S1E12 / Covid and Punishment / Homer Venters, Norman Ornstein, Steven Leifman

I'm Dr. Celine Gounder.

And I'm Ron Klain.

And this is Epidemic. Today is Friday, April 17th.

We're going to be looking at how coronavirus is impacting our criminal justice system. We're going to hear from Judge Steve Leifman and Norm Ornstein. Norm and Steve have a PBS documentary that came out this week called The Definition of Insanity about mental illness and the criminal justice system. We're going to talk to them about how COVID is affecting people with mental illness and how that is impacting our criminal justice system in the United States.

But before we get to that interview, we have a story about what it's like to have coronavirus when you're behind bars. Rikers Island is a prison complex in New York City that sits in the East River. If you've ever seen an episode of Law and Order, this is the jail where people await trial.

At the time we recorded this podcast, the Legal Aid Society of New York reported that there were 334 inmates at Rikers Island with COVID-19. That's more than 8% of the inmate population. Now, we incarcerate people in America for committing crimes.. But an inmate's punishment is not supposed to include the infliction of an infectious disease. Rosie Santiago's older brother, incarcerated for a nonviolent offense, is experiencing just that.

My brother and me are very close. He's my big— he's my oldest brother, so he sometimes acts like a dad to me, but I'm very close to him.

Rosie's brother has been incarcerated since July of 2018. When the coronavirus started to spread in New York City, he was being held at Manhattan Detention Center. When inmates there started to contract COVID-19, Rosie's brother was moved to Rikers Island. That was about 3 weeks ago, she says. But it wasn't fast enough. Rosie's brother got the coronavirus.

His symptoms began 3 weeks ago. He couldn't breathe. He had high fever, 105. 101, and then it would go up, you know, it would fluctuate. And then he actually, he didn't have any coughing, but he did have breathing problems as well. He goes in and out, he feels dizzy, gets a lot of chills, breaks out in a lot of sweats, his body aches, muscle aches.

Rosie worries about her brother and whether he's getting the medical care that the law requires be provided to inmates. She hears only from her brother about once a week, so it's hard for her to know.

He sounds very fearful. They quarantined him in a small room at Rikers. They didn't take him to a hospital, and they gave him Tylenol, and that was basically it.

Rosie's brother has a history of respiratory issues. He had pneumonia last year. He has high blood pressure, and he's not young. He turns 52 in May.

This combination of factors is enough to worry anyone. But it's even worse when you're in jail.

They're not allowed to wear masks at the prison, so that's a major concern.

So no one is allowed to wear masks at all?

No, not from what I was informed. They consider it contraband, and they're very strict with that.

Rosie says his symptoms have improved, but he's still under quarantine. She says at this point, he's starting to worry about what will happen to him next.

He doesn't want to become worse with his symptoms or have a relapse because he's not being treated properly. If the officers do feel that he's getting better, they're going to expose him to other inmates, other correctional officers, and he doesn't want to spread that.

All of this is taking a toll on Rosie and her family.

We're very worried. Sometimes we don't sleep because we have more anxiety than usual, just concerned about if he's okay, if he's breathing, if they took him to the hospital, and if he's getting the proper treatment so he can get better.

These are places where there's very little information.

This is Dr. Homer Venters. Homer worked for New York City's Correctional Health Services for almost 10 years, including 2 years as chief medical officer. Homer was responsible for overseeing health at Rikers Island and other New York City jails. After leaving that job, Homer published the book Life and Death in Rikers Island.

Correctional staff, both the security staff and the health staff, are going to be terribly afraid. And the patients aren't going to get, you know, are probably not getting good information, so they're going to be very afraid.

Homer worked at Rikers Island during the H1N1 flu pandemic back in 2009. He says that even that less deadly disease was a serious challenge.

We're going to have to have housing areas that have suspected cases, and then we might have other housing areas where we've identified cases, but they're not sick enough to go to the hospital. These jails and prisons all over the country are full. There's not extra room, and they already have a super complicated set of criteria about who goes in which housing areas based on security status, maybe mental health status.

Age is another risk factor.

