Amicus Curiae Brief — Goodman v. Georgia

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Nos. 04-1203 & 04-1236

Supreme Court, U.S

FILED

IN THE

Supreme Court of the Anited Statepll 23 2005

OFFICE OF THE CLERK

UNITED STATES,

Petitioner,

Vv.

THE STATE OF GEORGIA et al..,

Respondents.

TONY GOODMAN,

Petitioner,

Vv.

THE STATE OF GEORGIA et al.,

Respondents.

On Writ of Certiorari to the

: United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE AMERICAN ASSOCIATION ON

MENTAL RETARDATION, THE ARC OF THE

UNITED STATES, THE BAZELON CENTER FOR

MENTAL HEALTH LAW, THE NATIONAL

MENTAL HEALTH ASSOCIATION, THE

NATIONAL ASSOCIATION OF COUNCILS

ON DEVELOPMENTAL DISABILITIES, AND THE

AMERICAN PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF PETITIONERS

MICHAEL B. BROWDE JAMES W. ELLIS

APRIL LAND Counsel of Record

STEVEN K. HOMER 1117 Stanford, NE

CAROL SUZUKI Albuquerque, NM 87131

1117 Stanford, NE (505) 277-2146

Albuquerque, NM 87131

(505) 277-2146 Counsel for Amici Curiae

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TABLE OF CONTENTS

Prisoners with mental retardation and other serious

developmental disabilities ................::ccssseecessseeeesees

Factors influencing the incarceration of individuals

with mental disabilities in prisons and jails today.....

PPPS cnscscnscscinassesescemamecsmmnasianmusnesaimmnnnents

PRISONERS WHO HAVE MENTAL DIS-

ABILITIES ARE PARTICULARLY VUL-

NERABLE TO THE MISTREATMENT AND

DISCRIMINATION ADDRESSED BY THE

A. Failure to provide needed treatment or

habilitation imperils the safety and health

of prisoners with mental disabilities............

B. Prisoners with mental disabilities have

been subjected to harmful neglect and

TTI a reo RT TT Sere

Il. THE ADA’S PROTECTION OF THE

RIGHTS OF INMATES WITH DISABILI-

TIES IS CONSISTENT WITH’ THE

TRADITION OF DEFERENCE TO

CORRECTIONAL OFFICIALS ............::ccce0000

CIFEE A AIIOS cccccnncscesssscenerscssasnecesensssncaneseamtsnenneanitsntin

RFT EPIIEID ccsnsctessnenseresssercsseremeseinnsceritinmseanesrceatnbeniene

TABLE OF AUTHORITIES

SUPREME COURT CASES: Page

Albertson's Inc. v. Kirkingburg, 527 U.S. 555

1, | ee 3

Almendarez-Torres v. United States, 523 U.S.

234 (1DBBD. cccccercscccncsconsessesescssssasccsscssanmneneenananaal 10

Atkins v. Virginia, 536 U.S. 304 (2002) .....:ccceees 6,8

Bd. of Trustees of the Univ. of Ala. v. Garrett,

$31 U.S. 396 (QBBU) ..nccieccscoscssscssccsecncenssensmnanenns 13

City of Boerne v. Flores, 52\ U.S. 507 (1997)...... 14

City of Cleburne v. Cleburne Living Ctr., 473

OJ.D., 432 (ADB nccocccccccrcccccesscessetecenesianannanan 13,19

Estelle v. Gamble, 429 U.S. 97 (1976) .......:ceeeeeeeee 14, 24

Farmer v. Brennan, §11 U.S. 825 (1994)..........00 18, 21

Ford v. Wainwright, 477 U.S. 399 (1986)..........0. 11-12

Foucha v. Louisiana, 504 U.S. 71 (1992) ............ 8

Hope v. Pelzer, 536 U.S. 730 (2002).....cccceeeeeeees 23

Johnson v. California, 543 U.S. __, 125 S. Ct.

TO) .) 23

Jones v. North Carolina Prisoners’ Union, 433

U.S. 21D (EDIT? nccecccccccoccscosnsestossnenmemmmmamms 21

Olmstead v. L.C., 527 U.S. 581 (1999) wo... eee 13

O'Lone v. Estate of Shabazz, 482 U.S. 342

(|) ee 23

Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206

(1DBBD. .ncceiccccesercccssesossnenissmasmmmmum 22, 23

Pennhurst State School and Hospital v. Halder-

gaat, 431 UG. 1 (9DB8 dacccoscccccsccccccessonncestenenemets 12,17

Tennard v. Dretke, 542 U.S. __, 124 S. Ct.

25G2 (BODE. cncocecescsecccccccccnsststmm 8

Turner v. Safley, 482 U.S. 78 (1987). ...cccccccceereeeeee 21-24

Vitek v. Jones, 445 U.S. 480 (1980)... eeeeeeeeeees 22

Washington v. Harper, 494 U.S. 210 (1990)......... 24

Wilkinson v. Austin, 545 U.S. __, 125 S.Ct. 2384

(2D). .ccccccccccsssccsossssnetensssonsnnmmmman 12

TABLE OF AUTHORITIES—Continued

OTHER FEDERAL CASES: Page

Arnold ex rel. H.B. v. Lewis, 803 F. Supp. 246

CE 21

Balla v. Idaho State Bd. of Corr., 595 F. Supp.

a 15

Battle v. Anderson, 376 F. Supp. 402 (E.D. Okla.

EE ee 16

Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz

EL 20

Cody v. Hillard, 599 F. Supp. 1025 (D.S.D

EEL 15

Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal

EE 16

Jones El v. Berge, 164 F. Supp. 2d 1096 (W.D

EE 20

Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y

A 16, 20

Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal

rn saarttreeereeteeetienneennnenncennnemnapcnene 16, 20

Mitchell v. Untreiner, 421 F. Supp. 886 (N.D.

IT iaiiciecerererenienerinnncncnnenzecencecece 16

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ... 16

Ruiz v. Estelle, 503 F. Supp. 1265, 1346 (S.D.

Tex. 1980), aff'd in relevant part, 679 F.2d

ee 17, 18

Taylor v. Mich. Dep: of Corr., 69 F.3d 76 (6th

Cir. ny LA 18

TABLE OF AUTHORITIES—C ontinued

STATE CASES: Page

Finger v. State, 27 P.3d 66 (Nev. 2001)................ 9

People v. Wells, 202 P.2d 53 (Cal. 1949).............. )

Walker v. State, 68 P.3d 872 (Mont. 2003) ........... 20

STATUTES:

ye 23

Pg eM D0 Fl OEE 19

GAUL. B Ce Ce ccerccretenisniintiion 23

Cal. Penal Code § 25(a) (West 1982).................... )

Idaho Code § 18-207 (Michie 1996) ..................... x

Kan. Stat. Ann. §§ 22-3219-3220 (1996).............. x

Mont. Code. Ann. § 46-14-102 (2003).................. x

Utah Code Ann. § 76-2-305 (2003)...................0.. x

OTHER LEGAL AND CLINICAL AUTHORITY:

AAMR, Mental Retardation: Definition, Classifi-

cation, and Systems of Supports (10th ed.

Am. Bar Ass'n, Standards for Criminal Justice... 8, 11

American Psychiatric Association, Diagnostic

and Statistical Manual of Mental Disorders

ND a

American Psychiatric Association, Psychiatric

Services in Jails and Prisons (2d ed. 2000)....... 3,4,19

Appelbaum, Paul S., Pamela Clark Robbins &

John Monahan, Violence and Delusions: Data

From the MacArthur Violence Risk Assess-

ment Study, 157 Am. J. Psychiatry 566 (2000) . 7

Baroff, George S., The Mentally Retarded Offen-

der, in American Psychological Association,

Manual of Diagnosis and Professional Prac-

tice in Mental Retardation (John W. Jacobson

& James A. Mulick eds., 1996)... 17

TABLE OF AUTHORITIES—Continued

Bureau of Justice Statistics, U.S. Dept. of Jus-

tice, Mental Health and Treatment of Inmates

and Probationers (July 1999) .000.........cccccccceeeeees

Butterfield, Fox, Prisons Replace Hospitals for

the Nation's Mentally Ill, N.Y. Times, Mar. 5,

Be GREED cnnrcsmssentinnmenaiaieteniiienmiaeieins

Callahan, Lisa, Correctional Officer Attitudes

Toward Inmates with Mental Disorders, 3 \nt'!

