Time For A Change

Murky Thoughts posted a comment recently about an inmate wanting a sex change operation. I figured that was a natural lead-in to a short discussion about inmates' rights to treatment. Correctional folks already know this, but for those of you who are totally new to the field or who don't work in it this may be useful.

The constitutional basis for the right to treatment rests in the 8th Amendment to the Bill of Rights. This is the amendment which prohibits cruel and unusual punishment. When deciding whether or not something is "cruel and unusual" the courts look at the following factors:

• Does the punishment involve the wanton infliction of pain or suffering?
  
• Is it arbitrarily applied or excessive to the crime?
  
• Is it shocking to the conscience?
  
• Is it inconsistent with 'evolving standards of decency'?
  

Failure to provide medical care to a prisoner could lead to an excessive punishment if it leads to an inmate's death, a result clearly not intended by the sentencing judge in most cases. Untreated medical conditions can also obviously cause pain and suffering. The reference to 'evolving standards of decency' is a recognition that society changes over time; punishments that were used in Colonial times would shock people if applied today.

The landmark case which established medical treatment rights was the 1976 case Estelle v. Gamble. (Yes, the idea that inmates have any rights at all is barely 30 years old!) In this case the US Supreme Court declared that "deliberate indifference" to an inmate's serious medical need was cruel and unusual punishment. (In fact, if you sneak up behind a correctional person today and whisper 'deliberate indifference' you might get a startle response.) Later cases defined some examples of deliberate indifference: an officer who walked over the body of an unconscious inmate lying on the floor of the tier, or an inmate who was not taken for a medical evaluation in spite of obvious bone protruding from his broken leg.

The lay public tends to interpret the issue of treatment rights as a mandate to provide a customized HMO for each prisoner. Not so. The point of Gamble was to forbid institutions from denying access to care. If you lock someone up in a facility with no doctor, that inmate is barred from seeking treatment by the fact that he is in state custody. Here's a free society analogy: imagine if the governor called out the National Guard and ordered them to put up a perimeter around every hospital in the state, so that no one could enter. That would be an equivalent situation.

The right to treatment was expanded later in Bowring v. Godwin (551 F.2d 44, sorry can't find text online right now) in 1977 to include treatment for mental disorders. Case law later gave these examples of serious mental health problems: hallucinations or delusions, bizarre or disorganized behavior, and suicide attempts. Depression per se was not consistently considered a "serious" mental health problem by the courts.

Most correctional litigation since these cases have been class action suits against entire systems, filed by advocacy organizations or the Department of Justice to address infrastructure deficits. Individual inmates may file their own 8th Amendment lawsuits (also called '1983' suits, after the statute which allows institutionalized persons to sue state agents) in addition to state tort (injury) claims.

Getting back to the issue of the sex change operation, there has been established case law in various jurisdictions stating that gender dysphoria or transexualism, from a legal standpoint, is not a serious mental disorder. Thus, a sex change operation would not be constitutionally mandated. The thing to know about situations like this though is that a decision in one jurisdiction is not legally binding upon others. This case would have no precedential value for the country as a whole unless it was addressed & decided by the U.S. Supreme Court. Given the current membership of the Supremes, I wouldn't start buying any high heels just yet.

Then again, high heels would just be more cruel and unusual punishment.

(OK, so it's not a short discussion topic.)

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I know we have a number of global readers of this blog. I would be interested in others' (ie non-American) experiences, if any, regarding right-to-treatment litigation on behalf of the mentally ill. I know from casual conversation with some of my foreign colleagues that America is a wierd beast regarding the amount of correctional litigation we do.