Correcting Correctional Suicide: Qualified Immunity and the Hurdles to Comprehensive Inmate Suicide Prevention
Correcting Correctional Suicide: Qualified Immunity and the Hurdles to Comprehensive Inmate Suicide Prevention
Venus Chui 0 1
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Abstract: Suicide is the leading cause of death in U.S. jails, and the second
leading cause of death in U.S. prisons. Suicidal behavior amonignmates largely
stems from the custodial environment and inmates’difficulties coping with inca
rceration. Unfortunately, many correctional facilities lack the comprehensive su
icide prevention policies necessary to reduce inmate suicides. Under the qualifie d
immunity doctrine, current law also shields correctional authorities from liability
for failure to implement adequate suicide prevention programs in their facilities.
As a result, corrections officials lack incentive to enhance their efforts toward r
educing inmate suicides, and families of inmate suicide victims have limited o
pportunities to seek justice. This Note argues that in order to reduce inmate
suicides and ensure the safety and health of incarcerated individuals, the federal
government should con dition funding to state and local correctional facilities on
their implementation of reasonable and effective suicide prevention protocols.
Christopher Barkes lived in Wilmington, Delaware and workedat the Pepsi
Bottling Company. 1 He and his wife, Karen, had two daughters: Alexandra and
Brittany.2 Barkes’s life took a turn in 1997, when he killed two individuals in a
drunk driving accident. 3 He pled guilty to two counts of second- degreevehicular
homicide, and was sentenced to two years in prison followed by an extended
period of probation.4 The accident deeply affected Barkes, who subsequently
suffered from overdoses, alcoholism, post -traumatic stress disorder, and bipolar
disorder.5 He also attempted suicide four times: once in 1997,in2003, andtwice
in September of 2004.6
1 Christopher J. Barkes Obituary,DEL. ONLINE (Nov. 17, 2004), http/:/www.legacy.com/
2 See Barkes v. First Corr. Med., Inc. ( Barkes II), 766 F.3d 307, 310 (3d.Cir. 2014), rev’d,135S.
Ct. 2042 (2015).
3 See Complaint at 3, Barkes II, 766 F.3d 307 (No. 12-3074).
5 Barkes II, 766 F.3d at 310–11; Complaint, supra note 3, at 3.
6 Barkes II, 766 F.3d at 310–11.
On November 13, 2004, law enforcement officials arrested Barkes for vi
olating his probation sentence for a domestic abuse incident.7 Upon arrest,
officials took him to the Howard R. Young Correctional Institution (“HRYCI”) in
Wilmington, Delaware, where a contract nurse gave him a medical evaluationat
intake.8 Barkes told the nurse that he had a history of psychiatric treatment and
that he was on medications for bipolar disorder and depression9. He also
disclosed his attempted suicide in 2003, but indicated that he was not currently
thinking about killing himself1.0 Based on those responses, the nurse gave
Barkes a routine referral to mental health services but did not initiateanyspecial
suicide prevention measures. 11 Correctional staff then placed Barkes alone in a
cell in the booking and receiving area of HRYCI.12
Later that day, Barkes called his wife and told her that he “[couldn’t] live
[that] way anymore,” and that he was going to kill himself.13 His wife did not
inform the Delaware Department of Correctionof the conversation,thinkingthat
her husband would be safe in the facility, given that state officials and his prob
ation officer knew about his prior suicide attempts. 14 The next morning,
correctional staff found Barkes dead, hanging by a sheet from a steel partition in the
ceiling of his cell.15
In February of 2006, Barkes’s wife and two daughters filed a complaint on
behalf of Barkes against Stanley Taylor, then-Delaware Commissioner of
Correction, and Raphael William s, then-Wardenof HRYCI. 16 Their claimwasbased
on 42 U.S.C. § 1983, commonly known as Section 1983, which allows an
individual to sue government officials for depriving him or her of a constitutional
right, privilege, or immunity, and to seek damages or other relief1.7 The
complaint alleged that Taylor and Williams violated Barkes’s Eighth Amendment
right against cruel and unusual punishment by their deliberate indifference to
Barkes’s serious medical needs, including failure to supervise and monitor First
Correction Medical (“FCM”), the private contractor providing medical treatment
at the HRYCI. 18 The plaintiffs specifically pointed to evidence that the contract
nurse was a licensed practical nurse, rather than a qualified mental health pr
ofessional, and argued that she was less qualified to evaluate inmates for mental
health issues, such as suicide risk. 19 They also contended that FCM’s suicide
prevention screening practices relied on outdated guidelines by the National
Commission on Correctional Healthcare, that FCM lacked access to Barkes’s
probation records containing information about his history of mental health
problems, and that FCM was intentionally understaffing HRYCI in order to
Taylor and Williams moved for summary judgment, arguing that as
government officials they were entitled to qualified immunity, and therefore were
not liable for Barkes’s death. 21 The United States District Court for the District
of Delaware denied the motion, and the United States Court of Appeals for the
Third Circuit affirmed. 22 The Third Circuit held that Taylor and Williams were
under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought against a judicial officer
for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was unavailable. ” 42 U.S.C. § 1983. The
plaintiffs also filed state claims for wrongful death and survival actions. Complaint, supra note 3, at
18 U.S. CONST. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.”); Barkes III, 135 S. Ct. at 2043.
19 Barkes II, 766 F.3d at 330. Qualified mental health professionals includes psychiatrists,
psychologists, psychiatric social workers, psychiatric nurses, and others who are legally authorized to
evaluate and treat patients with mental health needs because of their education, credentials,
andexperience. Hayes, supra note 11, at 191.
20 Barkes II, 766 F.3d at 330–31.
21 Barkes III, 135 S. Ct. at 2043. Government officials are not held liable for their actions unless
those actions violate a right that is “clearly established” in the law at the time of the conduct. Reichle
v. Howards, 566 U.S. 658, 664 (2012).
22 Barkes III, 135 S. Ct. at 2042–43. The Barkes family filed its complaint against Taylor and
Williams on February 16, 2006, in the United States District Court for the District of Delaware, and
summary judgment was granted to Taylor and Williams. Barkes II, 766 F.3d at 314. The Barkeses
filed an appeal, which was dismissed by a stipulation of both parties on July 9, 2008. Id. While that
appeal was pending, the district court conducted a hearing on the Barkes family ’s motion for default
judgment. Id. at 315. The court ruled in favor of the Barkeses at that hearing, and the family filed a
first amended complaint on June 13,2008. Id. Taylor and Williams moved to strike the amended
complaint, arguing that the claims asserted had already been dismissed previously on summary
judgment. Id. Although the district court granted the motion to strike, it also allowed the Barkes famil y to
file a second amended complaint as long as it did not repeat the claims from the previous complaint.
Id. The Barkeses filed a second amended complaint on April 9, 2009, whichwas dismissed, andthen a
not entitled to qualified immunity because Barkes had suffered a deprivation of
his constitutional right under the Eighth Amendment to proper implementation
of adequate suicide pre vention protocols, and this right was clearlyestablished at
the time of the alleged misconduct.23 Taylor and Williams then petitioned for
In 2015, the United States Supreme Court reversed theThird Circuit’s dec
ision, holding that the qualified immunity doctrine protected the commissioner
and warden from the Barkes family’s claim. 25 Rather than request an oral arg
ument to consider whether any constitutional rights were violated in Barkes’s
case, or to clarify the scope for supervisory liability and the standard for
qualified immunity, the Court simply filed a short, per curiam opinion dismissing the
claim.26 The Court reasoned that there was no violation of clearly established
law because none of its prior decisions established a right to proper i
mplementation of adequate suicide prevention protocols, or even discussed suicide
screening or prevention protocols.27 Therefore, the Court concluded that the officials
were entitled to qualified immunity.28
The Supreme Court’s ruling inTaylor v. Barkes leaves inmates with no
guarantee to suicide prevention measures. 29 Suicide has caused the majority of
third amended complaint on April 22, 2010, in which they included an Eighth Amendment claim. Id.
Taylor and Williams filed a motion to dismiss the third amended complaint on May 6, 2010, which
was denied. Id. Both parties then filed cross-motions for summary judgment, at which point Taylor
and Williams in voked qualified immunity for the first time. Id. The district court denied both motions
for summary judgment, and the Barkeses filed an appeal with the Court of Appeals for the Third Ci
rcuit. Id. The Court of Appeals reviewed the case pursuant to the collateral order doctrine, which
allows the review of orders denying qualified immunity at summary judgment when the denial turns on
questions of law. Id. at 315–16.
23 Barkes II, 766 F.3d at 327–28.
24 Barkes III, 135 S. Ct. at 2044.
25 Id. at 2045.
26 Id. at 2043–44; see Lisa Soronen, Prison Officials Get Qualified Immunity in Inmate Suicide ,
NAT’L CONF. ST. LEGISLATURES BLOG (June 5, 2015), http:
//www.ncsl.org/blog/2015/06/05/prisonofficials-get-qualified-immunity-in-inmate-suicide.aspx [https://perma.cc/72CE-KHJV] (discussing
the Supreme Court’s refusal to hear oral argument in Barkes’s case). A per curiam opinion is an
unsigned opinion written on behalf of the entire court. Glossary of Legal Terms , SCOTUSBLOG (Mar. 10,
2018), http://www.scotusblog.com/reference/educational-resources/glossary-of-legal-terms/ [https://
perma.cc/NSB8-VPR8]. Supervisory liability refers to the personal liability of a government official
whose subordinate acts in violation of an individual ’s constitutional rights. See Barkes II, 766 F.3d at
316. Supervisory liability may attach if the subordinate “established and maintaineda policy,practice
or custom which directly caused [the] constitutional harm ” or if the supervisor “participatedin viola
ting the plaintiff ’s rights, directed others to violate them, or, as the person in charge, had knowledge of
and acquiesced” in the unconstitutional act. Id. (alteration in original) (quoting A.M. ex rel. J.M.K. v.
Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). Claims regarding a supervisor ’s
failure to do something—such as train, discipline, or supervise—fall into the subcategory of policy or
practice liability. Id. The Court declined to rule on the issue of supervisory liability and only reversed
on qualified immunity. See Barkes III, 135 S. Ct. at 2043.
27 Barkes III, 135 S. Ct. at 2044.
28 Id. at 2045.
29 See Dorf, supra note 17.
deaths in local jails inAmerica each year between 2000 and 2014. 30 The number
of suicides in local jails rose 13% between 2013 and 2014, from 328 suicides to
372.31 In 2014, the suicide rate in local jails was fifty per 100,000 inmates,
which has been the highest suicide rate among local jails since 2000. 32 In 2014,
7% of all deaths in state prisons were the result of suicides— the largest percen
tage of deaths in state prisons due to suicide since 2001.33 In 2006, the suicide
rate in detention facilities —where individuals are detained for more than forty
eight hours, but less than two years—was thirty-six deaths per every 100,000
inmates, which is approximately three times greater than that in the general non
incarcerated population. 34 The slow progress in inmate suicide prevention is a
ttributable to a lack of comprehensive suicide prevention policies in correctional
30 See BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, MORTALITY IN LOCAL JAILS,
2000–2014—STATISTICAL TABLES 5 (2016), https://www.bjs.gov/content/pub/pdf/mlj0014st.pdf
(showing that suicide was the leading cause of death in local jails
between 2000–2014, when considering all the illnesses as separate causes of death)
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, MORTALITY IN LOCAL JAILS AND STATE PRISONS, 2000–
2013—STATISTICAL TABLES 1 (2015),https://www.bjs.gov/content/pub/pdf/mljsp0013st.pdf[https://
perma.cc/A3FA-WHHW] (stating that since 2000, suicide has been the leadingcauseof death inlocal
jails each year). In response to the suicide of a former inmate in Texas, Sandra Bland, the Huffington
Post gathered data from news reports, press releases, official records, and phone calls to compile an
unofficial database of inmate deaths in jails and police lockups between July 13, 2015, and July 13,
2016. Since Sandra, HUFFINGTON POST (July 20, 2016),
http://data.huffingtonpost.com/2016/jaildeaths [https://perma.cc/X4MX-QX4G]. According to the database,therewere256inmatesuicidesin
jails and police lockups across all fifty states between July 13, 2015 and July 13, 2016. Id. (to retrieve
the data on suicide, scroll down to“Jail Deaths Database,” find the dropdown list titled “Cause of
death,” and select “Suicide/Apparent Suicide”). The Huffington Post states that the numbers in the
database are likely lower than the actual numbers, because many states do not collect data on inmate
mortality, some agencies did not respond to requests for information, and deaths in smaller jails are
not always made public. Id. Suicide is more prevalent in local jails than in stateprisons, where various
types of illness are the leading causes of death, and suicide is the next leading cause of deathS. ee
MORTALITY IN LOCAL JAILS AND STATE PRISONS, 2000–2013, supra,at1,20
been the leading cause of death in local jails since 2000, and showing that in state prisons, thenumber
of deaths due to various illnesses caused the majority of deaths but that suicide was still the next
leading cause of death after some of these illnesses)
.The rate of suicide in state prisons, however, still
remains greater than that in the general noni-ncarcerated population. NAT’L INST. OF CORR., U.S.
