Harold C. Hirshman
Marc R. Kadish
Built in 1925 and known as the “roundhouse,” the circular jail at Stateville Correctional Center near Joliet is the last of its kind in the country.
Four tiers of prison cells line its circumference with a guard tower at its center. This panopticon-style layout would revolutionize inmate observation, argued a 19th century philosopher.
Reality proved otherwise.
Overcrowding means that cells designed for one inmate now house two, who struggle to move at the same time.
The cells’ open bars have been covered with Plexiglas that is now opaque, rendering nearly useless the guard tower’s 360-degree line of sight. To seek attention, inmates use their voices, naturally amplified by the cylindrical acoustics.
“The place is a cacophonous madhouse,” said Alan S. Mills, executive director of the Uptown People’s Law Center, who has visited the facility.
Mills and others, including the Illinois Department of Corrections, hope that a settlement reached last month in a class-action lawsuit will provide relief from this place to some of the prison system’s most vulnerable — its more than 11,000 mentally ill inmates.
The settlement in a case filed in 2007 brings some widespread changes to the state’s mental health care system for inmates, which experts said desperately lags behind national standards. The settlement will lead to Illinois’ first psychiatric hospital for prisoners and will allow the hiring of more than 300 mental health professionals.
In a change germane to those living at the roundhouse, the settlement will replace a policy that often puts the mentally ill in segregation, meaning they are left in their cells for nearly 24 hours a day and often constantly monitored to prevent suicide attempts. While this may prevent suicide, Mills said it often causes the mentally ill to “decompensate.”
“They deteriorate, engage in self harm, lash out at other people,” he said. “You’re falling apart is the more prosaic way to put that.”
As a result of the settlement, the IDOC will release from solitary confinement prisoners with serious mental illnesses who are there for non-violent offenses. It will also consider mental health before segregation sentencing. That means the mentally ill at the roundhouse and elsewhere may get a reprieve from their cells, lessening the risk of “falling apart.”
The settlement comes as acceptance is growing locally and nationally for the idea that society’s mentally ill have largely been imprisoned rather than treated. Cook County Sheriff Thomas J. Dart has said the Cook County Jail is the nation’s largest mental health care facility. Its warden is now a psychiatrist.
Over the eight years of litigation in the recently settled case, according to lawyers involved, the state’s response to the lawsuit see-sawed from admitting a problem to denial and, ultimately, a compromise aimed at bettering the odds that mentally ill offenders can return to society.
The story behind the settlement shows how the attitudes toward prison mental health shifted over time, and how politics played a large role in that. It is also a story of what Big Law firms can do with pro bono efforts.
“We didn’t perceive that we were riding some kind of wave when we started this thing,” said Harold C. Hirshman, a Dentons U.S. LLP partner who led the pro bono efforts in a case that was at one point scheduled to begin trial today.
“Of course, we fell victim to politics. But in the meantime, the world was turning a bit.”
Ashoor Rasho was admitted to the Illinois prison system on Sept. 27, 1996, with an eight-year sentence for burglary. Had he served his time peacefully, he could have been released after four years, in 2000.
Instead, he has been convicted of a series of aggravated assaults, attempted suicide multiple times and has a projected parole date in 2022.
Marc R. Kadish, a Mayer, Brown LLP partner who represented Rasho in a pro bono case, said his client’s story highlights the results of jailing the mentally ill.
“All of his convictions were for shouting at the guards or things that are not pleasant. Throwing feces or urine. But he never stabbed a guard,” Kadish said.
In a more lucid moment, and with the help of Mills’ Uptown People’s Law Center, Rasho filed in the U.S. District Court for the Central District of Illinois a pro se lawsuit in 2007. He alleged the lack of mental health treatment in Illinois prisons was cruel and unusual punishment in violation of the Eighth and 14th Amendments and discrimination under the Americans with Disabilities Act and Rehabilitation Act.
Shortly afterward, Kadish and Hirshman became involved. Eventually, Hirshman said the law firms and legal clinics would provide more than $7 million in legal work.
Hirshman said the most difficult aspect of the case was a judgment call that would be made more than once: Determining how to most quickly achieve a result that “had the ability or the possibility of creating a much better environment.”
