Recommended Reading (and a Lawsuit to Watch) on Prisoner Physical and Mental Health Issues
- In The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement of Inmates with a Mental Illness (forthcoming in the Denver University Law Review), Thomas Hafemeister and Jeff George provide a fascinating history of prolonged solitary confinement and helpful reviews of the empirical research establishing that such confinement “is virtually guaranteed” to cause significant psychological harm and of the Eighth Amendment jurisprudence addressing the practice. Tragically, the limited extant empirical evidence indicates that our “supermax” facilities and units house not the worst of the worst but rather “a disproportionally large number of inmates suffering from a serious mental illness.” Hafemeister and George conclude that prolonged solitary confinement, without more, is not unconstitutional under the Supreme Court’s current standard. Inmates who are mentally ill or highly vulnerable to becoming so, however, “can readily establish the requisite deliberate indifference on the part of [prison] officials with regard to the impact of prolonged solitary confinement[.]“
- On May 31, 2012, the Center for Constitutional Rights filed an amended complaint in Ruiz v. Brown, a proposed class action lawsuit brought on behalf of prisoners at California’s Pelican Bay State Prison who claim “that prolonged solitary confinement violates Eight Amendment prohibitions against cruel and unusual punishment, and that the absence of meaningful review for [Security Housing Unit ("SHU")] placement violates the prisoners’ right to due process.” In its press release announcing the suit, CCR highlighted the following allegations: “SHU prisoners spent 22 ½ to 24 hours every day in a cramped, concrete, windowless cell. They are denied telephone calls, contact visits, and vocational, recreational or educational programming. Food is often rotten and barely edible, and medical care is frequently withheld. More than 500 Pelican Bay SHU prisoners have been isolated under these conditions for over 10 years, more than 200 of them for over 15 years; and 78 have been isolated in the SHU for more than 20 years. Today’s suit claims that prolonged confinement under these conditions has caused “harmful and predictable psychological deterioration” among SHU prisoners. Solitary confinement for as little as 15 days is now widely recognized to cause lasting psychological damage to human beings and is analyzed under international law as torture.”
- Priscilla Ocen’s article Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners (forthcoming in the California Law Review) is also well worth reading. Ocen contends that because our Eighth Amendment jurisprudence is racially blind, the historical and ideological foundations of the practice of shackling pregnant prisoners during labor, childbirth, and recovery have been obscured. She argues, compellingly, for an “antisubordination” reading of the prohibition on cruel and unusual punishments, one that would take account of “the racial and gender stereotypes of women prisoners that render then vulnerable to shackling practices.”
- I also recommend Lisa Heinzerling’s searing blog post on the cost-benefit analysis which accompanied the Department of Justice’s recently-released final rule implementing the Prison Rape Elimination Act. Heinzerling describes the DOJ’s analysis as “a labored, distasteful, and gratuitous essay on the economics of rape and sexual abuse.” In it, she writes, DOJ finds “itself in the remarkable position of asking how much money the victims of rape would be willing to pay to avoid rape and also asking how much money these victims would be willing to accept in exchange for being raped. … Never mind that rape is a serious crime, not a market transaction. Never mind that framing rape as a market transaction strips it of the coercion that defines it. Never mind that the law under which DOJ was acting is the Prison Rape Elimination Act, not the Prison Rape Optimization Act. In the topsy-turvy world of cost-benefit analysis, DOJ was compelled to treat rape as just another market exchange, coercion as a side note, and the elimination of prison rape as a good idea only if the economic numbers happened to come out that way.”
- Finally, Rick Hills’ response to Heinzerling’s post is also provocative and worth a read. Hills argues that the DOJ’s analysis should have gone further down the road of quantifying the benefits of prison rape regulation, in order to support additional, costly, reforms. Hills writes “that it is better to ‘feel violated’ by facing up to the need to choose between costly reforms and substantial benefits than to refrain from adopting any costly reforms at all in order to avoid the comparison. Put more generally, sometimes it is impossible to induce judges, legislators, and the voters at large to bear big burdens unless one makes explicit the benefits that such burdens will produce.”
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