DEP’T OF JUSTICE, NATIONAL STUDY OF JAIL SUICIDE: 20 YEARS LATER 2 (2010), https://s3.
for the higher rate of suicide in local jails are the initial shock of confinement, the fact that jails have
less information on inmates upon arrival, and because prison policies are under greater scrutiny by
accreditors. Maurice Chammah & Tom Meagher, Why Jails HaveMoreSuicidesThanPrisons ,
MARSHALL PROJECT (Aug.4,2015),https:
31 MORTALITY IN LOCAL JAILS, 2000–2014, supra note 30, at 1.
32 Id. at 2.
33 BUREAU OF JUSTICE STATISTICS U.S. DEP’T OF JUSTICE, MORTALITY IN STATE PRISONS,
2001–2014—STATISTICAL TABLES 1 (2016), https://www.bjs.gov/content/pub/pdf/msp0114st.pdf
34 NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 2, 45.
facilities across the United States. 35 Such policies should be legally required in
all correctional facilities in order to reduce the rate of suicide in jails and prisons
across the country.36
Because the Supreme Court in Taylor v. Barkes declined to recognize that
an inmate’s right to effective suicide prevention measures is clearly established,
officials at correctional facilities are protected fromliabilityby qualified immu
nity even if their suicide prevention measures are flawed. 37 This immunity exists
even if the defective suicide prevention protocols are directly linked to
annicrease in inmate suicide at their correctional facilities. 38 Correctional officials at
a facility that has no suicide prevention protocols may still avoid liability for
inmate suicide deaths under the doctrine of qualified immunity.39 The Barkes
holding has left families of inmate suicide victims with few avenues for retrib
This Note examines the status of the law regarding correctional liabilityfor
defective suicide prevention protocols, and the importance of ensuring the
implementation of comprehensive suicide prevention policies in order to reduce
inmate suicide. 41 Part I discusses the qualified immunitydoctrine, and how it has
shielded correctional officers from liability in inmate suicide cases. 42 Part II e
xplains the necessary components of an effective suicide prevention strategy, the
current state of suicide prevention programming in jails, and the reasons why
inadequate programming has led to an increase in inmate suicide.43 Finally, to
provide greater protection to inmates at risk of suicide, Part III recommends that
the federal government condition correctional funding for state and local
governments on their implementation of reasonable and effective suicide prevention
programs in their correctional facilities.44
35 See generally Hayes, supra note 11 (describing the antiquated views of correctional leaders
regarding what it takes to prevent inmate suicides and recommending guidelines for improvement).
36 See generally id. (same); Annette Hanson, Correctional Suicide: Has Progress Ended?, 38 J.
AM. ACAD. PSYCHIATRY & L. ONLINE 6, 6 (2010), http://jaapl.org/content/jaapl/38/1/6.full.pdf [https://
perma.cc/ZC8Y-2HB3] (suggesting that progress in preventing inmate suicides is declining and that
current correctional suicide prevention measures should be updated and improved).
37 Dorf, supra note 17.
38 See id. (discussing the Supreme Court ’s decision in Taylor v. Barkes to extend immunitytothe
jail officials, despite the possibility that the jail’s suicide prevention measures were defective and
therefore led to the failure to prevent Barkes’s death).
40 See id.
(noting that the Supreme Court ’s dismissal of Section1983 actionsonqualifiedimmu
nity grounds prevents any meaningful analysis of whether a plaintiff’s constitutional rights wereactua
lly violated, thereby creating a barrier for future plaintiff s)
. See generally Barkes III, 135 S. Ct. 2042
(finding that Taylor and Williams were entitled to qualified immunity, without discussing whether
Barkes’s constitutional rights were violated).
41 See infra notes 45–261 and accompanying text.
42 See infra notes 45–101 and accompanying text.
43 See infra notes 102–194 and accompanying text.
44 See infra notes 195–261 and accompanying text.
I. CORRECTIONAL LIABILITY FOR DEFECTIVE SUICIDE
Inmate suicide is largely attributable to the lack of comprehensive suicide
prevention protocols in jails and prisons. 45 Unfortunately, because ofthecurrent
law’s treatment of government officials, families of inmate suicide victims have
limited means for retribution, and correctional facilities have little incentive to
pursue change. 46 Government officials in inmatesuicidecases— namely,
correctional leaders and officers —are protectedund er the doctrine of
qualifiedimmunity, which shields them from liability so long as their actions did not violate an
inmate’s constitutional right that was clearly established at the time of the
laleged improper conduct.47 Section A discusses the origins of the qualified
immunity doctrine and the development of the “clearly established” standard4.8
Section B examines how the qualified immunity doctrine has been applied to
correctional suicide cases.49
A. Qualified Immunity and the “Clearly Established” Standard
The qualified immunity doctrine—a doctrine established by common
law—allows government officials, including correctional officers, to avoid
civil damages liability as long the conduct in question did not violate a statut
ory or constitutional right that was clearly established at the time of the
incident.50 The doctrine of qualified immunity balances the need to hold public
officials accountable for abuses of power, and the government’s interest in pr
otecting officials from harassment, distraction, and liability when they perform
their duties in a reasonable manner. 51 Qualified immunity also ensures that
officials are on notice of what actions could be considered as unlawful conduct
within their duties.52 A variety of both state and federal government officials
45 See Hayes, supra note 11, at 188 (describing the antiquated views of correctional leaders
regarding what it takes to prevent inmate suicides and recommending guidelines for improvement).
46 See Dorf, supra note 17 (describing how the qualified immunity doctrine shields corrections
officials from liability even when their facilities do not take adequate inmate suicide prevention
47 See Reichle, 566 U.S. at 664 (defining qualified immunity);Soronen, supra note26 (explaining
that the corrections officials in Taylor v. Barkes received qualified immunity).
48 See infra notes 50–81 and accompanying text.
49 See infra notes 82–101 and accompanying text.
50 See Reichle, 566 U.S. at 664 (defining qualified immunity); Dorf, supra note 17
that the qualified immunity doctrine is one of several limitations placed by the Supreme Court on 42
U.S.C. § 1983 actions)
. Although government officials use qualified immunity as a defense inactions
stemming from 42 U.S.C. § 1983, the qualified immunity doctrine is not explicitly mentioned in the
text of the statute; rather, the doctrine has been developed by the Supreme C ourt. See Dorf, supra note
51 Pearson v. Callahan, 555 U.S. 223, 231 (2009).
52 Id. at 244 (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).
enjoy qualified immunity, including prison guards, school officials, health care
providers, welfare administrators, and government employers.53
One of the first qualified immunity cases before the United States
uSpreme Court was Pierson v. Ray, which involved an action based on 42 U.S.C.
§ 1983 against police officers who had arrested several individuals for viola
ting a Mississippi statute that was later declared unconstitutional5.4 The
Supreme Court held that although common law did not give police officer s
complete immunity from liability, existing case law did shield an officer from li
ability when he or she acted according to a statute that at the time, he or she re
asonably believed was valid, but that was later found to be unconstitutional.55
Following Pierson, two cases—Scheuer v. Rhodes and Wood v.
Strickland—contributed significantly to the development of the law of qualified i
mmunity.56 In these cases, the Supreme Court developed the concept of immun
ity for public officials and clarified its scope.57 In Scheuer, the Court rejected
the idea of giving government officials absolute immunity, and instead defined
a standard of qualified immunity involving both objective and subjective co
mponents.58 The Court held that objectively, there must be reasonable grounds
53 John C. Jeffries, Jr.,What’s Wrong with Qualified Immunity?, 62FLA. L. REV. 851, 851
54 Pierson v. Ray, 386 U.S. 547, 549 –50 (1967); Chaim Saiman, Interpreting Immunity, 7 U. PA.
J. CONST. L. 1155, 1159 (2005) (explaining that Pierson was the first qualified immunity case before
the Supreme Court). The police officers had arrested several white and African American clergymen
who attempted to use segregated facilities at a bus terminal in Jackson, Mississippi, under a
Mississippi statute that prohibited individuals from congregating in a public place and refusing to leave
when ordered by law enforcement. Pierson, 386 U.S. at 548–49.
55 Pierson, 386 U.S. at 555.
56 Wood v. Strickland, 420 U.S. 308, 309–10 (1975) (involving a lawsuit by public school
students against their school administrators who suspended them); Scheuer v. Rhodes, 416 U.S. 232,
234, 235 (1974) ( analyzing whether Ohio’s governor was accountable for his misuse of the National
Guard); John C. Williams, Qualifying Qualified Immunity, 65 VAND. L. REV. 1295, 1299 (2012)
(explaining that the origins of the qualified immunity doctrine were in Wood and Scheuer). In Scheuer,
the representatives of the estates of three deceased students, who had been attending Kent State
University, sued the governor of Ohio, members of the National Guard, and the president of Kent State
University for intentionally and recklessly deploying the National Guard on the Kent StateUniversity
campus, resulting in the students ’ deaths. Scheuer, 416 U.S. at 234, 235. In Wood, theschool admini
strators had expelled the two high school students for violating a school regulation that prohibited the
use or possession of alcohol at school or school activities. Wood, 420 U.S. at 310.
57 See Wood, 420 U.S. at 322 (holding that a school board member is not protected from liability
if he knew or reasonably should have known that his actions, taken as part of his official duties, would
violate a student’s constitutional rights, or if he maliciously intended to violate a student’s
constitutional rights through his actions); Scheuer, 416 U.S. at 247–48 (holding that qualified immunity is
available to government officials in the executive branch, subject to variation depending on thescope
of their discretion and responsibilities, and that officials must have a reasonable belief and good faith
basis for their actions in order to invoke immunity).
58 See Scheuer, 416 U.S. at 243, 247– 48
(finding that qualified immunity does not provide go
vernment officers with absolute immunity in lawsuits based on 42 U.S.C. § 1983, and that in order for
qualified immunity to apply, officers must have both a reasonable belief and good faith basis for the
conduct in question)
; Williams, supra note 56, at 1300 –01 (noting that the Court in Scheuer rejected
for the accused officer’s belief that the conduct was lawful at the time of the
act, and considering all of the circumstances surrounding the instance; from a
subjective standpoint, the officer must have also acted in good faith with the
law on the books at the time of the incident. 59 In order to satisfy the threshold
requirement for qualified immunity, the Court ruled that an officer must meet
both the objective and subjective aspects of the inquiry. 60 The Court also held
that qualified immunity is available to officers in the executive branch of go
vernment, but that the scope of immunity would vary depending on the officer’s
responsibilities and ability to exercise discretion.61
In Wood, the Court reiterated that a court must consider both the objective
and subjective elements discussed above when determining whether qualified
immunity is available to a government official. 62 Unlike in Scheuer, however,
where the objective aspect of the inquiry focused on the reasonable belief of
the officer at the time of the incident, the Court in Wood narrowed the focus of
the objective inquiry to the government officials’ knowledge of the la6w3.
Therefore, under Scheuer and Wood, government officials in the executive
branch were protected by qualified immunity if they sa tisfied both the
objective and subjective aspects of the inquiry—that is, if the official in question
reasonably lacked knowledge that his or her conduct would violate a constit
utional right, and acted in good faith on that knowledge.64
Seven years later, i n Harlow v. Fitzgerald , the Supreme Court considered
the type of immunity that should be available to senior aides and advisers to
the President.65 In deciding this issue, the Court eliminated the subjective
element of the qualified immunity test, in favor of a purely objective test similar
to the one set forth in Wood.66 The Court held that in general, government off
ithe idea of absolute immunity and found that in order for the qualified immunity defense to be
successful, both objective and subjective factors must be present).
59 SeeScheuer, 416 U.S. at 247 –48 (holding that in order for qualifiedimmunitytoapply,officers
must have both a reasonable belief and good faith basis for the conduct in question); Williams, supra
note 56, at 1300–301 (explaining that in Scheuer, the Court’s qualified immunity analysis involved
both objective and subjective factors).
60 See Scheuer, 416 U.S. at 247–48 (same); Williams, supra note 56, at 1300–01 (same).
61 Scheuer, 416 U.S. at 247.
62 Wood, 420 U.S. at 321.
63 See id. at 322 (holding that in the context of school discipline, a school board member may be
liable for an action if he knew, or reasonably should have known, that the action would violate the
constitutional rights of the student affected, or if he acted with the intent to deprive students of their
rights); Scheuer, 416 U.S. at 247 (holding that in order for qualified immunity to apply, officers must
have both a reasonable belief and good faith basis for the conduct in question); Williams, supra note
56, at 1301 (noting the distinction between Wood and Scheuer).
64 Wood, 420 U.S. at 322; Scheuer, 416 U.S. at 247–48.
65 Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982).
66 See id. at 818 (holding that government officers performing discretionary duties are generally
not liable for actions that do not violate clearly established statutory or constitutional rights that a
reasonable person would have known); Wood, 420 U.S. at 322 (holding that in the context of school
cials with responsibilities requiring discretion are free from liability, as long as
they do not “violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” 67 Harlow made it more diff
icult for plaintiffs to bring allegations of constitutional violations to trial,
because conducting an objective analysis of the state of the law made it easier for
a court to dismiss a claim at summary judgment; as such, Harlow limited the
opportunity for plaintiffs to argue the intent of the accused government official
within open court. 68 The new test was also problematic because of the difficu
lty of defining the nature of a “clearly established” right under the law6.9 As
Justice Powell mentioned in his dissent in Wood, it is dangerous to expect all
government officials to know whether a right is clear or settled, as even courts
disagree and change positions over time.70
The Supreme Court clarified what satisfies a “clearly established” right in
the 1987 case Anderson v. Creighton. 71 In his opinion for the majority, Justice
Antonin Scalia explained that for a right to be “clearly established,” it must be
particularized, and not overly general or abstract. 72 According to Justice Scalia,
“the contours of the right must be sufficiently clear,” putting a reasonable off
icial on notice that his or her conduct violates that right.73 Justice Scalia also
added that although the “cle arly established” standard does not require a plai
ntiff to demonstrate that the accused official’s specific act was unlawful at the
discipline, a school board member may be liable for an action if he knew, or reasonably should have
known, that the action would violate the constitutional rights of the student affected, or if he acted
with the intent to deprive students of their rights) ; Williams, supra note 56, at 1302 (noting the sim
ilarity between the objective tests in Harlow and Wood).
