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District of Columbia Law Review
David A. Clarke School of Law
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CIVIL RIGHTS IN THE 21sT CENTURY
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University of the District of Columbia
David A. Clarke School of Law
Law Review
Volume 7
Spring 2003
Number 1
2002-2003 EDITORIAL BOARD
Editor-in-Chie!
Jude I weanoge
Deputy Editor-in-Chie!
Aaron E. Price, Sr.
Managing Editor
Ameece Williams
Executive Articles Editor
Christopher Brown
Executive Notes Editor
Chesseley Robinson
Notes Editor
Tiffany Bowers
Senior Editors
Vanessa Carlo-Miranda
Stanley Myers
Chinedu Agwumezie
Natalie Brocklebank
Christopher Busch
Shannon Ford
Henry Gassner
Associate Editors
Toni Maschler
TIffani Shannon
Robyn Silverman
Victor Varga
Todd Zinicola
Advisors
Professor Joseph B. TIllman
Helen Frazer
Special Acknowledgment
Dean Katherine S. Broderick
Professor Alice M. Thomas

University of the District of Columbia
David A. Clarke School of Law
ADMINISTRATION
KATHERINE S. BRODERICK, B.A., J.D., M.A.T., Dean of the Law School and Professor of
Law
ANN B. RICHARDSON, B.A., J.D., Associate Dean for Academic Affairs and Associate
Professor of Law
JANICE B. WASHINGTON, B.A., M.A., M.B.A., J.D., Associate Dean for Finance and
Administration and Visiting Professor of Law
LOUISE A. HOWELLS, B.A., M.A., J.D., LL.M., Clinical Director and Associate Professor of
Law
BRIAN L. BAKER, B.A., M.L.S., J.D., Director of Law Library and Assistant Professor of Law
VIVIAN W. CANTY, B.A., M.S., Director of Admissions
ANNE EL-SHAZLI, Director of Financial Aid
BARBARA W. GREEN, B.A., M.A., Registrar
AARON N. TAYLOR, B.A., J.D., Assistant Director of Admissions
LAW FACULTY
EDWARD ALLEN, B.A., J.D., Professor of Law
BRIAN L. BAKER, B.A., M.L.S., J.D., Assistant Professor of Law and Director of Law Library
JOYCE S. BATIPPS, B.S., J.D., Assistant Professor of Law
MARTA W. BERKLEY, B.A., J.D., Adjunct Professor of Law
SPENCER H. BOYER, B.S., J.D., LL.M., Adjunct Professor of Law
KATHERINE S. BRODERICK, B.A., J.D., M.A.T., Professor of Law and Dean of the Law
School
STEPHANIE Y. BROWN, B.A., J.D., Associate Professor of Law
ROBERT L. BURGDORF, JR., A.B., J.D., Professor of Law
EDGAR S. CAHN, B.A., M.A., Ph.D., J.D., Distinguished Professor of Law Emeritus
TOM DEVINE, B.A., J.D., Adjunct Professor of Law
COLIN M. DUNHAM, B.A., J.D., M.A., Adjunct Professor of Law
GAY GELLHORN, B.A., M.A., J.D., Professor of Law
JAMES C. GRAY, JR., B.A., J.D., Associate Professor of Law
DOUGLAS HARTNETT, B.S., JD., Adjunct Professor of Law
LOUISE A. HOWELLS, B.A., M.A., J.D., LL.M., Associate Professor of Law and Clinical
Director
WADE HENDERSON, B.A., J.D., Joseph L. Rauh, Jr. Professor of Public Interest Law
ERIAS A. HYMAN, B.A., J.D., Visiting Professor of Law
FRANCESCO ISGRO, B.A., J.D., LL.M., Adjunct Professor of Law
GREGORY P. JOHNSON, B.A., J.D., Adjunct Professor of Law
CHRISTINE L. JONES, B.A., J.D., Associate Professor of Law
THE HONORABLE MILTON "TONY" C. LEE, JR., B.S., J.D., Visiting Professor of Law
THOMAS MACK, B.A., J.D., Professor of Law
WILLIAM G. MCLAIN, B.A., J.D., Associate Professor of Law
STEPHEN B. MERCER, B.A., J.D., Adjunct Professor of Law
LAURIE A. MORIN, B.A., M.P.A., J.D., Associate Professor of Law
FRITZ MULHAUSER, B.A., M.A., M.Ed., J.D., Adjunct Professor of Law
THE HONORABLE PETER J. PANUTHOS, B.A., J.D., LL.M., Adjunct Professor of Law
ANITA PARLOW, B.A., M.A., J.D., Adjunct Professor of Law

KELLY M. PRIDE, B.A., M.A., J.D., Adjunct Professor of Law
THE HONORABLE WILLIAM C. PRYOR, B.A., J.D., LL.M., Distinguished Professor of Law
THE HONORABLE HIRAM E. PUIG-LUGO, B.A., J.D., Adjunct Professor of Law
ANN B. RICHARDSON, B.A., J.D., Associate Professor of Law and Associate Dean for
Academic Affairs
THE HONORABLE ANNA BLACKBURNE-RIGSBY, B.A., J.D., Adjunct Professor of Law
THE HONORABLE ROBERT RIGSBY, B.S., J.D., Adjunct Professor of Law
WILLIAM L. ROBINSON, A.B., LL.B., Professor of Law
W. SHERMAN ROGERS, B.A., J.D., LL.M., Adjunct Professor of Law
RENE SANDLER, B.A., J.D., Adjunct Professor of Law
KENNETH SEALLS, B.A., J.D., LL.M., Adjunct Professor of Law
WALLACE "GENE" E. SHIPP, B.A., J.D., Adjunct Professor of Law
COLLINE E. SILVERA, C.P.A., B.A., J.D., Adjunct Professor of Law
SUSAN E. SUTLER, B.A., J.D., Associate Professor of Law
JOHN F. TERZANO, B.A., J.D., LL.M., Adjunct Professor of Law
ALICE M. THOMAS, B.A., J.D., M.B.A., Associate Professor of Law
JOSEPH B. TULMAN, B.A., J.D., M.A.T., Professor of Law
CAROLYN WALLER, B.A., M.A., J.D., Adjunct Professor of Law
JANICE B. WASHINGTON, B.A., M.A., M.B.A., J.D., Visiting Professor of Law and Associate
Dean for Finance and Administration
NATALIE WASSERMAN, B.A., J.D., Associate Professor of Law
SUSAN L. WAYSDORF, B.A., J.D., Professor of Law
EARLE B. WILSON, B.A., J.D., Adjunct Professor of Law

University of the District of Columbia
David A. Clarke School of Law
Law Review
Volume 7 Spring 2003 Number 1
CONTENTS
CIVIL RIGHTS IN THE 21st CENTURY
PROLOGUE ••..••••••••••••••••••••.••••••...••...••••••• Jude C. lweanoge
vii
ARTICLE
MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST
LAW AND NON-WHITE ACCESS TO PUBLIC
HIGHER EDUCATION: WOLVES CIRCLING AT
THE HENHOUSE DOOR ••••••••••••••••••••••••• Stephanie Y. Brown 1
COMMENTS
UNTYING THE HANDS OF D.C.: WAYS TO
AVOID CONSTITUTIONAL CONFLICTS WHILE
ADDRESSING SOLID WASTE DISPOSAL •••••••••.. Janell De Gennaro 47
A REPRESENTATIVE DEMOCRACY:
AN UNFULFILLED IDEAL FOR
CITIZENS OF THE DISTRICT OF COLUMBIA •.•••. Aaron E. Price, Sr. 77
LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM
Mental Health Issues in Correctional Institutions
SYMPOSIUM INTRODUCTION •.......•.••••••••••••••••••• H. Russell Cort 111
& Arlene L. Robinson
ARTICLES
CORRECTIONAL MENTAL HEALTH LAW & POLICY:
A PRIMER •••••••••••••••••••••••••••••••..•••.•••...•. Fred Cohen 117
CRIMINALIZATION OF PEOPLE WITH MENTAL
ILLNESSES: THE ROLE OF MENTAL
HEALTH COURTS IN SYSTEM REFORM ..•......•••• Robert Bernstein 143
& Tammy Seltzer

MONITORING THE QUALITY AND UTILIZATION
OF MENTAL HEALTH SERVICES IN
CORRECTIONAL FACILITIES .•••••...••••....•.. Clarence 1. Sundram 163
PROTECTING PAROLEES UNDER THE ADA
AND REHAB ACT .................................. Giovanna Shay 181
LmGATION LANDMINES: OBTAINING ArrORNEYS
FEES IN CONDITIONS OF CONFINEMENT
LITIGATION AFTER BLOOMBERG
v. CHRISTINA A ........................................ Mark Soler 191
MENTAL HEALTH AND INCARCERATION:
WHAT A BAD COMBINATION ......................... Olinda Moyd 201
SUICIDE IN JAILS AND PRISONS:
WHAT THE NUMBERS TELL US ••.••.••••........• Karen L. Cropsey 213
REMARKS
SYMPOSIUM PROCEEDINGS
MENTAL HEALTH IN PRISONS GROUP ..•••••.•••.•••• Paul Quander 219
Andrea Weisman 224
Brenda Smith 232
Raymond Patterson 239
Susan Rosenberg 247

University of the District of Columbia
David A. Clarke School of Law
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1 To be cited as 7 D.C. L. REV. - (2003).

PROLOGUE
Jude C. Iweanoge*
This issue of the University of the District of Columbia Law Review encompasses
diverse legal issues and, at the same time, falls within the Review's goal of
addressing public interest issues facing the District of Columbia. Specifically, this
issue focuses on civil rights issues and a symposium on mental health issues in
prisons. Professor Stephanie Brown'sl article, Millennium Showdown for Public
Interest Law and Non-White Access to Public Higher Learning: Wolves Circling at
the Henhouse Door, addresses the state of affirmative action while focusing on
the access of minorities to institutions of higher learning. Despite the Supreme
Court's recent ruling upholding affirmative action, she maintains that various
members of the public interest community must take new action to ensure that
minorities in fact have equal access to higher education. Janell De Gennar0 2 examines
the environmental injustice arising from a stalemate in solid waste disposal
controls in the District of Columbia as a result of litigation contesting the
constitutionality of District of Columbia legislation in this area. In Untying the
Hands of D. c.: Ways to Avoid Constitutional Conflicts While Addressing Solid
Waste Disposal, she provides an analysis of the regulation and enforcement issues
and offers solutions that would recognize District of Columbia autonomy to regulate
waste traveling through the District. In A Representative Democracy: An
Unfulfilled Ideal for Citizens of the District of Columbia, Aaron E. Price, Sr.,3
reviews the long struggle of District of Columbia residents for representation in
Congress. He outlines the strategies that District residents could take to achieve
statehood or enfranchisement by alternative means such as constitutional amendment,
judicial relief, federal regulation, and executive order.
The Mental Health in Prisons Symposium, introduced by H. Russell Cort,
Ph.D. and the Honorable Arlene L. Robinson, includes articles and speeches
solicited from experts and practitioners in the field of correctional mental health.
The Symposium honors the memory of Louisa Van Wezel, a tireless advocate for
the rights of the imprisoned mentally ill. The symposium was co-sponsored by
the University of the District of Columbia David A. Clarke School of Law and by
* Jude C. Iweanoge is the Editor-in-Chief of the University of the District of Columbia Law
Review.
1 Stephanie Brown is a professor of law at The University of the District of Columbia David A.
Clarke School of Law.
2 Janell De Gennaro was the Deputy Editor-in-Chief of the UDC-DCSL Law Review for the
2001-2002 academic session.
3 Aaron E. Price, Sr., is the Deputy Editor-in-Chief of the UDC-DCSL Law Review.

the Mental Health in Prison Group, a group of advocates from the D.C. metropolitan
area who focus on ways of resolving mental health issues for individuals
in the legal and prison systems.
The issues discussed in the two sections of this issue are among the most important
confronting the District of Columbia and the nation today. The ideas and
strategies contained herein do not present definitive solutions to the problems. I
hope, however, that they enlighten readers and sharpen our focus for examining
numerous civil rights issues in the 21st century.

