Lonesome agony: Heard v. The District of Columbia and the struggle against disability discrimination in the D.C. penal system.

• Author: Merjian, Armen H.

Prisons may exist on the margins of[our] society, but no act of will can sever them from the body politic. When prisoners emerge from the shadows to press a constitutional claim, they invoke no alien set of principles drawn from a distant culture. Rather, they speak the language of the charter upon which all of us rely to hold official power accountable. They ask us to acknowledge that power exercised in the shadows must be restrained at least as diligently as power that acts in the sunlight. (1)

JUSTICE WILLIAM BRENNAN

[No one] shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (2)

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, ARTICLE 7

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. (3)

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, ARTICLE 10

1. INTRODUCTION

   Prisons and jails are scary, inhumane places for anyone. For the deaf, they are far worse. Unless essential accommodations are provided, deaf prisoners serve their entire sentences in helpless solitude. They are unable to communicate with other prisoners and with officials, unable to participate in educational and recreational programs, unable even to pass the time by watching television. "We isolate people in prison as a punishment. Deafness in prison is like solitary confinement[,]" a member of England's Royal National Institute for Deaf People told the House of Commons in 1999. (4)

   Indeed, in a 1995 decision, New York federal judge William Sweet observed that the failure to provide qualified interpreters and other accommodations in New York prisons "has truly sentenced [these deaf] class members to a 'prison within a prison.'" (5) In doing so, Judge Sweet ruled that the prison system violated not only the Americans with Disabilities Act ("ADA"), (6) but also the Eighth Amendment's proscription against cruel and unusual punishment. (7) "[S]ince many forms of medical and mental health treatments depend on communication between patient and medical personnel," Judge Sweet explained, "it is established that a systemic pattern of inadequacy of treatment exists which is causing class members unwarranted suffering." (8)

   Deafness causes prisoners to suffer in myriad additional ways. In a setting in which any form of "weakness" or disability is preyed upon, the deaf are frequently subjected to ridicule, ostracism, and violence. (9) Deaf inmates have even been punished for violating prison noise regulations in calling out to guards at levels they cannot gauge. (10)

   Guards do not see their deafness, but do see their failure to respond to commands. Fellow inmates do not understand their incomprehension, but notice their seeming lack of intelligence or their inherent vulnerability to assault or abuse. Deaf inmates cannot hear announcements, nor the footsteps of an impending attack. They are often poorly educated, if at all, and may lack sufficient skills in American Sign Language. Because they typically cannot manage their own interactions with prison staff, they are dependent on fellow inmates or guards to interpret for them in situations ranging from casual encounters to disciplinary hearings. There is little way of ensuring that the translation is neither errant nor deliberately sabotaged. (11)

   Mentally disabled prisoners face similar miseries. They have a harder time complying with the rules, and prison and jail officials frequently lack the expertise to assess and treat them. As a result, mentally disabled prisoners find themselves disproportionately penalized for violations of prison rules and commands. (12) And, like deaf prisoners, they find themselves targeted for abuse by fellow inmates who sense their vulnerability. Existing medical conditions are only exacerbated under these conditions in a cruel cycle of abuse and decompensation. (13)

   For many of the mentally ill, incarceration may lead to victimization by rape and physical assault, solitary confinement for violation of rules they are incapable of fathoming, neglect of medical problems, or even suicide.... To be in jail is a miserable, horrible experience. It's full of shame, it's full of defeat, it's full of hopelessness, it's scary. It would have to be 10 times more difficult for mentally ill offenders than for those without phobias, depression, schizophrenia, or other disorders. (14) For a prisoner who is both deaf and mentally disabled, confinement is a circle of hell worthy of Dante's imagination. Enter Joseph Heard. Mr. Heard is deaf, he cannot speak, and he lives with multiple mental disabilities. In November of 1998, at the age of 39, Mr. Heard was arrested for the dubious crime of entering a building on the campus of George Washington University. (15) A District of Columbia Superior Court judge sent Mr. Heard to St. Elizabeths Hospital for psychological evaluation, and ultimately ordered him released from the hospital four months later. (16) But Mr. Heard was not released. Instead, Mr. Heard was erroneously sent to the D.C. Jail, where he remained wrongfully detained for nearly two years of his life. During this period of unlawful detention, Mr. Heard was never once provided with an interpreter, an attorney, or a court date. But that is only part of the story.

