Senator Eldridge and Rep. Fluker Oakley Secure Critical Rights for Incarcerated People Suffering From Severe Mental Health Conditions

Bill regulates “mental health watch” in facilities and protects critical rights

Photo above: Worcester Recovery Center and Hospital (WRCH) located on Belmont St, Worcester, Mass. The inpatient psychiatric hospital is a Massachusetts Department of Mental Health (DMH) facility in Central Massachusetts. Photo courtesy of DMH. 

Boston, MA – State Senator Jamie Eldridge (D-Acton) and State Representative Brandy Fluker Oakley (D-Boston) are pleased to announce that S.3097, An Act Addressing Barriers to Care for Mental Health, commonly known as the mental health access bill recently signed by Governor Charlie Baker (R-MA), includes critical protections for incarcerated individuals’ rights to access mental health care. 

The new legislation redefines the way mental health treatment is provided to incarcerated people and allows incarcerated individuals or their representatives to petition for an expeditious transfer to an inpatient psychiatric facility operated by the Department of Mental Health (DMH) or to the Bridgewater State Hospital if stricter custody is required to mitigate serious harm. Before this new law, the DOC denied treatment to incarcerated people.  

Incarcerated individuals suffering from severe mental health conditions, including those who are awaiting trial for a criminal case, may be placed under “mental health watch,” a determination made by Department of Correction (DOC) facilities to “protect a prisoner from a risk of imminent and serious self-harm.” The recently enacted law now allows a court to order a transfer to a licensed psychiatric facility if the individual has been on “mental health watch” for 72 hours or is at serious risk of imminent self-harm.

As Senate Chair of the Criminal Justice Reform Caucus, Senator Eldridge visited many prisons in the Commonwealth, including the DOC-operated Bridgewater State Hospital. Backed by many advocates, Senator Jamie Eldridge previously filed S.1283, which further regulates “mental health watch” and allows timely reassessments for transfers to DMH facilities. The Legislature incorporated the protections of S. 1283, the mental health access bill, through an amendment that Senator Eldridge filed in the State Senate.

The initial filing of the bill came after the U.S. Department of Justice’s alarming report released in late 2020, which finds that the DOC is violating its constitutional obligations by failing to provide adequate mental health services to prisoners. The reports state that during a 13-month period, DOC held 106 prisoners on mental health watch in an isolated cell for 14 consecutive days or longer, and the department allows for a maximum of four days. 

Federal investigations revealed that the DOC “failed to provide adequate mental health treatment to prisoners… and instead expose them to conditions that harm them or place them at serious risk of harm,” according to investigators.

Individuals with behavioral health needs are vastly overrepresented in the criminal justice system: 36% of males and 81% of females in DOC’s custody have open mental health cases, which are often exacerbated by the trauma of prison environments, according to the Massachusetts Association for Mental Health. Individuals at risk of suicide in jails and prisons can spend months in solitary-like conditions. The U.S. DOJ report states that DOC’s inadequate care can often lead to injuries or death.

“Looking into constitutional rights and human dignity of prisoners on mental health watch is a critical step in prison reform. The new legislation will better take care of incarcerated people in prison, and also help them once they are released – an important improvement for public safety,” said Senator Jamie Eldridge. “I am grateful to Rep. Fluker Oakley, PLS, and the MAMH for their support of this important bill. Creating baseline standards for mental health care and introducing professional, licensed behavioral medicine care is a change that is long overdue. I am also grateful to the Senate President, Senator Cyr, and Senator Friedman for including this provision in the final legislation.”

“It is critical that mental health crises in prison are treated with appropriate mental health care,” said Rep. Brandy Fluker Oakley. “As such, I am so grateful to have partnered with Chair Eldridge to limit the use of indefinite mental health watch as a punishment and instead to provide treatment to those who need it the most.”

“The inclusion of the “mental health watch” provision in the mental health access bill demonstrates that this bill really does seek to improve access and care for everyone in the Commonwealth,” said Jennifer Honig, co-director of public policy and government relations at Massachusetts Association for Mental Health. “By expanding the availability of treatment settings and services for prisoners at moments of profound crisis, we protect prisoners from self-harm and promote recovery and rehabilitation, which benefits us all. We thank the Legislature and the Administration for recognizing the need for this reform.”

“Incarcerated people in mental health crises are often placed in cells with no clothing, no property, and little to no access to communication or fresh air. The indignity, isolation, and lack of access to appropriate treatment often exacerbate the crisis,” said Jesse White, policy director at Prison Legal Services. “Allowing for a transfer to a more appropriate medical setting to help them stabilize is an important step in protecting their human dignity and constitutional rights. We are grateful for the advocacy of Sen. Eldridge and Rep. Fluker Oakley and to all those who supported this legislation.”

“Mental health watch is meant to be an emergent response that temporarily protects the life of a prisoner in crisis. Its conditions are so dehumanizing, however, that before long, the mental health watch itself becomes the crisis. Anytime a person is held on a mental health watch for more than a couple of days, that is an emergency and should be treated as such. For a person to remain on a watch, facing continued deprivations with no recourse or foreseeable end, is harmful and potentially disastrous.” said Joel Thompson, managing attorney of Harvard Law Schools’ Harvard Prison Legal Assistance Project. “I am grateful that the Legislature and Governor recognized this reality and took concrete steps to address it. I am particularly grateful to Senator Eldridge and Representative Fluker Oakley for their leadership on this issue; the new legislation is an important step toward protecting some of the most vulnerable people in the Commonwealth.”

Regrettably, the Governor is already trying to gut the mental health watch statutory protections. He is doing so through an obscure provision tucked into the final FY23 supplemental budget of his tenure.

“One would think that Governor Baker would support improving behavioral health care for incarcerated people in light of the U.S. Department of Justice’s deeply disturbing findings,” Eldridge stated. Eldridge continued, “I hope that the Legislature firmly rejects the Governor’s cynical machinations to weaken reforms he himself signed into law.”     

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