How the ADA Regulates and Restricts Solitary Confinement for People with Mental Disabilities

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that “[f]or these inmates, placing them in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe.” In Pelican Bay and elsewhere, constitutional litigation has led to orders excluding prisoners with serious mental illness from solitary confinement. Nevertheless, people with mental disabilities remain vastly overrepresented in prison and jail restrictive housing units because they are frequently difficult to manage in the general prison population and because they often decompensate once in solitary and commit further disciplinary infractions. One important, but not yet fully utilized tool to address this problem is the Americans with Disabilities Act (ADA). The ADA enacts a textual and purposive commitment to individuation and modification when governmental approaches fail to allow people with disabilities equal access to programs, services, and activities. Properly understood, the ADA requires prisons and jails to do much more than most are currently doing to keep prisoners with disabilities out of solitary confinement. Moreover, designed to help achieve equality rather than prevent overwhelming harm, the ADA bans conditions milder than those reachable by an Eighth Amendment deliberate indifference lawsuit, when those conditions are discriminatory. In this Issue Brief, I argue that solitary confinement of prisoners with mental illness or intellectual disabilities frequently constitutes disability discrimination, challengeable under Title II of the ADA and the Rehabilitation Act —federal statutes that proscribe discrimination on the basis of disability in state and local government services and federally conducted or supported services, respectively. After briefly setting out the trends in solitary confinement litigation and the statutory framework supporting ADA and Rehabilitation Act challenges, I describe three ways in which the ADA and the Rehabilitation Act restrict and regulate prisons’ and jails’ use of solitary confinement for prisoners with disabilities. I also evaluate three potential defenses, arguing that even when factually supported and accepted, each of the three requires individuated planning and therapeutic and disabilitysupportive practices that would curb prison and jail overuse of solitary confinement for prisoners with disabilities