The Shameful Wall of Exclusion : How Solitary Confinement for Inmates with Mental Illness Violates the Americans with Disabilities Act

Although solitary confinement is conventionally challenged under the “cruel and unusual” standard of the Eighth Amendment, this approach presents several intractable legal hurdles to successful claims. The Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., and its precursor, the Rehabilitation Act, provide innovative and non-constitutional causes of action for inmates with mental illness1 to challenge their solitary confinement. It is estimated that at least thirty percent of inmates in solitary confinement are mentally ill, a high percentage that is due to both the disproportionate number of mentally ill inmates who are isolated from the general prison population as well as the negative psychological impacts of this isolation. Under Title II, Section 12132 of the ADA, prisoners with mental illness cannot “be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” As recognized by U.S. Supreme Court precedent and interpreted by the Department of Justice, the ADA protects mentally ill inmates from discrimination on the basis of their disability. This Comment will argue that prison facilities discriminate under the ADA when they (1) isolate mentally ill inmates on the basis of their disability, (2) prolong inmates’ solitary confinement due to their preexisting or manifesting mental illness, or (3) fail to provide access to aids, benefits, or services to inmates with mental illness who need to be isolated for safety reasons