67 Harlow, 457 U.S. at 818. The court reasoned that relying on the objective reasonableness of an
official’s conduct based on clearly established law would “avoid excessive disruption of government
and permit the resolution of many insubstantial claims on summary judgment.” Id.
68 See Williams, supra note 56, at 1303 (arguing that Harlow restricted plaintiffs from bringing
allegations of constitutional violations to trial).
69 See Harlow, 457 U.S. at 818 (explaining the “clearly established” standard); Wood,420 U.S.at
329 (Powell, J., concurring in part and dissenting in part) ( “One need only look to thedecisions of this
Court—to our reversals, our recognition of evolving concepts, and our five- to-four splits—to
recognize the hazard of even informed prophecy as to what are ‘unquestioned constitutional rights.’”).
70 Wood, 420 U.S. at 329.
71 See Anderson v. Creighton, 483 U.S. 635, 637, 641 (1987) ( analyzing federal lawenforcement
officers’ warrantless search of a home, which they claimed was justified on the grounds of “exigent
circumstances”). An exigent circumstance, sometimesalso referred to as an“urgent need,” arises
when law enforcement officers face a need requiring them to obtain a warrant without delay. Dorman
v. United States, 435 F.2d 385, 392 (D.C. Cir. 1970). Some factors to beconsidered when determining
whether an exigent circumstance existed are the seriousness of the offense, whether the suspect was
armed, and the likelihood of the suspect escaping if not promptly apprehended. Id. at 392–93.
72 Anderson, 483 U.S. at 640.
73 Id. Applying these principles to the case, the majority held that qualified immunity was avail
able to the officers for their warrantless search of a third party ’s home in search of fugitives. Id. at 646.
The majority explained that in light of clearly established law, the officers could have reasonably
believed that there was an exigent circumstance and that their warrantless search of the home was
proper. Id. at 641.
time it was carried out, it does mean that the unlawfulness of the action must
have been “apparent,” in view of prior case l aw.74 Because of Anderson,
qualified immunity is available to government officials unless their conduct violates
an established constitutional right, and at the time of the act, they reasonably
knew that existing case law prohibited their specific conduct. 75
Although the Anderson decision currently provides courts with a
definition of “clearly established,” this definition is blurry. 76 How factually similar
does a prior case need to be in order for a plaintiff to be able to use it to argue
that a clearly established right exists? 77 This blurriness also enables defendants
to avoid liability by taking advantage of minor ambiguities in case law.78
Qualified immunity, as defined by the case law discussed above, is avai
lable to government officials in the executive branch so long as the official in
question did not knowingly violate a clearly established constitutional right by
his or her conduct. 79 Whether or not a right is clearly established depends on a
court’s view of the clarity of existing case law, including whe ther there is co
nsensus among the Courts ofAppeals. 80 Correctional officers have also benefi
76 Charles R. Wilson, “Location, Location, Location”: Recent Developments in the Qualified
Immunity Defense, 57 N.Y.U. ANN. SURV. AM. L. 445, 454–55 (2000) (explainingthat a clearlyesta
blished right must be one that is described with some particularity in order to put government officials
on notice, and describing that definition of clearly established law as “blurry”).
77 See id. at 455 (explaining that the blurry definition of clearly established law allows courts to
choose whether to apply a narrow or broad definition of “clearly established,” and that this choice is
what determines the outcome of a case).
78 Dorf, supra note 17. For example, in Safford Unified School District No. 1 v. Redding, the
Supreme Court concluded that the school officials in question were entitled to qualified immunity,
even though the officials violated a thirteen- year-old middle school student ’s Fourth Amendment right
against unreasonable searches when they subjected her to a strip search. 557 U.S. 364, 368 (2009).
The Court found that the strip search, which involved a search of a student’s bra and underpants for
school-banned drugs, was not justified under the Fourth Amendment and the reasonableness test for
school searches established in New Jersey v. T.L.O. See id. at 369, 375–77 (quoting New Jersey v.
T.L.O., 469 U.S. 325, 341– 42 (1984)); see also U.S. CONST. amend. IV. The Court concluded,
however, that the right against an unreasonable school search was not clear enough from prior case law to
have put the officials on notice that their conduct was unlawful.Safford, 557 U.S. at 378–79. The
Court reasoned that the circuit courts had come to divergent conclusions regarding the reasonable
scope of school strip searches, and that this difference in opinion rendered the right against unreaso
nable school searches not sufficiently clear. Id. The court pointed to Williams v. Ellington, where the
United States Court of Appeals for the Sixth Circuit upheld a strip search of a high school student for
a drug, without any suspicion that drugs were hidden next to her body, and Thomas v. Roberts , where
the United States Court of Appeals for the Eleventh Circuit granted qualified immunity to a teacher
and police officer who conducted a group strip search of a fifth grade class whenlookingfor a missing
twenty-six dollars. Id. at 378. The court also quoted the Eleventh Circuit in Jenkins v. Talladega City
Board of Education, which found that the numerous interpretations ofT.L.O. among courts, along
with the variety of possible school settings in which these cases could occur, entitled the officials to
qualified immunity. Id.; Jenkins v. Talladega City Bd. of Ed., 115 F.3d 821, 828 (11th Cir. 1997).
79 Harlow, 457 U.S. at 818; Wood, 420 U.S. at 321–22; Scheuer, 416 U.S. at 247–48.
80 Safford, 557 U.S. at 378–79; Anderson, 483 U.S. at 640.
ed from the qualified immunity defense when sued by family members seeking
to impose liability for harms suffered by inmates.81
B. Qualified Immunity in Inmate Suicide Cases
Case law demonstrates that prison officials violate the Eighth
Amendment’s Cruel and Unusual Punishment clause when they are deliberately indi
fferent to a substantial risk of serious harm to an inmate. 82 In Farmer v.
Brennan, the Supreme Court defined the term “deliberate indifference,” by holding
that a prison official may be held liable under the Eighth Amendment for d
epriving an inmate of humane treatment in confinement only if he or she knows
that the inmate faces “a substantial risk of ser ious harm and disregards that risk
by failing to take reasonable measures to abate it.” 83 In so holding, the Court
relied on its previous decisions, which had established that deliberate indiffe
rence involved something between two extremes: negligence and t he purposeful
causing of harm through acts or omissions.84 The Court also looked to prior
cases decided by the Courts of Appeals, which frequently compared deliberate
indifference to recklessness.85
Failure to implement adequate suicide prevention policies,however, is
not considered an act of deliberate indifference, and the courts have not
deemed the right to adequate suicide prevention policies as a “clearly
established” right. 86 In Taylor v. Barkes, the Barkes family argued that the failure of
the HRYCI warden and commissioner to supervise their contract medical
workers amounted to deliberate indifference that resulted in Barkes’s suicide. 87
Still, the Supreme Court dismissed the claim because of qualified immunity,
reasoning that the right to proper impleme ntation of adequate suicide
prevention protocols was not clearly established at the time of Barkes’s death. 88 The
Court explained that, at the time of Barkes’s suicide, there were no existing
cases that would have made it clear to the officers that they were overseeing a
correctional system that violated the Constitution. 89 The Court also noted that
no decision of the Court had ever even discussed suicide screening or
prevention protocols.90 As such, the Court did not consider failure to provide
adequate suicide prevention protocols to be a deliberate indifference to ann-i
mate’s constitutional rights.91
Another recent case with a similar outcome is Miller v. Harbaugh, deci
ded by the United States Court of Appeals for the Seventh Circuit. 92 Jamal
Miller was sixteen years old when he hung himself from the top bunk of his bed
while incarcerated at the Illinois Youth Center (“IYC”) St. Charl9e3s.His
mother sued a number of state officials, including the acting director of the
Illinois’ Department of Juvenile Justice at the time of Jamal’s death, and the
IYC St. Charles superintendent, for deliberate indifference to Jamal’s serious
mental illness, in violation of his Eighth and Fourteenth Amendment rights. 94
Specifically, her claims focused on the officials’adopti on of certain living po
licies, including the use of bunk beds in the rooms of potentially suicidal
nimates when history demonstrated that inmates used bunk beds to commit
suicide, and there was evidence that single beds were available9.5 The Seventh
Circuit ruled that the officials were entitled to qualified immunity, reasoning
that where an inmate does not appear to be on the verge of suicide, but merely
mentally disturbed as Jamal was, the law as it stood at the time did not clearly
require corrections personnel to take further action.96 Furthermore, the court
stated that even if the decision to house mentally ill inmates in rooms with
88 Barkes III, 135 S. Ct. at 2044 –45. The Supreme Court, in its per curiam opinion, dismissed the
Barkes family’s claim, holding that that the warden and commissioner were entitled to qualified i
mmunity. Id. In doing so, the Court did not deny that that there was evidence that Barkes
’sconstitutional right to be free from cruel and unusual punishment was violated. See id. at 2044 (noting the Third
Circuit’s findings as to the facility’s inadequate supervision of its medical services contractor). The
Court even acknowledged evidence of the contract nurse’ s failure to complywiththescreening
standards required under contract, evidence that the nurse did not haveaccess toBarkes ’s probationrecords
that shed light on his mental health history, and evidence that the medical contractor had been short
staffing the facility in order to increase profits. Id.
89 Id. at 2045.
90 Id. at 2044.
91 See id. at 2044–45 (reversing the Third Circuit’s decision, which stated that the jail officials
violated Barkes’s Eighth Amendment right to proper implementation of comprehensive suicide pr
92 Miller, 698 F.3d at 964–65.
93 Id. at 957, 959.
95 Id. at 960–61.
96 Id. at 963.
bunk beds did amount to deliberate indifference, an inmate’s right to be housed
in safe conditions was not a clearly established right, and therefore qualified
immunity still applied.97
Cases like Barkes and Miller highlight the reasons why jails and prisons
should have and enforce adequate suicide prevention protocols. 98 Under
current law, inmates do not have a right to adequate suicide prevention protocols,
because courts do not consider prison officials’failure to implement these pr
otocols to be deliberate indifference to a substantial risk of harm to inmates. 99
Furthermore, even if correctional facilities have constitutionally defective
suicide prevention policies or no policies at all, the officers within the facilities
are still protected from liability under the doctrine of qualified immunity. 100 As
a result, inmates have no guarantee to a custodial environment in which their
mental health needs are adequately addressed, and the families of inmate su
icide victims are thus left with limited opportunities to recover damages.101
97 Id. at 964.
98 See supra notes 87–97 and accompanying text (summarizing Barkes and Miller, two cases in
which the Supreme Court shielded correctional leaders from liability even though their failure to i
mplement effective suicide prevention measures contributed to the deaths of two inmates).
99 See Barkes III , 135 S. Ct. at 2044– 45 (reversing the Third Circuit ’s decision, which stated that
the jail officials violated Barkes ’s Eighth Amendment right to proper implementation of comprehe
nsive suicide prevention measures); Miller, 698 F.3d at 964 (finding that the facility ’s failure to prope
rly house a suicidal inmate did not amount to deliberate indifference).
100 See Barkes III, 135 S. Ct. at 2045 (finding that even if the facilit’ys suicide screening and
prevention measures were deficient, the officials were not violating any clearlyestablished rights, and
therefore qualified immunity applied); Dorf, supra note 17 (suggesting that the Court’s decision in
Barkes shields correctional leaders from liability even if their facilities fail to implement any suicide
prevention measures whatsoever). Although qualified immunity does not protect government officials
against suits for injunctive relief, a combination of judge- made doctrines and statutory obstacles s
everely limit the availability of injunctive relief for inmates or families of deceased suicidal inmates
seeking an improvement of correctional policies. Dorf,supra note 17. For example, inFarmer v.
Brennan, the Supreme Court narrowed the definition of deliberate indifference, holding that a prison
official may only be held liable under the Eighth Amendment if he or she “knows that inmates face a
substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate
it.” 511 U.S. at 847; see Lori Whitten, Legal Liability Trends for Correctional Suicides , NAT’L INST.
OF CORR. (July 16, 2012), http:
//community.nicic.gov/blogs/mentalhealth/archive/2012/07/16/legalliability-trends-for-correctional-suicides.aspx [https://perma.cc/RUB3-9TPF] (explaining how Farmer
narrowed the definition of deliberate indifference, making it more difficult for inmates and their
families to prevail against correctional authorities in suicide -related lawsuits). Also, the Prison Litigation
Reform Act creates additional obstacles by eliminating the ability of the courts to waive filings fees
for indigent inmates, and only allowing inmates to be placed on a monthly payment plan. William C.
Collins, Bumps in the Road to the Courthouse: The Supreme Court and the Prison Litigation Reform
Act, 24 PACE L. REV. 651, 669 (2004).