The University of the District of Columbia
Law Review
Volume 7 Spring 2003 Number 1
MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW
AND NON-WHITE ACCESS TO PUBLIC HIGHER
EDUCATION: WOLVES CIRCLING AT THE
HENHOUSE DOOR
Stephanie Y. Brown*
INTRODUCTION
Institutions of higher education are uniquely positioned to influence the tone
and character of justice available in the society. As centers of information and
acculturation, colleges, universities, and professional schools determine the next
generation of legal innovators and how they will be trained. In an era when aggressive
opponents of racial equality indulged by a conservative court impede the
gradual progress made possible through affirmative action programs, I believe
that legal educators share considerable responsibility for the chronic deficiency of
equal access to education plaguing racial minorities in this country. Intoxicated
by the rhetoric of public interest and ritualistic tilting toward the challenge of
social injustice, law faculty rest comfortably behind a fence of color blind neutrality
and a phobia of change. Through a melange of omission and deliberate undertaking,
"would be champions of the people," we train and commission lawyers
who undermine and ravage the very Constitution and people they claim to serve.
As a stakeholder in an institution that aspires to train lawyers who will serve in
the public interest, I am disquieted by the apparent failure of the public interest
oriented educational community to better navigate and champion equal access to
higher education for people of color. This dereliction is evidenced by diminished
access to higher education for African Americans and other people of color and
the systematic dismantling of affirmative action programming directed at facili-
* Associate Professor of Law, University of the District of Columbia David A. Clarke School of
Law. I wish to thank Christine Jones, Laurie Morin, Lewis Perry and Alice Martin Thomas for their
unconditional encouragement, support and assistance in the completion of this article. I honor the
memory of Jean Camper Cahn who understood legacy and the significance of holding those in the
present accountable for the future.

2 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
tating equal access. This crisis persists for several reasons. Within the groups of
lawyers who characterize their work as supporting the public good, there is conflict
between the concerns of the disadvantaged and those dedicated to stop or
avoid the changes essential to equal access. 1 Efforts to unify the several constituencies
comprising public interest law focus on eliminating differences. Coalition,
compromise, and divergent perspectives on priority of interest have robbed people
of color of their voice and progress toward equality of opportunity and access.
Personal ambition and the vestiges of white supremacy also complicate the struggle
for equal access. There is a palpable preoccupation with appearing colorblind
or unconscious of race, even where use of race has and continues to deprive constituents
of basic constitutional rights. The popular notion of justice and equal
access has become fragmented, disassociated with objective goals consistent with
equality and fairness. Quantifiable outcomes illustrative of the moral underpinning
of the society and concomitant political reality should be apparent. However,
procedure has replaced substantive protection. 2 In short, society has
satisfied its obligation to provide equal access to education as long as the citizen
has been subject to an admission process, irrespective of whether the citizen
gleaned any improvement, enhanced knowledge or ability.
Equally damaging to the pursuit of equal access, deliberate initiatives to minimize
the influence of non-whites in higher education persist. 3 There is the continuing
myth of unavailability. Whether the focus is student enrollment, faculty
hiring or appointment as chief executive officer, public interest organizations are
just as likely to claim that the paucity of qualified non-whites explains the continuing
overrepresentation of whites. 4 Status, wealth, and the society's general discomfort
with racial issues permit the public interest community to undermine
equal access with relative immunity. Even as it relates to institutions historically
engaged in the service of racial minorities, the interest of non-white constituencies
is overlooked. This is most evident in desegregation efforts that challenge the
existence of Historically Black Colleges and Universities (HBCUs).5 The elimination
of HBCUs, whether accomplished by merger with a historically white institution,
adoption of more restrictive admission standards, and the substitution
of white governance, has contributed to a decline in non-white college
enrollment. 6
1 See David R. Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L. J. 327, 337
(1996); Our Roots, available at http://www.naacp.org/pasCfuture/naacptimeline.shtml.
2 Esquivel, supra note 1, at 340-44.
3 John A. Powell & Marguerite L. Spencer, Remodeling the Urban University for the Urban
Student: Talking about Race, 30 Conn. L. Rev. 1247, 1251 (1998).
4 Derek Bell, Xerces and The Affirmative Action Mystique, 57 GEO. WASH. L. REV. 1595, 1605
(1989).
5 Esquivel, supra note 1, at 330-35.
6 Harold Wenglinsky, Students at Historically Black Colleges and Universities: Their Aspirations
& Accomplishments (1997), available at http://www.ets.org/research/piclhbcintro.html.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 3
For public interest lawyers who chose to walk out a commitment to public
service with integrity in the hallowed halls of academia, it is critical that the record
of that service demonstrate more objective and less equivocal progression
toward justice for those under-represented and unequally served in institutions of
higher education. The quest for equality must be directed at solving problems,
eliminating inequality instead of preserving white entitlement. Public interest
lawyers must confront their resistance to serve the truly disenfranchised. 7 To the
extent that the opportunistic seek to' benefit from the larger society's fear of
change, the community of public interest advocates must provide less effective
cover and protection for such colleagues. 8 Heightened vigilance is required when
the judiciary distracts or endeavors to redirect or redefine the nature of the injustice
and appropriate remedies. 9 The public interest legal community is uniquely
situated to gather data, undertake research, and discredit efforts to undermine
genuine equality. to For law school faculties and administrators, an initial discussion
would implicate the overdue discussion of race and the development of
guidelines to foster racially equitable hiring processes and student admission programs
that typically elude institutional consideration. Communities of color must
be given the respect and control that is required to reflect their own vision and
reality consistent with community values and thought about their own destiny. 11
This paper proposes to examine the nature of public interest accountability for
equal access to education. The deeds of individuals are the scope of this article
and not the Supreme Court's latest affirmative action decision in Gruffer v. Bollinger,
123 S. Ct. 2325, 2003 U.S. LEXIS 4800 (2003) or its attendant implications.
Part I will explore the history of African American access to higher education as
a component of the civil rights movement. Part II will explore the origins of public
interest law and its current status. Part III will focus on the dissonance between
public interest law and equal access for racial minorities. It will address
racial equality as an objective public good essential to the survival of the American
dream. Because the mission of HBCUs has heightened significance in light of
changing political realities, some attention will also be given to the status of
HBCUs. Part IV will discuss the costs of change, resisting it and providing active
support. Also this section will propose strategies to clarify goals and ensure the
cultivation of justice friendly advocates and the preservation of educational access.
Part V will summarize the discussion and invite a new level of public interest
law involvement.
7 Julius L. Chambers, Beyond Affirmative Action, 27 CAP. U. L. REV. 1,9-13 (1998).
8 [d.
9 [d.
10 [d. at 11.
11 [d.at 12-13.

4 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
I. HISTORICAL PERSPECTIVES: "EACH RACE OF MEN, EACH CLASS IN SOCIETY
SHAPING THEIR OWN DESTINY.,,12
Education influences the development of human potential and the accessibility
of the American dream. According to John Locke, "it is . .. [t ]hat the difference
to be found in the manners and abilities of men, is owing more to their education
than to anything else."13 Unfortunately, race also influences that outcome. To
understand the function of race in American culture and how social institutions
have evolved, one must consider the experience of America's black citizenry.14
Human slavery, as cultured in the United States, was the most virulent form of
bondage practiced in modem history.I5 Because of "[a] complex system of white
domination," dependent on inferior education, racial separation, extreme economic
deprivation, and disenfranchisement, the entire fabric of American society
has been perverted by notions of human inferiority based on race. 16 While this
malignancy still ravages the national character, the public interest focus on its
treatment has stalled on the notion that colorblind ness or race neutral access is
constitutionally and practically indicated. It is from this vantage point that this
inquiry commences.
The Struggle for Educational Access
Education has always represented an important weapon in the war against racial
injustice. 17 Plantation owners sought to secure their slave workforce against
12 J. Willis Menard was the first Black elected to the United States Congress. He was denied
admission and subsequently served in the Department of the Interior.
13 JOHN LOCKE, THE HISTORY OF EDUCATION AND CHILDHOOD: SOME THOUGHTS CONCERN­
ING EDUCATION (1693) available at http://www.socsci.kun.nUpedlwhplhisteducllocke/locke031.html
§32.
14 Eric Foner, Expert Report of Eric Foner, Gratz v. Bollinger, No. 97-CV-75231-DT (E.D.
Mich. 2001) [hereafter 97-75321] available at http://www.umich.edul-ureUadmissionsllegaUexpert.
Professor Foner prepared this report in support of University of Michigan Law School affirmative
action litigation. Professor Foner was the DeWitt Clinton Professor of History at Columbia University
at the time the report was authored.
15 Jd. Between 1500 and 1820, 12.5 million people relocated to the western hemisphere, African
slaves numbered ten million among that group. The United States received the higher percentage of
the free immigrants reflected in that statistic. Between 1607 and 1776, nearly 800,000 people resided
in the colonies. Over 300,000 of those individuals were African slaves.
16 Jd.; Albert M. Camarillo, Expert Report of Albert M. Camarillo, Gratz v. Bollinger, No. 97-
75231 (E.D. Mich. 2001); Grutter, et aI., No.97-75928 (E.D. Mich. 2001), available at http://umich.edul
ureUadmissionsllegaUexpert. Albert M. Camarillo is a Professor of History and Director of the
Center for Comparative Studies in Race and Ethnicity at Stanford University.
17 Derek Bok, Expert Report of Derek Bok, Grutter v. Bollinger, No. 97-75928 (E.D. Mich.
2001), available at hup:llumich.eduiureUadmissionS/legaUexpert.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 5
the liberties experienced by white citizens by supporting legislation that prescribed
the education of Blacks. Is Our inquiry reviews the history of this effort.
Contrary to some popular versions of American educational history, the struggle
to gain full access to education for Blacks in the United State was initiated
and championed by African Americans. 19 Blacks believed that education would
be the cornerstone of their life as emancipated people. 2o Ex-slaves organized,
financed, and operated the first formal educational institutions available to
Blacks. 21 In fact, "Public education for all at public expense was, in the South, a
Negro idea," according to W.E.B. Du Bois. 22
Early in 1860, interested Blacks labored to provide basic literacy training for
adults and children in the black community. These efforts resulted in churchsponsored
schools that accommodated the work schedules of adults and children
in an agrarian society.23 These schools offered instruction on weekends and evenings.
In larger cities with organized labor forces, private black citizen groups,
acting as school boards, hired teachers, purchased property and administered ed-
18 Foner, supra note 13; John Charles Boger, Willful Color Blindness: The New Racial Piety and
the Resegregation of Public Schools, 78 N.C. L. REV. 1719, 1732-33 (2000). Pre-Civil War southern
states promulgated laws to prohibit the education of slaves. Knowledge influences self image and the
extent to which a person is able to discover and achieve individual potential. It determines one's
ability to control one's life and circumstances. To keep Blacks enslaved, southern farmers relied upon
the support and cooperation of government and the rule of law. The regulation of state-supported
educational systems ensured plantation owners control. Where Black and white students accessed
public schools, policy and local ordinances precluded Blacks and whites from attending the same
schools. U.S. Supreme Court decisions, Plessey v. Ferguson, Cummings v. Richmond County Board
of Education, and Gong Lum v. Rice sanctioned racial segregation in school systems and disparate
funding for schools based on race.
19 James D. Anderson, Ex-Slaves and the Rise of Universal Education in the New South, 1860-
1880, in EDUCATION AND THE RISE OF THE NEW SOUTH, 1-20 (Goodman & White eds. 1982). The
value afforded education was one activated and inculcated by Blacks prior to the time when whites
and African Americans exchanged beliefs on this issue. They taught themselves, encouraged adults
and children to pursue learning and became politically activated to secure public educational access
for Blacks and whites alike.
20 [d.
21 [d.
22 [d. The Pioneer School of Freedom opened in New Orleans, Louisiana in 1860. Mary Peake
established the Native School in Fortress Monroe, Virginia in 1861. Both schools preceded whites
teaching in black schools or other forms of support by Northern benevolent societies in 1862. These
schools were typically available to children and adults. In New Orleans, within three to four years of
the Pioneer School opening, the Commissioner of Enrollment oversaw a census of African Americans
in the Gulf states and additional schools were organized. By the end of 1864, the Board of Education
was established to administer the growing population of native schools. By 1870, a formal educational
structure existed which supported the education of blacks across fourteen states. Because there was
no formal reporting requirement concerning blacks, there are incomplete statistics on the number of
people trained, the number of schools and staff involved in educating African Americans.
23 [d. at 12-13. Economic success in an agrarian society necessitated the availability of a reliable
labor force. The demand for education threatened the survival of southern life and there was considerable
resistance to the call for educational access for Blacks among lower class white farmers.

