AuthorFlood, Ashley

A fourteen-year-old boy with brown hair sits locked in a jail cell at the Minnehaha County Juvenile Detention Center. His name is Nick Johnson. He has never committed a crime, yet this is not the first time he has been detained. Nick suffers from several mental health disorders and was only seeking medical attention for his sicknesses when hospital staff turned him away. Based upon South Dakota's current statutory provisions, those seeking medical attention during mental health crises might unexpectedly find themselves in jail. South Dakota is one of five states that explicitly allows the use of jails or juvenile detention centers to detain those on an involuntary mental illness hold. This leads to the detainment of citizens like Nick in cells, allowing citizens to be treated like prisoners when there are no readily available treatment facilities. Yet, no one has challenged the statutes that allow for innocent people suffering from a mental illness to be detained in jail. Accordingly, this comment will analyze South Dakota's current statutory scheme under the leading case, Lynch v. Baxley, and declare it unconstitutional.


    Nick Johnson, a fourteen-year-old boy, has on more than one occasion been detained at the Minnehaha County Juvenile Detention Center in Sioux Falls, South Dakota, without ever committing a crime. (1) Nick suffers from autism, anxiety, various moods disorder, and attention deficit hyperactive disorder. (2) Nick's mother, Beverly, desperately seeks advice from medical professionals at various hospitals who have all provided medical care to Nick. (3) Yet, she is often left with no answers and can only find the help she needs if Nick acts out. (4) So when Nick's disorders take control of his body and he suffers from an outburst, Beverly might find herself taking Nick to Avera Behavioral Health in Sioux Falls. (5) When Nick arrives at the hospital, Beverly fears that hospital staff might turn Nick away, claiming his disorders have made him too aggressive or violent to receive treatment. (6) When Nick is turned away, the hospital sends him to the Minnehaha County Juvenile Detention Center to be detained on an involuntary mental illness hold. (7)

    Even after Beverly's constant attempts to receive the appropriate care and treatment for Nick, she only finds herself and her son in a revolving door between hospitals, the juvenile detention center, and the state psychiatric hospital. (8) Often times, doctors do not even send Nick home with a transition plan. (9) Unfortunately, it may be only a matter of time before Nick suffers from another violent outburst and his mother is forced to sec her son locked behind bars again. (10) This cycle is not new for Nick or his mother. (11) And when Beverly seeks treatment for Nick, she constantly worries that the healthcare professionals claiming to help him with his medical conditions might actually be contributing to his trauma. (12)

    For children like Nick on an involuntary mental illness hold at the Minnehaha County Juvenile Detention Center, it is standard practice for the staff to detain the minors in a locked room with only a mattress. (13) Sometimes, the children may even find themselves placed in a suicide vest. (14) Once patients are sent to sit in a jail cell, they can wait for up to twenty-four hours to receive a medical evaluation. (15) After a medical evaluation, the chair of the county mental illness board may initiate involuntary commitment proceedings if certain criteria are met and require the minor to continue to be detained. (16)

    Healthcare professionals responsible for the medical care of Nick and other children like him view the mental health holds in the detention center as the only safe alternative for children prone to violent or aggressive outbursts. (17) Regardless of the good intentions behind the decision, the patients are now dealing with the unintended consequences of being detained. (18) Nick Johnson describes how he struggles with being in juvenile detention: "It feels like I'm in prison. Why would a kid have to go through that?" (19)

    Sadly, Nick Johnson is not the only person enduring these traumatic experiences when seeking medical attention during a mental health crisis. (20) Halfway across the state in Pierre, South Dakota, the practice of turning mental health patients away from the hospitals is common. (21) Rather than admitting the individuals at facilities with professionals trained to treat and assist mental health patients, medical staff commonly turn patients away, sending them to jail while they await an open hospital bed or an opportunity for psychiatric evaluation. (22) In early 2016, "[o]ne 16-year-old-girl came to the emergency room after overdosing on Motrin and was escorted to jail less than an hour after her arrival, without a psychiatric evaluation. Hospital staff waited until the morning to notify her parents." (23) On another occasion, the same hospital sent a twelve-year-old girl to spend the night in a jail cell after she sought emergency medical attention for attempting to commit suicide by hanging. (24) For mental health patients voluntarily seeking professional help at local emergency rooms, the last place they intend to end up is behind bars. (25) Yet, if a hospital bed is not currently available or transportation to another hospital is not an option, people of all ages may find themselves locked in a cell while they await treatment. (26)