J. Forensic Mental Health 37 (2004) .................

Carey, Henry, A Plea for the Sterilization of

Certain Defectives, Particularly the Feeble-

Minded and Epileptic (1912) ............c.00000000000-

Corrigan, Patrick W. & Amy E. Cooper, Mental

Illness and Dangerousness: Fact or Misper-

ception, and Implications for Stigma, in

American Psychological Association, On the

Stigma of Mental Iliness: Practical Strategies

for Research and Social Change (Patrick W.

Dain, Norman, Concepts of Insanity in the

United States 1789-1865 (1964) ........ccccccceceeeceee

Denkowski, George C. & Kathryn M.

Denkowski, The Mentally Retarded Offender

in the State Prison System: Identification,

Prevalence, Adjustment, and Rehabilitation,

12 Crim. Justice & Behavior 55 (1985).............

Dix, Dorthea L., Remarks on Prisons and Prison

Discipline (1845, 1984 repr.) ...........cccccceeceeeeees

Dumond, Robert W., Confronting America’s

Most Ignored Crime Problem: The Prison

Rape Elimination Act of 2003, 21 J. Am. Acad.

Psychiatry & Law 354 (2003) .00.......ccccccccecceees

TABLE OF AUTHORITIES—Continued

Page

Dvoskin, Joel A. & Henry J. Steadman, Chron-

ically Mentally Ill Inmates: The Wrong

Concept for the Right Services, 12 Int'l J.L. &

C0 DP) 15

Edds, Margaret, An Expendable Man: The Near-

Execution of Earl Washington, Jr. (2003)......... 14

Fernald, W.E., The Burden of Feeblemindedness,

17 J. Psycho-Aesthenics 87 (March 1912)........ 5

Frase, Richard S., State Sentencing Guidelines:

Diversity, Consensus, and Unresolved Policy

Issues, 105 Colum. L. Rev. 1190 (2005)........... 10

Freeman, Richard J. & Ronald Roesch, Mental

Disorder and the Criminal Justice System: A

Review, 12 Int'l J.L. & Psychiatry 105 (1989)... 1

Goddard, Henry Herbert, Feeblemindedness: Its

Causes and Consequences (1914) .........0.ccc0000+ 5

Goddard, Henry Herbert, The Criminal Imbecile

ee eee 5

Grob, Gerald N., The Mad Among Us: A History

of the Care of America's Mentally Ill (1994)..... 3

Hall, Jane Nelson, Correctional Services for In-

mates with Mental Retardation, in The Crim-

inal Justice System and Mental Retardation:

Defendants and Victims (Ronald W. Conley,

Ruth Luckasson & George N. Bouthilet eds.,

PE nctsienintesenentenenmemmnemieeeieniemmmeamaents 17-18

Haney, Craig, Mental Health Issues in Long-

Term Solitary and “Supermax” Confinement,

49 Crime & Delinquency 124 (2003)................ 12

Harris, Victoria & Christos Dagadakis, Length of

Incarceration: Was There Parity for Mentally

lil Offenders? , 27 int'l J.L. & Psychiatry 387

vii

TABLE OF AUTHORITIES—Continued

Hersh, Keith & Randy Borum, Command Hallu-

cinations, Compliance, and Risk Assessment,

26 J. Am. Acad. Psychiatry & Law 353 (1998)

Hindus, Michael Stephen, Prison and Plantation:

Crime, Justice, and Authority in Massachu-

setts and South Carolina 1767-1878 (1980)......

Human Rights Watch, ///-Equipped: U_S. Prisons

and Offenders with Mental Illness (2003).........

Impact of Mentally Ill Offenders on the Criminal

Justice System: Hearing Before the House

Subcomm. on Crime, 106th Cong. 8 (statement

A, Wa I ccnecccnenitenencrenencetnsiection

Kravitz, Howard M., James L. Cavanaugh, Jr. &

Sandra S. Rigsbee, A Cross-Sectional Study of

Psychosocial and Criminal Factors Associated

with Arrest in Mentally Ill Female Detainees,

30 J. Am. Acad. Psychiatry & Law 380 (2002)

LaFave, Wayne R., Criminal Law (2003) .............

Lamberti, J. Steven & Robert L. Weisman,

Persons with Severe Mental Disorders in the

Criminal Justice System, 75 Psychiatric Q. 151

(2004)......... aaanmensenentendienatseasnineantapenbeasibesmimiamnsenets

Link, Bruce G. & Ann Steuve, Psychotic

Symptoms and the Violent/Illegal Behavior of

Mental Patients Compared to Community

Controls, in Violence & Mental Disorder:

Developments in Risk Assessment (John Mona-

han & Henry J. Steadman eds., 1994) ...............

Lurgio, Arthur J., Angie Rollins & John Fallon,

The Effects of Serious Mental Illness on Offen-

der Reentry, 8 Federal Probation 45 (Sept.

Page

vill

TABLE OF AUTHORITIES—Continued

Manderscheid, Ronald W., Aliya Gravesande &

Ingrid Goldstrom, Growth of Mental Health

Services in State Adult Correctional Facilities

1988 to 2000, 55 Psychiatric Services 869

Miller, Robert D., Economic Factors Leading to

Diversion of the Mentally Disordered from the

Civil to the Criminal Commitment Systems, 15

Int'l ILL. & Psychiatry 1 (1992) 0.0... cceceeeeees

National Commission on Correctional Health

Care, Standards for Health Services in Prisons

Noll, Steven, Feeble-Minded in Our Midst: Insti-

tutions for the Mentally Retarded in the South

Petersilia, Joan, Doing Justice?: The Criminal

Justice System and Offenders with Develop-

mental Disabilities (2000) .............2cccceececeeeeeeeee

Phelan, Jo C., et al., Public Conceptions of

Mental Illness in 1950 and 1996: What is

Mental Illness and Why Is It to be Feared?, 41

J. Health & Soc. Behav. 188 (June 2000)..........

President's New Freedom Commission on

Mental Health, Transforming Mental Health

Dee

Rafter, Nicole, The Criminalization of Mental

Retardation in Mental Retardation in Amer-

ica: A Historical Reader (Steven Noll &

James W. Trent, Jr. eds., 2004) .0000..0000000000000000

Rock, Marjorie, Emerging Issues with Mentally

lil Offenders: Causes and Social Conse-

quences, 28 Admin. & Policy in Mental Health

BR EE ccsncatantaransataceneesmsenegssscintsienibemninanieues

Page

4-5

TABLE OF AUTHORITIES—Continued

Rojahn, Johannes & Marc J. Tassé, Psycho-

pathology in Mental Retardation, in American

Psychological Association, Manual of

Diagnosis and Professional Practice in Mental

Retardation (John W. Jacobson & James A.

Sy Gian ane enccnstnesnnnieuniastbiniabnsamescsccanane

Rothman, David J., Conscience and Conven-

ience: The Asylum and Its Alternatives in

Progressive America (rev. ed. 2002) ..........c0000

Shapiro, Joseph P., No Pity: People with Dis-

abilities Forging a New Civil Rights Move-

ee ienitaicirrinercatiiteiaeianatinaiiaeihiiintianittitiiiaataaien

Smith, J. David, Minds Made Feeble: The Myth

and Legacy of the Kallikaks (1985) ........cc000000+.

Steadman, Henry J. et al., Before and After

Hinckley: Evaluating Insanity Defense Reform

Stone, T. Howard, Therapeutic Implications of

Incarceration for Persons with Severe Mental

Disorders: Searching for Rational Health

Policy, 24 Am. J. Crim. L. 283 (1997)..............

Teplin, Linda A., Policing the Mentally Ill:

Styles, Strategies, and Implications in Jail

Diversion for the Mentally Ill (Henry J.

RD GE, GD crerecssncncnscsnincenttiintinessccenese

Teplin, Linda A., Karen M. Abram, & Gary M.

McClelland, Mentally Disordered Women in

Jail: Who Receives Services?, 87 Am. J.

Public Health 604 (1997) 00.0...cccccccccsceeseeeeeeeeees

Teplin, Linda A. & Nancy S. Pruett, Police as

Streetcorner Psychiatrist: Managing the Men-

tally Ill, 15 Int'l J.L. & Psychiatry 139 (1992)...

Page

10, 11

11-12

TABLE OF AUTHORITIES—-Continued

Terman, Lewis M., The Intelligence of School

CBetrate CIDE cccccoccecscssnsccscscccscosesesenssssonesesenses

Torrey, E. Fuller et al., Criminalizing the

Seriously Mentally Ill: The Abuse of Jails as

Mental Hospitals (1992) .....:ccccccceeeeeseeneeneeeneeeess

Trent, Jr., James W., Inventing the Feeble Mind:

A History of Mental Retardation in the United

Santes (1DVE) ...cccosccccccecsseccccscescescsssesssssesccovovcosees

U.S. Sentencing Commission, Federal Sentenc-

ing Guidelines § SK2.13 .......::ccscseseeeeeeeeseereees

Veneziano, Louis & Carol Veneziano, Disabled

Inmates in Encyclopedia of American Prisons

(Marilyn D. McShane & Frank P. Williams III

Vermette, Heidi S., Debra A. Pinals & Paul S.