6 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
ucational programs. By 1865, the federal government and white benevolent associations
added their efforts to provide educational access to Blacks and poor
whites.
The development of institutions of higher education proceeded on a parallel
track. Through these institutions Blacks received professional and leadership
training. Religious and benevolent associations, the federal government through
the Freedmen's Bureau, and private members of the Black community worked to
establish the first colleges and universities that accepted black students. Among
these institutions were Lincoln University in Pennsylvania, Wilberforce, Tuskeegee
Institute, Howard and Cheyney Universities. 24 These schools were eventually
known as Historically Black Colleges or Universities (HCBUs).2s These
institutions have trained and continue to train the greater portion of college
trained black professionals in America. 26 HBCUs provided liberal arts, medical,
legal, teacher preparation and agricultural programs of study.
With the establishment of the Freedmen's Bureau and the involvement of
white benevolent organizations, the support of northern whites bolstered black
efforts to secure universal access to education. 27 Other federal legislative enactments
and the Fourteenth Amendment held out the hope of conferring the privileges
and rights of American citizenship on Blacks born in the United States.
With comparable resolve, state legislatures eclipsed educational access, voting
rights and economic improvement on every level with a wave of state law to both
24 U.S. Department of Education Office of Civil Rights, Historically Black Colleges and Universities
and Higher Education Desegregation (March 1991), available at http://www.ed.gov/offices/OCRI
docs/hq9511.html. Wilberforce was a private effort. Howard and Thskegee advanced with the support
of the Federal government through the Freedmen's Bureau. Cheyney and Lincoln Universities
evolved from the efforts of the religious community.
25 U.S. Department of Education Office of Civil Rights supra, note 24.
26 [d. More than 80% of all black Americans who received medical degrees studied in historically
HBCUs. Three quarters of all Blacks credentialed at the doctoral level matriculated in HBCUs.
Three fourths of black officers in the military and four fifths of all black federal jurists graduated from
HCBUs. [d.
27 [d. Between the Revolutionary and Civil Wars, educational opportunity was more readily
available to Blacks in the North. A Quaker, Richard Humphreys, established the Institute for
Colored Youth in 1837. In 1930 this institute became the degree-granting Cheyney University. The
Presbyterian Church established Lincoln University in Pennsylvania in 1854, in response to the dearth
of institutions available to Blacks for post-secondary education. The African Methodist Episcopal
Church founded Wilberforce in 1856. Though other institutions were open to Black students, Wilberforce
was the first Black institution of higher learning. Northern benevolent societies, churches that
supported abolition, and the federal government would join the effort to improve access to higher
education for African Americans between 1860 and 1890. In the late 1860s the Freedmen's Bureau
supported the founding of Fisk and Howard Universities. The Freedmen's Act of 1865 provided limited
federal funding to address the growing problem of freed blacks searching for work and improved
living arrangements. Most of the HBCUs established before 1890 were private. These institutions
typically provided a liberal arts education, preparing preachers and teachers. Public institutions grew
in number after 1890. The public institutions typically provided agricultural and skilled industrial
training. [d.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 7
extend the promise of equality to Blacks and then preserve white supremacy in
the United States. 28
It would take approximately seventy years of legal struggle before the force of
legal effort would yield concrete action to desegregate American society.29 More
aggressive legislative enactments and case law were needed to advance access to
education for black and poor white children. 3D The efforts of freed Blacks and, to
a lesser extent, benevolent societies, and the federal government contributed to
the advancement of African American access to education?1
From 1938 to 1948 lawyers pursued black student admission to graduate and
professional school through litigation. 32 While traditionally white institutions,
like Harvard University, admitted the occasional Black, broader access to higher
education resulted more often after the decision in Brown v. Board of Education
and its progeny.33 Charles Hamilton Houston and Thurgood Marshall authored
the strategy and inspired a generation of lawyers responsible for the advancement
of the civil rights movement. 34 From 1950 to 1960 litigators and civil rights
advocates focused on access to education in state systems, especially primary and
secondary schools. 35 During the fifty years that followed Brown the legal struggle
28 Foner, supra note 13, at 9-11.
29 Id.
30 Id. The Freedmen's Act of 1865 provided limited federal funding to address the growing
problem of freed Blacks searching for work and improved living arrangements away from the plantation.
Congress enacted the Morrill Act of 1862 to provide education to the common man. The common
people of that time were primarily farmers and laborers involved in what would become
industrial or "the mechanical arts." States, railroads, and some small farmers received tracts of federal
land to establish universities. Land-grant universities established modest admission and academic
standards and set modest tuition to ensure accessibility for agricultural and industrial laborers. Education
offered through the land-grant institutions would have practical and immediate application. The
Second Morrill Act of 1890 authorized federal funding to support the establishment of land grant
colleges. While this legislation encouraged increased access to education for Blacks, states could elect
to segregate Blacks and whites or establish a unified institution. Eventually there were more than 200
colleges opened to black students. The number of HBCUs increased to 104 and, accordingly, Blacks
enjoyed access to higher education through a total of twenty states, including those where slavery
once flourished. This also included the District of Columbia and the U.S. Vrrgin Islands; John A.
Powell & Marguerite L. Spencer, Remodeling the Urban University for the Urban Student: Talking
about Race, 30 CONN. L. REV. 1247, 1251 (1998).
31 Alonford James Robinson, Jr., History Bureau of Refugees, Freedmen, and Abandoned
Lands or Freedmen's Bureau, available at http://www.africana.comlArticlesltc334.htm (last visited 21
9/03).
32 Id.
33 Id.; Brown v. Board of Education, 347 U.S. 483 (1954).
34 Boger, supra note 18, at 1732-33.
35 Id. In Brown V. Board of Education, 347 U.S. 483 (1954). the United States Supreme Court
determined that segregated public schools were inherently unequal. violating the equal protection
clause of the Fourteenth Amendment.

8 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
for meaningful change continued. A series of other Supreme Court decisions influenced
progress toward equal access. 36
In fact, southern states all but refused to implement the ruling in Brown v.
Board of Education 37 for nearly fifteen years. While court decisions clearly defined
the parameters of protection provided to African Americans in their pursuit
of equal access to education, state compliance with court rulings only became
apparent in 1964. 38 The Civil Rights Act of 1964 strengthened enforcement capacity
by authorized withholding of significant federal financing from non-compliant
educational systems. 39 The threat of significant financial loss led to
improved southern state compliance with civil rights law. 4o
The Higher Education Act of 1965 endeavored to equalize the funding available
to support HBCUS. 41 Operating funds were available for universities. Individual
grants were accessible for eligible students. 42 African Americans, who were
statistically more likely to come from less advantaged financial circumstances,
were among the intended beneficiaries of this legislation. 43
As federal courts began to consider the constitutionality of state educational
systems, several standards and remedies for school desegregation evolved. 44 The
first genre of cases defined the parameters of court supervision of desegregation
plans. 45 School systems subject to active court supervision were found to be
36 Leland Ware, Issues in Educational Law and Policy: The Most Visible Vestige: Black Col/eges
After Fordice, 35 B.C. L. REV. 633,646 (1994); James A. Washburn, Beyond Brown: Evaluating Equality
in Higher Education, 43 DUKE LJ. 1115, 1117 (1994).
37 Id.; Brown, 347 U.S. 483 (1954).
38 Ware, supra note 36, at 646.
39 Id.
40 Id.
41 Wenglinsky, supra note 6.
42 Id.
43 Id.
44 Washburn, supra note 36, at 1134.
45 Id. In Green V. County School Bd., 391 U.S. 430 (1968), the United States charged Southern
school boards that formerly operated racially segregated school systems to transform these systems
into unified systems by whatever means necessary. The Court authorized federal district court judges
supervising school system modifications to assess the racial impact of school board operation on student
attendance patterns, faculty assignments, staff assignments, transportation, extra-curricular activities,
and school facilities. In Swann V. Charlotte-Mecklenberg, 402 U.S. 1 (1971). the Court authorized
the use of express student population racial goals, express faculty and staff racial ratios, the administrative
coupling of geographically dispersed neighborhoods within a school district, cross town bussing
or other transportation necessary to achieve student and faculty desegregation. School systems were
charged to determine the racial composition of the entire system and the minimal use of mathematical
ratios to achieve the "greatest possible degree of actual desegregation" was determined to be well
within the discretion of the supervising court. In a companion case North Carolina State Bd. of Education.
V. Swann, 402 U.S. 43 (1971), the Court held that busing was a tool appropriately employed in
the desegregation of schools in North Carolina, overturning the anti-bussing statute in North Carolina.
The North Carolina legislature "exploits an apparently neutral form to control school assignment
plans by directing that they be "color blind.'" Swann, 402 U.S. 43. "[T]o approve "color blind"

