29-c-3 Challenging Transfers for Treatment

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

29-C-3. Challenging Transfers for Treatment

(a) What Is a Treatment Transfer?

Many treatments are available for prisoners and sometimes these treatments must be administered at a site outside of the prison, requiring that the prisoner be transferred from his present location in order to be treated. A prisoner may submit to the transfer or voluntarily agree to various forms of treatment including medication, counseling, therapy, or commitment to a psychiatric center. Or, in some cases, the prisoner may be treated involuntarily. This Section explains when the prison can and cannot transfer you for treatment if you do not consent to the transfer.

Prisoners who suffer from a mental illness may be treated at one of several possible locations. For more details on these facilities, please see Part A(2) above. Please note that if you are transferred to a facility that has a significantly different quality than the normal and typical conditions of prison confinement, this might violate your constitutional rights.

(b) Procedural Safeguards Under the Due Process Clause

Lawful imprisonment may take away some of your rights, but you still have a right to basic protections.¹⁵⁵ In certain circumstances, basic procedures must be in place to protect you from an unfair action of the State. For more information on procedural due process, see Chapter 18 of the JLM, "Your Rights at Prison Disciplinary Hearings," and Chapter 23, "Your Right to Adequate Medical Care." A hearing and written notice are two common examples of procedures that might be required, often before a prisoner can be involuntarily committed to a psychiatric hospital.¹⁵⁶

Prison to hospital transfers might mean a significant change in living conditions and type of confinement. A determination of mental illness by a doctor and subsequent transfer does not automatically mean that a prisoner has a mental illness for the purposes of other laws in the state.¹⁵⁷ Still, there is a chance that the prisoner might suffer harm to his reputation. When the risk of physical and/or reputational harm is high, your constitutional right to due process might be triggered.

In addition, if the State tries to avoid the requirements imposed by its own laws, then a law giving you the right to procedures before transfer will also trigger due process protections. Where state regulations require a finding of mental illness before transfer, the State creates an "objective expectation" in the prisoner that there will be a procedure to determine whether or not a mental illness exists.¹⁵⁸ Without such procedures, the prisoner could suffer a due process violation. In short, you may have a right to due process protections (such as the right to a hearing and the right to receive notice of the hearing) when the State's action creates a high level of harm to you (physical or reputational), or when a state law gives you the expectation that some particular act or process must be followed, and then the State fails to follow this act or process.

The due process protection to which you are entitled is the same, no matter how your liberty interest is implicated.¹⁵⁹

In Vitek v. Jones, the Supreme Court found that a Nebraska statute requiring a finding of mental illness before transfer to an outside mental facility created an expectation among prisoners that transfer would occur only if they were found to have mental illness.¹⁶⁰

Under Vitek, the State must adequately protect your liberty interests (if it has created them through state law) in the transfer process by providing:

(1) Written notice that the prison is considering your transfer;

(2) A hearing;

(3) An opportunity to present witness testimony and cross-examine state witnesses at the hearing;

(4) An independent decision maker;

(5) A written statement by the decision maker stating the reasons and evidence relied on for your transfer;

(6) Legal assistance from the State if you cannot afford your own; and

(7) Effective and timely notice of rights (1) through (6).¹⁶¹

All of these protections are triggered if your liberty interests are implicated and there is a chance that you will suffer a serious loss. Failure to provide them violates your rights.

(i) Are Your Liberty Interests Implicated?

Courts determine whether the State can deprive you of a liberty interest by balancing the interests of the State (for example, prison safety) with your liberty interest in freedom from random deprivations (for example, the right to agree or disagree to medication). If the interest of the prisoner is found to be stronger than the interest of the State, then the individual is entitled to due...