Problems created by turning prisons into society's primary mental health institutions date back to the 1970s, exacerbated by tough-on-crime legislation in the 1980s and 1990s. Years before 2003, studies determined that our Department of Corrections (SCDC) needed more mental health resources. In 2003 and after, additional evaluations identified deficiencies and recommended changes. SCDC made many improvements and asked the Legislature for funding to implement others.

Long before the recent lawsuit, I suggested that instead of expending time and money in litigation, plaintiff's counsel should devote their lobbying and public relations resources to help convince the Legislature to fund the changes recommended by multiple reviews of SCDC's mental health system. I repeated that offer after the lawsuit was filed. They were determined to sue.

Anecdotal extremes are often inexcusable and sensational; the empirical and measurable are more reliable. But, some facts about the extremes: First, even mentally ill inmates can be dangerous; every mentally ill inmate comes to SCDC after being found responsible for his conduct by a court and many have prison records with dozens of assaults. Second, employee discipline for such extremes can be frustrated by lawsuits and political interference. Third, agencies may be thwarted from taking corrective action because outside criminal investigations preclude further internal investigation and action.

Here's an anecdote: A young mentally ill gang member commits a violent crime. In school, in jail, and in our criminal justice system, his illness was never diagnosed. A court determines him to be competent and responsible and sentences him to 25 years. In SCDC, mental health professionals diagnose him; Inmate B is informed of his mental illness. While his care is not perfect, he is treated with medication and counseling. Although courts segregated him from society, SCDC places him in general population, not segregation. On his no-parole sentence, Inmate B has no incentive to behave.

Inmate B fashions weapons from anything available and uses those weapons against inmates and staff. He is placed in segregation. He continues his violent behavior, notwithstanding treatment. Inmate B begins to hurt himself by stabbing, cutting or blunt force to lure staff into range of assault or in hopes of being taken to the hospital, creating an opportunity to escape. Inmate B was mentally ill before he came to prison, but our courts say he is competent, responsible and dangerous enough to be segregated from society.

As for the empirical, by every acceptable measure, we live in a state that perpetually ranks in the bottom three to four states for funding prisons. This court looked into SCDC's mental health resources, and was appalled. A court looking closely at funding and staffing for security, operations, medical, food, and other functional areas should be equally appalled. One last anecdote: Struggling with turnover, Georgia recently commissioned a study of correctional officer pay. The review found that Georgia ranked behind its five border states in officer pay with one exception: South Carolina.

SCDC is not perfect, but thousands of SCDC employees go to work daily, doing thankless, dangerous work with fewer staff and resources than their peers in other states. Far from anecdotal is the overwhelmed mental health staffer or correctional officer, recently dealing professionally with an assaultive inmate who threw feces on her. Daily, they stop assaults, thwart crimes, teach inmates to read, and prevent suicides; despite being society's dumping ground for the mentally ill, the per capita suicide rate in prison is lower than society's! Each year our courts segregate hundreds of mentally ill defendants into prison and each year hundreds of them are diagnosed and treated for the first time in their lives by SCDC mental health staff. There are far more of these unsung heroes than there are of the few but visible villains. But, it is easier to focus on the villains.

Prison is segregation from society. Correctional policy aims to avoid further segregation of mentally ill criminals already segregated by courts. Generally, inmates begin in general population, and segregation is used only for those who repeatedly break the rules, attempt to escape, or attempt to hurt themselves or others. Is it wrong for prisons to segregate the mentally ill when they threaten the safety of the public, staff or inmates? If so, perhaps it was wrong for those mentally ill criminals to be segregated to prison in the first place.

The state has the right and good reasons to appeal. The ordered remedies may cost over $50 million in Year One alone, not including the ongoing costs of a new growth industry of "masters," experts, lawyers and individual lawsuits. Many believe that appropriating funds and executing laws belong to the elected legislative and executive, not the judicial. Some believe that our Constitution proscribes as much. But, an appeal will not be a contest over whether SCDC is under-resourced. It will not be a contest over whether SCDC needs to provide better mental health care. For the past 30 years, SCDC has never contested those issues, literally begging for help.

Or, separation of powers aside, judicial intervention may offer an opportunity. Will the Legislature be ordered to provide more resources for mental health care at SCDC? If not, will the executive be ordered to shift millions from other areas to implement remedies? Otherwise, no executive could be so reckless. Large staff reductions and cuts would increase bad outcomes. Bad outcomes bring lawsuits, liability and political scrutiny.

However, the judicial branch is immune from liability and insulated from politics. That could be helpful. After all, absent adequate resources, better policies and practices are only words on paper.

Jon Ozmint served as director of the S.C. Department of Corrections from 2003-2011. He is a former assistant solicitor, former chief prosecutor for the State Grand Jury, and former agency chief counsel. He can be reached at jon@ozmint.com.