Appelbaum, Mental Yealth Training for Law

Enforcement Professionals, 33 J. Am. Acad.

Psychiatry & Law 42 (2005) ..........ccecceseeeeeeeees

Page

9-10

INTEREST OF AMICI] '

Amici are national organizations of mental disability pro-

fessionals and citizens (more fully described in the Appendix)

with longstanding concerns about constitutional and statutory

protections for people with mental disabilities in the criminal

justice system.

SUMMARY OF ARGUMENT

This case presents the issue of Congress’ authority, under

Section 5 of the Fourteenth Amendment, to enact Title II of

the Americans with Disabilities Act in the context of state

prisons. Although Petitioner’s individual claim involves a

physical disability, this Court’s ruling will have a major im-

pact on inmates with mental disabilities.

A number of factors influence the presence of individuals

with mental retardation and severe mental illness in prisons

and jails. In a background section, amici offer their under-

standing of these historical, legal, and social factors.

Within prisons and jails, inmates with mental disabilities

have been subjected to documented mistreatment and dis-

crimination in violation of the Constitution. While these

violations include deprivations of Equal Protection and Due

Process, amici will focus on discriminatory failure to provide

needed treatment and habilitation, and on conditions of con-

finement that violate the Eighth Amendment rights of pris-

oners with mental disabilities.

Amici recognize that Title II is a statute of carefully limited

scope, and understand that not every denial of treatment and

habilitation necessarily falls within the ambit of the Act. But

' This brief was written entirely by counsel for amici, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief. All parties have given

written consent to the filing of this brief.

many, assuredly, will. And when prisoners are treated in a

discriminatory manner because of the existence or manifesta-

tions of their mental disability, the Eleventh Amendment

should not be. interpreted as creating a barrier between those

inmates and the relief Congress has afforded them.

Congress addressed these problems with care and circum-

spection in enacting Title Il. The balancing of individual

rights and institutional interests reflected in the statute mirror

the caution with which this Court has confronted consti-

tutional issues in the context of prison administration. This

balanced legislative approach reflects the level of congruence

and proportionality that this Court has required for enact-

ments under Section 5 of the Fourteenth Amendment. By

creating a statutory remedy for these constitutional violations,

Congress has avoided the necessity of repeated and extensive

constitutional litigation in individual cases, and retained the

opportunity to refine its remedies as experience with the Act

may dictate.

BACKGROUND

From the earliest days of the Republic, individuals with

mental disabilities have found themselves in the criminal

justice system. Societal attitudes toward mental illness and

developmental disabilities have influenced the disposition

of such individuals, including incarceration in state prisons.

See, e.g., Dorthea L. Dix, Remarks on Prisons and Prison

Discipline (1845, 1984 repr.); Norman Dain, Concepts of

Insanity in the United States 1789-1865, at 129 (1964).

Today’s correctional facilities continue to confine inmates

with mental disabilities. In addition to individual criminal

conduct, the presence of inmates with serious mental dis-

abilities is influenced both by the legacy of past attitudes and

by public policies States have adopted in more recent times.

Prisoners with serious mental illness.

Over the course of our nation’s history, the boundaries be-

tween and distinctive roles of prisons and mental health

facilities have been far from static. See generally. Michael

Stephen Hindus, Prison and Plantation: Crime, Justice, and

Authority in Massachusetts and South Carolina 1767-1878, at

204-05 (1980); Gerald N. Grob, The Mad Among Us: A

History of the Care of America’s Mentally Ill 74-77 (1994);

David J. Rothman, Conscience and Convenience: The Asylum

and Its Alternatives in Progressive America (rev. ed. 2002).

But even after the two types of institutions had been clearly

delineated in law and administrative practice, substantial

numbers of individuals with serious mental illness have been

incarcerated in state prisons.”

> At the present time, although several attempts have been made to

estimate the number of prisoners who have such mental illnesses, it is

impossible to quantify the number of inmates who have serious mental

illness with any degree of precision. See, e.g., The President’s New Free-

dom Commission on Mental Health, Transforming Mental Health Care in

America 32 (2003) (“about 7% of all incarcerated people have a current

serious mental illness”); American Psychiatric Association, Psychiatric

Services in Jails and Prisons xix (2d ed. 2000) (“up to 5% are actively

psychotic”). Other attempts to estimate the prevalence appear to have

used a substantially more expansive definition of mental illness. See, e.g.,

Bureau of Justice Statistics, U.S. Dept. of Justice, Mental Health and

Treatment of Inmates and Probationers (July 1999) (16% of state prison

inmates either identified as having “a mental condition” or having stayed

overnight in a mental hospital). Cf Albertson's Inc. v. Kirkingburg, 527

U.S. 555, 565 (1999) (ADA addresses only functional limitations “that are

in fact substantial”). Differences in definitions of serious mental illness

and wide variations in research methodology warrant considerable caution

in evaluating the estimates from these and other sources.

Prisoners with mental retardation and other serious

developmental disabilities.

The relationship between mental retardation’ and the crimi-

nal justice system has a long and disturbing history. In the

first half of the twentieth century, there was a widespread

belief that people with mental retardation constituted a danger

to society because of their perceived propensity to commit

criminal acts.* See, e.g., Nicole Rafter, The Criminalization of

‘For organizational purposes, this brief will separately address pris-

oners with mental illnesses and prisoners with mental retardation and

other developmental disabilities. There is, however, a sense in which this

dichotomy is potentially misleading. Mental illness and mental retarda-

tion are not mutually exclusive categories. Individuals with mental retar-

dation may also have mental illness, and studies suggest that the incidence

of mental illness among individuals with mental retardation is somewhat

higher than it is in the general population. See American Psychiatric

Association, Diagnostic and Statistical Manual of Mental Disorders 45

(4th ed., text rev. 2000) (“Individuals with Mental Retardation have a

prevalence of comorbid mental disorders that is estimated to be three to

four times greater than in the general population.”); AAMR, Mental Re-

tardation: Definition, Classification, and Systems of Supports 172-75

(10th ed. 2002); Johannes Rojahn & Marc J. Tassée, Psychopathology in

Mental Retardation, in American Psychological Association, Manual of

Diagnosis and Professional Practice in Mental Retardation 147-56 (John

W. Jacobson & James A. Mulick eds., 1996). Needless to say, the dam-

age caused by failure of prison authorities to provide needed habilitation,

mental health treatment, or both, is seriously compounded if the prisoner

has both disabilities. See, e.g., American Psychiatric Association, Psychi-

atric Services in Jails and Prisons 59 (2d ed. 2000) (“Inmates with this

combination of difficulties are unfortunately the most likely to be preyed

upon and ridiculed by other inmates. Their inability to process informa-

tion rapidly or to comprehend instructions, their low frustration tolerance,

and their impulsivity may have severe disciplinary consequences.”’). There

is also reason for concern that their “behaviors will be misperceived as

intentional rule infractions or attributed solely to mental retardation while

serious mental illness goes untreated.” /d.

* The public’s fears were aggravated by assertions from mental dis-

ability professionals of the day that extraordinary percentages of crimes in

society were committed by individuals with mental retardation. See, e.g.,

Mental Retardation, in Mental Retardation in America: A

Historical Reader 232-57 (Steven Noll & James W. Trent,

Jr., eds. 2004). Along with eugenic sterilization, lifelong

segregation and incarceration were the centerpieces of the

response to this perceived threat.’ See, e.g., James W. Trent,

Jr., Inventing the Feeble Mind: A History of Mental Retar-

dation in the United States 142-44 (1994). Often this segrega-

tion was accomplished in geographically isolated institutions,

but in other cases it led to the establishment of specialized

Henry Herbert Goddard, Feehlemindedness: Its Causes and Conse-

quences 8-9 (1914) (estimating that as many as 50% of criminals might

be “mentally defective”). See generally Henry Herbert Goddard, The

Criminal Imbecile (1915); J. David Smith, Minds Made Feeble: The Myth

and Legacy of the Kallikaks (1985).

* The vehemence with which these policies of segregation and isolation

were argued is, to modern sensibilities, chilling. See, e.g., Lewis M.