101 Dorf, supra note 17.
II. THE INMATE SUICIDE CRISIS AND A NEED FOR ENHANCED
CORRECTIONAL SUICIDE PREVENTION EFFORTS
The most re cent statistics on inmate suicide show that suicide has been the
leading cause of death in local jails, and has been the second leading cause in
state prisons. 102 Avariety of factors, both internal and external to an inmate, co
ntribute to suicidal behavior. 103 These factors include isolation from family, loss
of control, the shock of confinement, and being in an authoritarian
environment.104 Despite the high rate of suicide in jails and prisons, courts seldom hold
correctional authorities liable for inmate suicides or deficient suicide prevention
policies in correctional facilities. 105 SectionAdiscusses the common reasons for
inmate suicide.106 Section B outlines some basic strategies for effective inmate
suicide prevention recommended by correctional and mental he alth experts.107
Section C analyzes the current state of suicide prevention programming in
correctional facilities across the country. 108 Finally, Section D explores the reasons
why correctional facilities are falling short of the standards needed for effectiv e
inmate suicide prevention.109
102 See MORTALITY IN LOCAL JAILS AND STATE PRISONS, 2000–2013, supra note 30, at 1
that since 2000, suicide has been the leading cause of death in local jai)
l;sMORTALITY IN STATE
PRISONS, 2001–2014, supra note 33, at 1
(explaining that suicides accounted for seven percent of all
deaths in state prisons in 2014, the highest percentage of prison suicides since 2001)
. The overall
decrease in inmate suicides over the years is largely due to enhanced research and understanding of
jail suicides. See NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at xiii. In 2000, Congress passed
the Death in Custody Reporting Act, and it required every statethat received prison construction fun
ding to report “on a quarterly basis, information regarding the death of any person who is in theprocess
of arrest, is en route to be incarcerated, or is incarcerated at a municipal or county jail, State prison, or
other local or State correctional facility . . . .” Id. at 4–5; Death in Custody Reporting Act of 2000,
Pub. L. No. 106– 297, 114 Stat. 1045. Although the inmate suicide rate has decreased overall in the last
twenty years, recent statistics suggest that progress in preventing inmate suicide is diminishing, and the
need for change persists. See Hanson, supra note 36, at 6 ( “[R]ecent data from the Bureau of Justice
Statistics suggest that we may be reaching a point of diminishing progress in suicide prevention.”).
103 See NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 1 (explaining that the jail
environment and inmates’ experience of a crisis are the two main causes of jail suicide).
105 See Dorf, supra note 17 (discussing how the qualified immunity doctrine shields correctional
leaders from liability for failure to implement suicide prevention measures); Whitten, supra note 100
(explaining how the Supreme Court ’s decision in Farmer v. Brennan narrowed the definition of deli
berate indifference, making it more difficult for inmates and their families to prevail against correctio
nal authorities in suicide-related lawsuits).
106 See infra notes 110–126 and accompanying text.
107 See infra notes 127–152 and accompanying text.
108 See infra notes 153–172 and accompanying text.
109 See infra notes 173–194 and accompanying text.
A. The Main Causes of Inmate Suicide
Experts in mental health and corrections have identified the primarycauses
of jail suicide. 110 One of their key conclusions is that the jail environment tends
to promote suicidal behavior.111 For example, inmates often face isolation,
uncertainty about the future, shame, and dehumanization—sentiments that have
serious negative impacts on mental health and encourage suicidal behavior.112
Additionally, because jails often house individuals who hav e never before been
incarcerated, being in custody can have a traumatic effect on these inmates.113
Experts call this experience the “shock of confinement,” which involves trauma
that causes mental and emotional breakdown and leads to suicide1.14 Another
factor that frequently contributes to inmate suicide in jails is the experience of a
crisis while in custody, such as severe guilt or shame over the charges that an
inmate is facing, or an approaching court date.115 These experiences create
severe stress and anxiety, and consequently, result in suicidal behavior.116
Often, jail inmates simply have trouble coping with the difficulties of
confinement.117 Many of them are disconnected from friends and family, have tro
uble getting along with corrections officers and fello w inmates, face legal hurdles,
and experience physical and emotional breakdown. 118 These stressful experien
ces also contribute to an inmate’s suicidal ideation, attempt, and completion.119
Although the rate of suicide in prisons is lower than it is in jails, it is still
greater than the rate of suicide in the general non -incarcerated population,andis
the second leading cause of death in state prisons, after various types of illnes
ses.120 Although prison suicide victims face some of the same difficulties as jail
suicide victims—such as loss of freedom andisolation —thereareadditional
factors that contribute to suicidal behavior that are unique to prison inmates. 121 For
example, research suggests that more suicides occur in maximum and supe-r
maximum security priso ns than medium or minimum -security prisons, because
the maximum-security environment, which often involves single-cell or other
types of punitive housing and limited opportunities for contact with the outside
community, increases the likelihood of psychological distress and suicidal ide
ation.122 Because inmates in maximum -security prisons are deprived of personal
security, autonomy, and liberty, they are more prone to aggression, anxiety,
depression, and suicide.123
As research demonstrates, various factors precipitate inmate suicide, and
these factors relate to both an inmate’s own emotional and mental health,aswell
as an inmate’s experience while incarcerated. 124 The consequences of these fa
ctors worsen when jails and prisons do not have adequate suicide prevnetion
protocols to address inmate experiences that lead to suicide .125 Therefore,
effective suicide prevention programs are necessary to ensure that inmatesreceive
the resources they need to maintain their safety and health while incarcerated. 126
B. Effective Suicide Prevention Programming
Creating a comprehensive and effective inmate suicide prevention
program requires dedication and effort from every division and staff member in a
correctional facility. 127 The use of appropriate methods and strategies reco
mmended by experts in the correctional mental health field can provide support
to troubled inmates and prevent inmate suicides. 128 Unfortunately, the majority
of prisons do not provide such programs for its inmates.129
Agencies engaged in correctional research and policymaking agree that
there are several critical components to an effective custodial suicide
prevention program. 130 Staff training, intake and ongoing screenings, and supervision
are just a few measures that jails and prisons should be taking to ensure htat
they have comprehensive suicide prevention policy programs in pla1c31e.
These efforts can have far -reaching impacts in reducing inmate suicides, which
in many instances are foreseeable and preventable.132
Suicides usually take place in inmate housing units, during times when
mental health staff is not monitoring the inmates1.33 Therefore, correctional
staff should receive suicide prevention training, and should clearly understand
the mental history of their inmates, in order to prevent these incidents. 134 The
National Center on Institutions and Alternatives (“NCIA”) recommends that
correctional staff who have regular contact with inmates receive eight hours of
initial suicide prevention training and two hours of refresher training each
127 See GUIDETO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS WITHIN JAILS
AND PRISONS, NAT’L CTR. ON INSTS. & ALTS. 3 (revised July 2017), https: //www.ncchc.org/filebin/
Resources/Suicide-Prevention-2017.pdf [https://perma.cc/3TEE-5Z5H] (advocatingfora multidisc
iplinary approach to inmate suicide prevention).
128 Seegenerally id. (outlining several critical components of an effective inmate suicidepreve
129 See NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 41 (noting that althoughthe major
ity of facilities surveyed in the study had written suicide prevention protocols, most of these policies
failed to incorporate the critical components of an effective suicide prevention strategy).
130 See GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note127,
at 1–5; Hayes, supra note 11, at 189–93; NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 33–41;
PREVENTABLE TRAGEDIES, supra note 126, at 47–53; RAND CORP. PRIORITY CRIMINAL JUSTICE
NEEDS INITIATIVE, CARING FOR THOSEIN CUSTODY: IDENTIFYING HIGH-PRIORITY NEEDSTO REDUCE
MORTALITY IN CORRECTIONAL FACILITIES 9–12 (2017), https://www.rand.org/content/dam/
131 See Hayes, supra note 11, at 193.
133 NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 34–35. For example, Charles Nixon,
who was an inmate in the Southwick County Jail in Massachusetts, was found hanging from a bed
sheet in his cell at least forty-five minutes after he was last observed by correctional staff. JAIL
SUICIDE/MENTAL HEALTH UPDATE (Summer 2007), supra note 112, at 6. According to one of the jail ’s
officers, Nixon was not placed on suicide watch because he had received psychiatric treatment at a
local hospital for suicidal ideation several days earlier, and was released by the hospital.Id. at 7.
134 GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note127,at1.
year.135 All training should be meaningful and aimed at reducing suicides.136
Trainings should also incorporate timely and reliable information that addres
ses current problems, rather than simply achieve the bare minimum in order to
comply with an accreditation standard. 137 Because suicide prevention requires
collaboration between correctional officers and mental health professionals,
training should be conducted in a live, interactive setting, rather than through
video or webinar.138
Intake screening and ongoing assessments are also critical to an effective
suicide prevention program.139 Because inmates can become suicidal at any
point during their sentence, and often experience their first episode of mental
illness after incarceration, screening should be a continuous process. 140
Furthermore, research shows that approximately two -thirds of all suicide victims co
mmunicate their intent some time before death. 141 Therefore, inmate evaluations
should be ongoing and include a variety of inquiries, including any history of
suicidal thoughts or attempts, current plans of suicide, prior mental health
treatment, suicide risk during prior confinement, and opinions of the arresting or
transporting officers that the inmate is suicidal. 142 Finally, thedeterminationthat
an inmate is no longer suicidal and can be released from suicide precautions
must only be made by a qualified mental health professional (“QMHP”) —a
licensed, masters-level or above clinician—after a comprehensive risk
Proper levels of observation and management can also reduce the li
kelihood of suicide.144 Mental health professionals recommend two levels of
supervision for inmates. 145 The first is close observation of an inmate who is not
actually suicidal, but who has expressed suicidal thoughts, has a recent prior
history of self-harm, or behaves in ways that demonstrate a potential for
suicide.146 Inmates under this level of supervision should be housed in protrusion
free cells and observed at staggered intervals every ten minutes or less. 147 The
second level of supervision is constant observation, intended for inmates who
are actively suicidal—those threatening or engaging in suicidal behavior.148
Correctional staff should observe such inmates continuously. 149 In addition to
observing suicidal inmates, mental health staff should also assess and interact
with such inmates on a daily basis. 150 Finally, inmates on suicide watch should
have individual treatment plans developed by mental health staff in
conjunction with correctional personnel1.51 These plans should discuss the signs,
symptoms, and circumstances that often lead to suicidal behavior, advise on
how to help inmates overcome suicidal thoughts, and suggest actions that the
inmate and correctional staff can take if suicidal ideation reoccurs.152
C. The Current State of Suicide Prevention Programming
Despite consensus among researchers about the need for comprehensive
suicide prevention programming in prisons and jails, the vast majority of
current custodial suicide monitoring and prevention policies are not adequate in
preventing inmate suicide. 153 According to a 2005 –2006 national study of jail
suicide, only 7.5% of suicide victims in the facilities participating in the study
were on suicide precautions when they committed suicide15.4 Although the
147 Id. A protrusion is an anchoring device that inmates use to hang from in order to commit
suicide. See id. (describing different types of protrusions and devices for hanging).
152 Id. Between 1985 and 1987, New York State developed the “Crisis Service Model,” which
was “a multifaceted initiative designed to facilitate the identification,referraland treatment ofinmates
who were suicidal and/or seriously mentally ill”. NAT’L CTR. ON INSTS. & ALTS., JAIL SUICIDE/
MENTAL HEALTH UPDATE 2 (Summer 2005), http://www.ncianet.org/wp-content/uploads/2011/06/
sp_update_2005_summer.pdf [https://perma.cc/N4TL-JK9B] [hereinafter JAIL SUICIDE/MENTAL
HEALTH UPDATE (Summer 2005)]. Specifically, the Crisis Service Model brought local jails and
mental health programs into partnership to address the needs of mentally ill and suicidal inmates. Id.
In 1984, before the Crisis Service Model was implemented, there were thirt-ytwo inmate suicides
among all of New York State’s county and police department jails.Id. at 4. In 2004, that number
dropped to fifteen inmate suicides. Id.
153 See Hanson, supra note 36, at 8; Hayes, supra note 11, at 193.
154 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 27. Note that the percentage is for both
holding facilities (where inmates are detained for seventy -two hours or less) and detention facilities
(where inmates are detained for over seventy-two hours). Id. From 2005 to2006, there were a total of
564 reported jail suicides. See MORTALITY IN LOCAL JAILS, 2000–2014, supra note 30, at 5. It
appears that the failure to identify and adequately supervise suicidal inmates continues to be a p roblem.