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 9
clearly segregated and resisting desegregation directives. 46 This protocol resulted
from prolonged efforts of southern states to avoid school desegregation. 47 1\venty
years after Green and Swann, the Supreme Court began to consider whether
southern school systems had achieved unitary school systems. 48 In Board of Education
v. Dowe1l 49 a sharply divided Court declared that federal supervision of
local school systems could only be temporary. Supervising courts returned the
control of school systems to local authorities on a showing that the system had
complied with desegregation decrees for a reasonable period. 50 Citizen input and
the school board's freedom to implement new programs in response to community
need justified limiting court supervision. 51 The district court was directed to
review Dowell and determine "whether the Board had complied in good faith
with the desegregation decree and whether the vestiges of past discrimination
have been eliminated to the extent practicable. ,,52
In Freedman v. Pitts, one year later, the Court expanded the criteria enumerated
in Green and Swann to include consideration of the quality of education
offered to Black and white students. 53 However, the Court found that it was unnecessary
for a school system to demonstrate achievement of all the goals identified
in Green to warrant return of local control. 54 Relief from federal court
supervision could be achieved when there was a finding that the retention of
judicial oversight was either impracticable or unnecessary to achieve compliance
with the decree throughout the school system. 55 The Court set a standard:
Whether there has been full and satisfactory compliance with the decree in
those aspects of the system where supervision is to be withdrawn; whether
retention of judicial control is necessary or practicable to achieve compliance
with the decree in other facets of the school system; and whether the
school district has demonstrated, to the public and to the parents and students
of the once disfavored race, its good-faith commitment to the whole
of the court's decree and to those provisions of the law and the Constitution
that were the predicate for judicial intervention in the first instance. 56
statutes set against the background of segregation, would render illusory the promise of Brown," (Id.
at 45) and" deprive school authorities of the one tool absolutely essential to [the fulfillment of their
constitutional obligation to eliminate existing dual school systems.]" (Id at 46).
46 Ware, supra note 36.
47 Id.
48 Boger, supra note 18, at 1736.
49 Id.; Board of Education. v. Dowell, 498 U.S. 237 (1991).
50 Id. at 1737.
51 Id.
52 Dowell, 498 U.S. 237, 251 (1991).
53 Boger, supra note 18, at 1737-38; Freeman v. Pitts, 503 U.S. 467 (1992).
54 Id.
55 Id.
56 Pitts, 503 U.S. at 491.

10 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
While Freedman permitted restoration of local autonomy incrementally, at the
earliest possible time, it relaxed district court concern for whether black and
white children shared the same physical facilities. 57 A district court may ignore
discriminatory conduct if the discrimination was unrelated to the condition,
which resulted in the original decree. 58 Assurances, rhetoric, and "good faith
commitment" were substituted for quantifiable outcomes as a measure of progress.
59 "Heroic measures" were disqualified as appropriate next steps to secure
racial balance in student assignments system wide. 60
In Missouri v. Jenkins, the Court simplified the burden of proof constraining
the school system pursuing reduced federal supervision.61 Good faith compliance
with the decree entered and reduction of past discrimination, to the extent practicable,
became the standards requisite to reduce or eliminate federal court supervision.
62 Short of continuing discrimination, derived from the original
constitutional violation, the Supreme Court abandoned the goal of eradicating
racial discrimination to ensure local contro1. 63 Finally federal court decisions began
to challenge the existence of HBCUs, the cornerstone of black access to
higher education.
As of the late 1960s, southern universities continued to be one-race institutions.
64 Because college and university attendance is based on individual choice,
provisions of the desegregation decrees were deemed unavailable initially to resolve
racial segregation in post secondary education. 65 In 1969 the district court
found that Green did not apply when the Alabama State Teacher's Association
sought to enjoin the Alabama School and College authority from constructing a
branch of the historically white college in a city where there had only been historically
black colleges. 66 Plaintiffs argued that the presence of the historically white
branch would discourage whites from enrolling in historically black institutions. 67
At that time, "no court in dealing with desegregation of institutions in the higher
education area ha[ d] gone farther than ordering nondiscriminatory
admissions. ,,68
57 Pitts, supra note 56.
58 Boger, supra note 18, at 1738-39.
59 [d.
60 [d.; Pitts, 503 U.S. at 493.
61 Boger, supra note 18, at 1739.
62 [d. at 1738.
63 [d.
64 Washburn, supra note 36, at 1134.
65 [d.
66 [d. at 1135.
67 [d. (citing Alabama State Teachers Ass'n. v. Alabama Pub. Sch & College Auth., 289 F.
Supp. 784 (M.D. Ala. 1968», affd per curiam, 393 U.S. 400 (1969).
68 Washburn, supra note 36, at 1135 (quoting Alabama State Teachers' Ass'n., supra note 67 at
787).

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 11
In 1971, the United States Supreme Court affirmed a Virginia district court
decision enjoining a scenario similar to the one the Alabama court declined to
enjoin. 69 The Virginia district court enjoined the upgrade of a historically white
two-year institution to a four-year institution. 70 As a four-year institution, the
historically white college would compete with the historically black college for
students?1 The district court reasoned that Green protected public college students
from discrimination as clearly as it protects public elementary and high
school students. 72 Norris charged states to affirmatively eliminate the "vestiges of
their previously de jure segregated college systems. ,,73
In 1973, a group of plaintiffs from several states sued the United States Department
of Health Education and Welfare (HEW) to force agency enforcement
of the Title VI requirement that states file desegregation plans for institutions of
higher education?4 In the four years since the original request, ten states failed
to comply with the requirement. 75 Mississippi, a non-complying state, had eight
public colleges and universities, three black and five white. 76 Three of the white
institutions received greater funding and offered more programming than the historically
black colleges. 77 Two of the historically black colleges and two of the
historically white schools were considered regional schools dedicated to undergraduate
preparation?8 The surviving historically black institution had a limited
research focus and was considered urban. 79 The university trustees filed a plan in
response to HEW pressure but lacked the finances to implement the plan for
approximately three years. 80 Black plaintiffs, frustrated by the lack of progress
toward desegregation of the university system, sued the university to obtain the
enforcement of their right to equal education in United States v. Fordice. 81
In Fordice, the Court determined that segregated systems exist where there are
duplicated resources and programs between single race profiles with no sound
educational justification for the single race status. 82 Mississippi could demonstrate
no significant effort to eliminate de jure segregation in state institutions of
higher learning. 83 Because the historically black colleges existed contemporane-
69 Washburn, supra note 36, at 1136-37 (citing Board of Visitors v. Norris, 404 U.S. 907 (1971».
70 Norris v. State Council of Higher Ed., 327 F. Supp. 1368 (E.D. Va. 1971).
71 Washburn, supra note 36, at 1137.
72 [d. at 1137-38.
73 Washburn, supra note 36, at 1137.
74 [d. at 1139-1140.
75 [d.
76 [d.
77 [d. at 1141
78 Washburn, supra note 36, at 1141.
79 [d.
80 [d., United States v. Fordice, 505 U.S. 717 (1992).
81 Washburn, supra note 36, at 1135-45; Fordice, 505 U.S. 717.
82 Wenglinsky, supra note 6.
83 Washburn, supra note 36, at 1148.

12 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
ously with the historically white institutions as a part of the state system, the
Supreme Court considered the historically black institutions subject also to desegregation
decrees. 84 The Court cautioned that given Mississippi's history of
failure to desegregate as indicated by the under-funding of the black colleges and
duplication of programming, the state had a burden to provide students with a
bona fide choice of educational resources. 85 The decree required the state to implement
policies and practices that would eliminate de jure segregation throughout
the Mississippi higher education system. 86
Mississippi University trustees proposed a plan to satisfy the Court's decree. 87
The initial plan included closing one of the historically black colleges. It also required
merging one of the historically black institutions (Alcorn State) with one
of the historically white institutions (Mississippi State). 88 Jackson State, the third
historically black college, was scheduled to be upgraded to the level of a comprehensive
university.89
n DEFINING THE PUBLIC INTEREST AND CLUB MEMBERSHIP
A. Genesis: In Search of the Public Good
The discussion of equal access to education for racial minorities and the work
of public interest lawyers share seemingly compatible motivation and exemplar
battle strategies. For the purpose of this inquiry, public interest law describes a
loosely connected union of legal minds and issues associated with the collective
rights and privileges that the constitution assures each citizen. This guarantee is
without regard to class, ethnic origin or other social distinction. Distinguishable
from corporate, business, and criminal practice, law in the public interest reflects
the energy of government attorneys and lawyers undertaking representation directed
toward the advancement of civil protections through a range of cases from
child support, government whistle blowing, to toxic waste cleanup. All of these
activities proceed in the name of improving the life of ordinary citizens. Equal
access to education is a by-product of the struggle initiated to secure equal treat-
84 Washburn, supra note 36, at 1149-51.
85 Id.
86 Id.
87 Id.
88 Washburn, supra note 36, at 1149.
89 Id., See also Ware, supra note 36, at 648. HBCUs have become the focal point, an object
lesson in directing state efforts to eliminate racially identifiable schools. While public HBCUs existed
as a part of the de jure systems, they provided educational opportunity to blacks when no other
resource was available. HBCUs, outsiders and victims within a hostile system, face eradication and or
disassociation from the very strength and mission that they have performed well. This is of particular
significance because the opportunity for African American college enrollment and graduation has
diminished. Changed admission standards, the diminution in resources available for study, and the
advantage that redirecting HBCU resources provide to historically white institution on merger or
closure.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 13
ment for racially subjugated people in the United States. Both interests benefited
from the energy and experience of their respective constituents and could continue
to do so. A brief history of each interest's beginning is essential to identifying
dysfunction or perversion that inhibits productive collaboration and
achievement. An overview of the first legal aid organizations initiates this phase
of the inquiry. Three groups are prominent in this discussion.
Pro bono representation of indigents began in 1876. 90 A German American
committee of lawyers, Deutscher Rechts-Schuts Verein, organized to provide legal
services to recent German immigrants. 91 The committee represented immigrants
against employers and merchants who attempted to exploit the limited
knowledge and experience of new immigrants in negotiating terms of employment
and purchasing goods and services.92 The committee also conducted educational
sessions for the new immigrants. 93 These sessions addressed legal issues
and a variety of topics that would support rapid assimilation into American life. 94
Because limited knowledge of English often contributed to the legal difficulties
plaguing new immigrants, the committee also assisted immigrants with educational
access and language c1asses. 95 Committee members provided these services
knowing that the success or failure of the new immigrants would affect the
community of established German Americans. 96 In short, successful new immigrant
transition into the community was in the German American community's
best interest. 97
The committee became the New York Legal Aid Society.98 Its members provided
free legal services "to those of German birth, who may appear worthy
thereof, but who from poverty are unable to procure it. ,,99 Similar societies
evolved in other states. 1OO In Chicago around 1886, the Agency for Women and
Children formed, and in 1888 Chicagoans established the Bureau of Justice. As
anti-German sentiment mushroomed in response to the approaching First World
90 Michelle S. Jacobs, Full Legal Representation for the Poor: The Clash Between Lawyer Values
and Client Worthiness, 44 How. L. J. 257, 286 (2001).
91 [d.
92 [d.
93 [d.
94 [d.
95 Jacobs, supra note 90.
96 [d.; see also Foner, supra note 13. The experience of Black Americans during the same period
in history was quite different. W.E.B. Dubois and other black leaders associated with the establishment
of the N.A.A.C.P. advocated unsuccessfully for full implementation of the reconstruction
constitution. The potential economic opportunity that civil rights advocates struggled to acquire for
Blacks was sabotaged by closed unions and other limitation on employment during World War I.
Blacks continued to be outsiders in their own country.
97 Jacobs, supra note 90, at 286.
98 [d. at 286-87.
99 [d. at 287.
100 [d.