A 50-year-old behind bars is not like a 50-year-old in the community, and that we think of people being in their elder years when they get to 50 or 55 behind bars because the level of physical and behavioral health problems is pretty high. And so we'll need to think about the risk stratification that's appropriate to correctional settings, which is different than the community.

There are other complications too. During H1N1, Homer said the courts were slowed to a halt.

People couldn't leave jail. People who were supposed to go home from jail couldn't go home from jail. Some of that had to do with the fact that they couldn't get to court. So lawyers and judges or courts weren't operating. And so if they were supposed to go for a hearing or some sort of encounter in the court building, some of those didn't happen. And so they stayed in jail.

So what should we do?

We should put fewer people in jail. Every spot on that, that justice intercept should be reevaluated now with this health lens to take the pressure off the housing and management issues inside jail, but also what we would anticipate will be the decreased capacity of the court systems.

New York authorities are already moving on this front. They've moved more than 50 inmates from Rikers because of the coronavirus. These people were there on nonviolent charges, things like parole violations, or missing a curfew.

And Rosie is trying hard to make sure her brother gets out too.

I want to say that I hope that we continue to support our inmates and not, not reject them in any way because they're people too. It's been hard, but we are keeping our fingers crossed that he will be released soon.

Before we get to our next interviews with Norm Ornstein and Judge Steve Leifman, There's something I wanted to share. In the new podcast Making the Call, doctors and hosts Zeke Emanuel and Jonathan Moreno guide us on the code of ethics that are the backbone of modern medicine and are being put to the test by COVID-19. Making the Call will explore the human dimensions of the pandemic and answer key questions like, how do you decide who gets a ventilator? And when there's a vaccine, who'll get it first? Listen each week wherever you get your podcasts as they interrogate critical thinking in a time of crisis and show us what it means to be the ones making the call. So our guests in this segment today are Judge Steve Leifman and Norman Ornstein. Judge Steve Leifman is a judge with the 11th Judicial Circuit in Miami-Dade County, Florida. Steve is the architect of the Miami Model to address the needs of people with severe mental illness who run into trouble with the criminal justice system. The documentary, The Definition of Insanity, about the Miami Model premiered this week on PBS.

And Norm Ornstein is an old friend. He's a resident scholar at the American Enterprise Institute. He studies politics, elections, the US Congress. He's one of our nation's leading experts experts on American government, how it works, how it should work, how it's not working right now. He's also a columnist for the National Journal and The Atlantic, a BBC News election analyst, and the chairman of the Campaign Legal Center. I welcome both of you to The Epidemic Podcast.

Great to be with you.

So Norm and Steve recently published an op-ed in the New York Daily News titled "A Pandemic Lesson on Treating the Mentally Ill." Steve, you recently got a call that involves a homeless person with severe mental illness, psychotic symptoms, who'd also gotten COVID-19. Would you share that story with us?

We had someone who was floridly psychotic, had no insight to their own personal mental health illness or to the virus, and was running around, and they were unable to get the person to self-quarantine. And so the concern was, what do we do? How do we handle it? And where do we go from there? Fortunately, we have a very sophisticated, what we call Crisis Intervention Team Police Program, which is a 40-hour training program that teaches our law enforcement how to identify people with serious mental illnesses and how to handle the cases, usually opposed to arresting. And so what we did is we started identifying a particular officer that would have the proper equipment that could go over and find this individual. And then we worked on identifying a hospital where we could take them and try to put everything in motion. But that's one person among many who are out there, and it really raises a lot of issues and a lot of problems.

Norm, one thing we often say on this podcast is that the coronavirus affects everybody, but it doesn't affect everybody equally. And so the flip side of what Steve was just explaining is the other question, which is why are people with mental illness at such a high risk for getting sick during this pandemic?

So we know that a large number of those who have a serious mental illness are either homeless or in prisons, which are of course the largest repositories for those with serious mental illness. If you're on the streets and you're homeless to begin with, washing your hands is almost an impossibility. Lots of people are going to come by close to you. There is no social distancing in the prisons, almost no protective gear for anybody. And if you also have a serious mental illness and you have, as the case that Steve suggested, no insight into your illness, you can't expect them to take any of the precautions that include keeping away from other people, and you can't expect them to take care of themselves when they can't do it for their larger illnesses. If we look at those who are most vulnerable to getting the virus or spreading the virus, it's likely to be those who are the most vulnerable in our populations more generally.

