by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan Law School
Consensus for criminal justice and prison conditions reform has been building, and one key urgent area of reform is to reduce our current overuse of solitary confinement. In my new ACS Issue Brief, “How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities,” I argue that the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act provide tools to challenge solitary confinement of individuals with mental disabilities.
American incarceration rates ballooned in the 1980s and 1990s—and so too did our prisons’ and jails’ use of solitary confinement and other forms of restrictive housing. Right now, in federal, state, and local jails and prisons, an estimated 90,000 to 115,000 prisoners are housed in solitary confinement. They are locked into their cells, about the size of a parking space, for 22 or more hours a day. Their access to programming, reading materials, visitation, exercise, and other “privileges” is extremely limited.
Change may finally be coming. In 2015, Justice Kennedy noted in a concurring opinion that “[t]here are indications of a new and growing awareness in the broader public of the subject of corrections and of solitary confinement in particular.” Research confirms that “Years on end of near-total isolation exact a terrible price.” Shortly after that, President Obama decried the overuse of solitary confinement; he has since required significant federal reform, including many measures to help keep prisoners with mental disabilities out of solitary.
Nonetheless, people with mental disabilities are vastly overrepresented in solitary. Sometimes this is because of pure discrimination; other times, because failure to appropriately treat or manage prisoners with mental disabilities leads to their prison misconduct. Once in solitary confinement, isolation frequently exacerbates mental disability, causing a feedback loop of difficult behavior and lengthening terms of isolation.