Chapter 13 Law and Incarcerated Offenders with Special Needs

• Jurisdiction: North Carolina

Chapter 13 Law and Incarcerated Offenders with Special Needs

Effective punishment, argues Cesare Beccaria, is to be swift, certain, and proportionate to the crime if it is to prevent individuals from future offending. Yet the principle of proportionality must also address the characteristics of the offender and not just those of the crime. Today, we know and understand that offenders vary in their individual characteristics, which determine their needs and risk in a correctional setting. Putting public sentiment aside, individuals who are convicted of a crime and sentenced to confinement become the responsibility of the government (federal, state or local) that executes and delivers the punishment. As such, incarceration as a punishment meted out by the government is meant to incapacitate individuals convicted of a crime, but it can also prevent them from seeking adequate care, medical or other, for their specific needs. If there is denial of care and failure to address the needs of incarcerated individuals, this may amount to cruel and unusual punishment. Denial of appropriate care may also create public health concerns, particularly when convicted and sentenced offenders are at high risk of contracting infectious disease such as tuberculosis, HIV/AIDS, or hepatitis.

Considering the fact that more than two-thirds of offenders sentenced to jails and prisons have histories of substance abuse (Chaiken, 1989; Chavarria, 1992; Gideon, 2010; Inciardi, 1995; Inciardi et al., 1997; Welsh, 2011), reentry and reintegration practices become even more of a challenge. Nevertheless, this is not the sole problem that current correctional institutions and practitioners face. A worrisome increase is observed in convicted inmates under the age of 18 (Seiter, 2008; Sickmund, 2003; Snyder & Sickmund, 2006). Many scholars have noted, with alarm, that the juvenile offender population is growing in correctional facilities, especially in adult correctional facilities (Bilchik, 1998; Griffin, Torbet, & Szymanski, 1998; Kuanliang, Sorensen, & Cunningham, 2008). Another noticeable growing population in correctional facilities is convicted female offenders (Pollock, 1998, 2001, 2004; Morash & Schram, 2002). In fact, Stohr, Walsh, & Hemmens (2009) argue that "the number of incarcerated and supervised women under the correctional umbrella has never been larger" (p. 570). Female offenders pose new challenges to current classification practices (see Van Voorhis & Presser, 2001). For example, Baunach (1992), Henriques (1996), and Rocheleau (1987) present the challenges posed by incarcerated mothers, and the social consequences of their incarceration for broader social issues (Dodge & Pogrebin, 2001; Pollock, 2004).

An equally important growing challenge in recent years is that of senior inmates (Aday, 1994, 2003; Aday & Webster, 1979; Moritsugu, 1990; Kerbs & Jolley, 2009). Scmalleger and Ortiz-Smykla (2009) have observed an 85% increase in elderly inmates in the nation's correctional facilities since 1995. Many of these inmates require expensive medical treatment. Drummond (1999) questions whether it is necessary for such offenders to remain in custody after they become old and frail, and indeed according to Clear, Cole, and Reisig (2009), newly released inmates are now not only older and have served longer periods of imprisonment, but also have higher levels of substance abuse and other medical issues that require community monitoring.

Hammett, Roberts, and Kennedy (2001) examine the health-related issues in prisoner reentry and demonstrated the need for adequate health care for those inmates with infectious diseases that can threaten the community. Specifically, Hammett, Kennedy, and Kuck (2007) discuss the potential harms of infectious diseases such as HIV/AIDS: more than 23,000 infected inmates were documented at year-end 2004, with an estimated 10% more unconfirmed. Other diseases the researchers identify as significant are tuberculosis as well as sexually transmitted diseases, such as syphilis, gonorrhea, chlamydia, genital herpes, and hepatitis. A study conducted on Rikers Island found that the rates of these diseases increased during 2000, particularly among females and inmates in juvenile detention centers (Brown, 2003). Corzine-McMullan (2011) argues that such health challenges need to be addressed, as do mental health issues of incarcerated inmates, as these inmates pose new challenges for correctional officials as well as for those interested in reintegration.