Terman, The Intelligence of School Children 132-33 (1919) (“The feeble-

minded . . . are by definition a burden rather than an asset, not only

economically but still more because of their tendencies to become de-

linquent or criminal. To provide them with costly instruction for a few

years, and then turn them loose upon society as soon as they are ripe for

reproduction and crime, can hardly be accepted as an ultimate solution of

the problem. The only effective way to deal with the hopelessly feeble-

minded is by permanent custodial care.”); Henry Carey, A Plea for the

Sterilization of Certain Defectives, Particularly the Feeble-Minded and

Epileptic 4-5 (1912) (“What shall we do with the feeble-minded and epi-

leptic already existing? One school says vasectomy, another castration,

and still another segregation. None of these is correct in whole but in part

only. To reach the proper solution of this question both sterilization, in

some form or other, and segregation must be carried out, castration or va-

sectomy being used as adjuncts to segregation, and going hand in hand

with it.”); W. E. Fernald, The Burden of Feeblemindedness, 17 J. Psycho-

Aesthenics 87, 90 (Mar. 1912) (“The past few years have witnessed a

striking awakening of professional and popular consciousness of the wide-

spread prevalence of feeble-mindedness and its influences as a source of

wretchedness to the patient himself and to his family, and as a causative

factor in the production of crime, prostitution, pauperism, illegitimacy,

intemperance and other complex social diseases .... They cause unutter-

able sorrow at home and are a menace and danger to the community.”).

penal institutions, such as the “Virginia State Prison Farm for

Defective Miscreants.” Steven Noll, Feeble-Minded in Our

Midst: Institutions for the Mentally Retarded in the South

1900-1940, at 117-20 (1995). Whether the confinement in a

particular institution was denominated as civil or criminal, it

is clear that the public’s fear of people with mental retarda-

tion was central to its purpose.

As will be discussed below, the conditions under which in-

mates with mental retardation are confined may reflect the

persistence of some of these views, and remain a source of

serious concern.”

Factors influencing the incarceration of individuals with

mental disabilities in prisons and jails today.

As with any prison inmate, the central reason for the in-

carceration of these individuals with disabilities is their own

criminal conduct. But for prisoners who have mental illness

or developmental disabilities, there are other causative factors

worth noting.

One such factor, for many of these inmates, is the effect of

their mental disabilities on the behavior that led to criminal

* As with serious mental illness, there is no precise measurement of

how many inmates in state prisons have mental retardation or other seri-

ous developmental disabilities. While the incidence of mental retardation

in society is estimated at three percent or less, see Atkins v. Virginia, 536

U.S. 304, 309 n.5 (2002), there are indications that the numbers in prison

populations in some States may be somewhat higher. One widely cited

survey of correctional authorities places the incidence of mental retar-

dation in federal and state prisons at 4.2%. Louis Veneziano & Carol

Veneziano, Disabled Inmates, in Encyclopedia of American Prisons \57-

61 (Marilyn D. McShane & Frank P. Williams III eds., 1996). See gen-

erally Joan Petersilia, Doing Justice?: The Criminal Justice System and

Offenders with Developmental Disabilities 38-40 (California Research

Policy Center 2000). Because of the different demographics involved in

different types of crimes, the percentage could be slightly higher in state

prisons than in the federal system.

charges. While it is not true that people with mental illness

are unusually likely to commit criminal acts, much less acts

of physical violence, there is often at least some causal

relationship between an individual’s mental illness and the

criminal behavior that led to incarceration. See, e.g., Paul S.

Appelbaum, Pamela Clark Robbins & John Monahan, Vio-

lence and Delusions: Data From the MacArthur Violence

Risk Assessment Study, 157 Am. J. Psychiatry 566, 566 (2000)

(“although most acts of violence perpetrated by psychotic

persons are not motivated by delusions, a substantial minority

of their violent acts appears to be delusionally driven’’); Keith

Hersh & Randy Borum, Command Hallucinations, Compli-

ance, and Risk Assessment, 26 J. Am. Acad. Psychiatry &

Law 353 (1998); Bruce G. Link & Ann Steuve, Psychotic

Symptoms and the Violent/Illegal Behavior of Mental Patients

Compared to Community Controls, in Violence & Mental

Disorder: Developments in Risk Assessment 137-59 (John

Monahan & Henry J. Steadman eds., 1994).

Similarly, for defendants who have mental retardation,

several attributes associated with their disability may have

influenced their behavior. As this Court has observed,

“Because of their impairments, . . . by definition they have

diminished capacities to understand and process information,

to communicate, to abstract from mistakes and learn from

experience, to engage in logical reasoning, to control im-

pulses, and to understand the reactions of others.” Afkins v.

’ Far more frequent than these crimes of violence are the many rela-

tively minor offenses for which substantial numbers of individuals with

mental disabilities are prosecuted. See Arthur J. Lurgio, Angie Rollins &

John Fallon, The Effects of Serious Mental Iliness on Offender Reentry, 68

Federal Probation 45, 46 (September 2004) (noting “recent adoption of law

enforcement strategies that emphasize quality-of-life issues and zero toler-

ance policies in response to public-order offenses: loitering, aggressive

panhandling, disturbing the peace, and urinating in public. These strate-

gies have netted large numbers of the mentally ill for publicly displaying

the symptoms of untreated [serious mental illness].”’).

Virginia, 536 U.S. 304, 318 (2002). Amici do not suggest, of ~

course, that all such individuals should be absolved from re-

sponsibility or excused from imprisonment as punishment for

criminal conduct. “[B]ut there is abundant evidence that they

often act on impulse rather than pursuant to a premeditated

plan, and that in group settings they are followers rather than

leaders. Their deficiencies do not warrant an exemption from

criminal sanctions, but they do diminish their personal re-

sponsibility.” /d. As a result, offenders with developmental

disabilities can be seen as “categorically less culpable than

the average criminal.” Tennard v. Dretke, 542 U.S. __., 124

S. Ct. 2562, 2571 (2004) (quoting Atkins, 536 U.S. at 316).

This observation is equally true for defendants facing non-

capital sentencing. See generally Am. Bar Ass’n, Standards

for Criminal Justice § 7-9.3 (“Evidence of mental illness or

mental retardation should be considered as a possible mitigat-

ing factor in sentencing a convicted offender.”).

But the nexus between mental disability and criminal con-

duct does not, of course, necessarily eliminate the practical

likelihood that individuals with mental illness or mental retar-

dation will end up in prison, or reduce the duration of their

confinement. See generally Victoria Harris & Christos Da-

gadakis, Length of Incarceration: Was There Parity for

Mentally Ill Offenders?, 27 \nt’l J.L. & Psychiatry 387

(2004).

Several developments in the States have had the effect

(mostly unintended) of increasing the number of prison in-

mates who have mental disabilities. First, a number of States

have reduced or eliminated the availability of a complete

defense based on mental disability. A few States have abol-

ished the insanity defense completely,” and a larger number

* See Idaho Code § 18-207 (Michie 1996); Kan. Stat. Ann. §§ 22-

3219-3220 (1996); Mont. Code Ann. § 46-14-102 (2003); Utah Code

Ann. § 76-2-305 (2003). See also Foucha v. Louisiana, 504 U.S. 71, 98

(1992) (Kennedy, J., dissenting). The Nevada Supreme Court invalidated

have restricted its availability to those defendants whose

mental disability vitiated their ability to understand their ac-

tions.” Second, there has been movement away from the doc-

trine of “diminished capacity” or “diminished responsibility,”

which had served to reduce the sentence of defendants whose

mental disabilities affected their culpability but fell short of

the insanity defense.'° Third, more than a dozen States have

adopted the alternative verdict form of “guilty but mentally

ill’ (GBMI), which provides for the imprisonment of defen-

dants who were mentally ill at the time of their offense, but

who do not meet the requirements of the insanity defense. ''

In addition, state sentencing policies and guidelines may also

have the unintended consequence of increasing the duration

of confinement for some inmates with mental disabilities. '”

legislation which would have abolished the defense, but narrowed avail-

ability of the defense to a subset of defendants who were in “a delusional

state” at the time of the offense. Finger v. State, 27 P.3d 66, 84-85 (Nev.

2001).

’ Particularly in the decades since the public controversy that sur-

rounded the Hinckley case, a number of state courts and legislatures have

replaced the Model Penal Code’s broader scope with the more restrictive

provisions of the M'Naghten test. See Wayne R. LaFave, Criminal Law

§ 7.2 n.7 (2003). In these States, defendants who are “unable to conform

their conduct to the requirements of law” because of their mental illness or

mental retardation are subject to conviction and imprisonment.

° See, e.g., Cal. Penal Code § 25(a) (West 1982). This legislation, en-

acted by popular initiative in 1982, overturned the judicially-created doc-

trine employed in cases such as People v. Wells, 202 P.2d 53 (Cal. 1949).