Rather than setting the case on track for a trial, Hirshman’s first decision was to take a more cooperative approach toward a settlement, spurred by the history of then-IDOC Director Michael Randle. While working in the Ohio Department of Corrections, Randle had settled a similar mental health lawsuit that Hirshman said would be a “significant, transformative event in Illinois.”
To establish a baseline of the current mental health program, both sides agreed to an independent analysis, which was conducted by Fred Cohen, a New York law professor and expert on prison conditions.
After spending nine months visiting and observing Illinois’ prisons, he authored a 180-page report in 2012. That report was paid for by the state, in a tradeoff for an agreement that it would remain private. But, by all accounts, it did not paint a favorable picture for the state.
“Essentially, Cohen concluded in the first instance that Illinois had no system for delivering mental health care” in prisons, Hirshman said. “And by that he meant they could not verify what they were doing; who they were doing it for; and how well they were doing it.”
Hirshman hoped to use this to craft a settlement but quickly hit a roadblock. Randle was out of the job before the report was finished, in 2010, when an early-release program he championed came under scrutiny. Some who were released re-offended.
By May 2013, the two sides had largely come to an agreement on changes — similar to those that were ultimately agreed to — and an independent monitoring system to ensure their installation.
“In essence, it was a document which was a blueprint of deficiencies,” Hirshman said.
In 2014, the monitor found the progress on the agreement was adequate except for one glaring exception: No movement had been made on the mental health hospital in the agreement.
In a report to the court, the monitor said the prison system’s assertion that — despite an inmate population of nearly 48,000 — no one serving time in Illinois would ever require a psychiatric hospital bed is “ridiculous and not supportable.”
Things unraveled further shortly after Gov. Bruce Rauner was elected in November 2014.
“He didn’t campaign knowing there was an 11,000-inmate class-action suit against the IDOC,” Kadish said. “He and his office and staff had to be familiarized with the case.”
In March, Hirshman said representatives from the IDOC said they had no intention of signing a consent decree. Long the end goal of the settlement process, a consent decree would give Hirshman’s team an enforceable document in federal court if the state failed its requirements.
In response, Hirshman asked U.S. District Court Judge Michael M. Mihm to put the case on track for trial.
Nearly 40 depositions were taken, and a trial date was set.
The first breakthrough, Hirshman said, came in August when Rauner named John Baldwin the IDOC director. Hirshman said LaShonda A. Hunt, the IDOC general counsel, brokered a meeting between Baldwin and Hirshman’s team. There, Hirshman said Baldwin told him he hoped changes would be made within a year.
“We didn’t quite know what to make of that, but it certainly sounded better than we’re going to fight you like Churchill said on the beaches, in the streets, and wherever else,” he said. “But we were unwilling to suspend litigation. We’d already been down that road.”
Following an unsuccessful settlement hearing shortly before Thanksgiving, Hirshman said he asked the IDOC for a proposed settlement by Dec. 2. He got it Dec. 4. While continuing to take depositions in preparation for the January trial, the two sides hashed out an agreement by Dec. 16, which was announced by the judge Dec. 22.
The settlement provides 350 full-time mental health experts and 420 additional guards at an annual expense of $40 million. The construction of the hospital, in Joliet near the roundhouse, will cost $40 million.
“Illinois prisons were not intended to be psychiatric hospitals but the reality is, they have become holding places for people who suffer from serious mental illness,” Baldwin said in a news release.
“Our end goal is to get them stabilized and help them cope and adjust to their environment. This will improve correctional outcomes for those with mental illness and increase safety for our dedicated staff, all offenders, and the citizens we serve.”
Mills lauded Baldwin, formerly the head of corrections in Iowa, for seeking reforms but acknowledged the cost may be prohibitive.
“I think the will is there. The understanding is there, at least at the director level,” Mills said. “And that’s part of the reason we were willing to settle.”
Hirshman said the changes will not put Illinois “at the apex of mental health care and state prison systems.”
“But we’ll have come off the bottom,” he said.
The state will, however, remain the last to operate a panopticon prison. That is unlikely to change.