Glidden, Brittany and Laura L. Rovner. “Requiring the State to Justify Supermax Confinement for Mentally III Prisoners: A Disability Discrimination Approach.” 90 Denver University Law Review 55 (2013); U Denver Legal Studies Research Paper No. 12-33.
“The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or “supermax” confinement. …[S]ome prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a well-defined doctrinal framework for courts to use in considering a prison’s proffered “legitimate penological interest” in a given condition of confinement, including prolonged supermax confinement. …[W]e explore the idea that the federal disability discrimination statutes may offer a more tailored methodology for challenging solitary confinement of mentally ill prisoners. Unlike an Eighth Amendment claim, in which a prisoner typically challenges the aggregate of supermax conditions, a disability discrimination approach forces courts to consider the individual conditions that comprise supermax confinement, a process that requires an analysis of whether discrimination is occurring vis a vis each component deprivation.”
Keywords: litigation, human rights, disability discrimination, mental health, super-max