July 16, 2019 Articles

Trick or Treatment?

Confronting the horrific intersection of race, mental health, poverty, and incarceration in Louisiana.

By Hayden Carlos and Cameron Pontiff

Often, there is no clear line of demarcation between mental health care and incarceration. When race and poverty are added to the equation, matters are exacerbated. The authors posit that Louisiana’s treatment, or lack thereof, of the mentally ill and those made vulnerable by poverty or disability perpetuates a system of mass detention. As a solution, the authors advocate for (1) the bifurcated treatment of the mentally ill and those detained for crimes, (2) partnerships between state and community stakeholders who specialize in mental health advocacy and best practices, and (3) greater ethical and constitutional protections for these vulnerable Louisiana citizens. The ambitious goals of this piece will be accomplished by examining the tragic story of the late Lemon Howard as the backdrop for the larger discussion.

For many, the involuntary commitment process is the first “trick” leading to the purgatory of forced care that awaits the poor and mentally ill in Louisiana. In Louisiana, anyone, including the state, may institute judicial proceedings to involuntarily commit another person to a mental health facility. See La. Rev. Stat. § 28:54(A) (“The department or any person of legal age may file . . . a petition which asserts his belief that a person[, the respondent,] is suffering from a mental illness or substance related or addictive disorder and to be dangerous to himself or others, or to be gravely disabled because of the mental illness or substance related or addictive disorder”). The person against whom the involuntary commitment proceedings have been instituted (the respondent) must fight against the unfettered power of the state to retain his or her freedom. The state’s burden of proof to detain the respondent is lower in these civil proceedings than in a criminal proceeding. See State v. Golston, 67 So. 3d 452, 464 (La. 2011) (quoting Addington v. Texas, 441 U.S. 418, 431–32 (1979), and Foucha v. Louisiana, 504 U.S. 71 (1992), in holding that the “clear and convincing evidence” burden of proof for involuntary civil commitment to a mental institution is sufficient, whereas the standard in criminal proceedings is proof beyond a reasonable doubt). Because of the lower burden, the state may easily commit the respondent to a secure facility. See La. Rev. Stat. § 28:54(C)(2) (although the respondent has the right to be present at the hearing, to have counsel, and to cross-examine witnesses against him or her, the civil nature of the statute guarantees the respondent none of the due process rights constitutionally guaranteed to a defendant in a criminal proceeding); see Holmes v. King, 709 F.2d 965, 968 (5th Cir. 1983) (“The Fifth Amendment privilege against self-incrimination does not prohibit examination of an accused for the purposes of a routine competency determination.”). An example of a secure facility is the East Louisiana State Mental Hospital (ELSH), which looks and feels no different than a penal institution.

After the respondent is subject to the initial involuntary commitment proceedings and subsequently committed, the nightmare does not end—he or she is substantially likely to remain committed indefinitely. Although involuntary civil commitments are limited to 180-day intervals, extensions may be filed at any time before the expiration of the 180 days without limitation, which can result in an indefinite confinement (and often does). See La. Rev. Stat. § 28:56. In both the initial and extension proceedings, the state must prove by clear and convincing evidence that the respondent is mentally ill and dangerous to himself or herself or to others to comport with due process. See La. Rev. Stat. § 28:54(A). Disturbingly, the dangerousness component is generally met when the respondent has any criminal history. See Jones v. United States, 463 U.S. 354, 364 (1983) (holding that a finding, “beyond a reasonable doubt, [that a person] committed a criminal act certainly indicates dangerousness”); c.f. La. Rev. Stat. § 28:2(6) (“‘Dangerousness to others’ means the condition of a person whose behavior or significant threats support a reasonable expectation that there is a substantial risk that he will inflict physical harm upon another person in the near future.); La. Rev. Stat. § 28:2(7) (“‘Dangerousness to self’ means the condition of a person whose behavior, significant threats or inaction supports a reasonable expectation that there is a substantial risk that he will inflict physical or severe emotional harm upon his own person.”). This deprivation of liberty is further compounded by physicians’ biases against the mentally ill. This arises when doctors analyze patient activity and identify seemingly innocuous activity as some evidence of a mental illness. Thus, the onus is on the respondent to prove that he or she is no longer suffering from a mental illness, which, for some, is an insurmountable barrier.

