University of Michigan Law School
Civil Rights Litigation Clearinghouse
Title "Anti-Incarcerative Remedies for Illegal Conditions of Confinement"
Date Summer 2016
Author Margo Schlanger
Author Institution University of Michigan
Author Role Faculty
External Link http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1068&context=umrsjlr
Abstract Well over half of American prisoners have symptoms of mental illness. And the most recent thorough analysis found that an astounding 15% of state prisoners and 24% of jail inmates "reported symptoms that met the criteria for a psychotic disorder." In addition, 4 to 10% prisoners have a serious intellectual disability.5 Prisoners with mental disabilities face grave difficulties in prison and jail; they can have trouble adapting to new requirements and understanding what is expected of them, getting along with others, and following institutional rules. In the absence of treatment and habilitation, they are more likely both to be victimized and to commit both minor and major misconduct. Prisoners with mental disabilities are not alone; there are other groups of prisoners who are similarly vulnerable-prisoners with serious chronic illnesses and physical disabilities, gay and transgender prisoners, juveniles in adult facilities, elderly prisoners, minor offenders, and so on. Each group faces higher-than-usual probabilities of victimization and harm behind bars.

This symposium essay argues that when such difficulties are
manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison.
Source U. Miami Race & Soc. Just. L. Rev.
Citation 6 U. Miami Race & Soc. Just. L. Rev. 1-30 (2016)


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