'' Unlike diminished capacity, GBMI verdicts do not require reduction

in the duration of a defendant's sentence, nor do they mandate that the in-

mate be provided with mental health treatment. See Henry J. Steadman et

al., Before and After Hinckley: Evaluating Insanity Defense Reform \02-

20 (1993) (implementation of GBMI in Georgia resulted in substantially

longer sentences and longer duration of confinement).

'? It does not appear that many States have placed as many structural

restrictions on the consideration of mental disability as a mitigating factor

in noncapital sentencing as the Federal Sentencing Guidelines have. Cf

A much more troubling development is the apparent phe-

nomenon of jails and prisons being transformed into the

default disposition for individuals who might previously have

received treatment or habilitation in clinical settings. Some

have referred to this phenomenon as prisons becoming “the

new asylums.”'*’ While we do not know all the precise ways

that individuals with serious mental illness now find them-

selves in prisons rather than in treatment facilities,'* some of

the processes are becoming clear. One is that law enforce-

ment officers may be increasingly likely to see criminal

charges as the appropriate response to behavior that might

also be characterized as indicative of the need for mental

health services. This appears particularly likely if the police

officers have been frustrated in past efforts to divert disrup-

U.S. Sentencing Guidelines Manual § 5K2.13 (prior to amendment in

1998, downward departures were precluded for any inmate who had a

substantial mental disability but was convicted of a crime involving vio-

lence). But provisions regarding repeat offenses may have the opposite

effect. See generally Almendarez-Torres v. United States, 523 U.S. 224,

243 (1998) (recidivism laws “currently are in effect in all 50 States”). The

increasing emphasis some States place on a defendant's “criminal history”

may have the unintended effect of substantially extending the incarcera-

tion of individuals whose mental disability has led them to repeatedly

commit relatively minor offenses. See Richard S. Frase, State Sentencing

Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105

Colum. L. Rev. 1190, 1201 n.55 (2005) (citing substantial increases in

some States in presumptive prison duration based on cnmuinal history).

'’ See, e.g.. Impact of Mentally Ill Offenders on the Criminal Justice

System: Hearing Before the House Subcomm. on Crime, 106th Cong. 8

(statement of Rep. Ted Strickland). See generally E. Fuller Torrey et al.,

Criminalizing the Seriously Mentally Ill: The Abuse of Jails as Mental

Hospitals (1992), Human Rights Watch. ///-Equipped: U.S. Prisons and

Offenders with Mental Iliness (2003). This phenomenon has also been

noted by journalists. See, e.g., Fox Butterfield, Prisons Replace Hospitals

for the Nation's Mentally Ill, N.Y . Times, Mar. 5, 1998, at Al.

‘* T. Howard Stone, Therapeutic Implications of Incarceration for Per-

sons with Severe Mental Disorders: Searching for Rational Health Policy,

24 Am. J. Crim. L. 283, 291 (1997).

tive individuals into community mental health facilities.'° In

addition, there may also be substantial (and perverse) finan-

cial incentives to turn to the criminal justice system instead of

treatment or habilitation in community settings. Robert D.

Miller, Economic Factors Leading to Diversion of the Men-

tally Disordered from the Civil to the Criminal Commitment

Systems, 15 Int’! J.L. & Psychiatry | (1992). These are often

exacerbated by the chronic underfunding of community men-

tal health and mental retardation systems. T. Howard Stone,

Therapeutic Implications of Incarceration for Persons with

Severe Mental Disorders: Searching for Rational Health Pol-

icy, 24 Am. J. Crim. L. 283, 291-96 (1997).

Once incarcerated, prison conditions can cause a substan-

tial worsening of the symptoms an inmate had prior to incar-

ceration.'° See generally Ford v. Wainwright, 477 U.S. 399,

'° See, e.g., Linda A. Teplin, Policing the Mentally Ill: Styles, Strate-

gies, and Implications in Jail Diversion for the Mentally Ill 10, 12-14

(Henry J. Steadman ed., 1990); Richard J. Freeman & Ronald Roesch,

Mental Disorder and the Criminal Justice System: A Review, 12 Int’! J.L.

& Psychiatry 105, 107 (1989). See generally Am. Bar Ass’n, Standards

for Criminal Justice § 7-2.5 cmt. at 40 (“mentally disturbed persons by

their actions frequently violate minor criminal legislation and thus are

subject to criminal arrest... . [P]olice officers who are unclear about their

authority to process mentally disturbed persons, or who are disillusioned

about mental health and mental retardation facility inaction in such cases,

are likely to ignore their emergency custodial powers and pursue the

criminal arrest procedures with which they are thoroughly familiar.”);

Linda A. Teplin & Nancy S. Pruett, Police as Streetcorner Psychiatrist:

Managing the Mentally Ill, 15 \nt'l J.L. & Psychiatry 139 (1992); J.

Steven Lamberti & Robert L. Weisman, Persons with Severe Mental

Disorders in the Criminal Justice System, 75 Psychiatric Q. 151, 153

(2004) (principal problems for law enforcement are lack of training about

mental illness and lack of effective interaction with mental health service

providers); Heidi S. Vermette, Debra A. Pinals & Paul S. Appelbaum,

Mental Health Training for Law Enforcement Professionals, 33 J. Am.

Acad. Psychiatry & Law 42 (2005).

'° This problem appears to be especially severe for female prisoners.

See generally Linda A. Teplin, Karen M. Abram & Gary M. McClelland,

402-03 (1986). And certain forms of incarceration are par-

ticularly likely to cause or exacerbate serious mental illness in

some inmates. Craig Haney, Mental Health Issues in Long-

Term Solitary and “Supermax”™ Confinement, 49 Crime &

Delinquency 124, 130 (2003) (adverse symptoms include

“rage, loss of control, paranoia, hallucinations, and self-

mutilations”); id. at 148 (Mental health problems “exacer-

bated by the tendency of correctional systems to place a

disproportionate number of previously mentally ill prisoners

in supermax confinement, to ignore emerging signs of mental

illness among the supermax population, and to fail to pro-

vide fully adequate therapeutic assistance to those prisoners

who are in psychic pain and emotional distress.”). See gener-

ally Wilkinson v. Austin, 545 U.S. __, 125 S. Ct. 2384, 2394-

95 (2005).

While it is unlikely, absent physical injury or other trau-

matic event, that incarceration would produce mental retarda-

tion (or comparable dementia) in an individual who did not

have mental retardation earlier in life, conditions of confine-

ment may cause further mental deterioration.'’ See Young-

herg v. Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J.,

concurring) (appropriate “to include within the minimally

adequate training required by the Constitution such training

as is reasonably necessary to prevent a person’s pre-existing

self-care skills from deteriorating because of his commit-

Mentally Disordered Women in Jail: Who Receives Services?, 87 Am. J.

Pub. Health 604 (1997) (female jail inmates are more likely to have

serious mental health problems but are less likely to have access to mental

health treatment than male inmates); Howard M. Kravitz, James L. Cava-

naugh, Jr. & Sandra S. Rigsbee, A Cross-Sectional Study of Psychosocial

and Criminal Factors Associated with Arrest in Mentally Ill Female

Detainees, 30 J. Am. Acad. Psychiatry & Law 380 (2002).

’ See generally Pennhurst State Sch. and Hosp. v. Halderman, 451

U.S. 1, 7 (1981) (describing “undisputed” findings “that the physical, in-

tellectual, and emotional skills of some residents have deteriorated at

Pennhurst”). 5

ment”) (emphasis in original, citations omitted). Providing

habilitation to prevent deterioration and atrophy is no less

essential in jails and prisons.

