed check in the hope that they could present it at the trial to confirm George’s confused mental state. The lawyers, who were still bickering over the money, cashed the check to pay themselves instead of using it as evidence.

George was convicted and given the death penalty. By the time we at EJI got involved, he had been on death row for several years, moving inexorably toward execution. When I met him, prison doctors were heavily medicating him with psychotropic drugs, which at least stabilized his behavior. It was so abundantly clear that George was mentally ill that it came as no shock when we discovered that the doctor who had examined him at Bryce Hospital was a fraud with no medical training. “Dr. Ed Seger” had made up his credentials. He had never graduated from college but had fooled hospital officials into believing he was a trained physician with expertise in psychiatry. He had masqueraded at the hospital for
eight years
conducting competency evaluations on people accused of crimes before his fraud was uncovered.

I represented George in his federal court proceedings. There, the State acknowledged that Seger was an imposter but wouldn’t agree that George was entitled to a new trial.
We eventually won a favorable ruling from a federal judge who overturned his conviction and sentence. Because of his mental illness and incompetency, George was never retried or prosecuted. He has been at a mental institution ever since. But there are likely hundreds of other people imprisoned after an evaluation by “Dr. Seger” whose convictions have never been reviewed.

A lot of my clients on death row have had serious mental illnesses, but it wasn’t always obvious that their history of mental illness predated
their time in prison, since symptoms of their disabilities could be episodic and were frequently stress-induced. But Avery Jenkins’s letters, handwritten in print so small I needed a magnifying glass to read them, convinced me that he had been very ill for a long time.

I looked up his case and began to piece together his story. It turned out he’d been convicted of the very disturbing and brutal murder of an older man. The multiple stab wounds inflicted on the victim strongly suggested mental illness, but the court records and files never referenced anything about Jenkins suffering from a disability. I thought I’d find out more by meeting him in person.

When I pulled into the prison parking lot, I noticed a pickup truck there that looked like a shrine to the Old South: It was completely covered with disturbing bumper stickers, Confederate flag decals, and other troubling images. Confederate flag license plates are everywhere in the South, but some of the bumper stickers were new to me. A lot were about guns and Southern identity. One read, I
F
I’
D KNOWN IT WAS GOING TO BE LIKE THIS,
I’
D HAVE PICKED MY OWN DAMN COTTON
. Despite growing up around images of the Confederate South and working in the Deep South for many years, I was pretty shaken by the symbols.

I’d always been especially interested in the post-Reconstruction era of American history. My grandmother was the daughter of people who were enslaved. She was born in Virginia in the 1880s, after federal troops had been withdrawn and a reign of violence and terror had begun, designed to deny any political or social rights for African Americans. Her father told her stories of how the recently emancipated black people were essentially re-enslaved by former Confederate officers and soldiers, who used violence, intimidation, lynching, and peonage to keep African Americans subordinate and marginalized. My grandmother’s parents were deeply embittered by how the promise of freedom and equality following slavery ended when white Southern Democrats reclaimed political power through violence.