See Jesse Bogan, Man Hung in Cell for Hours at St. Louis Lockup While Guards Streamed Netflix, ST.
same study showed that approximately 77% of the facilit ies had implemented
an intake screening process to evaluate suicide risk in inmates, only 27.4%
verified whether an inmate had ever been on suicide precautions during any
prior confinement in the same facility. 155 Additionally, only about 31% of faci
lities surveyed arresting and/or transporting officers on their concerns about the
mental health of newly admitted inmates.156
In addition to employing qualified and competent mental health
professionals, preventing inmate suicide also requires adequate training for
correctional staff.157 Roughly 62% of the respondents in the 2005–2006 study
disclosed that they provided suicide prevention training to at least 90% of their
correctional staff. 158 Of the respondents who reported having suicide training,
however, 75% conducted trainings only once a year, whereas the remaining
25% coordinated trainings biennially or on a pre -service basis. 159 The majority
(69%) of reported suicide-prevention trainings offered by the facilities in the
study were two hours or less in length; only 6% of the training programs were
Safe housing is another important aspect of inmate suicide prevention. 161
Because hanging is the most common method of inmate suici—deroughly
93%, according to the study mentioned above —correctional facilities with
adequate suicide prevention measures should ensure that the cells of suicidal i
nmates do not contain obvious protrusions and are located close to correctional
LOUIS POST-DISPATCH (Apr. 26, 2017), http:
[https://perma.cc/KG2H-83ZW] (detailingthecircumstances surroundingthe death ofDavidGarceau,
a former inmate at the St. Louis Community Release Center who, despite having issues with mental
health and drug abuse, was placed in a segregated unit and hung himself and laid dead in his cell for
ten hours while guards on duty watched television and browsed the internet); Dan Kane & David
Raynor, 51 NC Jail Inmates Have Died in Past Five Years After Poor Supervision fromJailers , NEWS
& OBSERVER (updated Aug. 15, 2017), htt/p/w:ww.newsobserver.com/news/local/crime/article
164829912.html [https://perma.cc/FMM3-UDNM] (describing the events leading up to the death of
Emily Jean Call, a former inmate in North Carolina ’s Wilkes County Jail who had cut her wrists two
weeks before her death and expressed to detention officers that she was depressed wanted to kill
herself, but nonetheless went unwatched for more than an hour and eventuallyhung herselfina bathroom
in a common area of the facility).
155 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 33.
156 Id. at 34.
157 Hayes, supra note 11, at 190.
158 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 35.
159 Id. In one instance, a booking officer confessed that he did not receive any training on how to
conduct a proper intake screening or what questions to ask a newly admitted inmate. Hayes,supra
note 11, at 190–91.
160 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 35.
161 See id. at 38 (explaining the importance of safe housing in jails, given the prevalence of
inmate suicides due to hanging).
personnel.162 As of 2005 –2006, however, only 32% of facilities from the earl
ier-mentioned study reported having policies that involved assigning suicidal
inmates to safe, suicide-resistant, and protrusion-free cells.163
In addition, the NCIA and the National Institute of Corrections (“NIC”)
recommend that every suicide and suicide attempt requiri ng hospitalization be
examined through a morbidity -mortality review process in order to determine
if the incident was preventable.164 The review should include all relevant
information, including the circumstances surrounding the incident, the victim’s
medical or mental health information, factors that contributed to the suicide,
and recommendations for policy, procedural, or other changes. 165 A2005–2006
report on inmate suicide demonstrated however, that the majority —63%—of
respondents in the study stated that they did not conduct a mortality -morbidity
review after an inmate suicide.166 Those who did conduct reviews either did
not mention any precipitating factors, or pointed to triggers such as a recent
conviction or sentence, loss of a loved one, fear of being transferred to a long
term prison, or lack of visits from family members as causes for thei- su
According to the NIC, although 85% of holding and detention facilities in
its report had suicide prevention policies in writing, only 20% of those writte n
policies encompassed all of the components of an effective suicide prevention
program.168 These facts and statistics reveal the deficiencies in suicide preve
ntion that permeate correctional facilities throughout the United States. 169 These
deficiencies explain why the rate of suicide in jails and prisons is increasing,
162 Id. at 38, 44. In 2015, former Texas inmate Sandra Bland committed suicide by hanging
herself from the bathroom privacy partition of her cell, using a plastic garbage bag providedbythe facil
ity—a common method of inmate suicide. DebbieNathan, WhatHappenedtoSandraBland?, NATION
163 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 38–39.
164 Id. at 39. The morbidity-mortality review process is separate from formal investigations to
determine the cause of death of inmates. Id.
167 Id. In 2015, Guy Duffy, a former inmate at the Essex County Jail in Massachusetts,hung hi
mself in his cell just barely two weeks into his thirty -day sentence for an animal cruelty charge. Jenifer
McKim & Shaz Sajadi, ‘They Left Him Everything to Hang Himself,’ BOS. GLOBE (May 6, 2017),
CsOsPVZ3y2StGSN/story.html [https://perma.cc/VBU5-SLUY]. The facility’s mortality review of
Duffy’s death concluded that staff “responded appropriately” in his case, but failed to explain why
Duffy was placed in a segregation unit despite the fact that he exhibited“mental health issues.” Id.
168 NATIONAL STUDY ON JAIL SUICIDE, supra note 30, at 41. Additionally, although 93% of pa
rticipants in the NIC study reported having suicide- watch protocols, only 2% provided constantobse
rvation as an option. Id. at 37.
169 See id. at 37–41 (presenting data on correctional facilities ’ implementation of various suicide
prevention strategies, and finding that these statistics show an overall lack of comprehensive inmate
suicide prevention programming).
and why further suicide prevention reform by correctional facilities ies- r
quired.170 As one psychologist and suicide expert said, “The style [of suicide]
can be readily seen, and there are steps we can take to stop suicide, if we know
where to look.”171 Correctional leaders must enhance their efforts to reduce
inmate suicides, which are preventable if the appropriate methods and strat
egies are implemented.172
D. Why Correctional Facilities Are Falling Short in
Preventing Inmate Suicide
There are several explanations for the inadequate suicide prevention pr
ogramming in today’s correctional facilities. 173 First, facilities struggle to
prevent the suicide of an inmate who is difficult to recognize as being at risk for
self-harm.174 Although certain suicide prevention measures have become pop
ular in facilities throughout the country, these measures only focus on inmates
who have already been determined as suicidal risks. 175 Identifying suicidal
inmates on an ongoing basis is important because an increasing number of su
icides among inmates are “clean” suicides —suicides among prisoners with no
prior psychiatric history.176 Current suicide prevention efforts focus only on
identifying and preventing deaths of inmates w ith known mental illnesses, but
many inmates experience their first mental health crisis only after
incarceration.177 Therefore, these suicide prevention efforts fail to recognize inmates
who develop suicidal ideations after they have been incarcerated.178
Another obstacle to effective inmate suicide prevention is correction off
icials’ negative attitudes toward prevention.179 Statements like, “[i]f someone
really wants to kill themselves there’s generally nothing you can do about it”
and “[w]e did everything we could to prevent this death, but he showed no
signs of suicidal behavior” are often made following an inmate suicide, and
before any meaningful attempt to understand the incident. 180 As one jail co
m170 See id. (same).
171 Hayes, supra note 11, at 193.
172 See id. (stating that progress in correctional suicide prevention is still attainable if theright
strategies are implemented).
173 See infra notes 174–191 and accompanying text (explainingseveralkeyreasonsforthelackof
comprehensive suicide prevention programming in facilities).
174 Hayes, supra note 11, at 189. These are inmates that deny being suicidal, and may even sign
contracts with their facilities ’ medical staff saying that they will not engage in self harm in ordertobe
released from suicide precautions, but whose actions and history show otherwise. Id.
175 Id. Examples of these popular measures include the use of “suicide-resistant” cells,
closedcircuit television for inmate supervision, and inmate companions. Id.
176 Hanson, supra note 36, at 7–8.
179 Hayes, supra note 11, at 193.
mander stated, “[w]hen you begin to use excuses to justify abad outcome,
whether it be low staffing levels, inadequate funding, physical plant concerns,
etc., issues we struggle with each day, you lack the philosophy that even one
death is not acceptable.” The commander added that if facilities tolerate even
just a few deaths, then they have “already lost the battle.”181
Additionally, many facilities across the United States have not yet
embraced the goal of preventing inmate suicides. 182 For example, one jail facility
implemented a fee-for-service program for health care services, including a
ten-dollar charge for inmates to request release from suicide watch.183 In
another example, a nurse asked an inmate during an intake screening if he was
suicidal, and when the inmate answered in the affirmative, the nurse replied,
“[i]f you tell me you’re suicidal, we’re going to have to strip you of all your
clothes and house you in a bare cell.” 184 The inmate then replied that he was
not suicidal.185 Negative attitudes have contributed to the idea that deaths in
prison are inevitable, and have thus prevented correctional facilities from d
eveloping meaningful suicide prevention efforts.186
Finally, the increasing costs of mental health care also contribu te to ina
dequate inmate suicide prevention measures.187 For example, in 2007, jails in
Broward County, Florida spent $130 a day on an inmate with mental illness, as
opposed to just $80 on an inmate with no mental illness18.8 In 2003, Texas
prisons spent betwee n $30,000 and $50,000 annuallyon each of its mentallyill
inmates, as compared to about $22,000 annually on -nmonentally ill
inmates.189 In 2002, the Ohio Clark County Jail spent more on psychiatric
182 See id. at 189 (explaining that providing services to mentally ill inmates is often not a priority
for correctional leaders, and that the focus of inmate suicide prevention is often on implementing
“quick fixes,” rather than on the more important goals of identifying and treating suicidal inmates).
183 Id. at 193. The fee for being released from suicide watch was later eliminated, after the jail
was investigated bythe Civil Rights Division of the U.S. Department of Justices. Id. Still,inmatesare
often charged fees for various aspects of life in confinement, including medicalvisits,phonecalls,and
work release programs. Laura I. Appleman,Nickel and Dimed into Incarceration: Cash-Register
Justice in the Criminal System, 57 B.C. L. REV. 1483, 1501–02 (2016).
184 Hayes, supra note 11, at 193.
187 See Hanson, supra note 36, at 7. In particular, funding is necessary in order to attract and r
etain mental health staff in correctional facilities, and purchase technology and equipment that will
facilitate suicide prevention measures. See CARING FOR THOSE IN CUSTODY, supra note 130, at 12
(explaining the importance of funding to attract and retain mental health personnel in jails, as well as
the growing need for technology and equipment to reduce inmate suicides).
188 TREATMENT ADVOCACY CTR., HOW MANY INDIVIDUALSWITH SERIOUSMENTAL ILLNESS ARE
IN JAILS AND PRISONS? (Nov. 2014), http/:/www.treatmentadvocacycenter.org/storage/documents/
cation than on food for inmates. 190 Given the costliness of mental health care
in jails and prisons, states have little incentive to invest in mental health and
suicide prevention efforts.191
There is a severe lack of effective and comprehensive suicide prevention
programming across the United States; as a result , suicide has become a lea
ding cause of death among inmates. 192 Families of inmates struggle against cu
rrent case law to hold correctional facilities liable for inmate suicide deaths, and
thus, correctional facilities have little incentive to implement chang e.193
Therefore, in order to protect suicidal inmates, it is vital that the federal government
incentivize adequate suicide prevention in correctional facilities. 194
III. ENDING THE INMATE SUICIDE CRISIS
Suicide is one of the leading causes of death for inmates across the United
States; these deaths however, are preventable. 195 Comprehensive suicide pr
evention programs can be effective in eliminating, or at least significantly
reducing, inmate suicides. 196 Unfortunately, the majority of prisons and jails do
not employ effective suicide prevention programs. 197 Because correctional o
fficers are currently protected from liability for inmate suicide under the
doctrine of qualified immunity, the need for effective suicide prevention op-r
gramming is even more crucial; inmates and their families have no viable o
ptions for justice when such programs fail. 198 As such, the federal government
must intervene to ensure protection for suicidal inmates1.99 Specifically, the
U.S. Department of Justice (DOJ) should revise its Justice Assistance Grant
(“JAG”) Program to condition state and local government correctional funding
on the implementation of comprehensive suicide prevention programs in their
prisons and jails. 200 The DOJ should also list inmate suicide prevention as an
area of emphasis on its JAG application form, to encourage jurisdictions to
invest more resources in preventing correctional suicide.201 Finally, the DOJ
should establish discretionary grant opportunities through which state and local
agencies can apply for additional funding to support their inmate suicide pr
evention programs, and encourage their implementation and enforcement.202
A. Elements of a Comprehensive Suicide Prevention Program
Although there is no single formula for an effective inmate suicide
prevention program, correctional mental health experts recommend certain prot
ocols that should be implemented in jails and prisons in order to prevent inmate
suicides.203 These protocols should be dictated on paper and enforced in pra
ctice.204 At a minimum, state and local correctional facilities should implement
the suicide prevention strategies that are in place at the Orange County She
riff’s Department (“OCSD”), as such policies have effectively reduced the
prevalence of inmate suicides.205
One important element of the OCSD inmate suicide prevention program
that all correctional facilities must implement into their own programs involves
the process of intake screenings.206 Intake screenings at facilities should be
detailed—with comprehensive questions regarding an inmate’s prior mental
health and medical treatment, and questions to elicit indications of emotional
stability—in order to reveal an inmate’s suicide risk and/or other mental health
issues.207 Effective screenings require that a qualified mental health
professional (“QMHP”)—a licensed, masters -level or above clinician such as a
psychiatrist, psychologist, psychiatric social worker, or psychiatric nurse —be
responsible for conducting such screenings. 208 Additionally, correctional facil
ities should adopt the OCSD’s strategy, which requires mental health staff to
place at-risk inmates under suicide precautions that are tailored to the inmates’
around the country about jail suicide rates and new initiatives taken by facilities to improve suicide
prevention measures). The Orange CountySheriff ’s Department ( “OCSD”) administers
fivejailfacilities in Orange County, California, and is the eleventh largest jail system in the United States and the
second largest system in California. Id. at 1. As of August 2005, the Orange Countyjail systemhadan
average population of over 6,500 inmates. Id. Between 1995 and2004,theOCSDjailsystemhadover
660,000 admissions, but only four inmate suicides. Id. During this period, the suicide rate among all
five OCSD facilities was only 7.7 deaths per 100,000 inmates. Id. At the time of the report, theOCSD
system had the lowest inmate suicide rate across the largest county jails in California, and a rate far
lower than the average across jails within the state.Id. Its success in preventing inmate suicides is
attributable to the approach implemented by its prior Assistant Sheriff for Jail Operations, John
“Rocky” Hewitt, and his successor, Kim Markuson, who replaced Hewitt in 2003. Id. at2.Hewittand
Markuson made it a priority to prevent jail suicides and ensure that the jail staff was serious about
their jobs and the mental health of the inmates. Id. Markuson continued Hewitt ’s legacy, making sure
that there was a clear expectation within the department that everyone was responsible for preventing
jail suicides, and encouraging close relationships between correction officers and the medical and
mental health staff. Id.