For the mentally ill who do not enter the maze through involuntary commitment, their “life sentence” awaits through arrest and incarceration. Louisiana courts have adopted and expanded the U.S. Supreme Court’s constitutional interpretations requiring mental health care in prisons. The Eighth Amendment of the U.S. Constitution has been interpreted to require medical care (see Woodall v. Foti, 648 F. 3d 268, 272 (5th Cir. 1981) (“[T]he Eighth Amendment imposes an obligation on prison and jail administrators to provide reasonable medical care for those who are incarcerated.”)), including mental health treatment, for incarcerated persons (see Gates v. Cook, 376 F. 3d 323, 343 (5th Cir. 2004) (explaining that “mental health needs are no less serious than physical needs”)). Nevertheless, many estimate that Louisiana penal institutions fail to provide adequate treatment to mentally ill persons in their care. This failure arises when prisons outsource mental health care of their incarcerated population to private companies. In other instances, it arises when no care is provided at all, when the mentally ill are solitarily confined until they are driven to commit suicide, inflict self-harm, or become incapacitated enough for prison officials to feel “safe” again. In a third scenario, this failure caused by unlicensed physicians who obtain a temporary or institutional permit, which allows them to practice medicine in prisons and state hospitals. See La. Admin. Code tit. 46, ch. 3. subch. H, §§ 397–402 (the Louisiana Board of Medical Examiners permits physicians who do not meet the requirements to be licensed to practice medicine in Louisiana—because of criminal history and the like—to obtain a temporary or institutional permit to practice medicine). African Americans are disproportionately and adversely affected by these shortfalls. See James M. Leblanc, Secretary, La. Dep’t of Pub. Safety & Corrections, Correction Servs., Fact Sheet (Dec. 31, 2018) (while African Americans make up nearly 33 percent of Louisiana’s overall population, they account for nearly 43 percent of Louisiana’s mental health patients and nearly 67 percent of the adult population in Louisiana’s Department of Corrections, including those incarcerated and in transitional programs). Implicit biases by both doctors and law enforcement lead to over-policing of the African American communities. Instead of treating the mentally ill and protecting the poor in these communities, law enforcement herd this unwanted population into detention centers to be exiled and abused.

This hamster-wheel “treatment” creates mass detention of the mentally ill by allowing some to be forced into the purgatory of ineffective treatment and solitary confinement—forgotten about for most of their lives. Indeed, that is exactly what seems to have happened to a young, African American man named Lemon Howard in the 1960s and continues today through stories relating similar facts but bearing different names—Cadarius Johnson, a 16-year-old, mentally disabled African American, accused of attempting to kill a police officer and charged as an adult for attempted first-degree murder of a police officer, despite his mental illness and youthful age; Anthony Tellis and Bruce Charles, two prisoners who suffer from mental illnesses and who brought a lawsuit against Davide Wade Correction Center in Homer, Louisiana, outlining the lack of mental health treatment, frequent unaddressed suicide attempts, and inhumane treatment (one claim is that “mentally ill prisoners were forced to kneel or bend down and bark like dogs to get food”); and Louis Fano, who was diagnosed with bipolar disorder, had a history of self-harm, was sent to solitary confinement, was ordered to stop taking antipsychotic medication, and was found hanged in East Baton Rouge Parish Prison. And there are countless others. See Raven Rakia, “New Orleans Wants to Make Its Notorious Jail Bigger,” Appeal, Apr. 15, 2019 (noting the untenable conditions at Orleans Parish Prison, where at least “28 suicide attempts” were made in January and February 2019).

For the mentally ill who do not enter the maze through involuntary commitment, their “life sentence” awaits through arrest and incarceration.