A final factor that may increase the number of individuals

with mental disabilities in state prisons, or prolong their

incarceration, is the enduring residue of fear and prejudice

that long marked public attitudes toward people with these

disabilities. See City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432, 464 (1985) (Marshall, J., concurring in the

judgment in part and dissenting in part) (“Prejudice, once let

loose, is not easily cabined.”); Board of Trustees of the Univ.

of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (Kennedy, J.,

concurring) (“Prejudice, we are beginning to understand, rises

not from malice or hostile animus alone. It may result as

well from insensitivity caused by simple want of careful,

rational reflection or from some instinctive mechanism to

guard against people who appear to be different in some

respects from ourselves.”). Judges and juries responsible for

conviction and sentencing are not always immune from such

lingering sentiments, see Olmstead v. L.C., 527 U.S. 581, 611

(1999) (Kennedy, J., concurring in the judgment) (“the line

between animus and stereotype is often indistinct”), and this

fact has the potential to produce longer sentences of impris-

onment.'* In some cases, it may even contribute to wrongful

conviction. See generally Atkins, 536 U.S. at 317 (“some

characteristics of mental retardation undermine the strength

'* There are some indications that the public perception problem is

getting worse. See Jo C. Phelan et al., Public Conceptions of Mental Iil-

ness in 1950 and 1996: What is Mental Iliness and Why Is It to be

Feared?, 41 J. Health & Soc. Behav. 188 (2000) (while there is increased

acceptance of people with milder mental illness, perception that individu-

als with psychotic illness are dangerous has more than doubled), Patrick

W. Corrigan & Amy E. Cooper, Mental Iliness and Dangerousness: Fact

or Misperception, and Implications for Stigma, in American Psychologi-

cal Association, On the Stigma of Mental Iliness: Practical Strategies for

Research and Social Change 165-79 (Patrick W. Corrigan ed., 2005).

of the procedural protections that our capital jurisprudence

steadfastly guards”); See generally Margaret Edds, An Ex-

pendable Man: The Near-Execution of Earl Washington, Jr.

(2003).

ARGUMENT

I. PRISONERS WHO HAVE MENTAL DISABIL-

ITIES ARE PARTICULARLY VULNERABLE

TO THE MISTREATMENT AND DISCRIM-

INATION ADDRESSED BY THE ADA.

A. Failure to provide needed treatment or

habilitation imperils the safety and health of

prisoners with mental disabilities.

Among the most serious types of unconstitutional conduct

that prisoners who have mental disabilities may suffer is the

failure to provide needed mental health treatment or habil-

itation. The Punishments Clause of the Eighth Amendment

requires the provision of needed medical care. Estelle v.

Gamble, 429 U.S. 97, 102-04 (1976).'” The constitutional

rationale for this obligation applies as fully to mental disabil-

ity treatment as it does to therapy for physical ailments or

injuries.

Serious mental illness, if left untreated, can leave an inmate

in the most excruciating form of mental agony. Olmstead,

527 U.S. at 609-10 (Kennedy, J., concurring in the judgment)

(“It must be remembered that for the person with severe

mental illness who has no treatment the most dreaded of

confinements can be the imprisonment inflicted by his own

mind, which shuts reality out and subjects him to the torment

of voices and images beyond our own powers to describe.”).

'’ as this Court has repeatedly held, remedial legislation can per-

missibly extend beyond the Constitution's direct command. See, e.g., City

of Boerne v. Flores, 521 U.S. 507, 518 (1997). By the same token, amici

recognize that not every constitutional violation will necessarily come

within the ambit of Title I.

See also Marjorie Rock, Emerging Issues with Mextally IIl

Offenders: Causes and Social Consequences, 28 Admin. &

Policy in Mental Health 165, 171 (2001) (“For a newly de-

tained inmate there is often an increased risk of suicide, and

for all incarcerated mentally ill persons there is often in-

creased personal risk for becoming a victim as well as the

potential for high rates of decompensation and deteriora-

tion.”); Joel A. Dvoskin & Henry J. Steadman, Chronically

Mentally Ill Inmates: The Wrong Concept for the Right Ser-

vices, 12 Int’! J.L. & Psychiatry 203, 205 (1989) (“[M]entally

ill inmates tend to encounter a whole range of brand new

problems in prison, to which they may be especially suscepti-

ble due to their mental illness. Examples here include such

things as predatory inmates, avoiding disciplinary infractions,

visits, and authority problems.”). See Richard J. Freeman &

Ronald Roesch, Mental Disorder and the Criminal Justice

System: A Review, 12 Int'l J.L. & Psychiatry 105, 110 (1989)

(“In population, they are significantly more likely to be in-

volved in ‘incidents,’ ranging from assault by other inmates,

altercation with guards, and generally bizarre behavior, to

self mutilation and suicide attempts.”); Robert W. Dumond,

Confronting America’s Most Ignored Crime Problem: The

Prison Rape Elimination Act of 2003, 21 J. Am. Acad. Psy-

chiatry & Law 354, 355 (2003) (inmates with mental illness

or developmental disabilities “especially vulnerable” to sex-

ual victimization).

Documented instances of jail and prison inmates who are

not provided adequate treatment for their serious mental ill-

ness are deeply troubling. See, e.g., Cody v. Hillard, 599 F.

Supp. 1025, 1058-59 (D.S.D. 1984) (failure to provide mental

health treatment to inmates with “serious psychiatric needs,”

noting that “some of these inmates have experienced dete-

rioration in physical health because their mental health needs

have gone untreated.”); Balla v. Idaho State Board of Correc-

tions, 595 F. Supp. 1558, 1578 (D. Idaho 1984) (psychiatric

care found “virtually nonexistent,” representing “deliberate

indifference to the serious medical needs of the inmates”);

Mitchell v. Untreiner, 421 F. Supp. 886, 891 (N.D. Fla. 1976)

(jail provided “no psychological or psychiatric treatment” and

inmates with mental illness were segregated in inadequate

conditions). Far too frequently, when there is no serious

effort to provide mental health treatment, the only semblance

of treatment offered to inmates with serious mental illness is

psychotropic medication, and often, in such circumstances,

the medication is inappropriately (and dangerously) adminis-

tered. See, e.g., Langley v. Coughlin, 715 F. Supp. 522, 540

(S.D.N.Y. 1989) (failure “to properly diagnose mental condi-

tions, failure to prescribe proper medication and prescription

of inappropriate medication, failure to provide any meaning-

ful treatment other than medication”); Battle v. Anderson, 376

F. Supp. 402, 415 (E.D. Okla. 1974) (no professional psychi-

atric staff in prison and “only ‘treatment’ available at the

penitentiary consists of temporary relief from ‘distress’

through sedation”). See also Coleman v. Wilson, 912 F.

Supp. 1282, 1309-11 (E.D. Cal. 1995).”°

°° Numerous cases have revealed deliberate indifference in the failure

to provide adequate staffing for the treatment of inmates with serious

mental illness, See, e-g., Ramos v. Lamm, 639 F.2d 559, 577-78 (10th Cir.

1980) (expert testimony that the lack of mental health services “con-

tributes to inmate suffering and at times causes suicide and self-mutilation

by inmates”); Coleman, 912 F. Supp. at 1315 (understaffing produces

failure to provide an adequate program of suicide prevention); Madrid v.

Gomez, 889 F. Supp. 1146, 1226 (N.D. Cal. 1995) (failure to provide

mental health care “so clearly and grossly deficient that it only highlights

defendants’ striking indifference to the mental health” of inmates), Tillery

v. Owens, 719 F. Supp. 1256, 1302 (W.D. Pa. 1989) (“Officials at SCIP

have violated the eighth amendment with respect to psychiatric and psy-

chological care in at least two ways: they have failed to provide adequate

staffing: they have failed to maintain an environment conducive to treat-

ment of serious mental illness.”). In addition, courts have identified as a

constitutional violation the failure to perform adequate screening and

diagnosis when symptoms of mental illness are apparent. See, e.g., Cole-

man, 912 F. Supp. at 1305 (“Under the Eighth Amendment the defendants

Similarly, a prison or jail’s deliberate indifference to needed

habilitation for inmates with mental retardation or other sub-

stantial developmental disabilities can cause enduring, some-

times permanent, harm. For many individuals with mental

re‘ardation, being deprived of needed treatment and habilita-

tion does not merely mean that they will fail to improve or to

gain important skills; they may in fact lose crucial life skills

that they had before they were imprisoned. This can mean

the loss of the ability to communicate, perform daily self-

care, remain physically safe, and to maintain even rudimen-

tary emotional stability. Cf’ Pennhurst, 451 U.S. at 7; Young-

berg, 457 U.S. at 311 n.7. As one respected authority in the

field has observed, “[i]f prison is viewed as a dangerous place

for the nonretarded inmate, imagine the threat posed to the

individual whose cognitive limitations render him or her vul-

nerable to the wishes of brighter and more exploitative in-

mates.” George S. Baroff, The Mentally Retarded Offender,

in American Psychological Association, Manual of Diagnosis

and Professional Practice in Mental Retardation, at 320 (John

W. Jacobson & James A. Mulick eds., 1996).7' See generally

Jane Nelson Hall, Correctional Services for Inmates with

Mental Retardation, in The Criminal Justice System and

Mental Retardation: Defendants and Victims 167-90 (Ronald

are required to maintain a system in which inmates are able to make their

need for mental health care known to staff competent to provide such care

before inmates suffer unnecessary and wanton infliction of pain.”). Be-

yond mere numbers, it is also essential that correctional officers receive

adequate training in dealing vith inmates who have mental disabilities.