2. BACKGROUND

   On December 1, 1958, Joseph Heard was born deaf and unable to speak as a result of rubella ("German Measles"). He would later be diagnosed with several other disabilities, including paranoid schizophrenia and mild mental retardation, undoubtedly caused by the rubella as well. Raised by his mother, Mr. Heard came to sign language relatively late in his childhood, attending schools for the deaf in both Pennsylvania and Florida. (17) This delay in sign education, together with Mr. Heard's mental disabilities, ensured that communication would be particularly difficult for the rest of his life.

   After finishing school at the age of 20, Mr. Heard moved to Orlando, Florida, to be near his mother. (18) Mr. Heard's mother did her best to foster independence and self-sufficiency, setting her son up in his own apartment, and teaching him to cook and to take care of himself as much as possible. She also secured work for him, either as a custodian or as a dishwasher, an arrangement that seemed to work for about eleven years. (19) Then, tragically, she was shot to death. Devastated by this loss, Mr. Heard decided to leave Florida, to satisfy his urge for travel, so he set off northward, to New York, New Jersey, and Washington, D.C. He ultimately settled in Washington, D.C., living on a small Social Security (disability) check. Without his mom to help manage his money, however, Mr. Heard found himself homeless for long periods of time. (20)

   The "Crime"

   In mid-November, 1998, Mr. Heard walked into a building on the campus of George Washington University in Washington, D.C. in the middle of the day. (21) Apparently, he had previously been barred from the premises. (22) The question arises, however, whether any warning or "bar" could have been communicated effectively to Mr. Heard. Mr. Heard experiences great difficulties in communicating, even with individuals fluent in some forms of sign language. Indeed, "the mere act of providing a sign language interpreter is no guarantee that a linguistically diverse defendant's language has been successfully accommodated...." (23) Was this ban communicated through a competent interpreter? How often is a deaf, mentally disabled, indigent, and homeless African-American man afforded the courtesies of a specialized interpreter when being warned off of private property? Even if he had been, it is unlikely that Mr. Heard would have understood the ramifications of his actions; subsequent evaluations revealed that Mr. Heard had little or no concept of legal terms and principles. (24)

   In any event, the police soon arrived, arrested Mr. Heard, and took him into custody. A pretrial sentencing report revealed that Mr. Heard had "NO PENDING CASES," and he was released on his own recognizance. (25) Three-and-a-half months later, the D.C. Superior Court ordered Mr. Heard to undergo a competency screening at the John Howard Pavilion of St. Elizabeths Hospital, "on a walk-in basis," i.e., on his own recognizance. (26) A screening was conducted, and further tests were ordered, followed by a court date on June 7, 1999. (27) After further testing, Mr. Heard was found "incompetent because mental illness and cognitive limitations substantially impair his capacity to have a factual and rational understanding of the proceedings and to properly assist counsel." (28)

   At the June 7, 1999, court date, Mr. Heard was ordered "committed to St. Elizabeths Hospital for appropriate treatment ... until he is competent to stand trial." (29) In other words, he was now to be detained in the "criminal" facility at St. Elizabeths Hospital. A "60-day examination" ensued, resulting in a September 9, 1999, report finding Mr. Heard "unlikely [to] regain competency in the foreseeable future." (30) Following this report, the Superior Court granted government prosecutors one month to decide whether to seek civil commitment of Mr. Heard. On October 13, 1999, the government informed the court that it would not seek civil commitment. That same day, Judge John Campbell of the D.C. Superior Court dismissed the case against Mr. Heard and ordered his immediate release from custody at St. Elizabeths Hospital. (31) After four months of commitment, he was a free man.

   Rather than release Mr. Heard, however, a D.C. Jail records officer ordered him sent to the D.C. Jail to determine whether he had any outstanding warrants. (32) The D.C. Superior Court computer system and the D.C. police's computer system would have shown no pending warrants, just as the pre-trial sentencing report showed. But no one consulted these computers. Instead, Mr. Heard was sent to the D.C. Jail, where the notoriously flawed computer...