These men’s stories are eerily similar, but Mr. Howard’s story—a tale of racial profiling, wrongful accusations, indistinguishable treatment from both mental health facilities and the penal system, and “treatment” rendered without informed consent first being obtained—demonstrates how horrific Louisiana’s “tricks” and “treatment” can be. Mr. Howard was born in Frierson, Louisiana, to a family of sharecroppers in 1940. Around the time Mr. Howard would have been in fifth grade, he quit school to assist his father on their farm. Mr. Howard’s prospects dwindled from there on, not only because he was an impoverished, African American man in the Jim Crow South, but also because he would be diagnosed with schizophrenia and mild to moderate “mental retardation.” The earliest documentation of Mr. Howard’s life is his involuntary civil commitment, initiated by his father, to ELSH in 1962. This commitment began shortly after Mr. Howard had been stabbed and left for dead and, thereafter, began experiencing night terrors and hallucinations. While at ELSH, Mr. Howard was subject to electroconvulsive therapy and, purportedly, admitted to nightmares and hallucinations about a woman. Investigators and doctors treating Mr. Howard believed that woman to be a wealthy, white female from Shreveport—Mary Booth. (Electroconvulsive therapy (ECT) “often works when other treatments are unsuccessful and can benefit pregnant and lactating women, seniors, people with limited tolerance to psychiatric medications and those who are at high risk of suicide. . . . During treatment, electric currents are passed through the brain, deliberately triggering a brief seizure that can reverse the symptoms of certain mental illnesses.” Baton Rouge General, Electroconvulsive Therapy.)

Mrs. Booth was murdered in December of 1960. The case went unsolved for two years. In the view of those involved in the case, officers in Shreveport needed to close the highly publicized case before a 1962 election. Some suggest that, to achieve this end, the Shreveport officers coerced Mr. Howard to confess to murdering Mrs. Booth. Based on his confession, Mr. Howard, a man with the mental capacity of an adolescent child and having the writing skills of a fifth grader, was indicted by an all-white grand jury and sent to jail to await trial. However, he was not prosecuted for Mrs. Booth’s murder. There is reason to believe that neither Mr. Howard nor his family received notice of the 1962 nolo contendere disposition, which means he and his family were of the belief that he was in custody because of a crime and not to receive mental health treatment.

Ostensibly, patients’ mental health and conduct should improve while receiving treatment at a mental health facility. However, in 1966, Mr. Howard was indicted for the murder of Edward Bergoyne, another patient at ELSH, while at ELSH. Consequently, Mr. Howard was sentenced to serve 12 years at Louisiana State Penitentiary (Angola) for Mr. Bergoyne’s murder. It is probable that Lemon may also have been wrongly accused of this second murder. Mr. Howard’s lack of improvement during his four years of detention at ELSH is concerning and speaks to what awaits too many of those under involuntary commitment.

Since his initial commitment at ELSH and while at Angola, Mr. Howard received treatment from Dr. Alfred Tucker Butterworth, chief psychiatrist at ELSH and clinical director at Angola, for his schizophrenia. Seemingly, Dr. Butterworth’s story is one of science fiction and horror; the tale of a man preying on the weak and vulnerable for his experimental pleasures—most notably, his fascination with LSD experimentation on his nonconsenting patients. Despite his unethical and unorthodox practices, Dr. Butterworth maintained a positive reputation in the psychiatric community for his forward-thinking approach to psychiatry, which one columnist described as “good biases.” Gena Corea, “More Women Than Men Reside in Mental Hospitals,” Guardian (Wright State Univ.), Oct. 19, 1973, at 5. Indeed, Dr. Butterworth is quoted as recognizing a problem in mental health care that persists today: “Mental hospitals are often dumping grounds for society’s rejects . . . not because they have problems, but because society does.” Id.

