Mental Illness and Prison Reform

by Aaron Lawson

Summary

In New York State, “nearly one-third of…prisoners in solitary confinement have been diagnosed with either schizophrenia or bipolar disorder.”[1] Mentally ill prisoners fall into a vicious cycle where they are placed into solitary confinement because their mental illness limits their ability to conform to prison regulations. These inmates often find it difficult to “follow straightforward routine orders to sit down, to come out of a cell, to stand up for the count, to remove clothes from cell bars, or to take showers.”[2] As a result, mentally ill inmates are disproportionately and unjustly punished by placement in isolation. Solitary confinement then worsens their condition, resulting in more prison violations and a lengthier sentence.

A Washington Law Review article published this past June outlines the Americans with Disabilities Act (ADA) and Rehabilitation Act’s potential application in releasing mentally ill inmates from solitary confinement. Solitary confinement is a disciplinary procedure that was originally used from the early 1700s to the late 1800s, and fell out of favor as it was mentally “too severe” and “immeasurably worse than any torture of the body.”[3] However, the 1980’s introduced super maximum security (“supermax”) prisons that are designed for indefinite solitary confinement.

Today there are an estimated 25,000 prisoners in supermax prisons. “Solitary confinement is linked to suicidal thoughts, impaired concentration, confusion, depression, anxiety, paranoia, and hallucinations.”[4] Treatment options are limited by lack of access to health care professionals and group therapy sessions.

Despite these historical and medical findings, solitary confinement has not been considered an Eight Amendment violation. (However, the author notes a few exceptions for “Eighth Amendment challenges to solitary confinement for the mentally ill [in] class action suits.”)[5] Eighth Amendment claims require proving (1) subjective intent; (2) qualified immunity; and (3) subjective deliberate indifference, which the ADA and Section 504 have no such requirements:

“Disability discrimination claims against jails or prisons fall under Title II of the ADA, which prohibits discrimination by any ‘public entity.’ Public entities are defined as ‘any department, agency, special purpose district, or other instrumentality of a State or States or local government.’ In Pennsylvania Department of Corrections v. Yeskey, the Supreme Court confirmed that ‘[s]tate prisons fall squarely within the statutory definition of “public entity.”’ Federal prisons are not covered under the ADA, but are covered under Section 504 of the Rehabilitation Act for the purposes of injunctive relief. Private prisons may be covered under both Title II and Title III, the title that prohibits discrimination in ‘public accommodations.’”[6]

Title II additionally requires that these prison services, programs, and activities be administered in “the most integrated setting appropriate.”[7] Because most facilities house a disproportionate number of mentally ill inmates in solitary confinement, this disparate impact alone may be enough to demonstrate a violation of the ADA.

However, disability rights claims have disadvantages as well. Prisons and jails may be able to claim solitary confinement is a “legitimate safety requirement” grounded in an “actual risk” in order to operate its “services, programs, or activities.”[8] In addition, solitary confinement may be justified if the inmate poses a “direct threat to the health and safety of others.”[9] Class certification is another challenge because a group of inmates’ individualized “mental illness” may not create a “common claim of discrimination and a common solution.”[10]

The author concludes by highlighting other measures both states and prison guard unions are taking to minimize the use of solitary confinement. Overall, the article provides a resourceful outline for expanding the ADA and Rehabilitation Act into prison reform.

[1] Jessica Knowles, “The Shameful Wall Of Exclusion”: How Solitary Confinement For Inmates With Mental Illness Violates The Americans With Disabilities Act, 90 Wash. L. Rev. 893, 896 (2015).

[2] Id. at 935.

[3] Id. at 899-902.

[4] Id. at 907.

[5] Id. at 912-14.

[6] Id. at 915-16.

[7] Id. at 935-36.

[8] Id. at 921.

[9] Id. at 921.

[10] Id. at 922.

New Developments in Assisted Suicide Legislation

by Shannon Crane

 

This month, the California legislature passed the “End of Life Option” bill into law. This makes California the fifth state to legalize physician-assisted death by either legislative action or court ruling. Under section 443.2 of the law, an adult resident of California may request a prescription for an “aid in dying” drug if they meet all of the following criteria: (1) diagnosed with a terminal disease, (2) voluntarily wish to receive the prescription, (3) established California residency, (3) documented official request form, (4) establish the physical and mental ability to self-administer the “aid in dying” drug. The law prohibits consideration of any requests made solely because of age or disability. Further, the law prohibits any requests made via proxy or surrogate, including through power of attorney or any other legally recognizable health care decision-maker.

A key aspect of the new law falls under section 443.13. Under this section, the sale or procurement of life, health, or annuity insurance plans “may not be conditioned upon or affected by a person making or rescinding a request for an aid-in-dying drug” and “death resulting from the self-administration of an aid-in-dying drug is not suicide, and therefore health and insurance coverage shall not be exempted on that basis.” Further, a qualified individual’s self-administering of an “aid-in-dying drug shall not have an effect upon” any of the aforementioned policies, and shall be considered in the same way that a natural death from the underlying disease would be treated. This is crucial because many insurance policies can be affected, or even voided by the act of suicide.[1]

In New York, Public Health Law section 2989 specifically prohibits physician assisted death. However, there is pending legislation in the New York Assembly, sponsored by Linda B. Rosenthal, that almost identically mirrors the California law. Past versions of physician-assisted suicide have failed to pass in New York, but with the wave of recent successful laws across the country, there may be a better chance for success. The bill will likely be heavily contested.

 

[1]John Dorfman, How Life Insurance Policies Deal with Suicide, Time: Money (Aug. 15, 2014), http://time.com/ money/3117698/how-life-insurance-policies-deal-with-suicide/