In addition to inmates with health issues, there are other significant segments of the prison population that are overlooked by current research and available textbooks. For example, Knickerbocker (2006) estimates that based on the last national census of 2000, more than 8.7 immigrants entered the United States illegally. The United States Border Patrol union reports a much higher number, between 12 million and 15 million. Such numbers are sure to be reflected in our prison system, resulting in a new segment of inmates that require special attention. Miller (2002) argues that the massive numbers of undocumented immigrants and refugees of color have prompted an increasingly punitive response from the U.S. government, including punitive policies that have traditionally been reserved for extreme circumstances in which any notion of justice has been abandoned. Such policies are destined to receive the Supreme Court's attention as more cases and petitions will surface, especially fueled by detentions inspired by the post 9/11 fear of immigrants and refugees from Middle Eastern countries.

Based on the previous examples, we can understand that special-needs offenders are those offenders, both men and women, with unique circumstances and requirements within the corrections system. Anderson (2008) describes these populations as "those incarcerated ... with unusual or unique requirements stemming from their physical or mental age or other disabilities" (p. 361).

A more punitive approach in recent decades has inspired mandatory minimum sentences, "three-strikes" laws, truth in sentencing, and the abolishment of parole in the federal system and in many states. This in turn has led to a sharp increase in the prison and jail population, which has itself resulted in new challenges for prison officials and administrators. The prison population has changed while increasing the visibility of certain special-needs populations, mainly the mentally ill, chronically ill, and the elderly. As a result, the courts have been called to examine and discuss practices that pertain to the handling of such populations. In most cases involving special-needs offenders, the courts have made their decisions based on whether prison officials and administrators have acted with deliberate indifference, thus violating the Eighth Amendment. While many of the cases focusing on the Eighth Amendment have been discussed in previous chapters, the current chapter focuses more on the policy aspects that relate to such decisions as they pertain to special-needs incarcerated individuals.

The courts have generally made the argument that failing to address the needs of incarcerated offenders does not serve any penological purpose, and that suffering from such neglect is inconsistent with evolving standards of decency, as manifested in current legislation aimed to guarantee basic health standards for incarcerated individuals. Specifically, these standards codify the common law principle according to which the public is required to care for prisoners who, due to their status of in-capacitation, cannot care for themselves. Thus, failure to serve the special needs of certain prisoners who are in need of medical, mental, or any other form of care and consideration may be considered deliberate indifference on the part of the prison staff. This judgment is a direct product of early cases such as Trop v. Dulles, Estelle v. Gamble, and Gregg v. Georgia, in which the court held that punishments that are deliberately causing suffering and pain are violation of the Eighth Amendment.

At times, the American correctional system has housed more than 2.4 million people; in recent years some decline in the number of incarcerated individuals has been observed, with the last data available from 2015 indicating that about 2.2 million people are incarcerated in American correctional institutions. Most of these people, prior to their confinement, led an unhealthy risky lifestyle. Consequently, the prevalence of somatic and mental health issues among these individuals is much higher than those found in the general population (Gideon, 2013), and as such is the focus of many lawsuits. While we cannot address all issues concerning incarcerated individuals and their special needs, the current chapter focuses on the following special needs populations and corresponding cases that have had an effect on correctional management:

1. Mentally ill prisoners;
2. Chronically ill prisoners in particular those with HIV/AIDS;
3. Women with special needs;
4. LGBTQ; and
5. The elderly.

Mentally Ill Prisoners

Historically, many mentally ill people were confined to prisons and jails simply because no other social reaction was available to their behavior and mental condition. Interestingly, correctional observers and reforms acknowledged that placing mentally ill individuals in the care of jails and prisons was not an adequate solution, and thus special hospitals were built and designed to hold and treat mentally ill individuals. However, such institutions were subjected to harsh public criticism that spearheaded the deinstitutionalization movement calling for the release of mentally ill individuals to the community based on the argument that mentally ill holding facilities and hospitals are not humane. With the deinstitutionalization movement of the 1950s and 1960s, facilities for the mentally ill reduced the number of beds available for the hos-pitalization of...