Although the psychiatric community praised Dr. Butterworth for his progressive ideas, many of his former patients, specifically at Angola, described him as a “maniac.” Telephone interviews by Cameron Pontiff with former inmates of Louisiana State Penitentiary (Feb. 8, 2019, Feb. 14, 2019, and Feb. 18, 2019) (former inmates alleging that Dr. Butterworth inflicted inhumane treatment, including the use of antipsychotic medication and LSD on unsuspecting and non-psychotic inmates, as well as trading illicit drugs for sexual favors from inmates); see also A.T. Butterworth, “Some Aspects of an Office Practice Utilizing LSD-25,” 36 Psychiatric Q. 734 (1962) (describing Dr. Butterworth’s use of LSD 25 in psychotherapy); A.T. Butterworth, M.D., “Depression Associated with Alcohol Withdrawal,” 32 Q. J. Stud. on Alcohol 343–48 (1971) (documenting Dr. Butterworth’s use of Imipramine—an antidepressant known to cause possible nightmares, changes in urination, and excitement or anxiety—on unsuspecting alcohol detoxication patients at ELSH); see also A.T. Butterworth, M.D. & Robert D. Watts, M.A., “Treatment of Hospitalized Alcoholics with Doxepin and Diazepam,” 32 Q. J. Stud. on Alcohol 78–71 (1971) (documenting Dr. Butterworth’s use of unsuspecting patients in ELSH’s Alcoholism Treatment Service to study the effects of antidepressants in treating anxious-depressive symptoms); Alfred T. Butterworth, M.D., “Acceptance in the Therapeutic Situation,” 26 Psychiatric Q. 433 (1952) (suggesting that physician and psychopathic patients ought to create a bond bordering on a “conspiratorial alliance” to adapt the patient’s personality vis-à-vis how the patient’s disorder affects his or her ability to function in society).

Many of this “maniac’s” purported derogations from common psychiatric practices are best evidenced by Mr. Howard’s mental regression while under the unorthodox care of Dr. Butterworth. Seemingly, Mr. Howard’s mental regression while committed and incarcerated were caused by Dr. Butterworth’s mistreatment of patients and prisoners. Dr. Butterworth’s fascination with illicit drugs led to the suspension of his medical license in 1979—after he pled guilty to possession of marijuana and cocaine. See In the Matter of Alfred Tucker Butterworth, M.D. (La. State Bd. Med. Examiners Dec. 11, 1985) (consent order), https://apps.lsbme.la.gov/disciplinary/DocViewer.aspx?decision=true&fID=70783. According to former inmates familiar with Dr. Butterworth, this fascination was not merely personal. As learned in interviews with former inmates (noted above), Dr. Butterworth is known to have traded illicit drugs for sexual favors from inmates and used anti-psychotic medication and LSD on unsuspecting and non-psychotic inmates without first obtaining informed consent. Disturbingly, Mr. Howard exhibited long-term side effects of LSD usage while incarcerated at Angola—hallucinations and psychotic episodes—as well as side effects of Imipramine, which include possible nightmares, changes in urination, and excitement or anxiety. MedlinePlus, Imipramine. One is left to wonder whether Mr. Howard’s mental regression led to Mr. Bergoyne’s murder, which was committed while Mr. Howard was under the “care” of Dr. Butterworth.

After serving a criminal sentence, a formerly incarcerated person’s personal freedoms ought to be restored; however, Mr. Howard never had those freedoms restored. He was released from Angola for good time served in 1977 and returned to ELSH through civil commitment instituted by none other than Dr. Butterworth. It is unclear whether Mr. Howard’s family was notified of this release, nor is it clear whether Mr. Howard was informed of a process to petition for his release from ELSH. The recommitment of Mr. Howard, nevertheless, constituted the end of any prospects of release. Mr. Howard remained at ELSH until 2003 and passed away a year later at the age of 64—after spending 41 years involuntarily isolated from his family and the rest of society. While Ms. Booth’s husband has a Masonic Lodge in his name in Shreveport, Mr. Howard has no legacy to be left behind—because of his status as a poor, mentally ill, African American man burdened with the stigma applied to those labels during his life. It is unclear why Mr. Howard was not released until a year before his death or why his family had minimal, if any, contact with him; but one thing is clear: Mr. Howard became a victim of Louisiana’s “trick or treatment”—a failed comingling of the mental health and penal systems in Louisiana.

