Jail and Prison Conditions

• Author: Henry Dlugacz
• Pages: 225-247

225

Chapter

It has become a cliché to say that this country’s jails and prisons have

become de facto mental institutions. Indeed, jail and prison may be the worst

place for our clients: persons with intellectual/developmental disabilities may

be preyed on by other inmates, and persons with mental illness may be pun-

ished for acting out the symptoms of their disabilities. Access to appropriate

medication may be problematic and treatment is sometimes minimal. The

criminal defense lawyer is often the only person appropriate and available to

advocate for an incarcerated client. In this chapter, Henry Dlugacz explains

how to navigate the insular environments of jail and prison from a client’s

admission to release.

• • •

This chapter focuses on practical issues that arise when a client with a

mental disability is detained in a jail awaiting disposition of a new case or

parole violation, or is serving a sentence, which generally takes place in

a prison. Specifically, this chapter will discuss ways in which an attorney

can advocate for his or her client short of pursuing litigation. Of course,

the success of a given advocacy strategy will vary depending on the needs

and receptiveness of the client, as well as the resources and the recep-

tiveness of the correctional system in which he or she is confined. In all

instances, however, success requires an individualized assessment of the

client’s needs and wishes matched against a detailed understanding of how

the jail or prison operates. All advocacy approaches must be tailored to

Jail and Prison Conditions

Henry Dlugacz

13

226 • Representing People with Mental Disabilities

ethically and effectively address these factors, understood in the context

of a client’s legal situation.

A good rule of thumb is that clients with mental disabilities require

the same advocacy as any other client, but may require further advocacy

specific to their mental disability.

TIP: A good rule of thumb to remember is that clients with mental

disabilities require the same advocacy as any other client, but may

require further advocacy specic to their mental disability.

The correctional environment can be harsh and destructive, particu-

larly for those with mental disabilities. Additional advocacy may be aimed

at securing needed treatment or support services such as medications, or it

may be connected to efforts to secure accommodations that simply allow

the person to have the same rights as people without a mental disability.

An example of the latter would be additional support during a disciplinary

proceeding. In other words, when advocating for an incarcerated client

with a mental disability, we should not allow the disability to define the

person for us.

In short, clients with mental disabilities, like all others, are individuals

with their unique needs and right to self-determination, and ought to be

treated as such. This principle should guide our advocacy for the client in

the same way that it would guide our other criminal defense efforts. The

ways in which these two areas can come into conflict will be discussed

later in the chapter.

REMINDER: Clients with mental disabilities, like all others, are

individuals with their own unique needs and right to self-determination,

and ought to always be treated as such.

Background Scope of the Problem

Although we should not allow a client’s mental disability to serve as the

sole defining characteristic of that client, we must ensure that we under-

stand, to the best of our abilities, the difficulties they often encounter.

These difficulties run the gamut of the entire criminal justice system, from

confinement to ultimate release into the community. Additionally, we must

acknowledge that people with mental disabilities are disproportionately

overrepresented within the criminal justice system. An understanding of

these issues underscores the likelihood that the criminal defense attorney