206 See id. at 2 (describing the intake process at the OCSD, which includes a basic suicide risk
inquiry, a review of the inmate’ s mental health history, the ability to refer an inmatetoa ment al health
staff member who is stationed in the intake area); Hayes, supra note 11, at 193.
207 See GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note
127, at 2 (providing a list of intake screening questions). Specifically, the National Center for Instit
utions and Alternatives recommends the following questions, which may be included in the routine
medical screening form, or in a separate form:
Was the inmate a medical, mental health, or suicide risk during any prior contact or
confinement in this facility? Does the arresting or transporting officer have any
information (e.g., from observed behavior, documentation from sending agency or facility,
conversation with family member) that indicates the inmate is a medical, mental health,
or suicide risk now? Has the inmate ever attempted suicide? Has the inmate ever
considered suicide? Is the inmate now being treated or has he/she ever been treated for
mental health or emotional problems? Has the inmate recentlyexperienceda significant
loss (e.g., relationship, death of family member or close friend, job)? Has a family
member or close friend of the inmate ever attempted or committed suicide? Does the
inmate feel there is nothing to look forward to in the immediatefuture(expressinghel
plessness or hopelessness)? Is the inmate thinking of hurting or killing himself/herself?
208 See Hayes, supra note 11, at 191 (explaining the importance of QMHPs inthe intakeprocess).
individual needs.209 In particular, mental health staff should monitor inmates
placed on suicide precautions according to their level ofuicside risk, and
should house such inmates in suicide -resistant cells that are located near
mental, medical, or other staf—ffor example, high-risk inmates should receive
around the clock monitoring by trained medical staff, whereas low-risk
inmates should receive only periodical monitoring that is staggered in ten minute
intervals.210 AQMHP should also be responsible for authorizing the removal of
inmates from suicide precautions, and ensuring that inmates who are released
from suicide precautions are reassessed periodically throughout their confin
ement, to address any recurring suicidal ideations.211
Perhaps one of the biggest reasons for the OCSD’s success in inmate su
icide prevention is that its correctional officers receive extensive suicide
prevention training.212 Thus, new correctional staff at jails and prisons should be
required to attend at least two hours of suicide prevention training before they
begin their employment, as well as an advanced training during their first year
on duty that is at least fou r hours long. 213 All current and new correctional
officers and correctional mental health personnel should also receive quarterly
in-service suicide prevention training, and veteran sheriffs should undergo
209 JAIL SUICIDE/MENTAL HEALTH UPDATE (Fall 2005), supra note 205, at 2 . Inmates placed on
suicide precautions receive supervision from both correctional officers and nursing staff at staggered
thirty-minute intervals, thereby ensuring that each inmate is seen by either an officer or nurse every
fifteen minutes. Id. at 3. Other precautions include requiring the inmate to wear a safety gown, or
housing the inmate in a safety cell. Id. at 2. Once an inmate’s level of suicide risk has returned to a
safely manageable level and the inmate is transferred out of a mental health unit, the OCSD inmate
continues to receive mental health services according to clinical recommendations. Id. at 3.
210 See GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note
127, at 3– 4. Suicidal inmates should be housed in cells that are free of protrusions, such as those from
clothing hooks, towel racks, or certain light fixtures. Id. at 3. The cell doors of suicidal inmates should
contain clear panels, allowing for unobstructed observation of the inmateI.d. Some facilities use
heavy gauge Lexan clear panels. Id.
211 See Hayes, supra note 11, at 189–90. In one local jail facility, mental health professionals
briefly screen inmates with a history of mental illness or suicide risk after they attend a court hearing,
as many suicides occur close to a court hearing. Id. In other jurisdicti ons, inmates arrestedformurder,
domestic violence, child molestation, or highly publicized cases require additional layers of
212 See JAIL SUICIDE/MENTAL HEALTH UPDATE (Fall 2005), supra note 205, at 4 (explaining the
types of training offered to OCSD correctional staff).
213 See id. (explaining that OCSD correctional staff receive two hours of suicidepreventiontrai
ning before the start of employment and four hours of advanced training during the first year on the
job). Walking around and interacting with inmates is key to reducing the chance of an incident,
including a suicide attempt. Id. at 3–4. Therefore, the OCSD encourages correctional officers to mai
ntain continuous movement in the housing areas, and dialogue with inmates in their housing units. Id.
at 3. In addition, all correctional staff are required to carry a pocket -sized laminated card containing
potential high-risk warning signs for suicidal behavior. Id. at 4. The cards are not only informational
but are also symbolic, and rei nforce the administration’s message that suicides will not be tolerated.
supplemental training at least once a year. 214 Such training should be conduc
ted in-person in an interactive environment, and at a minimum, educate corre
ctional staff on appropriate screening methods, identifying warning signs of
suicidal ideation, and emergency response strategies.215
Another key component of the OCSD’s suicide prevention program is the
multidisciplinary team approach, where correctional, medical, and mental
health staff all work together to address the medical needs of inmates. 216
Correctional facilities must therefore also cultivate collaboration and teamwork,
by requiring representatives of the three disciplines to meet regularly to discuss
cases requiring immediate attention, as well as ongoing systemic issues. 217 As
with the OCSD, correctional facilities should develop a system of checks and
balances to ensure that each department within a facility is doing its part to
prevent inmate suicides. 218 At the OCSD, the suicide prevention process begins
when an arresting officer alerts booking personnel of a potentially at-risk
inmate, or when a medical professional identifies a problem with an inmate du
ring an intake. 219 The process continues when correctional staff in the housing
units refer potentially suicidal inmates to mental health staff members, who
then perform suicide risk assessments on the inmaets.220 There is an
understanding among all the OCSD staff that although everyone in a given facility
214 See id. at 4 (explaining that OCSD correctional staff receive quarterly in-service training on
suicide prevention and that more experienced staff members also receive refreshertraining at least
once a year). At the OCSD, these supplemental trainings often occur before the holidays, when
inmates experience increased feelings of despondency or anger,and aremorepronetosuicidalbehavior.
Id. Following these trainings, deputies make referrals to mental health staff more often. Id.
215 See GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note
127, at 1; Hayes, supra note 11, at 190.
216 See JAIL SUICIDE/MENTAL HEALTH UPDATE (Fall 2005), supra note 205, at 5. The Orange
County Adult Correctional Health Services, which provides mental health services at the OCSD ’s five
correctional facilities, states the following on its website:
Adult Correctional Health Services (ACHS) provides a wide range of psychiatric and
crisis intervention services to the inmates in the Orange County Jail System:
Evaluation/assessment of all inmates referred during the triage process; Crisis intervention to
ameliorate symptoms of psychiatric/psychologicaldecompensation;Medicationeval
uation and prescription of psychotropic medication where indicated; Collateral contacts
with Sheriff’s Department, Criminal JusticeSystem,MentalHealthprofessionals,fam
ilies, and friends for the purpose of effective continuing care during incarceration;
Group Therapy; Care coordination services for linkage, referral to community mental
health services and discharge planning for post custody treatment service; Coordination
with Long Term Care for psychiatric hospitalization as appropriate . . . .
Adult Correctional Health Services —What We Do, ORANGE COUNTY HEALTH CARE AGENCY (Mar.
10, 2018), http://www.ochealthinfo.com/about/chs/achs [https://perma.cc/FFD9-5Z8J].
217 See JAIL SUICIDE/MENTAL HEALTH UPDATE (Fall 2005), supra note 205, at 5 (describing the
OCSD’s practice of holding weekly meetings between correctional staff from different disciplines).
218 See id. (describing the OCSD’s effective system of checks and balances).
has separate duties and functions, the responsibility for preventing suicides is
shared, and it takes a team to prevent inmate deaths; this dedication to inm ate
suicide prevention must be fostered in all correctional facilities.221
Finally, the OCSD takes seriously each inmate death that occurs, and r
evises its policies and procedures to address the causes of inmate death2s22.
Similarly, correctional facilities sh ould submit every completed inmate suicide
or suicide attempt to morbidity -mortality review. 223 An outside agency should
conduct the review in order for the process to be handled in a neutral
mnaner.224 The review should also “include a critical inquiry of the circumstances
surrounding the incident, procedures relevant to the incident, all relevant trai
ning that involved staff received, pertinent medical and mental health services
or reports involving the victim, precipitating factors that may have led to the
suicide.”225 Finally, it is important for the reviewing agency to explore pote
ntial recommendations for policy, operational, or other changes to reduce the
likelihood of another inmate suicide.226
Together, the policies and procedures described above constitute a
comprehensive suicide prevention strategy that will be effective in reducing the
number of inmate suicides in both state and local correctional facilities. 227
Inmate suicides are demonstrably preventable, but such prevention requires an
intentional effort on the part of correctional leaders, correctional medical staff,
and even government leaders22.8 Correctional systems modeled after the
OCSD, in which a comprehensive range of suicide prevention strategies are
221 See id. (describing the OCSD staff’s sense of responsibility for inmate deaths).
222 See id. at 6 (describing the OCSD’s administrative review process following a critical
incident). Following each of the four inmate suicides that occurred in OCSD facilities between 1990 and
1996, the OCSD conducted an administrative review that included recommendations “for change in
policy, training, physical plant, medical or mental healthservices,andoperationalprocedures. ” Id. For
example, in February 1990, an inmate in the OCSD ’s Central Women’s Jail chose to remain alone in
her dormitory unit while other inmates went to dinner, and during that time, she hung herself from a
fixed metal rod in the shower area. Id. Following the incident, the OCSD replaced all fixed shower
rods with breakaway rods, and revised its policies to prohibit any inmate from remaining alone in a
dormitory unit. Id.
223 See id. (describing the OCSD’s administrative review process following a critical incident);
GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra
note127,at5(stating the importance of a morbidity-mortality review process); NATIONAL STUDY OF JAIL SUICIDE,
supra note 30, at 39 (stating the importance of a morbidity-mortality review process).
224 See GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS, supra note
127, at 5 (stating the importance of a morbidity-mortality review process).
225 NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 39.
227 See supra notes 203–226 and accompanying text.
228 See Hayes, supra note 11, at 193 (explaining that inmatesuicides arepreventable); supra notes
203–226 and accompanying text (describing the key elements of an effective suicide prevention pr
ogram and the need for involvement by both correctional and mental health staff); infra notes 231–261
and accompanying text (suggesting that the federal government can help reduce inmate suicides by
improving their criminal justice funding programs).
implemented, are likely to have greater success in reducing inmate suicides. 229
In order to incentivize state and local correctional facilities to implement the
above-discussed inmate suicide prevention strategies, the federal government
should revise its primary grant program for state and local criminal justice
operations—JAG—to condition such grant funding on the implementation of
comprehensive suicide prevention programs, and provide additional
discertionary grants for correctional suicide prevention purposes.230
B. Incentivizing Inmate Suicide Prevention Reform by Modifying the
Federal Justice Assistance Grant Program Requirements and Forms
The Edward Byrne Memorial JAG Program, administered by the Bureau
of JusticeAssistance (“BJA”), is the primary source of federal funding for state
and local crimina l justice initiatives. 231 JAG funds may be used to provide r
esources, such as training or equipment, for any of the following criminal
justice purposes: (i) law enforcement; (ii) prosecution and court; (iii) prevention
and education; (iv) corrections and community corrections; (v) drug treatment
and enforcement; (vi) planning, evaluation, and technology improvement; (vii)
crime victim and witnesses; and (viii) mental health programs. 232 Any state or
local government that meets the JAG eligibility requirements may submit an
application for JAG funds, which must include a description of the program to
which the funds will be allocated, and a budgeting worksheet detailing how the
JAG funds will be used to implement the program. 233 The award process starts
229 See JAIL SUICIDE/MENTAL HEALTH UPDATE (Fall 2005), supra note 205, at 1 –6 (describing
the OCSD’s suicide prevention programming).
230 See infra notes 231–261 and accompanying text.
231 BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, JUSTICE ASSISTANCE GRANT
PROGRAM ACTIVITY REPORT 1 (2016),https: //www.bja.gov/programs/JAG-Activity-Report-Sept-2016_
508.pdf[https://perma.cc/MJ9E-5Z4B] [hereinafter JAG ACTIVITY REPORT].Theprogramis
authorized by statute. 42 U.S.C. § 3751 (2012); BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE,
EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT (JAG) PROGRAM FREQUENTLY ASKED
QUESTIONS (FAQS) 1 (Aug. 2017), https://www.bja.gov/Funding/JAGFAQ.pdf [https://perma.cc/
SGE5-WKFA] [hereinafter JAG FAQ]. In 2016, approximately $275 mililon of JAG funds were
awarded to various states and U.S. territories. BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, JUSTICE ASSISTANCE GRANT PROGRAM TECHNICAL REPORT 1 (2016), https://www.bjs.gov/
content/pub/pdf/jagp16.pdf [https://perma.cc/6MJ5-VBQE] [hereinafter JAG TECHNICAL REPORT].