Not all hope is lost. Louisiana is at the genesis of what can become progress.

Mr. Howard’s story is much more than the tale of an unfortunate individual tricked into the purgatory of forced care and mistreatment; rather, it speaks of all those subjected to Louisiana’s mental health and penal systems today. It speaks of physicians like Dr. Butterworth—who may have their license suspended or may practice medicine with a temporary or institutional permit. It speaks of no accountability for these violations. Mr. Howard is Louis Fano, who was diagnosed with schizophrenia, sent to solitary confinement without antipsychotic medication, and found hanged in solitary confinement. (See Melissa Fares & Charles Levinson, “Special Report: In Louisiana Jail, Deaths Mount as Mental Health Pleas Unheeded,” Reuters, May 31, 2018 (detailing the treatment of Louis Fano, who was diagnosed with bipolar disorder, had a history of self-harm, was sent to solitary confinement, was ordered to stop taking antipsychotic medication, and was found hanged in East Baton Rouge Parish Prison).) He is the more than two dozen suicide attempts documented at Orleans Parish Prison this year. (See Michael Kunzelman, “Lawsuit: Louisiana Prison Chains Suicidal Inmates to Chairs, Takes Away Their Clothes as Brutal Punishment,” Advocate, Feb. 20, 2018 (documenting a lawsuit against David Wade Correction Center in Homer, Louisiana, brought by prisoners Anthony Tellis and Bruce Charles, who suffer from mental illnesses, outlining, in their suit, lack of mental health treatment, frequent unaddressed suicide attempts, and inhumane treatment—one claim is that “mentally ill prisoners were forced to kneel or bend down and bark like dogs to get food.”).) He is Cadarius Johnson, who, according to prosecutors, will only receive the care he needs in a prison. (See Katherine Sayre, “A Louisiana Teen with Disabilities Needed Help. Why Was He Accused of Trying to Kill a Cop?,” NOLA.com, Mar. 12, 2019 (documenting the treatment of Cadarius Johnson, a 16-year-old, mentally disabled African American, accused of attempting to kill a police officer and charged as an adult for attempted first-degree murder of a police officer, despite his mental illness and youthful age).)

But not all hope is lost. Louisiana is at the genesis of what can become progress. However, progression is not inherently tenable. See generally Open Letter from the Committee to Support Equitable Healthcare for All, Right Goal, Wrong Delivery: An Evaluation of a Proposal to Continue a Two-Tier Health Care System in East Baton Rouge Parish (Jan. 2019) (criticizing the proposal to privatize some mental health care in Baton Rouge through the Bridge Center). A systemic overhaul will trivialize problems if the systems remain indistinguishable. Without effective oversight during reconstruction of Louisiana’s mental health and penal systems, Louisiana’s trickery—disguising banishment of the mentally ill as treatment—will endure.

To guarantee effective change to the treatment of the mentally ill in Louisiana, three principles must guide decision makers: (1) Louisiana’s mental health system and penal system must be bifurcated; (2) greater ethical and constitutional protections must be implemented for these vulnerable Louisiana citizens; and (3) to ensure these first two principles, partnerships between state and community stakeholders who specialize in mental health advocacy and best practices must be forged and nurtured.

Instead of maintaining detention of the mentally ill and seeking “treatment” in a penal setting, Louisiana must take people out of the punitive environment and properly address the origin of their mental affliction. Evidently, a system of simultaneous punishment and “treatment” is merely a trick—a farce meant to mask unethical and horrific treatment of the poor and mentally ill. The mentally ill should not be placed with an incarcerated population. Due to “overcrowding . . . violence, enforced solitude . . . lack of privacy . . . and meaningful activity . . . and inadequate health services,” prisons encourage poor mental health. World Health Organization, Information Sheet: Mental Health and Prisons (2005). Responding to severe mental illness emergencies with incarceration only serves to perpetuate mental illness and violence. Justice will only be achieved for these vulnerable classes of persons when Louisiana separates its “treatment” from its “trick”—incarceration.