14 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
War, German lawyers in New York relinquished oversight of that legal aid society.
New leadership revised eligibility standards to include all people and limited
the society's work to individual representation. lot The second group evolved
under different circumstances.
In a 1917, a pacifist, convinced that America's entry into World War I was
immoral, started a Bureau for Conscientious Objectors (the Bureau) in the
American Union Against Militarism. I02 As a consequence of internal conflict, the
Bureau became an independent organization later known as the National Civil
Liberties Bureau. I03 The deeply held commitment to protect the rights of people
to speak out against war from one's conscience inspired the creation of the Bureau.
Negative public opinion could not extinguish those inspired to build the
organization. 104 Baldwin embraced a vision for a better society and through the
establishment of an advocacy organization and the organizing mission was broad
enough to command the efforts of others to bring that vision to pass. I05 In later
years the Bureau became the American Civil Liberties Union (ACLU).106
The third group focused on the concerns of a racial minority. Descendants of
slaves organized for equally compelling reasons early in the twentieth century. A
growing concern over the brutality facing American Blacks resulted in the establishment
of the National Negro Committee. 107 This multiracial group, concerned
about advancing the civil rights of African Americans, became the National Association
for the Advancement of Colored People (NAACP) in 1909.108 The
NAACP organized protests, published public statements, and provided legal representation
in high profile criminal and civil cases.109 Twenty years later the
NAACP received funding from the American Fund for public service. IIO These
funds were utilized to broaden the litigation reach of the organization. 1 1 I In 1939
the litigation arm of the NAACP, the Legal Defense and Educational Fund
(LDF), became a separate organization. 112 In conjunction with the NAACP,
101 Washburn, supra note 36.
102 David R. Esquivel, Note, The Identity Crisis in Public Interest Law, 46 DUKE L. J. 327, 336
(1996); see also Our Roots, available at http://www.naacp.orglpasCfuture/naacptimeline.shtml.
103 Id.
104 Id.
105 Id.
106 Id.
107 Foner, supra note 13. W.E.B. Dubois and a group of lawyers sought to enforce the promise
of reconstruction. World War I held the promise of economic improvement and the opportunity for
service against a common enemy. The international posture of the country would focus attention on
the incongruity of a domestic reluctance to support self determination for Americans of any color. See
Our Roots, available at http:/www.naacp.orglpasCfuture/naacptimeline.shtmI.
108 Esquivel, supra note 1 at 338.
109 Id.
110 Id.
111 Id.
112 Esquivel, supra note 1 at 340.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 15
LDF strategically planned what would be a complex, exhaustive series of legal
challenges. I 13
Civil rights activists like Rosa Parks focused attention on the daily costs of
racial inequality and worked with other groups determined to pressure Southern
white acquiescence in a changed social order.114 These challenges would be
tested and decided in landmark decisions. These cases became the blueprint for
political and social change for the next fifty years. lIS By the 1960s the Reverend
Martin Luther King Jr. emerged as a national leader.116 Through Dr. King's
work and that of the Southern Christian Leadership Conference (SCLC),
America received a cohesive, well-articulated account of the plight of Blacks and
other under-represented groups.I17 King defined racial inequality as a national
problem with identifiable consequences and solutions. II8 King offered white
Americans insight into the distortion of the American dream into a system of
bondage. A common understanding and language evolved, providing the nation
with a context in which to consider the problem of race without invoking fear or
threats of violence. I 19
During this period, the federal government emerged as a more likely source of
justice. Because local efforts to access civil rights stimulated an increasingly violent
response from private citizens with the complicity of local and state governments,
the federal government became more civil rights conscious by default. 12o
In some instances, the federal government initiated action to preserve and enforce
constitutionally protected rights for black citizens. 121 The Civil Rights
movement became closely identified with a theological or moral vision of society
and justice and the federal vision of equality.122
B. Wolves Gathering at the Henhouse Door: Aborted Purpose
The identity and focus of public interest law have been compromised in several
ways. The term "public interest law" was first popularized nearly forty years
ago. 123 As coined in the sixties and early seventies, public interest law concerned
113 Esquivel, supra note 1.
114 Foner, supra note 13. Black churches and activists engaged in boycotts and other forms of
nonviolent demonstration directed at ending segregation in living arrangements and public
accommodations.
115 [d.
116 [d.
117 [d.
118 [d.
119 Foner, supra note 13.
120 [d.
121 [d. Local governments and the private sector of southern and northern states resisted integration
in housing, business, and civic participation.
122 [d.
123 Esquivel, supra note I, at 336.

16 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
itself with the battles for equal rights as waged by several advocacy groups, the
Legal Aid Society, ACLU, the NAACP/LDF and the Civil Rights movement. 124
Lawyers in this specialty area typically engaged in serving under-represented, oppressed
groups and causes. 125 While there could be some disagreement among
proponents of the individual groups on ideological boundaries surrounding representation,
a different genre of public interest lawyers emerged during the Reagan
years. During that era the notion of the public good became more closely identified
with the individual rights and economic freedom of those more typically favored
in society.126 The concerns and viewpoint of the more privileged in society
became identified as the subject of public interest protection and advocacy.127
Thus, opponents of the very causes that defined public interest advocacy acquired
the cover of moral propriety earned by their opponents. 128
While both groups of lawyers characterize their work as supporting the public
good, the issues of the marginalized or disenfranchised clearly clashed with the
objectives of the more conservative group, which endeavored to stop or avoid the
changes that access would necessitate. 129 Unlike the early days of the civil rights
movement, public interest law now reflects multiple constituencies. Coalition,
compromise, and divergent perspectives on priority of interest have robbed discrete
groups of their voice and progress toward long-term goals. Accountability
and fulfilling organizational goals compete with access to power, individualized
imposition of norms and status, and less noble concerns for legitimacy. In the
wasteland of racial justice, decisive moral force and unity of purpose have been
displaced by the pursuit of colorblind, race neutral access to rights of citizenship.
Once directed by common substantive vision or outcome, constitutional protection
or representation now relies on procedure or process. 130
In 1960 when lawyers pursued a career in public interest law, they endeavored
to address the systematic underlying causes of poverty or public dysfunctions of a
sort. Environmental and consumer protection, rule making in governmental reform,
the responsiveness of mass media, physical and mental health, women's
rights, education, children's rights, juvenile rights, gender preference and sexual
orientation, indigent defense, international issues, and electoral rights all
124 Esquivel, supra note 1, at 336.
125 [d. at 341.
126 [d. at 345. These lawyers focused their efforts on preserving the interests of those most
often privileged by society. In fact, much of the human rights devastation associated with the Reagan
years was described as furthering the "public good".
127 [d. at 340.
128 Federal case law has disrupted equal access to education. For example, Regents of University
of California v. Bakke, 438 U.S. 265 (1978) and its progeny greatly limited affIrmative action,
complicating the advancement of non-whites. However, public interest advocates must continue to
fIght to secure the promises of the constitution for all members of society.
129 Esquivel, supra note 1, at 344.
130 [d. at 347-48.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 17
presented significant opportunity for lawyers to be visionaries and effect social
change. 131 The public interest lawyer of today is identified by the procedure underlying
the respective practice. There is less focus on substantive rights and a
preoccupation with the effect of one's legal work. 132 Success is more likely when
the goal is abstract, disassociated from less favored constituencies or costs. Pursuing
the path of least resistance has become a substitute for the struggle toward
justice. 133 There is, however, no moral imperative to exact much beyond the
rhetoric on issues like racial equality.134 The lack of identity and commitment to
objective goals and standards breed indifference and complacency from advocates.
Constituents languish without appropriate remedies in the decaying orbit
of isolation.
While civil and individual rights organizations have worked together productively
to address basic questions of inequality in the larger society, the inability to
determine and relinquish ill-gotten gains associated with white privilege and
overrepresentation contribute to blurring of goals and wandering fOCUS. 135
There is active resistance to increased racial minority presence in the work force
and in decision-making positions. 136 Claims of reverse discrimination have their
origin in the misguided belief that racial equality only exists when whites are not
disadvantaged. American society has been out of balance from its inception. To
the extent that inequity has resulted in the overrepresentation of any group, correcting
the system should result in changes for the inappropriately advantaged
group.137 Only subordination or some other illegal system could preserve the
disproportionately advantaged from experiencing racism consistent with justice.
"Most white people have no experience of a genuine cultural pluralism, one in
which whites' perspective, behavioral expectations, and values are not taken to
be the standard from which all other cultural norms deviate.,,138 To the extent
that public interest advocates fail to challenge or remedy racial segregation, they
actively engage in the continued oppression of racial minorities. "Even whites
who do not harbor any conscious or unconscious belief in the superiority of white
people participate in the maintenance of white supremacy whenever [they] impose
white norms without acknowledging their whiteness. ,,139 Unlike the untrained
citizen, lawyers are sufficiently educated to understand the dynamics of
racial oppression and the mechanics of balancing a system. Racial oppression
131 Esquivel, supra note 1, at 347-48.
132 Id. at 329.
133 Id.
134 Id.
135 Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement
of Discriminatory Intent, 91 MICH. L. REV. 953, 969 (1993).
136 Id. at 1016.
137 Id.
138 Id. at 979.
139 Id.

18 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
devastates every aspect of non-white existence. Public interest lawyers are
uniquely positioned to contribute to the development of alternative systems and
remedies. The refusal to use their training to disrupt racial discrimination condemns
non-whites to suffer further indignity. The lives and experiences of racial
minorities are so marginally valued, that public interest lawyers do not hesitate to
engage in conduct calculated to maintain white dominance and expectancy.
Equal access and social justice for racial minorities will only be possible to the
extent that non-white values and norms emerge as girders in the established order.140
Because whites believe that only conscious, racially motivated conduct
qualifies as discrimination worthy of interdiction, today's public interest lawyers
have less than 20/20 vision of the full extent of racial injustice or one's individual
participation in maintaining inequality.141
01. WOLVES IN SHEEP'S CLOTHING: THE DISCONNECT BETWEEN THE PUBLIC
INTEREST AND EQUAL ACCESS FOR RACIAL MINORITIES
A. Rhetoric Rich Action Poor: Wolves in Sheep's Clothing
Limiting social accountability for discrimination to overt, intentional conduct
consigns equal access to education and other essential building blocks of citizenship
for under-represented groups to the realm of illusion. Repetition and tolerance
incorporate such acts into the repertoire of norms reinforcing white
supremacy.142 There can be no basis for equality as long as the citizenry and
social institutions fail to confront and extinguish racial inequality however it
manifests. 143
Educational access for African Americans has changed considerably in the last
thirty plus years. l44 Statistics gathered on Blacks enrolling in college the fall after
high school indicate that from 1972 to 1996 the percentage of students enrolling
increased from 44.6 to 56 percent. 145 White student enrollment for the same period
was 49.7 and 67.4 percent, respectively.146 For the same time period college
graduation rates fluctuated. In 1971 Blacks were 11.5 percent of the youth age 25-
29 graduating from college. For the same time period, white youth constituted 22
percent of that age group graduating college. 147 By 1998, the rate of black gradu-
140 Aagg, supra note 135, at 979.
141 [d. at 987.
142 [d.
143 [d. at 991.
144 Gary Orfield and Dean Whitla, Diversity and Legal Education: Student Experiences in
Leading Law Schools, available at http://www.civilrightsproject.harvard.edu/researchllawmichiganl
lawsurvey.php.
145 [d.
146 [d.
147 [d.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 19
ation was 17.9 percent. 148 White student graduation was 34 percent for that period.
149 For Blacks, law school enrollment increased from 1 percent in 1960 to 7.5
percent in 1995. 150 Educational gaps between white and non-white students began
to rise in the early 1990s. 151
Institutionalized racism as reflected in unequal access to education is self-replicating.
152 Disrupting this life cycle and dismantling the systems providing lifesupport
to white privilege involve a strategic broad-band approach. Institutions
productively engaged in destabilizing racial inequality rely on a variety of strategies
involving the potential applicants and the institution. 153 These strategies
emerge from the belief that comprehensive planning, outreach, and attention to
supporting student development are essential to maintaining genuine equality of
access. 154 Equality of access involves more than an offer of admission. 155 Enrollment
strategies must increase the opportunity for Blacks and other people of
color to access and graduate from universities and professional schools. They
must address student finances and the cost of education. The quality of student
life and the cultivation of competitive employment opportunities are essential to
perpetuating a balanced system of educational and life opportunity for nonwhites.
Quality admission programs addressing these concerns have contributed
to the presence of racial minorities in colleges and universities nationwide. 156
Racial minorities continue to be under-represented in institutions of higher education
and because of the erratic nature of minority enrollment, matriculation,
and graduation, stronger effort is required. 157
This is exacerbated by the failure of the public interest legal community to
wage consistent, aggressive war on this important front. Because racism violates
every aspect of American life, strategic battle should be waged on several levels
throughout the public interest community. While benign rhetoric extolling the
value of a colorblind society is valiantly exhibited as proof of fellowship in a
distinctive club, optimal advantage has yet to be taken of the instrumentalities
and resources under the control and influence of the public interest community.
There is, at best, only tepid effort to weaken and purge policies and practices that
148 Orfield and Whitla, supra note 144.
149 [d.
150 [d.
151 Catherine L. Horn and Stella M. Flores, Percent Plans in College Admission: A Comparative
Analysis of Three States' Experiences, available at http://www.civilrightsproject.harvard.edu (last visited
June 16,2003).
152 [d.
153 [d.
154 [d.
155 [d.
156 Horn and Flores, supra note 151.
157 [d.

