UCLA Criminal Justice Law Review

Hundreds of thousands of men, women, and children with disabilities are incarcerated. They face discrimination and endure conditions that can be life-threatening in prisons and jails that are ill equipped to house and treat them. This Article describes how litigation can be used to divert disabled prisoners from correctional systems via constitutional claims, lawsuits premised on the Americans with Disabilities Act, and innovative post-judgment remedial schemes.

In Sandin v. Conner, the Supreme Court explained for the first time that prisoners have a “liberty interest,” protected by the Due Process Clause, in avoiding segregation or otherwise restrictive conditions that “impose atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” But prison conditions vary significantly, making “the ordinary incidents of prison” difficult to define. As a result, the lower courts have struggled to identify the proper baseline, with some courts comparing challenged conditions to the most secure prisons within the jurisdiction, and others looking to the general prison population for comparison.

This Article explores the federal Bureau of Prisons’ “Communication Management Units” (CMUs) as a case study for applying Sandin’s liberty interest test. In 2016, the D.C. Circuit held in Aref v. Lynch that prisoners have a liberty interest in avoiding CMU placement, since it entails lengthy segregation from the general prison population and restrictions on communication with the outside world. This decision illuminates the previously unexplored role of duration and selectivity in Sandin’s “atypical and significant” analysis.

The Aref decision builds on a nascent consensus comparing challenged prison conditions to a typical stay in administrative segregation. While many courts agree that an unusually prolonged stay in administrative segregation gives rise to a liberty interest, this analysis has been hampered by a lack of empirical evidence regarding the typical length of such segregation. This Article makes a first attempt to correct this deficiency by presenting evidence offered in Aref and collected from other sources, which challenge the common assumption that segregation stays of twenty weeks or longer are “typical” and require no procedural protections.

Along with duration, the discrete role of “atypicality” in Sandin’s “significant and atypical” standard has received little attention. This Article uses CMUs, which single out a tiny portion of federal prisoners for unusual communications restrictions, to explain why selectivity matters in assessing whether procedural protections are constitutionally required.

Federal, state, and local governments have criminalized mental illness by failing to fund necessary community-based mental health services while incarcerating people for behaviors arising from unmet mental health needs. This Article aims to provide a practical blueprint for a litigation-based decriminalization strategy that can be used by both impact litigation lawyers working towards systemic reform and by public defenders and others challenging arrests, convictions, and incarceration of individual clients. The legal theory draws on existing but largely overlooked U.S. Supreme Court precedent supporting the proposition that criminalizing persons with mental illness contravenes the fundamental values of our criminal justice system. Incorporating this legal theory into both individual criminal defense work and impact litigation has the potential to stem the tide of criminalization of mental illness and catalyze policy change on behalf of one of the most vulnerable populations in our country. If successful, this litigation would dismantle the practice of using jails and prisons as proxy mental health care providers, and drive the creation of community-based services.

While the harms caused by solitary confinement and its overuse in American prisons have gained increased recognition over the last decade, most states and the federal government maintain that extensive solitary confinement is both necessary and appropriate for those people deemed “the worst of the worst.” As a result, many of those who have been so labeled have languished in solitary confinement for years or even decades. With limited exceptions, they are there with the blessing of the federal courts, which have generally held that even very lengthy periods of solitary confinement do not violate the Eighth Amendment’s Cruel and Unusual Punishments clause. In this Article, I examine a Norwegian court’s holding that Anders Behring Breivik’s long-term solitary confinement violates the European Convention on Human Rights to consider the lessons it holds for American Eighth Amendment conditions of confinement jurisprudence.

This is a brief article about open questions in prisoners’ rights law—that is, legal issues over which the federal courts disagree. These range from issues regarding prisoners’ exercise of religion, to interpretation of the Prison Litigation Reform Act, to the law protecting prisoners’ physical safety. I hope that this article will be helpful to prisoners’ rights lawyers who may consider seeking Supreme Court review of these unresolved questions.