Whether Louisiana separates its “trick” from its “treatment,” current ethical and constitutional safeguards must be adjusted. Although civil respondents and criminal defendants are afforded different protections, the outcome for each is the same—possible indefinite detention. While criminal defendants must be proved guilty beyond a reasonable doubt before conviction, civil commitment respondents are subject to a less stringent standard—clear and convincing evidence that they suffer from a mental illness and are dangerous. This inequity is compounded by a difference in mental health treatment requirements. While the civil commitment defendant is guaranteed no effective treatment, the incarcerated person is guaranteed mental health treatment. Despite these guarantees, the mentally ill continue to be subject to cruel and unjust treatment in prisons and state hospitals. These failures are even more concerning considering Louisiana allows persons to treat the mentally ill without a medical license. The current “protections” for the civilly committed and incarcerated have been leaky stopgaps to the constitutional crises facing these populations. If Louisiana had adequate protections, Louis Fano would not have been found hanged in solitary confinement, Cadarius Johnson would not be waiting to be sentenced to prison to get life’s necessities, and Lemon Howard would not have been detained for over 41 years of his life without just cause.

The meaningful involvement of stakeholders who can ensure the use of best practices must be welcomed to ensure both effective bifurcation as well as constitutional and ethical protections. A current example exists: Baton Rouge has voted to allow a nonprofit to provide mental health services to persons with mental illness or addiction. Although this program’s board of directors is a diverse group of community leaders, the program should not, and does not, escape criticism. The partnership between the Bridge Center and the City of Baton Rouge seeks to address overwhelming concerns for incarcerated mentally ill persons and the lack of effective treatment for those involuntarily committed. However, before delegating its responsibilities to a private group, Baton Rouge must assure the community that this change is not a mirror image of the attempted and unprevailing past solutions and will effectuate the desired goal of constructive mental health care. Currently, neither Baton Rouge nor the Bridge Center has provided this assurance to the community, as it should, in specifically defined regulations and limitations for the Bridge Center.

The constitutional requirements for mental health care in state hospitals and prisons vary, providing hurdles to a clear understanding of the problems facing the mentally ill. To ensure effective and quality care, the community must be educated on these matters such that they may hold the partnership accountable when the government fails to do so itself. In 1998, the World Health Organization set out a target for improving mental health, stating: “By the year 2020, people’s psychosocial wellbeing should be improved and better comprehensive services should be available to and accessible by people with mental health problems.” World Health Organization, Mental Health Promotion in Prisons (Nov. 1998). Contrary to these findings, in 2019, Louisiana’s “treatment” of the mentally ill in its prisons and state hospitals has not suitably improved. Furthermore, Louisiana fails to accurately account for its “treatment” of the mentally ill, causing difficulty in determining precisely how and where Louisiana’s “treatment” is merely a “trick.” See Substance Abuse & Mental Health Servs. Admin., 2017 SAMHSA Uniform Reporting System (URS) Output Tables for Louisiana (reporting that Louisiana claimed to serve 586 mentally ill persons in jails and 227 in an institutional setting); contra La. Dep’t of Pub. Safety & Corrections Div. of Med. & Mental Health, Briefing Book 149 (June 30, 2018) (reporting Louisiana’s claim to have over 1,700 persons suffering from a serious mental illness in its correctional population in 2017). Although Louisiana’s mentally ill population has grown exponentially, the availability of mental health services has declined. Worse, the services provided do not remotely satisfy national best practices. See Substance Abuse & Mental Health Servs. Admin., 2017 SAMHSA Uniform Reporting System (URS) Output Tables for Louisiana (reporting that Louisiana fails to meet even 1 percent of national best practices).

The time is upon us for lawmakers, stakeholders, and advocates to ensure that race, poverty, and mental illness are no longer prerequisites for Louisiana’s abusive trickery.

Hayden Carlos is a 2020 J.D. candidate at Southern University Law Center and Cameron Pontiff is a law clerk at Clary | Suba | Neale in Baton Rouge, Louisiana.


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