20 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
afford unqualified privilege to whites. 158 A more progressive routine requires a
functional analysis of how to achieve this end in varied settings. 159 That analysis
involves an exploration of values, attitudes, conduct, and speech.
The values, information and experiences organized as competent educations
do little to challenge and replace the basic tenet of a white privileged American
consciousness. White upper class bias permeates higher education. 16o While
Brown appeared to sound a victory for racial justice and the end to white privilege
and supremacy, it did nothing to the real taproot of inequality and subordination,
the "expectation of whites. ,,161 By any other name, the heart of white
supremacy, e.g. white expectation, is alive and potent today.162
White expectancy entails the belief that equality will have no effect on the
experience of whites at all. It precludes the consideration and recognition that the
appropriate incorporation of others, non-whites, fairly alters the participation or
access of whites. In this altered way of thinking, limitation on white access is
unconstitutional even if it results in a perspective, workforce, student body devoid
of non-white influence. While the reality portrayed in the above characterization
would be quickly rejected as an institutional or individual philosophy, one
has only to examine the objective reality to determine whether white expectancy
to dominate overwrites and perverts mission statements and policies that suggest
contrary orientation. The value and respect afforded non-white people, attitudes,
perspectives, and sensibilities are best reflected in the willingness to set-aside
friendship, personal comfort, and changes in the power dynamic to achieve and
experience balance.
From the very beginning of slavery in America, whites extolled the virtue of
freedom while denying Native Americans and then African slaves all semblances
of the American dream. As formal governance structure and philosophy evolved,
the dichotomy between the dream of America and the experience of non-whites
worsened. 163 The laws enforced race-based distinctions. The international agricultural
trade of the South and new Southwest were inextricably linked to and
reliant on the existence of a slave work force.
Freedom that is the exercise of rights and guarantees promised in American
political rhetoric, were reserved strictly to people with white skin. Generations of
whites lived in a reality where the inferiority of non-whites was reinforced in all
aspects of daily life. Only during fleeting moments of necessity, threats of war,
158 Flagg, supra note 135, at 1016.
159 Id. at 1014.
160 Derek Bell, Race, Racism and American Law 550-51 (1992) ciled in Powell & Spencer,
supra note 3, at 1266.
161 Powell & Spencer, supra note 3, at 1266.
162 Id.
163 Foner, supra note 13; Camarillo, supra note 15.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 21
did non-whites enjoy any semblance of rights or privilege. 164 At those times, the
contradiction between the experiences of non-whites and whites interrupted, distorted
an image of America that was essential to sustaining significant, national
political undertakings.
Because the exploration of America's problem with race had and continues to
have wide reaching economic, social, and political implications, no comprehensive,
systematic effort has been undertaken to address it. Few of the solutions
directed at racial inequality effected long term change in the fiber of the American
experience for non-whites. Like a drug resistant virus, protections promised
to citizens through the Fourteenth Amendment, Reconstruction, The New Deal,
and certain Civil Rights enactments of the 1960s and 1970s all met and continue
to engender resistance. This is true regardless of the source of the initiative's
origins, e.g., private and benevolent societies, legislative initiatives, and litigation
and resulting judicial decisions. 165
The sensibilities of judicial opinions like Croson 166 and the language of Milliken
167 operate only to shield the dominant class and contain Blacks. 168 These
cases suggest that positive or objective outcomes require indifference to or denial
of the discrimination that persists. 169 That is, unconscious racism is undetected,
unexposed as a prevalent factor in unequal treatment. 170 For as long as that
anomaly is permitted to exist, unequal access will persist.
It is illogical to believe that racial equality can be achieved without deliberate
action to bring it about. Racial discrimination thrives in any environment tolerant
of the notion that Blacks and other under-represented groups are inferior, worthy
of subordinate status in society. It is almost noble and certainly necessary to
"save deficient racial minorities from themselves while protecting a more capable
white from the inequality they experience.,,171 In short, if Blacks worked harder,
they would enjoy a better place in the society.l72 The dominant class is thus with-
164 Foner, supra note 13.
165 [d. The national Constitution enabled slavery. The slave population contributed to the electoral
vote allocated to states with slave populations. Fugitive slaves were returned to their owners.
Large segments of the northern black population fled to Canada to elude capture and relocation into
slavery. Reconstruction lasted ten years.
166 City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
167 Milliken v. Bradley, 433 U.S. 267 (1977).
168 Foner, supra note 13.
169 [d. Claims of reverse discrimination to secure employment or admissions consideration for
whites is an abuse of an equal access strategy designed for use by minorities. Insistence on the use of
standardized tests to identify students of color most likely to be successful in higher education further
ensures maintenance of the status quo, white privilege. Even among public interest advocates there is
an inability to accept that the inclusion of non-whites will result in the exclusion of whites if a limited
number of people can access a particular privilege.
170 Flagg, supra note 135, at 988.
171 [d.
172 Powell & Spencer, supra note 3, at 1287.

22 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
out responsibility for the disparity and obligated to do nothing to resolve the
inequality.173 The processes used to determine college attendance and the support
afforded students to ensure college graduation are among the first factors
implicated.
After relentless pursuit of equality in education, whites are more likely to
graduate from high school, college, and graduate school than Blacks. 174 Income
influences educational and other resources available to racial minorities. Educational
preparation is thus affected. Admission policies rely primarily on test
scores and qualified minorities are excluded from undergraduate, graduate and
professional schools. 175 The cost of public education exceeds what some lowincome
black families can pay for higher education. 176 In higher education, reliance
on standardized test scores often disadvantages Blacks in the college admission
process. I77 Finally, the availability of supportive educational environments
is fluctuating. Affirmative action programs and the existence of HBCUs in de jure
segregation states have come into question. 178 Educational environments that exclude,
diminish, or marginalize non-whites are likely to experience difficulty attracting
and retaining non-white students. Supportive environments are
welcoming to people of color in objective terms. Physical presence, ease of accessing
financial and other services, and inclusion in policymaking all underscore
commitment to diversity and equal educational access.
Given the pivotal role that educational access plays in distributing social and
economic justice, only a malingering mindset could support or reward willful si-
173 Powell & Spencer, supra note 3, at 1287.
174 Carl A. Auerbach, Is Government the Problem or the Solution? 33 SAN DIEGO L. REV. 495,
504 (1996).
175 Bok, supra note 17. Undergraduate, graduate, and law school statistics reflect a conspicuous
absence of people of color and black men in particular.
176 THE JOURNAL OF BLACKS IN HIGHER EDUCATION, The Sudden Decline in the Nationwide
Number of Black Faculty available at http://www.jbhe.comlnews_views/35_decliningblackfaculty.html.
In twenty-one states only 50% of the public colleges are affordable to low income students. In these
states' community colleges, less prestigious units within the state system have the most affordable
tuition. More complex university programs cost more and are beyond state resident reach fmancially.
In 14 states, less than 115 of the state college or universities are within the financial reach of low
income student even after they have borrowed $5,000. There are only five states where low-income
students can afford tuition at all state funded institutions of higher education. The income gap between
whites and blacks continues to widen for lower income people.
177 Secrets of the SAT: Interview with Claude Steele, available at http://www.jbhe.com/
news_ views/34_index.html. The gap between white and black scores on the SAT may result from
differences in access to schooling, differences in treatment within schools, differences in socio-economic
status as associated with racial status.
178 Wendy Brown-Scott, Race Consciousness in Higher Education: Does "Sound Educational
Policy"Support the Continued Existence of Historically Black Colleges? 43 EMORY LJ. 1, 3 (1994).
The integration and concomitant social interaction achieved in the sixties and seventies has been
eroded by the relocation of whites to the suburbs and a line of conservative court decisions dismantling
affirmative action in education.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 23
lence and inaction from public interest advocates purporting to facilitate equal
access. There are well-rehearsed justifications and protocols that document this
caliber of system failure. There is no intent to discriminate. 179 Hiring processes
end with a selection of the strongest candidate. Blacks and other racial minorities
are actively recruited, and the institution enjoys greater diversity than many other
organizations. The institution's unique staffing and public interest orientation are
hallmarks of meeting the very challenge that society has failed miserably to undertake.
No selection should ever involve the color of the candidate's skin.Iso
There is no diversity plan or written statement of institutional hiring goals.
There is no discussion of diversity and, to the extent that community members
raise concerns about diversity, there is neither the will nor forum in which to
pursue resolution of such concerns. Racism is a problem of the past. To the extent
that community members believe their experiences to be race tainted, future efforts
will address those concerns. The roster of minorities who support the effort
is proof that discrimination does not flourish here. No one can prove that there is
discrimination here. There is nothing to do about it ... next time. It won't happen
again.
Silence and inaction are deliberate. Faculty and administrators interact in real
time. People vote to hire or recommend hiring. Individuals knowledgeable of the
institution's history abstain from any movement that would alter the status quo.
They evaluate faculty, student and staff reports of institutional hostility and determine
that the concern is not sufficient, serious enough, advanced soon enough
to influence present decision-making. Individuals consult and withhold cooperation
in the vain expectation of acquiring or maintaining political muscle within
existing paradigms. Where the stated mission embraces equal access, a choice for
personal comfort is most often a choice to protect white expectancy and dominance.
White discretionary decision making, e.g., performance evaluation, hiring,
lending, servicing students reflects racial bias. 1St Even if one could convincingly
argue that such incidents are unconscious, the outcome favoring or advantaging
whites speaks for itself. When combined with instances of electing personal or
group comfort over mission and institution building, stakeholders conspire to
protect the dominance of white values and a system of advantaging whites.
In living organisms, the absence of challenge or resistance leads to weakened
capacity. Without consistent effort, institutions develop neither the resources nor
the reputation for providing the nurturing, safe environment consistent with
equal educational access. Silence and inaction become even more dangerous
when regulatory schemes, accreditation standards and affirmative action case rulings
are used as justifications for silence and inaction. The litmus test for un-
179 Flagg, supra note 135, at 968.
180 Id.
181 Flagg, supra note 135, at 983-85.