Of that amount, approximately $181 million went to state governments, $86 million went to local
governments, and $7 million went to U.S. territories and the District of Columbia. Id. The BJA is a
component of the U.S. Department of Justice’ s Office of Justice Programs. About the Bureau of
Justice Assistance, BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE (Mar. 10, 2018), https://
232 JAG 2017 STATE SOLICITATION, supra note 201, at 5.
233 Id. at 16. All fifty states, the District of Columbia, the Commonwealth of Puerto Rico, the
Northern Mariana Islands, the Virgin Islands, Guam, and American Samoa are eligible to apply for
JAG State awards. J AG FAQ, supra note 231, at 1. JAG Local awards are available to local gover
nments listed on the JAG webpage. Id. In every state or U.S. territory, the governor or chief executive
officer must appoint an agency, known as the State Administering Agency (SAA)to apply for and
with a calculation prepared by the Bureau of Justice Statistics, which creates
an initial allocation of funds to all fifty states and U.S. territories, based on
each jurisdiction’s share of the nation’s violent crime and overall population. 234
Every state and U.S. territory is entitled to a minimum of 0.25 percent of the
total JAG allocation, regardless of population or crime average; if a state or
U.S. territory’s initial allocation exceeds the minimum amount, it receives the
minimum award in addition to an award based on its share of violent crime and
population.235 States receiving JAG funds are then required to set aside forty
percent of those funds to be allocated to local governments. 236 Local
jurisdictions are then awarded funding based on a calculation of their three -year crime
The JAG Program application form for both state and local governments
outlines several requirements, including a requirement that all applicants co
mply with applicable federal laws; additional requirements exist for certain other
programs as well. 238 For example, the 2017 application form for state solicit
ation provides that applicants requesting JAG funds to purchase bod-yworn
camera equipment must certify that the agency using that equipment has
implemented policies and procedures regarding “equipment usage, data storage
and access, privacy considerations, training, etc.” 239 In order to incentivize i
nmate suicide prevention reform in state and local correctional facilities, the
BJA should modify the JAG Program application requirements ot similarly
include a suicide prevention protocol prerequisite for applicants who are see
king JAG funds for correctional purposes.240
The suicide prevention protocol prerequisite would effectively condition
correctional JAG funds on the implementation of com prehensive suicide pr
eadminister the JAG funds. StateAdministeringAgencies , NAT’L CRIM. JUST. ASS’N, https://www.ncja.
org/ncja/policy/about-saas [https://perma.cc/AS6Q-ZF5X]. In New York, the SAA is the New York
State Division of Criminal Justice Services. State Criminal Justice Profile: New York, BUREAU OF
JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE (Mar. 10, 2018), https:// bjafactsheets.iir.com/State/NY
234 JAG TECHNICAL REPORT, supra note 231, at 2.
235 Id.; see 42 U.S.C. § 3755(a) (providing the allocation formula).
236 42 U.S.C. § 3755(b); JAG TECHNICAL REPORT, supra note 231,at 3 . This sixty-forty percent
split does not apply to the District of Columbia or any of the U.S. territories.JAG TECHNICAL
REPORT, supra note 231, at 3.
237 JAG TECHNICAL REPORT, supra note 231, at 3. For JAG purposes, units of local government
include towns, townships, villages, parishes, cities, counties, boroughs, and other subdivisions of a
state. JAG FAQ, supra note 231, at 1. In some states, district attorneys or parish sheriffs may also be
considered units of local government. Id.
238 BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, EDWARD BYRNE MEMORIAL
JUSTICE ASSISTANCE GRANT PROGRAM FY 2017 LOCAL SOLICITATION 6–9 (2017), https://www.bja.
SOLICITATION]; JAG 2017 STATE SOLICITATION, supra note 201, at 6–10.
239 JAG 2017 STATE SOLICITATION, supra note 201, at 6.
240 See id. (describing prerequisites for certain uses of JAG funds).
vention policies in the facilities that will be using the funds. 241 State and local
governments who can demonstrate that effective suicide preventiono-pr
grams—i.e. programs that implement the above -discussed policies and proc
edures—are utilized by their correctional facilities, will meet the suicide
prevention prerequisite necessary to receive correctional JAG funding.242 State
and local governments who fail to demonstrate that their suicide prevention
programs meet the standards previousl y discussed will not receive JAG corre
ctional funding.243 Given the rising costs of maintaining a corrections facility,
this prerequisite would give JAG applicants seeking correctional funding a
stronger incentive to implement suicide prevention protocols, thereby affor
ding enhanced protection to inmates at risk of suicide in their jurisdictions. 244
In addition to adding this prerequisite for correctional funding requests,
the BJAshould also draw attention to the need for correctional suicide preve
ntion programming on future JAG Program application forms.245 In the 2017
JAG Program state and local application forms, the BJA included a section
entitled “BJA Areas of Emphasis.”246 Under this portion of the form in the
state application, the BJA listed several prevalent criminal justice issues, and
encouraged state and local recipients of JAG funds to increase resources and
241 See id. (same).
242 See id. (same); supra notes 203–230 and accompanying text (discussingthecomponentsofan
effective suicide prevention scheme).
243 See JAG 2017 STATE SOLICITATION, supra note 201, at 6–8 (listing preconditions for using
JAG funds in certain areas of criminal justice programming). The Department of Justice requires r
ecipients of its grants, including JAG, to submit financial reports detailing the expenditures and
outstanding bills for a project that is covered by grant funding.OFFICE OF JUSTICE PROGRAMS, U.S.
DEP’T OF JUSTICE, 2015 DOJ GRANTS FINANCIAL GUIDE 120, https://www.justice.gov/ovw/file/
892031/download [https://perma.cc/9ZGZ-KEYY]. These reports must be submitted online through
the Grants Management System (GMS), no later than thirty days after the last day of each quarter of
the project. Id. at 120–21. If the report is not submitted by the deadline, the GMS will prevent
withdrawal of funds through the Grants Payment Request System. Id. at 121. In addition to financial
reports, the DOJ requires grant recipients to submit progress/programreports describingtheactivities of
an ongoing plan or project. Id. at 123. Progress/program reports shouldbesubmittedannuallyor semi
annually, depending on the type of award, through the GMS. Id. Additionally, applicants requesting
JAG funding for purchasing body-worn camera equipment are required to submit a signed certific
ation stating that law enforcement agencies receiving the equipment have implemented written
“mandatory wear” policies. JAG FAQ, supra note 231, at 11.
244 PEW CHARITABLE TRS., STATE PRISON HEALTH CARE SPENDING 19 (July 2014), http://
cc/ZV7U-YXZR]. In 2015, grantees across the country allocated approximately 6% of their JAG
awards toward corrections and community corrections programs, which was thethirdprogram area to
which grantees invested the most JAG funds. JAG ACTIVITY REPORT, supra note 231, at 2 . Law
enforcement and prosecution, courts, and public defense were the top two programareas wheregrantees
allocated JAG funding, with 64.2% for law enforcement and 9.9% for prosecution, courts, andpublic
245 See JAG 2017 STATE SOLICITATION, supra note 201, at 10–11 (listing the “BJA Areas of
246 JAG 2017 LOCAL SOLICITATION, supra note 238, at 9 –10; JAG 2017 STATE SOLICITATION,
supra note 201, at 10–11.
reform towards those areas. 247 In 2017, the priority areas listed were: (i) redu
cing gun violence; (ii) national inciden-tbased reporting system; (ii) officer
safety and wellness; (iv) border security; and (v) collaborative prosecution. 248
In order to encourage greater attention and investment towards inmate suicide
prevention reform, the BJA should add correctional suicide prevention
porgramming to the list of JAG priority areas in future JAG Program application
forms; as such, state and local governments will be aware that the federal go
vernment is willing to support improvement on this issue.249
C. The Department of Justice Should Create a Discretionary Grant
Program That Supports Inmate Suicide Prevention Reform
In addition to offering broad-based criminal justice grants through the
JAG Program, the DOJ should also create new discretionary grant opportun
ities specifically addressing the issue of inmate suicide.250 Discretionary grants
awarded by the DOJ’s Office of Justice Programs are grants for state or local
governments to use in addressing specific justice issues, and are often awarded
on a competitive basis. 251 Discretionary grants aimed at inmate suici de
prevention would offer state and local governments additional incentives ande-r
sources to pursue that type of reform in their jurisdictions.252
For example, the BJA had an application available in early 2017 for a
competitive grant that would support the implementation of the Prison Rape
Elimination Act (“PREA”) to reduce sexual abuse and harassment in a local
correctional system.253 The application form included details on what the
recipient of the grant would be expected to implement with the grant money, as
well as a timeline according to which different phases of the project should be
executed.254 It outlined expectations for the planning phase of the projec—t
such as identifying local confinement facilities in need of support to initiate
PREAstandards—and the implementation phase, including the introduction of
sexual abuse victim support services.255
Similarly, the BJAshould create a discretionary grant programfor state or
local correctional facilities that are in need of additional support to implement
247 JAG 2017 STATE SOLICITATION, supra note 201, at 10–11.
249 See id. (listing the BJA “Areas of Emphasis”).
250 See OJP Grant Process, supra note 202 (explaining what a discretionary grant is).
252 See id. (explaining what a discretionary grant is).
253 BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, PREA PROGRAM: STRATEGIC
SUPPORT FOR PREA IMPLEMENTATION IN LOCAL CONFINEMENT FACILITIES NATIONWIDE 4(2017),
https://www.bja.gov/Funding/PREA17.pdf[https://perma.cc/LZ4F-DAY3] [hereinafter PREA
254 Id. at 6–11.
effective inmate suicide prevention measures. 256 As with the PREA grant, the
inmate suicide prevention grant should include specific goals and objectives
that the recipient agency would be required to fulfill. 257 These goals and
objectives should focus on the key components of effective inmate suicide
prevention that have already been mentioned: (i) intake screenings containing a me
ntal health and suicide risk component, and continuing assessments of suicide
risk, both conducted by qualified mental health professionals; (ii) initial and
annual in-person suicide prevention trainings for correctional and mental
health staff; (iii) collaboration between correctional and mental health staff,
cultivated through joint meetings to discuss recent suicide incidents and issu es;
(iv) proper levels of observation by correctional officers for inmates at risk of
suicide; (v) safe and suicide-resistant housing for at-risk inmates; (vi) prompt
and appropriate intervention by correctional officers upon discovery of an
nimate who has attempted suicide; and (vii) multidisciplinarymorbidity -mortality
reviews after each inmate suicide incident.258
Adequate funding is essential in every jurisdiction to maintain and
improve a correctional system. 259 Therefore, the above -mentioned modifications
and additions to the DOJ’s JAG and other grant programs will encourage state
and local governments to address the problem of inmate suicide, and will lik
ely lead to an increase in the prevalence of comprehensive inmate suicide pr
evention programs across the nation.260 With the essential suicide prevention
strategies in place, jails and prisons will have what it takes to prevent someone
like Christopher Barkes from taking his or her own life.261
Inmate suicide is one of the most pressing issues in correctional systems
nationwide, because it is the leading cause of death in local jails and the
second leading cause of death in state prisons. For a number of reasons, including
the costliness of mental healthcare and complacency regarding inmate deaths,
many correctional facilities do not have the comprehensive range of inmate
suicide prevention programs that mental health experts recommend in order to
reduce inmate suicides. Additionally, because of the qualified immunity
doc256 See OJP Grant Process , supra note 202. See generally PREA PROGRAM, supra note 253
(offering a grant application for the purposes of implementing PREA standardsincorrectionalfacilities).
257 See PREA PROGRAM, supra note 253, at 6–11.
258 See supra notes 203–230 and accompanying text.
259 See Hanson, supra note 36, at 7; STATE PRISON HEALTH CARE SPENDING, supra note 244, at
(showing a peak in correctional healthcare spending in 2009 at $8.2 billion, and a slightly lower
amount of $7.7 billion in 2011)
260 See Hanson, supra note 36, at 7; STATE PRISON HEALTH CARE SPENDING, supra note 244.
261 See supra notes 203–230 and accompanying text.
7 Id. Barkes had violated his probation by loitering . Complaint, supra note 3 , at 4.
8 Barkes II , 766 F.3d at 311. The contract nurse was employed by First Correctional Medical, a private contractor hired to provide medical services at the HRYCI . Id.
9 Id. at 314; Taylor v. Barkes (BarkesIII ) , 135 S. Ct . 2042 , 2043 ( 2015 ); Brief forRespondentsin Opposition at 4 , Barkes III , 135 S. Ct . 2042 (No. 14 - 939 ).
