Issues Arising in Institutional Litigation, part 4 of 8: Programming

Programming

The U.S. Supreme Court has never expressly ruled on the right to treatment for juveniles, and lower court cases have ruled ambiguously on this issue. The Court has recognized a right to treatment for mentally retarded adults who, like children, are confined for treatment without their consent (see Youngberg v. Romeo). In addition, a number of courts have found a right to treatment in juvenile institutional cases. In Alexander S. v. Boyd, the court found a constitutional right to a minimally adequate level of programming designed to teach juveniles the principles essential to correct their behavior.

Exercise and Recreation 

Inmates are constitutionally entitled to fresh air and regular exercise (see Spain v. Procunier). In adult prisons, restriction to two 1-hour exercise periods per week has been held to violate the eighth amendment (see Sweet v. South Carolina and Spain v. Procunier). Where there is substantial access to indoor recreation areas, up to 18 hours per day, according to Clay v. Miller, there may be a finding of no violation, but such substantial alternatives often do not exist. Where the adult inmate is in disciplinary segregation, the institution must still explore ways to provide regular exercise and may restrict it only in exceptional circumstances (see Mitchell v. Rice).

Education/Special Education

The courts have made it clear that children in correctional facilities are entitled to the benefit of special education laws under Green v. Johnson and Donnell C. v. Illinois State Board of Education. Children eligible for special education are entitled to a broad range of assessment,

evaluation, educational, and related services under the Individuals With Disabilities Education Act. Federal time lines for assessment and implementation apply, even when the child is in temporary detention (see U.S. Office of Civil Rights, Solano County Juvenile Hall, California, Case No. 09–89–1227 and Nick O. v. Terhune). Institutions confining children must also refrain from discriminating against educationally handicapped children under the Rehabilitation Act of 1973.

Religion

Facilities housing children or adult inmates must accommodate religious observances. The traditional view was that religious practices must be allowed provided they did not jeopardize the security of the institution (see Cruz v. Beto). In recent years, the Court has taken a narrower view, holding that limitations on the exercise of religion are permissible if

they are related to a legitimate penological objective (see O’Lone v. Estate of Shabazz). However, the Religious Freedom Restoration Act of 1993 appears to restore a higher standard of legal scrutiny. The government must show a “compelling interest” before impinging on religious practices and use the least restrictive means of regulation.

Work

Children may be required to clean their cells or living areas but cannot be forced to do chores for the personal benefit of staff or be exploited for their labor. Limited case law specifically relates to children on this issue, but the legal theory is clear. People who have not been convicted of a crime may not be punished under the due process principles articulated in Bell v. Wolfish. By analogy to the forced labor cases involving mentally ill patients, Johnson v. Cicone and Tyler v. Harris found that inappropriate work requirements may violate the 13th amendment or provisions of the federal Fair Labor Standards Act (see Weidenfeller v. Kidulis, Souder v. Brennan, Wyatt v. Stickney, and Wyatt v. Aderholt).

Issues Arising in Institutional Litigation, part 3 of 8: Access

Access

This issue refers to a minor’s right of access to family members and important people in his or her life. It also refers to access to the legal system. Minors have a right to reasonable access, and the cases that have addressed this issue discuss the standard of reasonableness in particular situations. The rules on mail access are more specific. The experience of being incarcerated is traumatic for youth, particularly when placed in an adult facility. Youth need the emotional support of their family, and access to the community may be critical to the success of court intervention. Thus, in D.B. v. Tewksbury the court found that children confined in a jail were deprived of their constitutional rights when they were denied regular visits, use of the telephone, and mail services. The court found that these restrictions needlessly intensified children’s fears and hostilities and were counterproductive to the goals of the juvenile justice system.

Visits

Institutions housing children must provide for reasonable visitation. Visits should be permitted during the day, with provisions for alternative visiting times for parents who are unable to visit during the normal hours. Approved visitors should include adult relatives, family friends, and siblings with approval from the minor’s probation officer or counselor.

