Michael Perlin (New York Law School), Talia Roitberg Harmon (Niagara University), Maren Geiger (Niagara University, Department of Criminal Justice), & Chelsea Henning (Niagara University) have posted "Tolling for the Outcast": A Therapeutic Jurisprudence Consideration of the Relationship Between the Americans with Disabilities Act, Death Row Conditions, and Capital Punishment on SSRN. Here is the abstract:
The press has regularly reported on the level of abysmal conditions on death rows in those states that have retained capital punishment. Death-row prisoners are often incarcerated in solitary confinement, and are subject to much more deprivation and harsher conditions than other prisoners. As a result, many experience declining mental health, and it has become clear that persons with mental illness are disproportionately put to death. Some litigants have turned to the Americans with Disabilities Act (ADA) as a potential source of relief; the Supreme Court’s decision in Pennsylvania Department of Corrections v. Yeskey underscored that the act’s language “unmistakably includes State prisons and prisoners in its coverage.
But very few of the hundreds of cases about death row conditions involve allegations that the ADA has been violated by the conditions in question: The results in these cases, to be charitable, have been a mixed bag. Of the 23 cases in which the ADA was raised at any post-conviction juncture by death row defendants, seven have been executed, four have died while on death row, three have had their sentence commuted, one was resentenced, and seven remain on death row, having not been executed as of the time this paper was written Besides cases involving conditions of confinement on death rows (and issues related to jury selection in such cases), there have also been three ADA cases involving claims that prisoners’ rights were violated under that law for failure of the state to provide reasonable accommodations to elect an execution by nitrogen hypoxia instead of lethal injection.
Until now, there has been virtually no scholarship that has focused specifically on the issue we consider here: what impact, if any, has the ADA had on these conditions, and to what extent have cases broadly interpreting the ADA had any value to the civil plaintiffs alleging harm under that Act? We tackle these questions in this paper, and find that in the 23 cases in which Courts recognized valid ADA claims, only seven defendants received any success in the courts. As noted above, there is a subset of these cases that focuses not on actual conditions in the prison in which the defendants are housed, but on the means of execution.
In our paper, we first discuss the relevant aspects of the ADA, describe our methodology, and then assess the individual cases that have sought relief under that law. Next, we examine the denouement of those cases in which a court had preliminarily granted some ADA-based relief (with a separate focus on nitrogen hypoxia-based cases). Further, we consider these issues through the filter of therapeutic jurisprudence (TJ). Here we conclude that it is imperative that the courts and counsel for prisoners weigh the TJ implications of prison conditions that violate the ADA.