24 THE UNIVERSITY OF THE DISTRlCf OF COLUMBIA LAW 'REVIEw
masking the true character and accomplishment of an organization is whether its
conduct advantages whites and disadvantages, alienates, or oppresses non-whites.
In short, unless an organization accepts responsibility for its actions and implements
a regime to correct its discriminatory conduct, it must accept its proper
position on the court of bona fide oppressors. Accepting responsibility to correct
injustice is an essential step toward implementing a level of institutional self-scrutiny
and change.
African Americans and other people of color continue to be excluded from
college and university faculties. In 2002 Blacks were 3.6% of all full-time faculties
at the most well-respected American universities. This reflects an increase of onehalf
a percentage point in six years. 182 Hiring faculty committed to diversity determines
the success of hiring black and other racial minorities. 183 While the
paucity of colored peoples in academia is typically explained with the retort
"there are too few qualified to pick from," there are sufficient numbers of qualified
professionals of color to support considerably larger numbers in most disciplines
at the undergraduate, graduate, and professional school levels. 184 The
absence of Blacks and other people of color in decision making roles guarantees
that non-white voices remain distant from ensuring sensibilities are taking into
consideration in essential functions of the institution.
Disabling non-white stakeholders occurs in several ways. Accepting the colorblind
approach to equal educational access ignores the failure of desegregation in
this country.185 "'Whites in the leadership classes' pretend to support affirmative
action, but then claim to be unable to find enough qualified minorities, even
knowing that 'the qualifications they insist on are precisely the credentials and
skills that have long been denied people of color.",186 Declining minority enrollment
and leveraging the influence of prominent organizations or individuals external
to the institution are equally effective strategies to limit non-white
influence in public interest organizations.
Decreased minority student enrollment all but ensures a waning sensitivity to
the impact of race on the administration of justice. The brutality, injustice, and
inequity associated with race are facts of daily living for people of color. 187 Issues
182 THE JOURNAL OF BLACKS IN HIGHER EDUCATION: A JBHE Report Card on the Progress of
Blacks on the Faculties of the Nation's Highest-Ranked Colleges and Universities, available at http://
www.jbhe.com.
183 Id.
184 Id.
185 Powell & Spencer, supra note 3, at 1291.
186 Daniel A. Farber, The Outmoded Debate Over Affirmative Action, 82 CAL. L. REV. 893, 910
(1994), quoting Derek Bell, Xerces and The Affirmative Action Mystique, 57 GEO. WASH. L. REV.
1595, 1605 (1989).
187 Angela D. Hooton, Constitutional Review of Affirmative Action Policies for Women of
Color: A Hopeless Paradox? 15 WIS. WOMEN'S LJ. 391, 421-24 (2000). Women of color are uniquely
imperiled. They experience discrimination that is both race and gender based. Women of color ap-

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 25
like race profiling, police abuse, and discrimination elude the attention of
whites. 188 The decreased presence of students of color lessens the probability
that classroom discussion and study consider the significance of race. 189 By decreasing
the number of minority students attending law school, the very nature of
an inquiry into justices changes. It is highly unlikely that a classroom discussion
or faculty committee deprived of minority participants or stakeholders will reflect
the perspective or concerns of under-represented groups. At best there can only
be a substitution of judgments or sensibilities, which may result in a less than
balanced treatment of subjects significant to under-represented communities. 190
On the other hand, it is equally efficient to silence people of color when forced to
tolerate them in institutions of higher education.
Finally, outside actors are encouraged to reinforce the silence or neutrality
sought by the libertarians. Most law schools seek the active participation and
support of alumni and distinguished members of the local bar who can enrich the
overall program by capital, scholarship, research endowment or contribution. Influential
members of the local bar association may opine, question, encourage,
observe within the hearing and vision of university trustees and presidents.
B. Cultivating Productive Environments for Students
Blacks have been disempowered in the governance of university systems, and
there continues to be little evidence that predominantly white schools will provide
either the same degree of opportunity for non-white students, faculty, and
administrators or the environment free of racial animosity and intimidation found
in HBCUS. 191 These setbacks or limitations serve to distort and erode the identity
and vision critical to cultivating positive learning environments for non-white
student populations. 192 This tool of discrimination discourages accountability for
improving the plight of groups traditionally under-represented, and may in the
short-term reward the predator perpetrating the discriminatory action. 193 The
same rationale given to justify race neutral admission has been used to justify the
merging of state institutions, extinguishing former HBCUs or calling into question
the need for continued state funding to support a HBCU}94 To date, Tenpear
in disproportionately high concentration in poverty statistics and are under-represented in higher
education statistics including law and medical school enrollment and graduation. In short, women of
color enjoy a unique position of under-representation as compared to racial or gender minorities and
have advanced less dramatically in influence, power, and income than their white counterparts.
188 Bemida Reagan, The Impact of Cutbacks in Affirmative Action on Community Lawyering,
14 BERKELEY WOMEN'S L. J. 6, 10 (1999).
189 Id.
190 Id.
191 Brown-Scott, supra note 178, at 52-53.
192 Esquivel, supra note 1, at 330-35.
193 Id.
194 Wenglinsky, supra note 6.

26 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
nessee State University, an HBCU, has been merged with a historically white
college. 195 Mississippi raised admission requirements at each of its three HBCUs,
and enrollment declined 9.9 percent at Alcorn State and 20.1 percent at Mississippi
Valley State University.196 Proposals offered by the state of Louisiana, if
implemented, would end African American governance of HBCUs in that
state. 197
While there is no substitute for decisive thinking and action on this issue, many
of the institutions not yet the subject of litigation or court decree lack definitive
strategies to combat the prevailing wisdom of the court. 198 Fearless appearing,
rhetorically committed soldiers from every group on the field hesitate or fail to
accomplish simple equal access goals, e.g., hiring minority faculty members to
maintain minority student enrollment. This phenomenon suggests acquiescence
in or internalization of the constraints imposed by anti-affirmative action initiatives
as the framework for equal access and the commitment of too few to a
complex task. Social justice for non-whites occupies a priority incongruent with
resource allocation likely to produce consistent results. Indeed, achieving the
broad reach of public interest law has been accomplished by playing the ultimate
race card, tranquilizing political and ideological differences essential to combating
injustice at its root. 199
To understand the economy of value-neutral public interest law, one need only
evaluate group and individual use of power and outcomes. The preservation of
non-white culture and the cultivation of non-white potential are actuated through
equal access to education. Equal access to education is only possible in tolerant,
nurturing environments where resources and curricula support these goals. If the
outcome preserves the status of historically advantaged groups or creates advantage
for whites, there can be little ambiguity about the priority given to equalizing
or addressing civil rights concerns. While courts and public interest law advocates
may struggle with how best to structure and implement the system of an inventory
of colorblind, value-neutral approaches are not reasonable alternatives.
These measures serve to do little more than repopulate the "old boy network"
with allegedly socially conscious "old boys and girls." The adversary has been
given legal authority to perpetuate the displacement or devaluing of racial minorities
in favor of dominant culture and students.
"But the relation of the races, complicated by 'identity politics,' remains the
most important issue facing us. Every major domestic problem, poverty, welfare,
195 Wenglinsky. supra note 6.
196 ld.
197 ld.
198 Chambers, supra note 7, at 9-13.
199 Esquivel, supra note 1, at 330-35.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 27
crime, the decline of our cities, the deterioration of our public [educational system]
- is bound up with race. ,,200
In these currents, the survival of historically black institutions is likely to become
as challenging as advancing other affirmative action strategies. In the name
of inclusion and in exchange for race-neutral programs of admission and hiring,
affirmative action is conscientiously undermined. 201 This phenomenon persists
despite the fact that significant data suggest that race-neutral approaches have
failed and continue to fail at providing African Americans access to higher education
and the legal profession in significant numbers. 202
In fact, a considerable number of African American professionals continue to
secure some or all of their college and postgraduate education in Historically
Black Colleges or Universities. 203 While this serves as a testament to the value of
such institutions in the American educational system, it also demonstrates in
fairly graphic terms that America is stilI a very racially divided society. Approximately
120/0 of the American population is African American. African Americans
continue to be approximately 30/0 of the lawyers licensed to practice law in
America, which is less than 10% of the population admitted to and graduating
from law schools. 204
A true value-neutral remedy would not result in oppression, discrimination, or
a perversion of mission. If a value-neutral approach is ever to be an appropriate
strategy in resolving civil rights concerns, racial minorities should not be undermined
or displaced by operation of the methodology. The judgment, influence,
and identity of racial minorities should be as highly esteemed and protected as
that of whites. In short, the protection of individual rights and economic freedom
should not result in racial domination of a disenfranchised group or the perpetuation
of marginal access to justice for historically victimized groups. In the best
case scenario, claims of reverse discrimination used to advance otherwise unlikely
non-minority interests would become a less acceptable way for non-minorities to
gain social or economic advantage.
While the courts and other proponents of race neutral admissions and hiring in
higher education insist that there can never be equal access to same quality education
or employment unless there is nothing that distinguishes any candidates,
one from the other, statistical data from law schools affected by legislation and
litigation directed at halting affirmative action reflect awe-inspiring declines in
the number of admission offers extended to candidates of color and palpable
reluctance on the part of candidates of color to seek admission and accept offers
200 Auerbach, supra note 174, at 505.
201 [d.
202 [d.
203 [d.
204 US Census 2000, available at http://www.census.gov/main/www/cen2000.html.