See generally Lisa Callahan, Correctional Officer Attitudes Toward In-

mates with Mental Disorders, 3 \nt’| J. Forensic Mental Health 37 (2004).

*' See Ruiz v. Estelle, 503 F. Supp. 1265, 1346 (S.D. Tex. 1980), aff'd

in relevant part, 679 F.2d 1115 (Sth Cir. 1982) (“[P]rison officials have

done little to protect these mentally handicapped inmates from the type of

abuse and physical harm whch they suffer at the hands of other

prisoners.”).

W. Conley, Ruth Luckasson & George N. Bouthilet eds.

1992).

And yet mistreatment and neglect of inmates with mental

retardation continues to occur. See, e.g., Ruiz, 503 F. Supp. at

1346 (“Their special habilitation needs are practically un-

recognized by TDC officials, and they are subjected to a

living environment which they cannot understand and in

which they cannot succeed.”); Tavlor v. Mich. Dep't of Corr.,

69 F.3d 76, 81 (6th Cir. 1995) (failure to protect from rape

inmate who had mental retardation). See generally George C.

Denkowski & Kathryn M. Denkowski, 7he Mentally Re-

tarded Offender in the State Prison System: Identification,

Prevalence, Adjustment, and Rehabilitation, 12 Crim. Just. &

Behav. 55, 62 (1985) (majority of surveyed state correctional

officials acknowledged that inmates with mental retardation

were “manipulated and victimized by the general prison pop-

ulation,” including sexual exploitation).

In one sense, prisoners with mental disabilities have the

same needs as individuals with comparable disabilities out-

side the prison context. But in another crucial sense, their

situation is dramatically different_Unlike their counterparts in

the rest of society, prisoners’ access to mental health treat-

ment or habilitation is totally controlled by prison authori-

ties.” By the very nature of their confinement, prisoners with

serious mental illness or mental retardation are deprived of all

other avenues for addressing these essential needs. See gen-

erally Farmer v. Brennan, 511 U.S. 825, 833 (1994) (Having

stripped prisoners “of virtually every means of self-protection

*° There are indications that the problem of untreated prisoners with

severe mental illness may be getting worse. See, e.g., Ronald W. Man-

derscheid, Aliya Gravesande & Ingrid Goldstrom, Growth of Mental

Health Services in Siate Adult Correctional Facilities 1988 to 2000, 55

Psychiatric Services 869 (2004) (“The growth in prison facilities and the

growth in prisoner populations are outstripping the more meager growth

in mental health services.”).

and foreclosed their access to outside aid, the government and

its officials are not free to let the state of nature take its

course.”’).

B. Prisoners with mental disabilities have been

subjected to harmful neglect and mistreatment.

In addition to the central concerns about failure to provide

needed treatment and habilitation, prisoners with mental dis-

abilities face discriminatory treatment that is unrelated to

legitimate penological interests. For example, the practice of

automatically or routinely assigning prisoners with symptoms

of mental illness to “administrative segregation” units is

particularly troubling.”’ “There is a general consensus among

** In this context, amici are using the term “segregation” in the sense

that it is generally empioyed in the management of prisons. See, e.g.,

American Psychiatric Association, Psychiatric Services in Jails and Pris-

ons 5 (2d ed. 2000) (“Inmates who are in current, severe psychiatric crisis,

including but not limited to acute psychosis and suicidal depression

should be removed from segregation until such time as they are psy-

chologically able to tolerate that setting.”). The term segregation is, of

course, capable of different meanings. In other disability contexts, it often

refers to the provision of mental retardation services in facilities or loca-

tions set apart from nondisabled individuals. See, e.g., City of Cleburne,

473 U.S. at 462 (Marshall, J., concurring in the judgment in part and

dissenting in part) (“A regime of state-mandated segregation and degrada-

tion soon emerged that in its virulence and bigotry rivaled, and indeed

paralleled, the worst excesses of Jim Crow. Massive custodial institu

tions were built to warehouse the retarded for life... .”). See 42 U.S.C.

§ 12101(5) (“[IJndividuals with disabilities continually encounter various

forms of discrimination, including outright intentional exclusion, . . . [and]

segregation ....”). °

While there is severe criticism in the disability community of provision

of services in segregated settings, see, e.g., Joseph P. Shapiro, No Pity:

People with Disabilities Forging a New Civil Rights Movement 142

(1993), the extraordinary vulnerability of prison inmates who have mental

retardation may sometimes require that their confinement and habilitation

occur in settings that provide sufficient protection from other inmates.

However, this in no way justifies placing vulnerable inmates with men-

clinicians that placement of inmates in settings with ‘extreme

isolation’ is contraindicated because many of these inmates’

psychiatric conditions will clinically deteriorate or not

improve.” National Commission on Correctional Health Care,

Standards for Health Services in Prisons 243 (2003).

Nevertheless, some States continue to confine prisoners

with serious mental illness in unconstitutional conditions that

can only exacerbate their condition. See, e.g., Jones’El v.

Berge, 164 F. Supp. 2d 1096, 1118 (W.D. Wis. 2001) (con-

ditions of inmates with serious mental illness deteriorating in

supermax unit); Madrid v. Gomez, 889 F. Supp. 1146, 1267

(N.D. Cal. 1995) (segregation unit cruel and unusual for in-

mates who are mentally ill and those who “are at an unrea-

sonably high risk of suffering serious mental illness as a

result of present conditions” in the segregated unit); Langley

v. Coughlin, 715 F. Supp. 522, 540 (S.D.N.Y. 1989) (super-

max unit housing “mentally ill inmates whose conditions in-

volve dramatic outbursts of screaming, self-mutilation, at-

tempted or staged suicides, throwing of feces and garbage,

fires and other distressing behavior” severely affecting other

inmates with mental illness); Walker v. State, 68 P.3d 872,

885 (Mont. 2003) (describing conditions of confinement and

mistreatment of a prisoner with mental illness as “an affront

to the inviolable rights of human dignity possessed by the

inmate and that such punishment constitutes cruel and un-

usual punishment when it exacerbates the inmate’s mental

health condition” and therefore is a violation of state constitu-

tional protections).”*

tal retardation in “segregation units,” as the term is used in the correc-

tional context.

** See also Casey v. Lewis, 834 F. Supp. 1477, 1548 (D. Ariz. 1993)

(“Despite their knowledge of the harm to seriously mentally ill inmates

ADOC routinely assigns or transfers seriously mentally ill inmates to

{lockdown and segregation units]. ... In most cases, the inmates are

Il. THE ADA’S PROTECTION OF THE RIGHTS

OF INMATES WITH DISABILITIES IS CON-

SISTENT WITH THE TRADITION OF DEF-

ERENCE TO CORRECTIONAL OFFICIALS.

This Court has repeatedly emphasized the importance of

deference to staie correctional authorities in the management

of prisons. See, e.g., Turner v. Safley, 482 U.S. 78, 84-85

(1987) (“Running a prison is an inordinately difficult under-

taking that requires expertise, planning, and the commitment

of resources”). Amici appreciate the extraordinary difficulties

involved in maintaining order in potentially unstable, and

even perilous, settings, and recognize the “peculiar and re-

strictive circumstances of penal confinement.” See Jones v.

North Carolina Prisoners’ Union, 433 U.S. 119, 125 (1977).

Indeed, the appropriate care of inmates with mental dis-

abilities requires that the institutions in which they are con-

fined function safely and effectively.

But the deference to prison authorities that this Court has

recognized cannot excuse discriminatory treatment of indi-

viduals with mental disabilities. “The Constitution does not

mandate comfortable prisons, but neither does it permit in-

humane ones.” Farmer, 511 U.S. at 832 (internal citation

omitted). Neither the principle of judicial deference to cor-

rectional officials nor the broader dictates of federalism re-

quire the courts to cast a blind eye to the damaging neglect

and discrimination faced by some of the nation’s prison

inmates with mental disabilities.

locked down because of behavior resulting from their mental illness,”

with the decisions made by security, rather than medical, personnel.);

Arnold ex rel. H.B. v. Lewis, 803 F. Supp 246, 256 (D. Ariz. 1992) (in-

mate with mental illness was provided “grossly inadequate mental health

care.... Rather, defendants placed plaintiff in lock down as punishment

for the symptoms of her mental illness and as an alternative to providing

mental health care.”’). R

Prisoners have constitutional rights that survive even the

deprivation of physical liberty that is the essence of impris-

onment. Vitek v. Jones, 445 U.S. 480, 493-94 (1980). See

also Turner, 482 U.S. at 84 (“Prison walls do not form a

barrier separating prison inmates from the protections of the

Constitution.”). Those rights are protected by, inter alia, the

Punishments Clause of the Eighth Amendment and the Due

Process and Equal Protection Clauses of the Fourteenth

Amendment. They are rights of particular importance to

prison inmates with mental disabilities, whose extraordinary

vulnerability to mistreatment is a source of serious concern.