And conversely, again, Steve, how is this pandemic making severe mental illness worse?

Yeah, I think what this has done is it's put a light on how unfortunately terrible many of our mental health systems are in this country. And what's complicated this particular situation is we already know that doctors and healthcare providers are having difficulty getting the proper equipment to protect themselves. Well, the frontline folks at mental health facilities are getting nothing. And so we're having problems with people even showing up to work because they're concerned about their own health, which you can understand. You also have the flip side, which is we know a lot of people are dealing with a lot of trauma during this crisis. If you look at the 1918 pandemic, there was a tremendous rise in PTSD after the crisis. I'm also concerned that following this pandemic, we're going to see another huge rise in these illnesses with a system that's already inadequate to take care of people. And so as we begin to repair ourselves from the healthcare system, I think we also need to begin to rebuild and repair our mental health system because I think we're going to see a tremendous rise in cases in the next year or two.

Steve, how do we reach out to people who have severe mental illness in the middle of a pandemic? I mean, where do we go find them and how do we get them what they need?

Yeah, I think the first thing we have to do is make sure the people that are going to go find them are provided protections so that they're comfortable going out to look for them. Legally speaking, if you do have the virus and you are not taking treatment for it and you're running around, you would probably qualify under our civil commitment laws. You know, again though, we really need a better trained community public health force. We need a better trained law enforcement force to be able to deal with these illnesses so if they are dealing with individuals with these serious illnesses, they know where to take them and they allow the civil system to be able to do what it does, which is involuntarily commit people that need to be committed.

Norm, you and Steve talk about the fact that we're likely to see a surge in mental illness in the year after this pandemic. How could we be better prepared for the impact this pandemic's going to have on our mental health system?

You know, I hope that if anything positive emerges from this, it is that we will shine a spotlight on gaps in our system in so many places, but especially here. One of them that Steve mentioned is the civil commitment laws. We saw this in our own family with our son Matthew. If you look at those people who have no insight into their illnesses, it is extremely difficult if they're over 18 to get any kind of treatment and even for loved ones to know whether a child has been hospitalized or a family member or to be able to intervene in any way. What we've seen with the Miami model, that Judge Leifman has implemented over 20 years is that there are ways of dealing with problems of serious mental illness for those especially who encounter the criminal justice system that involve training police, as he said. They've managed to cut the number of arrests in half. They have many fewer people in jails in Miami, which means that you have fewer people who are vulnerable there. But they've also created a robust program with wraparound services. If you encounter this program, this system, you are arrested on a nonviolent felony or misdemeanor, you're given a choice of going into a program where you actually get the services you need and you get back on your feet. And if we could spread that model more widely, which is why we did this documentary, The Definition of Insanity, that will be on PBS, it takes some initial commitment of resources, but you save money and you save lives along the way. And I hope that this will give us a jolt and we'll look at their society in different ways when we're finally past this terrible problem.

Steve, should we be incarcerating nonviolent people in the middle of a pandemic? Are there alternatives that are safer for people under arrest and, and for that matter, for the community?

We probably shouldn't be arresting people with mental illnesses, whether it's during a pandemic or not. We don't have a long-term continuity of care system. And so these are illnesses like any other illness. In fact, the recovery rates for people with serious mental illnesses are better than for people with heart disease and diabetes. The problem in America is that we apply a criminal justice model rather than a population health model. The data shows us quite clearly we're actually making public safety worse by incarcerating people even for short-term periods. 'cause they're such a vulnerable population that if they're working or if they have housing, just 1 or 2 days in jail usually ends that. They lose their housing, they lose their job, they end up hanging out with real criminals, and we make the situation worse. What we need to do is to develop a better system of care in the community so people have access to all what we call the essential elements of care that will help people in their recovery.

How well does the criminal justice system really care for people with severe mental illness? It seems to me that the security concerns can be at odds with the caring concerns. And, you know, from speaking to home preventers also, it seems like sometimes there's a real lack of understanding about disease and maybe even using that as a punishment of sorts.

