Lonesome Agony: Heard V. the District of Columbia and the Struggle against Disability Discrimination in the D.C. Penal System

Article excerpt

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

I. 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. …