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.

Issues Arising in Institutional Litigation, part 1of 8: Classification

This post discusses the numerous issues that commonly arise in institutional litigation on behalf of confined youth. Together the issues can be referred to using the acronym CHAPTERS. This acronym is an easy way to remember the following eight major areas of institutional considerations:

Classification and separation issues.

Health and mental health care.

Access to counsel, the courts, and family members.

Programming, education, and recreation.

Training and supervision of institutional staff.

Environment, sanitation, overcrowding, and privacy.

Restraints, isolation, punishment, and due process.

Safety issues for staff and confined youth.

Classification

Litigation on classification issues has addressed the separation of, or failure to separate, adult and juvenile inmates under a number of conditions, including segregation of violent or aggressive adult inmates, separation by age (e.g., the JJDPA sight and sound separation requirements), improper separation by gender or race, and separation of inmates with infectious diseases.

Separation of Individuals with Violent Propensities

Much of the case law on classification involves claims by young or vulnerable adult inmates who were physically or sexually assaulted by inmates known to be criminally sophisticated, dangerous, violent, or aggressive. Adult inmates have the right to be protected from the threat of violence and sexual assault. If officials know of an inmate's vulnerability, they have an obligation not to act with deliberate or reckless indifference to that vulnerability. Counties or supervisory officials, as well as institutional staff, may be liable if their policies or customs (e.g., on jail overcrowding or handling of particular categories of inmates) amount to deliberate indifference to inmates' security needs (see Smith v. Wade, Withers v. Levine, Woodhouse v. Virginia, Stokes v. Delcambre, Nelson v. Overberg, Redman v. County of San Diego, and Hale v. Tallapoosa County).The same principles apply to incarcerated youth who have the right to be free from unreasonable threats to their physical safety. Facilities must have a system for screening and separating aggressive juveniles from more passive ones and for determining appropriate levels of institutional classification (see Alexander S. v. Boyd). The failure to protect children from the sexual aggressiveness of other confined juveniles may result in liability (see Guidry v. Rapides Parish School Board).

Sight and Sound Separation/Removal of Children from Adult Jails/Deinstitutionalization of Status Offenders

JJDPA requires sight and sound separation of juveniles held under state juvenile court jurisdiction (and juveniles younger than age 18 under federal court jurisdiction) from adults in jails and lockups. The act does not apply to youth in adult facilities who are being prosecuted as adults in state court. In many adult facilities, impermissible contacts occur during admission to the facility, transportation to court, mealtime, and cleaning of living units. Ironically, jails that separate juveniles from adults may run afoul of other constitutional protections because juveniles are typically isolated for long periods, without access to institutional programs and services. This situation led Congress to amend the act in 1980. Thus, federal regulations permit delinquent children to be held in lockups for only a limited number of hours before and after court hearings.

Separation by Gender

Classification and separation of adult inmates may not be used to justify unequal program opportunities for one gender. Thus, educational, recreational, and vocational training programs for female inmates must be equivalent to those available to males (see Glover v. Johnson, Mitchell v. Untreiner, Cantarino v. Wilson, and Women Prisoners of the District of Columbia Department of Corrections v. District of Columbia).

Compliance with this requirement is often a problem in institutions that house more men than women and that do not adequately provide for females' participation in courses, work opportunities, and recreational programs. Similar situations arise in juvenile facilities housing both female and male youth.

Separation by Race

Classification, housing assignments, and job assignments that result in patterns of racial disparity may violate the 14th amendment (see Santiago v. Miles). Although facilities may take racial tensions into account when maintaining security, discipline, and order, they may not simply segregate the populations based on race (see Lee v. Washington, Jones v. Diamond, and White v. Morris).

Segregation of Inmates for Health Reasons

The Bureau of Justice Statistics reported that, at the end of 1994, approximately 2.4 percent of male inmates and 3.9 percent of female inmates in adult correctional facilities were HIV positive. There are limited statistical data on the numbers of confined youth who are HIV positive, but the incidence of high-risk, unprotected sexual activity and intravenous drug use suggests that the rate may be even higher for detained youth.

Not surprisingly, a growing interest in classification litigation involves the treatment of inmates who are HIV positive. Issues commonly litigated include segregation (specifically the right to equivalent programming, access to the outside world, and services if segregated), mandatory testing, confidentiality, and medical treatment for HIV/AIDS (see Harris v. Thigpen and Anderson v. Romero).

Although existing case law helps to describe the relevant issues relating to HIV/AIDS, the decisions from various jurisdictions are inconsistent (compare Camarillo v. McCarthy and Moore v. Mabus, which found that segregation of inmates who are HIV positive violates the constitution; and Zaczek v. Murray, which affirmed a lower court holding that segregation and mandatory testing are not required by the constitution, with Doe v. Coughlin, which found that segregation of inmates who are HIV positive violates constitutional privacy rights). Soler (1993) offers a discussion of recent case law. To some degree, these decisions reflect the evolving state of medical knowledge on the treatment of HIV/AIDS and corresponding changes in public health policy about confidentiality, testing, and practices for reducing the risk of transmission. Juvenile detention centers must have thoughtful policies on all aspects of confining persons who may be HIV positive.