Yeah, unfortunately it's not built to deal with this issue or this population. And we actually had a study done a few years back to see if we could do a better job narrowing down who the highest utilizer population of mental health issues were. They narrowed it down to 97 people, primarily men, primarily diagnosed with some type of schizoaffective or schizophrenia disorder. Primarily homeless, who over a 5-year period, these 97 people were arrested 2,200 times. They spent 27,000 days in the Dade County Jail, 13,000 days at a state-funded psychiatric facility, cost taxpayers $14.7 million, and we got absolutely nothing for it. There's your definition of insanity. We're actually building right now the first of its kind mental health diversion facility. Our county actually gave us $42 million, which is unheard of, to retrofit an old competency restoration facility to take our most acutely ill population who we've not been able to help very well, and to have all of those essential elements in one place, including primary health. And so what this facility is going to do is take this very, very ill population, because like any other illnesses, there's different levels of acuity. But for the very acutely ill, there is no capacity anywhere in the country to deal with them and to give them what they need so that they can gently reintegrate back to the community once they begin to recover.

So Norm, let's talk about this documentary that's just coming out on PBS, The Definition of Insanity. Um, why did you all get involved with this and what should people look for when they see this documentary?

So, you know, it's a long and tragic story for us. My son Matthew was a brilliant young man, went to Princeton, was a national champion high school debater. At 24, developed a psychotic illness. He had a psychotic break, believed that God had come for him and taken his soul but not his body, and he needed to get his soul back, and went through 10 years of torturous pain. As we did. He died accidentally in 2015, January 3rd. And I use the phrase that Joe Biden has used for so many, turn grief to purpose. And one part of it was to make sure that other families wouldn't have to go through some of the pain that we did. We met Steve, went down to Florida, immersed ourselves in the model, were blown away by what he was able to do. And thought about how we could spread those best practices, 'cause what I learned when I went public with our story was that it's just not widely known around the country for those who should know— policymakers, people who run corrections facilities, and the like. So we decided to make a documentary focused on the people who are engaged in this system, and it will be streamed on PBS for a long time for free. And then when the pandemic ends, ideally we'll take it around the country and try and get people to figure out within their own systems how they can save lives and save money at the same time. Ideally, after we go through this trauma, it'll open up hearts and minds and eyes to different ways of doing all kinds of things, and we hope the documentary will help. That's one part of what we're doing to turn grief to purpose.

I want to thank both of you for joining us today on the podcast. Norm, I thank, as always, you and Judy for your leadership. Judge, it's great to hear what you're doing in Miami and glad to see that all the country will get a chance to see this PBS documentary, The Definition of Insanity. And thank you both for being with us on the podcast today.

Thank you both.

Thank you so much.

You can find more about the documentary, The Definition of Insanity at pbs.org/show/definition-insanity. That's pbs.org/show/definition-insanity. Epidemic is brought to you by Just Human Productions. Today's episode was produced by Zach Dyer and me. Our music is by the Blue Dot Sessions. Our interns are Sonia Baradwa, Isabel Rickey, and Claire Halverson. If you enjoy the show, please tell a friend about it today. And if you haven't already done so, leave us a review on Apple Podcasts. It helps more people find out about the show. You can learn more about this podcast, how to engage with us on social media, and how to support the podcast at epidemic.fm. That's epidemic.fm. Epidemic.fm. Just Human Productions is a 501(c)(3) nonprofit organization, so your donations to support our podcasts are tax deductible. Go to epidemic.fm to make a donation. We release Epidemic twice a week on Tuesdays and Fridays, but producing a podcast costs money. We've got to pay Zack, so please make a donation to help us keep this going. Check out our sister our sister podcast, American Diagnosis. You can find it wherever you listen to podcasts or at americandiagnosis.fm. On American Diagnosis, we cover some of the biggest public health challenges affecting the nation today. In Season 1, we covered youth and mental health. In Season 2, the opioid overdose crisis. And in Season 3, gun violence in America. I'm Dr. Celine Gounder.

And I'm Ron Klain.

Thanks for listening to Epidemic.