Unfortunately, punitive attitudes, understaffing, and limited visiting areas have restricted visiting opportunities for children. The right to reasonable visitation has been litigated in a number of juvenile cases, including Ahrens v. Thomas, Thomas v. Mears, Gary W. v. State of Louisiana, and D.B. v. Tewksbury. Visitation should not be curtailed because of overcrowding or staff shortages, according to Patchette v. Nix.

Telephone Access

Case law does not set an absolute requirement for telephone use but insists a facility must provide reasonable access to telephones. Calls may be made to parents, relatives, and attorneys. Monitoring may occur only if justified. Limited staffing and few public telephones often result in undue restrictions on children’s ability to make telephone calls from jails and lockups. Juvenile cases addressing telephone use include Gary W. v. State of Louisiana and Ahrens v. Thomas.

Mail Access

There are two categories of mail: privileged and non-privileged. Privileged mail is between the child and his or her attorney, a judge, a legislator, or some other public official and is usually designated as such (e.g., “legal mail”) on the envelope. Privileged mail may not be opened by staff, except to inspect it for contraband according to Wolff v. McDonnell. Non-privileged mail is all other mail and may be opened under certain circumstances to inspect for contraband or criminal activity. Even then, staff must have facts to support their suspicions.

If mail is to be read, the individual must be given an opportunity to appeal to someone other than the person who suspects the correspondence (see Procunier v. Martinez). The U.S. Supreme Court has permitted only limited restrictions on inmate mail. Turner v. Safley addresses correspondence between adult inmates at different correctional institutions; Thornburgh v. Abbott deals with rejection of publications found detrimental to institutional

security; and Ramos v. Lamm addresses a ruling that struck down prohibition of correspondence in another language in an institution where one-third of the institutional population was Hispanic.

Access to the Courts

Correctional facilities must ensure that inmates have meaningful access to both counsel and the courts (see Younger v. Gilmore). In Bounds v. Smith, the U.S. Supreme Court held that the provision of adequate libraries or adequate assistance from persons trained in the law

would meet the constitutional requirement and that facilities should explore various avenues such as volunteer or legal services attorneys, law students, inmate paralegals, or public defenders to meet this requirement. More recently, in Lewis v. Casey the Court explained that inmates require the tools to argue their sentences or to challenge the conditions of their

confinement. The rights of illiterate or non-English-speaking inmates might necessitate the provision of special assistance.

Earlier cases found constitutional violations where prison library systems imposed hurdles to access (see Toussaint v. McCarthy). Also, courts have held that prisons that offer paralegal assistance as an alternative to providing direct library access must provide trained legal assistants, and inmates must be supplied with a reasonable amount of office materials for court filing of documents (see Gluth v. Kangas, Knop v. Johnson, and Ward v. Kort). However, the Court emphasized, in Lewis v. Casey, that constitutional violations must be measured in relation to actual, not theoretical, injuries caused by the inadequacies of libraries or other legal assistance.

Unmonitored visits with attorneys must be allowed upon reasonable request. Keker v. Procunier and Adams v. Carlson address the duty of institutions to keep lines of communication open among inmates, attorneys, and the courts. The sixth amendment also includes the right of reasonable access to attorneys to challenge unlawful conditions and seek redress of constitutional rights under Procunier v. Martinez. Inmates must also be allowed to meet with attorneys on civil matters according to U.S. v. Janis and Corpus v. Estelle.

Issues Arising in Institutional Litigation, part 2 of 8: Health

Health

Medical and dental care

Inmates are constitutionally entitled to medical care, including both screening and direct service. Institutions may not interfere with access to medical care or interfere with prescribed treatment for illness. Deliberate indifference to the serious medical needs of adult inmates violates the eighth amendment (see Estelle v. Gamble and Boretti v. Wiscomb). For example, the medical care system violated constitutional standards in Ramos v. Lamm, in which there were fewer than 10 hours per week of onsite physician care for an entire prison, overuse of physicians' substitutes, and use of inmates to deliver medical services. Budgetary constraints may not be used to justify a denial of necessary medical care (see Jones v. Johnson). Similarly, a substantial delay in medical treatment may result in a finding that medical care was constitutionally inadequate (see Durmer v. O'Carroll).