10 Barkes III , 125 S. Ct . at 2043 . Barkes did not disclose his suicide attempts in 1997 or 2004 . Id.
11 Id. An example of a suicide prevention measure used at theHRYCIis placementonPsychiatric Close Observation , Level II , which entails giving inmates suicide gowns (smocks made of heavy material that is difficult to tear) and requiring staff to check on the inmates every fifteen minutes . Barkes II , 766 F.3d at 311 -12; Lindsay M. Hayes , Suicide Prevention in Correctional Facilities: Reflections and Next Steps , 36 INT'L J. L . & PSYCHIATRY 188 , 189 ( 2013 ) (explaining what a safety smock is).
12 Barkes II , 766 F.3d at 311.
14 Id.; Brief for Respondents in Opposition, supra note 9 , at 6.
15 Barkes II , 766 F.3d at 312.
16 Id. at 310 , 314 .
17 42 U.S.C. § 1983 ( 2012 ) ; Barkes III, 125 S. Ct . at 2043; see Michael C. Dorf, Supreme Court Jail Suicide Case Illustrates the Breadth of Qualified Immunity , VERDICT (June 3 , 2015 ), https:// verdict.justia.com/ 2015 /06/03/supreme-court -jail-suicide-case-illustrates-the-breadth-of-qualifiedimmunity [https://perma .cc/L8TF-457E] (explaining the language of 42 U .S.C. § 1983 and referring to the statute as “Section 1983”). The first sentence of 42 U .S.C. § 1983 states: “Every person who,
81 See generally Taylor v. Barkes ( Barkes III) , 135 S. Ct . 2042 ( 2015 ) (holding that correctional officers were entitled to qualified immunity in a case where the family of a former inmate who committed suicide filed a lawsuit based on 42 U .S.C. § 1983 ); Miller v . Harbaugh , 698 F.3d 956 ( 7th Cir . 2012 ) (holding that state officials were entitled to qualified immunity in a case where the mother of a juvenile inmate filed a lawsuit based on 42 U .S.C. § 1983 ).
82 See Farmer v. Brennan , 511 U.S. 825 , 834 ( 1993 ) (explaining that in the context of prisonco nditions, prison officials violate the Eighth Amendment when their “state of mind is one of 'deliberate indifference' to inmate health and safety”).
83 Id. at 847.
84 Id. at 836.
85 Id. (citing LaMarca v . Turner , 995 F.2d 1526 , 1535 ( 11th Cir . 1993 ); Manarite v . City of Springfield , 957 F.2d 953 , 957 ( 1st Cir . 1992 ) ; McGill v . Duckworth , 944 F.2d 344 , 347 ( 7th Cir . 1991 ); Redman v . Cty. of San Diego, 942 F.2d 1435 , 1443 ( 9th Cir . 1991 ); Miltier v . Beorn, 896F.2d 848 , 851 - 52 ( 4th Cir . 1990 ); Martin v . White , 742 F.2d 469 , 474 ( 8th Cir . 1984 )).
86 See Barkes III , 135 S. Ct . at 2044 - 45 ( finding that even if the facility's suicide screening and prevention measures were deficient, the officials were not violat ing any clearlyestablishedrights,and therefore qualified immunity applied); Miller, 698 F.3d at 964-65 (holding that the facility's placement of mentally ill inmates in cells with bunk beds did not amount to deliberateindifference,andthat even if it did, the law was not clearly established enough to overcome qualified immunity).
87 Barkes v. First Corr. Med ., Inc. ( Barkes II ), 766 F.3d 307 , 314 ( 3d . Cir . 2014 ), rev'd,135S.Ct . 2042 ( 2015 ).
110 See NATIONAL STUDY OF JAIL SUICIDE, supra note 30 , at 1.
111 Id. Inmates experience various forms of stress, such as shock, fear, isolation, shame, and dehumanization, which often times lead to suicidal ideation . Id.
112 Id. In 2000, Joseph Scott Rehrig committed suicide while incarceratedat theWakeCountyJail in Raleigh, North Carolina for kidnapping and sexually assaulting a thirteen- year-old boy . NAT'L CTR. ON INSTS. & ALTS ., JAIL SUICIDE/MENTAL HEALTH UPDATE 1 ( Summer2007 ),http://www.ncianet.org/ wpcontent/uploads/2011/06/sp_update_ 2007 _summer .pdf[https://perma.cc/7FKX-2MHU] [hereinafter JAIL SUICIDE/MENTAL HEALTH UPDATE ( Summer 2007 ) ] . Rehrig had nopriorrecord,andwhenarrestedand questioned bythe police, he had appeared downcast and embarrassed, saying that he had never commi tted any crime like that before . Id.
113 See Chammah & Meagher, supra note 30 (explaining that one reason why jails have more suicides than prisons is that jail inmates are often facing incarceration for the first timeandexperience shock).
114 See id . (same); Martin Kaste, The 'Shock of Confinement': The Grim Reality of Suicide in Jail , NPR (July27 , 2015 ), http://www.npr.org/ 2015 /07/27/426742309/the-shock -of-confinement-the-grimreality-of-suicide-in-jail [https://perma .cc/P5G6-WTMV] (describing the “shock of confinement” and the traumatic effect that first-time incarceration can have on individuals).
115 NATIONAL STUDY OF JAIL SUICIDE, supra note 30 , at 1.
116 See id . (explaining that the stress of confinement can lead an inmate to an emotional breaking point, which often precipitates suicide) . In 2007 , Charles Nixon, an inmate in the Southwick County Jail in Massachusetts committed suicide in his cell after being arrested for carryinga concealedwea pon and menacing by stalking . JAIL SUICIDE/MENTAL HEALTH UPDATE (Summer 2007 ), supra note 112, at 6. Correctional staff had described him during his first few days in jail as anxious about his nearing court date and deeply concerned about the well-being of his wife and young son . Id. at 6-7.
117 NATIONAL STUDY OF JAIL SUICIDE, supra note 30 , at 1.
119 See id.
120 Id. at 2; MORTALITY IN STATE PRISONS, 2001 - 2014 , supra note 33, at 4. The leading causes of death in prisons are various illnesses, including cancer, heart disease, liver disease, AIDS- related illnesses, and respiratory diseases . MORTALITY IN STATE PRISONS , 2001 - 2014 , supra note 33, at 4.
121 See generally Meredith Huey Dye, Deprivation, Importation, and Prison Suicide: Combined Effects of Institutional Conditions and Inmate Composition , 38 J. CRIM. JUST. 796 ( 2010 ), http://www. sciencedirect.com/science/article/pii/S0047235210001194[https://perma.cc/BA4J-4YMQ] (discussing the causes of suicide in prisons) . Prison inmates, unlike jail inmates, are typically convicted of more serious crimes, have had prior experience with the criminal justice system, and serve longer sentences. Radley Balko, A Primer on Jailhouse Suicides, WASH . POST (July 17 , 2015 ), https://www.washington post.com/news/the-watch/wp/2015/07/17/a -primer-on-jailhouse-suicides/?utm_term= .23323ea9c449 [https://perma.cc/H7MS-BBYR]; Kaste, supra note 114.
122 Dye, supra note 121, at 797-98, 803 - 04 .
123 Id. at 797.
124 See NATIONAL STUDY OF JAIL SUICIDE, supra note 30, at 1 ( explaining that the jail enviro nment and inmates' experience of a crisis are the two main causes of jail suicide).
125 See id . at 54 (explaining the need for comprehensive suicide prevention servicestoaddressthe needs of mentally ill inmates).
126 See id . (same); UNIV. OF TEX. SCH. OF LAW , PREVENTABLE TRAGEDIES : HOW TO REDUCE MENTAL HEALTH-RELATED DEATHS IN TEXAS JAILS 10 (Nov . 2016 ), https://law.utexas.edu/wpcontent/uploads/sites/11/2016/11/2016-11 -CVRC- Preventable-Tragedies.pdf[https://perma.cc/X4L9- J5UG] (describing how jails in Texas have failed to adequately screen, house, observe,and treatmentally ill inmates, leading to inmate suicides).
135 Id. The National Center on Institutions and Alternatives is a non- profit organization that conducts research and training on jail suicide, and provides materials and resources to assist correctional professionals and their facilities . NAT'L CTR. ON INSTS. & ALTS ., PROGRAMS AND SERVICES ( 2015 ), http://www.ncianet.org/wp-content/uploads/2015/03/About-NCIA.pdf[https://perma.cc/ZL62-9H76].
136 Hayes, supra note 11, at 190.
139 Id. at 189-90.
140 Id. When it comes to screening, it is important to note that staff should not rely solely an inmate's statements during a screening, even if they deny suicidal thoughts, because there are v arious reasons why an inmate would not want to disclose their intention to commit suicide,suchas notwan ting correctional staff to prevent him or her from actually committing the suicide . Id. at 189 . Correctional staff should also pay close attention to the inmate's behavior, actions ,and/orbehavioralhistory. Id. at 190.
141 GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS , supra note127 , at1 .
142 Id. at 2; Hayes, supra note 11, at 189-90.
143 Hayes, supra note 11, at 191. According to national standards, a QMHP would include a ps ychiatrist, psychologist, psychiatric social worker, psychiatric nurse, and others who have the legally required education, credentials, and experience permitting them to evaluate and care for the mental health needs of patients . Id.
144 GUIDE TO DEVELOPING AND REVISING SUICIDE PREVENTION PROTOCOLS , supra note127 , at4 .
191 See id . In Worcester, Massachusetts, correctional officials have attempted to implement new suicide prevention measures, but struggled with a lack of funding . McKim & Sajadi, supra note 167 . According to the superintendent of the Worcester County Jail and House of Correction, the facility 's $45 million budget is not even enough to pay for basic costs, let alone to improve mental health services . Id.
192 Seesupra notes 153-172 and accompanying text (outliningthecurrentstateofsuicidepreve ntion programming across the states ).
193 See Dorf , supra note 17 (explaining how the Supreme Court's holding in Taylor v. Barkes prevents families of inmate suicide victims from seeking retribution).
194 See infra notes 195-261 and accompanying text.
195 See Hayes , supra note 11 , at 193 ( explaining that inmate suicides are preventableif thecorrect prevention measures are implemented) ; MORTALITY IN LOCAL JAILS, 2000 - 2014 , supra note30, at 5 (showing that suicide was the leading cause of deathin local jails between2000- 2014, whenconsidering all the illnesses as separate causes of death); MORTALITY IN STATE PRISONS, 2001 - 2014 , supra note 33, at 4 (showing that suicide was a leading cause of death in state prisons between 2000- 2014 ).
196 See Hayes , supra note 11 , at 188-89 ( explaining that inmate suicide can be further reduced with the appropriate practices ).
197 NATIONAL STUDY OF JAIL SUICIDE, supra note 30 , at vii.
198 See Taylor v. Barkes , 135 S. Ct . 2042 , 2044 ( 2015 ) (holding that qualified immunity applied to correctional officers despite the fact that their failure to implement adequate suicide prevention measures may have caused the death of a suicidal inmate); Dorf, supra note 17 (explaining that fam ilies of inmate suicide victims have limited means to achieve justice because of the holding in Taylor v . Barkes).
199 See infra notes 231-261 and accompanying text . This section will focus on the reform of state prisons and local jails, and not federal prisons, as there are significantly fewer inmates in the latter (in 2014 , there were approximately 1 , 264 ,300 inmates in state prison and 750 ,100 in local jails, but only 169 ,500 in federal prisons). See MORTALITY IN LOCAL JAILS , 2000 - 2014 , supra note 30, at 25; MORTALITY IN STATE PRISONS, 2001 - 2014 , supra note 33, at 18. Also, note that in forty -four states, jails are operated by the local government, and in six states, jails and prisons are jointly operated by the state government . NAT'L CONFERENCEOF STATE LEGISLATURES , MANAGING CORRECTIONS COSTS 8 (Feb . 2014 ), http://www.ncsl.org/documents/cj/managingcorrectionscosts.pdf[https://perma.cc/5UST-6SSR].
200 See infra notes 231-244 and accompanying text.
201 See infra notes 245-249 and accompanying text . The 2017 JAG state application form contained a list of “BJA Areas of Emphasis”-areas of justice reform in which state and local governments applying for the JAG Program were encouraged to invest with their funding awards . BUREAU OF JUSTICE ASSISTANCE , U.S. DEP'T OF JUSTICE , EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT PROGRAM FY 2017 STATE SOLICITATION 10- 11 ( 2017 ), https: //www.bja.gov/Funding/JAG State17.pdf [https://perma.cc/Q7C3-L86R] [hereinafter JAG 2017 STATE SOLICITATION] .
202 See supra notes 250-261 and accompanying text. A discretionary grantis awarded by the Department of Justice to a state or local agency in order for that agency to implement a specific type of justice-related program . OJP Grant Process, OFF. JUST. PROGRAMS (Mar. 11 , 2018 ), https://ojp. gov/funding/Apply/GrantProcess.htm [https://perma.cc/3M25-3WE4].
203 See supra note 130 and accompanying text.
204 See NATIONAL STUDY OF JAIL SUICIDE, supra note30,at40- 41 (explainingtheimportanceof written suicide prevention protocols, but also questioning the quality of those protocols in toda'ys correctional facilities).
205 See NAT'L CTR . ON INSTS. & ALTS ., JAIL SUICIDE/MENTAL HEALTH UPDATE 1-6 (Fall 2005 ), http://www.ncianet.org/wp-content/uploads/2011/06/sp_update_ 2005 _fall .pdf[https://perma.cc/XPL6- QZ7E] [hereinafter JAIL SUICIDE/MENTAL HEALTH UPDATE ( Fall 2005 )] (highlighting news from