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Thomas L. Hafemeister and Jeff George

Excerpted from: Thomas L. Hafemeister and Jeff George, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, 90 Denver University Law Review 1(2012)(327 Footnotes)

For almost as long as there has been a criminal justice system, criminal justice officials have struggled with how to respond to incarcerated offenders with a mental disorder. Virtually everyone who interacts with this population believes that society's current response is woefully inadequate, a problem that has been exacerbated in recent years. This Article will focus on one aspect of the incarceration of this population—prolonged supermax solitary confinement— that is widely believed to contribute to and enhance mental disorders among inmates placed in this setting. Furthermore, it will propose an alternative approach that can provide a better response for all affected parties, including both the offenders and the correctional officials charged with overseeing them. At the same time, there is a general lack of overarching principles to guide such an analysis. Based on a review of the current literature and a growing consensus regarding various points drawn from this literature, this Article begins with an effort to articulate applicable principles. These principles include:

1. “Many individuals within society have a mental disorder.”

2. “Mental disorders are not monolithic, but encompass a diverse set of conditions. These disorders manifest in many forms and affect individuals in many different ways. Their impact on capacities, abilities, cognitions, emotions, and behavior vary enormously.”

3. “A mental disorder is not an all-or-nothing phenomenon. It tends to fluctuate significantly over time and to interfere with some functions but not others.”

4. “A mental disorder can be debilitating, disorienting, frightening, or overpowering to the person experiencing it.”

5. “Mental disorders tend to be misunderstood and can be upsetting or frightening to observers, but the likelihood of resulting dangerous behavior is widely overestimated.” At the same time, an individual with a mental disorder is often vulnerable to self-abuse or abuse by others.

6. “Individuals with a mental disorder are more likely to come into contact with the criminal justice system.” Indeed, “[a] significant proportion of individuals whose actions are brought to the attention of the criminal justice system[, including sentenced offenders,] have a mental disorder.” In addition, inmates may develop a mental illness, including a serious mental illness, while incarcerated.

7. “Persons with a mental disorder [, including those who are prison inmates,] should be afforded the respect and dignity to which all human beings are entitled.” “Human interactions generally remain important to them and how they are treated by others and society often has a significant impact on them.”

8. Like all human beings, inmates with a mental disorder may be involved in interactions with other human beings where friction, disputes, and altercations occur. Nevertheless, like most human beings, the occurrence of human interactions can be of considerable importance to them.

9. Inmates with a mental disorder can “(a) learn from the consequences of their behavior, (b) benefit from being held accountable for criminal behavior, (c) be deterred from further criminal behavior, and (d) change their behavior, although they may have an impaired capacity to do so that may require special assistance.”

10. “Responding appropriately to a criminal offender with a mental disorder tends to be a complex undertaking” because mental illness tends to be multifaceted, with the appropriate course of treatment as much an art as a science—and the challenge of forging a successful treatment program is compounded when services are being provided in a correctional facility. Nonetheless, placement of individuals with an untreated serious mental illness within a correctional facility may place them at risk of harming themselves or others.

11. Courts, including the U.S. Supreme Court, have been virtually unanimous in recent years in holding that inmates within a correctional facility are entitled to mental health treatment for a serious mental illness. Inmates with a mental illness that is not serious may also need this treatment to prevent their illness from becoming a serious mental illness.

12. Individuals placed within a correctional facility should be screened for the existence of a serious mental illness upon their initial placement and periodically thereafter, including following a change in placement or an event that may indicate the presence of a serious mental illness. When an inmate is identified as having a serious mental illness, it is imperative that treatment be offered promptly.

13. Although some inmates with a serious mental illness can be successfully treated within their current placement, others cannot. Close attention should be given to whether the current placement has contributed to the occurrence of mental illness or has exacerbated a previously existing mental illness. To the extent it is determined that such is the case, immediate efforts should be made to move the inmate to a more suitable placement.

14. The treatment provided to inmates with a mental illness should be in accord with the generally accepted standards of practice of mental health providers for the treatment of individuals with a mental illness. Although accommodation to the security and administrative needs of a correctional facility should be taken into account, these needs do not excuse the delivery of substandard mental health care in this setting, particularly as the appropriate delivery of treatment will enhance the safety and security of inmates and correctional staff in general.

15. The necessary components of a mental health program for inmates placed within a correctional facility include (a) periodic systematic assessment of the need for mental health treatment or special housing, including suicidal tendencies; (b) means by which inmates may promptly bring their concerns about their needs for mental health treatment to appropriate staff; (c) a sufficient number of qualified mental health providers to ensure timely access to needed mental health services; (d) timely delivery of needed, individualized mental health treatment by qualified mental health staff, including, but not limited to, the administration of psychotropic medications in a manner that complies with prevailing professional standards and a program for the identification, treatment, and supervision of inmates with suicidal tendencies; (e) the use of appropriate individualized treatment plans; (f) timely communication among correctional and mental health staff about inmate treatment needs and treatment responses; (g) documentation of requests for treatment, identified mental health needs, and responses provided; (h) maintenance of confidentiality, complete and accurate mental health records, and timely transfer of mental health records between facilities and programs; and (i) preparation and implementation of an appropriate discharge plan for released or transferred inmates.



J.D., Ph.D., Associate Professor, School of Law, and Associate Professor of Medical Education, School of Medicine, University of Virginia.

J.D. (anticipated 2013), University of Virginia School of Law.