Each facility should have a screening mechanism for inmates. The screening should be done by a doctor or another professional who has had medical training. Many jails and lockups have a nonmedical person performing this task. This situation is not satisfactory and may result in a medical tragedy. Also, someone on staff must have the authority to transfer a seriously ill inmate to another medical facility (see Colle v. Brazos County, Texas). In addition to screening, facilities must provide adequate medical services and access to medical supplies such as eyeglasses (Williams v. I.C.C. Committee), prescription medicines (Gerakeris v. Champagne), wheelchairs (Weeks v. Chaboudy), special diets (Coades v. Jeffes), and dental care (Boyd v. Knox). In the adult system, cases have involved health-related claims that facilities have failed to make reasonable modifications to serve inmates with disabilities pursuant to the Americans With Disabilities Act of 1990 and claims that inmates have been denied the benefits of institutional programs because of a handicap under the Rehabilitation Act of 1973.

Mental health care

Children and adult inmates are constitutionally entitled to adequate mental health care. For the components of a minimally adequate mental health system see Ruiz v. Estelle. Ramos v. Lamm found that mental health services in an adult prison were grossly inadequate where 5 to 10 percent of inmates were mentally ill and 10 to 25 percent needed mental health treatment; a psychiatrist visited the prison only twice in the year before trial, and there was a 2- to 5-week wait for services from mental health staff. Similarly, Coleman v. Wilson found constitutional violations where a prison system failed to provide a systematic program for screening and evaluating inmates' mental health needs; a treatment program that involved more than segregation and close supervision of mentally ill inmates; access to a sufficient number of trained mental health professionals; maintenance of accurate, complete, and confidential mental health records; administration of psychotropic medication with appropriate supervision and periodic evaluation; and a basic program to identify, treat, and supervise inmates at risk for suicide (see Madrid v. Gomez for components of adequate institutional mental health services).

Many detained youth are mentally ill or suffer from severe emotional disturbances. Sometimes confinement adds to their disturbance. Therefore, facilities must screen minors for mental health problems, provide emergency psychological services, establish procedures for dealing with suicidal youngsters, make sure that medications are prescribed and administered by qualified medical personnel, establish provisions for children to request psychological care, and make sure that there is adequate staff for ongoing psychological services.

Juvenile cases addressing mental health needs of detained children include Thomas v. Mears, Gary W. v. State of Louisiana, Morales v. Turman, Martarella v. Kelley, Morgan v. Sproat, and Ahrens v. Thomas. The use of drugs for behavior control is constitutionally prohibited (see Nelson v. Heyne and Pena v. New York State Division for Youth). Jackson v. Fort Stanton State Hospital & Training School includes a discussion of the Youngberg v. Romeo standard in relation to developmentally disabled adults.

Apart from cases involving general mental health care in institutions, there are cases involving suicides and other harm to prisoners based on the indifference of officials to known mental health needs. Many cases involve suicides. Buffington v. Baltimore City deals with the liability of two police officers who knew that a detainee was on the verge of suicide but failed to follow department policy for the care of suicidal inmates; Simmons v. City

of Philadelphia addresses holding the city liable for indifference to the medical needs of an intoxicated adult detainee who committed suicide; Hare v. City of Corinth, Mississippi treats refusing qualified immunity to jail officials for placing a suicidal inmate in an isolated cell that was not visually monitored despite a recent suicide and failing to have onsite staff with a key who could open the door once the inmate was seen hanging; Heflin v. Stewart County, Tennessee holds that the jury should have been permitted to decide whether the jail staff's failure to cut down a hanging inmate until photos had been taken (when evidence suggested that the inmate may have been alive) was deliberate indifference; Hall v. Ryan reverses the dismissal of a case in which evidence suggested that the defendants knew of the inmate's suicidal condition because of past encounters with the police department or were recklessly indifferent in failing to consult his file after observing his wild behavior; and Cabrales v. County of Los Angeles holds that a county could be liable for deliberate indifference when its policy of understaffing institutional mental health services contributed to the suicide of an inmate placed in isolation after a suicide attempt.

Again, the suicide cases demonstrate the need for thorough mental health screening by trained staff, policies governing the supervision and treatment of suicidal and at-risk inmates, and the availability of mental health services, particularly for detained children.