Concerned about the pervasive and destructive discrim-

ination it found that individuals with disabilities confronted in

public services, and after extensive investigation, Congress

codified disability rights and created remedies for their

enforcement in Title Il of the Americans with Disabilities

Act. It did so in a way that clearly encompasses mistreatment

and discrimination encountered in prisons. See Penn. Dep't

of Corr. v. Yeskey, 524 U.S. 206 (1998).

However, Congress was mindful of the practical differ-

ences between disability discrimination and other forms of

invidious discrimination it had addressed in other statutes,

such as race and gender discrimination.”> Concerned about

the potential costs and disruption of implementing the ADA,

°’ The fact that Congress, in 1990, crafted a remedial scheme that dif-

fered from those designed for racial or gender discrimination certainly

does not imply in any way that disability discrimination is a problem of

secondary importance. While all invidious prejudice has common roots

and features, the efforts to confront its harmful effects involve different

templates. For example, racial and gender discrimination have not mani-

fested themselves identically in our history, nor have the necessary reme-

dial measures been exactly the same. The same is true with disability dis-

crimination. Far from betraying a lesser concern about the harms of dis-

ability discrimination, Title II's mandate that its enforcers take potential

costs and disruptions into account in individual cases suggests that Con-

gress was mindful that its provisions should be proportional to the problem.

it limited the statute’s remedial scope, requiring, for example,

only “reasonable modifications” of programs and facilities.

42 U.S.C. § 12131(2) (1990). The mandate that courts only

require “reasonable modifications” is, in fact, not at all dis-

similar from the factors of reasonableness in constitutional

remedies in prison cases that this Court announced in Turner,

482 U.S. at 89-91.”° It means that legitimate penological in-

terests, such as security concerns, see O'Lone v. Estate of

Shabazz, 482 U.S. 342, 349 (1987), and rehabilitative inter-

ests, id. at 351, can, upon a proper showing, prevail over

disability claims under the statute.’

*° While the Turner test applies disability claims raised under the Due

Process and Equal Protection Clauses, it does not apply to cases arising

under the Eighth Amendment, where the less deferential “deliberate indif-

ference” standard is used. Hope v. Pelzer, 536 U.S. 730, 738 (2002).

“This is because the integrity of the criminal justice system depends on

full compliance with the Eighth Amendment.” Johnson v. California, 543

U.S. __, 125 S. Ct. 1141, 1150 (2005). The remedies enacted by Con-

gress in Title Il are so carefully crafted that they are proportional to both

standards.

*” Amici are unaware of cases in which lower courts, in implementing

Title Il, have required actions by prison officials that substantially exceed

the requirements of the Constitution. If a pattern of such overly-demand-

ing orders were to occur in the future, appellate review could, of course,

not be imposed.

Indeed, another advantage of permitting Congress to address the prob-

lem of disability discrimination is that the legislative process is uniquely

capable of adjusting and fine-tuning its remedies based on the practical

experience in a statute’s implementation. Although Congress drafted Title

II in terms that clearly apply to state prisons, it did not address the issue of

prison compliance with specificity. Yeskey, 524 U.S. at 211-12. If correc-

tional officials in the States were to conclude, at some future time, that

courts were imposing excessive or unduly intrusive requirements under

Title II, it seems likely that they would find a receptive and sympathetic

hearing in the Congress. See generally 18 U.S.C. § 3626 (1997) (Prison

Litigation Reform Act).

Depriving prisoners with mental disabilities of needed treat-

ment or habilitation will seldom, if ever, have “a valid,

rational connection,” Turner, 482 U.S. at 89, to the legitimate

government interest in prison security, and it certainly cannot

be justified on rehabilitative grounds. As noted above, prison-

ers with these disabilities will obviously not have available to

them “alternative means of exercising the right” to receive

such treatment or habilitation. /d. at 90. And it can hardly be

contended that providing needed treatment to prisoners with

serious symptoms of mental illness or habilitation to inmates

who have mental retardation will have some deleterious

impact on guards and other inmates.

Indeed, it is the failure to provide such treatment or habili-

tation that imperils the safety of guards and fellow prisoners

even as it does potentially irreparable harm to the health and

safety of the inmate who has the disability. See Washington

v. Harper, 494 U.S. 210, 225-26 (1990) (“Where an inmate’s

mental disability is the root cause of the threat he poses to

the mate population, the State’s interest in decreasing the

danger to others necessarily encompasses an interest in pro-

viding him with medical treatment for his illness.”). Finally,

prison authorities cannot claim that the alternative, i.e. pro-

viding needed treatment or habilitation, is impractical or “un-

available.” Successful prison treatment and habilitation pro-

grams have been implemented by a number of States. Deny-

ing the practicality of such treatment would surely be “an

exaggerated response to prison concerns.” Turner, 482 at 90

(internal quotation omitted).”*

°* Turner also mentions as a consideration the impact “on the allocation

of prison resources generally.” 482 U.S. at 90. However, when the right

at issue is grounded in the Eighth Amendment, States cannot justify “de-

liberate indifference” on the basis of mere fiscal savings. After all, it would

not be cost-free to set a prisoner's broken leg. Cf Estelle v. Gamble, 429

U.S. 97 (1976).

Leaving the serious mental illness of a prisoner untreated,

or allowing the deterioration of his mental condition or ability

to cope with the harsh demands of prison life by failing to

provide needed treatment or habilitation, cannot be justified.

Title II is an appropriate tool to address a very serious

problem. Making it unavailable in damage actions would

have the paradoxical (and arguably perverse) effect of requir-

ing prison disputes about disability discrimination to be liti-

gated as constitutional cases. This would both fail to recog-

nize the seriousness of the problem, and also reduce the

flexibility with which it can be addressed. Principles of fed-

eralism do not require such a drastic and harmful result.

CONCLUSION

For the foregoing reasons, amici urge that the judgment of

the Court of Appeals be reversed.

Respectfully submitted,

JAMES W. ELLIS

Counsel of Record

MICHAEL B. BROWDE

APRIL LAND

STEVEN K. HOMER

CAROL SUZUKI

1117 Stanford, NE

Albuquerque, NM 87131

(505) 277-2146

July 29, 2005 Counsel for Amici Curiae

APPENDIX

The American Association on Mental Retardation

(““AAMR”) is the nation’s oldest and largest interdisciplinary

organization of professionals and other persons who work

exclusively in the field of mental retardation. AAMR

promotes humane policies, sound research, and effective

practices, for people with intellectual disabilities.

The Arc of the United States (formerly known as the

Association for Retarded Citizens of the United States),

through its 875 state and local chapters, is the largest national

voluntary organization in the United States devoted solely to

the welfare of the more than seven million children and adults

with mental retardation and their families.

The Bazelon Center for Mental Health Law is a national

public interest organization founded in 1972 to advocate for

the rights of individuals with mental disabilities. The

Bazelon Center has engaged in litigation, administrative

advocacy, and public education to promote equal oppor-

tunities for individuals with mental disabilities. Much of the

Center’s work involves efforts to remedy disability-based

discrimination through enforcement of the ADA.

The National Mental Health Association (“NMHA”) is

the country’s oldest and largest mental health organization

representing all aspects of mental health and mental illness.

As an organization dedicated to achieving a just, humane and

healthy society in which all people are accorded respect,

dignity and the opportunity to achieve their full potential free

from stigma and prejudice, the NMHA is deeply committed

to realizing the promise of the Americans with Disabili-

ties Act and to ending the widespread neglect and dis-

crimination experienced by people with mental illness in

penal confinement.

The National Association of Councils on Developmental

Disabilities (““NACDD”) is a national organization consisting

of 55 State and Territorial Developmental Disabilities

Councils. NACDD advocates and works toward positive

system change on behalf of individuals with developmental

disabilities and their families. NACDD supports the removal

of all barriers against persons with developmental disabilities

to ensure their full participation in society.

The American Psychological Association (APA) is a

voluntary nonprofit scientific and professional organization

with more than 155,000 members and affiliates. Since 1892,

the APA has been the principal association of psychologists

in the United States. Its membership includes the vast

majority of psychologists holding doctoral degrees from

accredited universities in the United States. An integral part

of the APA’s mission is to increase and disseminate know-

ledge regarding human behavior and to foster the application

of psychological learning to important human concerns.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.