    South Dakota is one of five states with a statutory option allowing innocent people experiencing a mental health crises to be detained in jail. (27) South Dakota Codified Laws explicitly authorize jails or juvenile detention centers to be used for pre-hearing custody of individuals on a mental illness hold. (28) While the statutory language requires all other appropriate regional facility options to be explored and exhausted before a jail or juvenile detention center is used, (29) the reality is that jails are used more often than not due to a lack of available resources. (30) In other words, the current legislation allows children and adults seeking medical attention for mental health emergencies to be treated like prisoners instead of patients. (31)

    While four other states still retain a statutory option to use jail capacity for mental health patients on an involuntary mental illness hold, the practice has become outdated, and advocates in the health and legal communities strongly urge against it. (32) The Treatment Advocacy Center is a national nonprofit organization that analyzes state mental health policies across the nation, reports on the challenges of obtaining mental health treatment, and advocates for the mentally ill. (33) The Center has continually spoken out against the use of jails for detaining people on a mental illness hold. (34) Lisa Dailey, the Center's legislative and policy counsel, argues that the practice of placing mentally ill persons in jail is "the worst possible thing you could do." (35) According to Dailey, "[i]f you look at it from a strictly medical perspective, being in a jail setting is almost guaranteed to make somebody's mental health crisis worse, not better[.]" (36) Similarly, the Center's executive director argues that this "is a terrible solution... for what is, at the end of the day, a medical crisis." (37) Yet, the practice continues and society is not only criminalizing mental health and traumatizing those who seek treatment, but it is also a potential violation of an individual's constitutional rights. (38) The legal director at the American Civil Liberties Union of South Dakota agrees and argues that the state's practice is a potential violation of a person's Fourteenth Amendment constitutional rights. (39)

    This comment will critically analyze the constitutionality of South Dakota's statutory scheme tolerating the use of jails and juvenile detention centers as an appropriate facility for the detainment of individuals on mental illness holds. (40) Part II will provide a historical framework leading up to the issues surrounding mental health treatment today while examining South Dakota's current statutory language. (41) Part II will also outline the constitutional framework in Lynch v. Baxley, which led the Eleventh Circuit to declare the temporary use of jails to detain individuals awaiting involuntary commitment proceedings unconstitutional. (42) Although Lynch v. Baxley is not binding on the state of South Dakota, the legal analysis in Part III will imply that South Dakota's current statutory scheme is unconstitutional. (43) Finally, this comment will make policy recommendations moving forward after South Dakota has repealed the current law. (44)


    The criminalization of mental illness in the United States is not a new trend, but rather it has continued for centuries. (45) To fully understand the depth of the problem today, one must first recognize the treatment of mentally ill patients throughout this nation's history. (46)


      Early in this nation's history, prisons and jails were frequently used to house mentally ill individuals who were too violent or aggressive to live safely in their own communities. (47) Even before the 1700s, colonial America had legislation that authorized those with mental illnesses to be imprisoned. (48) However, the legislation did not pass without protest; even at that time, many people argued that treating mentally ill human beings like prisoners was uncivilized and inhumane. (49) Beginning in 1752, protestors and advocates initiated a reform movement to end the incarceration of the mentally ill by providing them with necessary treatment in state psychiatric hospitals, also known as "mental institutions." (50) It was the efforts of the first protestors that lead to the opening of the nation's first psychiatric ward and later to the nation's first psychiatric hospital in 1773. (51) Early protests...

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