28 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
of admission. 205 As early as 1990, black enrollment in medical schools chartered
by the state of California was in decline. 206 During the first year of the Regents'
ban on race sensitive admission processing, applications plummeted. Black enrollment
at the University of California at Los Angeles dropped from 11 % to
6.5%.207 Enrollment statistics for 2002 reflect 10.2% enrollment of black students.
Experience at other campuses was less reassuring. In 1994, black enrollment
at the San Francisco campus reflected a black medical student enrollment
of 8.4%. In 1999 and 2002 black student enrollment fell to 7.6% and 60/0, respectively.208
At the San Diego campus, prior to the ban on affirmative action, 4% of
the medical student population was black. Within two years there was a 93 %
decline in black enrollment. In 2002 less than 1 % of the medical students enrolled
was black (one student).209 The University of California's implementation of Proposition
209 at Boalt Hall generated a forty-six percent decrease in law school
minorityenrollment. 21o
Standardized test scores driven admission, as previously indicated, often excludes
qualified minorities capable of success in the undergraduate, graduate or
law school program they seek to enter, given the opportunity.2 11 Extensive study
suggests that "experiences tied to one's racial and ethnic identity can artificially
depress standardized test performance. ,,212 While the tests are reputed to measure
aptitude, the inability of the tests to evaluate and determine the import of
experience limits the tests to determining test-taking aptitude.2 13 American
higher education does not evaluate achievement. While achievement, the measure
of how much a person has learned, is a better predictor of success in higher
education, American institutions persist in using aptitude tests to make admissions
decisions. 214
205 Reagan, supra note 188, at 6-9.
206 THE JOURNAL OF BLACKS IN HIGHER EDUCATION, Checking Vital Signs: Black Student Enrollments
at the Nation's Highest-Ranked Medical Schools, available at http://www.jbhe.coml
news_ views/36_medicaCschools.html.
207 Id.
208 Id.
209 Id.
210 Id.
211 Claude M. Steele, Race and the Schooling of Black Americans, 269 ATLANTIC MONTHLY 68-
78 (April 1992) available at http://www.theatlantic.comlpolitics/race/steele (examining the impact of
test scores and other factors on black student achievement).
212 Claude M. Steele, Expert Report of Claude M. Steele, Gratz, et al. v. Bollinger, et aI., No.
97-75321 (E.D. Mich.) Grutter, et al. v. Bollinger, et aI., No. 97-75928 (E.D.Mich.) available at http://
www.umich.edul-urelladmissionsllegallexpert/steele.html.
213 Id.
214 Id.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 29
The ability to serve an increasingly diverse society is compromised by the failure
to train students of color. 215 Comprehension of the issues, norms, injuries,
and remedies available in our system of laws is best achieved through study that
considers the varied perspectives of the constituent groups.216 The training of
lawyers should occur in an environment which fosters such inquiry and supports
the acquisition of the skills and knowledge needed to service an increasingly complex,
technology charged economy.
In other words, the goal of improved access to higher education for Blacks has
been altered or has been neutralized. Access for a broader range of citizens was
exchanged, deemed constitutionally permissible, to ensure access for a smaller,
homogeneous group. Completely detached from a morally directed purpose, basic
access for Blacks seeking education has been undermined without regard to
the cost that society will pay. This political maneuvering feeds disenchantment
with the legal system and so-called notions of justice. Under such circumstances,
access may result in little more than distrust and alienation. Though a better remedy
was available, the court selected a solution less offensive to the larger white
political body. It did so pushing the healthier, more complete solution out of
reach. 217 "What's worse, these wolves may well appear in sheep's clothing as
proponents of the good, but only so long as it is politically expedient. . . . They
may often be our allies, but they can never be our friends."218
And this is the worst of the worst: There may be no telltale hint of insincerity
about them; they may deceive themselves as thoroughly as they deceive
others .... Such a person simply becomes whatever is most advantageous at
any particular time to be, automatically adopting the prevalent political colors
with all the camouflaging skill of a chameleon. You can only know them
for what they are after they have betrayed you usually by their insistence
that their treachery was really for some higher cause, or your own goOd. 219
Referring to the constitution or applying its provisions for a race-neutral outcome
is inconsistent with the reality of American society and politicallife. 22o Divided
by race since conception, life, culture opinions, and consciousness in
215 See, e.g., Brief of 13,922 Current Law Students at Accredited American Law Schools as
Amici Curiae in Support of Respondents, 2003 WL 554404 (amicus brief in Gruller v. Bollinger, 123 S.
Ct. 617 (February 18, 2003».
216 See Marjorie Schultz, Boalt Hall in a Post-Affirmative Action Era, 13 BERKELEY WOMEN'S
L. J. 1 (1998), cited in Reagan, supra note 188, at 8.
217 See Rob Atkinson, Historical Perspectives on Pro Bono Lawyering: A Socio-democratic Critique
of Pro Bono Publico Representation of The Poor: The Good as the Enemy of the Enemy of the
Best, 9 AM. U. J. GENDER Soc. POL'y & L. 129, 132 (2001).
218 Id. at 137.
219 Id. at 137-38.
220 Darlene C. Goring, Private Problems Public Solution: Affirmative Action in the 21st Century,
33 AKRON L. REV. 209, 287-88 (2000).

30 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
America are dominated and obscured by race. 221 This distortion has compromised
the ability of conservative and liberal jurists to distinguish between institutions
refusing to educate African Americans and those that educated Blacks
willingly when no other institutions would. 222 The manipulation of reality that
permits jurists, legal academicians, and other advocates to equate de jure segregation
with claims like reverse discrimination prevents the effective use of raceconscious
remedies to address racial inequality in education. 223 Unchallenged,
the distortion enables conduct and outcomes consistent with racial oppression.
In law school settings, this strain of neutrality and silence manifests around
hiring processes, tenure and promotion action, and the policy considerations that
influence admission criteria. Admission and employment actions are deliberate
with quantifiable consequences. Enrollment influences faculty size. Failure to enhance
faculty diversity constrains institutional ability to support a diverse student
body effectively for a period of years. While traditional institutions engage in
preserving the status quo under the guise of preserving institutional integrity, the
so-called public interest organization betrays its mission and the public good with
each transgression. Diminished or static non-white enrollment evidences a tepid
commitment to diversity or hostility to non-whites. To the extent faculty equate
the presence of whites with the academic strength of an entering class, the increased
presence of non-white students would be resisted. The expectation that
non-whites perform marginally is consistent with the inability to see how a matter
can end well unless whites direct the enterprise, and consistent, as well, with the
imperative that whites earn more and be protected within the system.
Whether reflected in indifference to the role of minority faculty, the value of
different voices, or the discourse on pedagogy supporting the competent training
of the 21st century lawyer, the failure of a public interest institution to cultivate
an environment conducive to supporting the professional and educational needs
of a diverse student body is not casual or unintended. The misuse of employment
opportunities, tenure and promotion standards and a palpable disrespect for nonwhite
students and staff all result in public interest institutions being as ineffective
at providing meaningful educational access to minorities as traditional
institutions.
Hiding behind the specter of Supreme Court decisions initiating the dismantling
of affirmative action in higher education,224 public interest actors have retreated
to race neutral sanctuaries with immunity. Threatening reverse
discrimination or manipulating the neutrality of people of color, each presents
the institution with a choice that avoids an objective good. Either tactic serves as
221 See Brown-Scott, supra note 178, at 3-4.
222 [d. at 20.
223 [d.
224 See Goring, supra note 220, at 218-228 (summarizing court decisions).

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 31
a value-neutral tool to disrupt and dismantle an environment capable of appropriately
supporting the education of people of color. To the extent that stakeholders
employ such devices for personal gain the actor, a millennium wolf in sheep's
clothing, is in a position to level considerable violence against the institution.
Statistics from a study conducted by the American Bar Association (ABA)
and the National Bar Association (NBA) demonstrate how race alters perception
among trained professionals. 225 When queried about injustice and race, two
thirds of the black lawyers reported observing racial bias in the justice system in
the previous three years?26 Ninety-two percent of the black lawyers said that the
justice system reflected the same or more racial bias reflected in other sectors of
society.227 Fifty percent of the white attorneys surveyed reported believing that
the justice system was less biased than the rest of society?28 More than eighty
percent of the white lawyers reported observing no bias in the justice system. 229
If this survey is representative of white professionals in general, a broader
worldview of justice is less likely to prevail where minority enrollment
declines. 23o
Insisting on the use of standardized tests in admission programs will ensure
resegregation. 231 It is reliance on the single form of intelligence measurement
proven to disadvantage Blacks and other people of color.232 To the extent that
administrators or decision makers discourage the use of other intelligence measures,
the institution will enroll fewer students of color. 233 Experiential intelligence
reflects the ability to be creative and adaptive. 234 Contextual intelligence is
the ability to understand and negotiate a system to one's advantage. 235 Measuring
these forms of intelligence requires time intensive techniques, e.g., questionnaires,
interviews, and portfolios. 236 While mission may verbalize commitment to
225 See Terry Carter, Divided Justice, NBA MAG., Jan.-Feb. 1999, at 16, cited in Reagan, supra
note 188 at 11. The ABA Journal and NBA Magazine Poll, conducted by Research USA from November
9 through December 3, 1998, was a random telephone survey of 1,002 lawyers.
226 Id.
227 Id.
228 Id.
229 Id.
230 Reagan, supra note 188, at 8-9.
231 See Powell & Spencer, supra note 3, at 1288.
232 See Robert L. Linn, Test Bias and the Prediction of Grades in Law School, 27 1. LEGAL ED.
293,294 (1995); David M. White, Culturally Biased Testing and Predictive Invalidity: Putting Them on
the Record, 14 Harv. C.R.-C.L. L. REV. 89, 108-14 (1979), cited in Powell & Spencer, supra note 3 at
1285.
233 See William E. Sedlacek, Multiple Choices for Standardized Tests, PRIORITIES, Winter 1998,
at 1,4, cited in Powell & Spencer, supra note 3, at 1289 (describing Robert Sternberg's arguments for
supplemental criteria).
234 Id.
235 Id.
236 Id.

32 THE UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEW
training under-represented groups, if there is no formal plan to advance diversity
in an organization, it is unlikely that diversity will be achieved.
C. Silence of the Lambs: ... And What of Minority Faculty?
Faculty share some responsibility as willing or indifferent accomplices in the
effort to disable non-white stakeholders. Faculty statistics, nationwide, indicate
that people of color are most frequently untenured and under-represented. To
the extent that people of color occupy untenured positions, their exclusion from
decision making and major governance policy making activity ensures decision
making that favors the status quo or continued white dominance. Thus, the presence
of junior minority faculty may be of little consequence to hiring, client service,
and student recruitment and admission. Such manipulation violates the very
tenets of justice public interest lawyers once claimed to pursue. 237
On the other hand, vocal faculty members in public interest organizations who
challenge the established order are vilified as rogue or difficult. Their questions
are improper because of tone or content. Efforts to secure accountability or consistency
become occasions for civility counseling. When labeling is unsuccessful,
isolation becomes the preferred strategy.238 Hiring priorities are squandered as
opportunities to reward loyalty or bring aging friends in from the cold. This approach
is pursued at the expense of addressing curriculum needs, displacing people
of color holding non-tenure track positions, ensuring the disproportionate
under-representation of people of color on the faculty and in the student body.
There are times, however, when silence is self-imposed. It is uncomfortable to
be the sole voice raising race related concerns.239 Engaging in safer conversation
is a welcomed opportunity at times. People of color may actively cooperate in
the institution's hostility toward increasing faculty diversity by withholding their
support. As the only one or most senior person of color, a minority faculty member
may oppose or fail to exercise their influence to the benefit of junior or new
faculty candidates. Silence reinforced by years of exposure to rabid racism and
failure to motivate and enable two or three other people of color to assume similar
position within the institution are both predictable responses that perpetuate
a toxic, racially hostile environment. 24o
Influences outside of the academy can be utilized to undermine diversity.
Alumni support, accreditation standards and influential members of the legal
237 Pamela J. Smith, Forging Our Identity: Transformative Resistance in the Areas of Work,
Class, and the Law: The Tyrannies of Silence of the Untenured Professors of Color, 33 U.c. DAVIS L.
REV. 1105 (2000).
238 Id. at 1117.
239 Id. at 1109.
240 See, e.g., Id. at 1122-23; see also Elijah Anderson, The Emerging Philadelphia African American
Class Structure, 568 Annals 54, 58-62 (2000) (describing social stratification among African
Americans ).

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 33
community can be positioned to encourage outcomes that undermine diversity.
In the name of survival imperatives, e.g., maintaining American Bar Association
(ABA) accreditation standing and stabilization, accreditation standards can be
utilized to justify the gradual but determined recruitment of a different student
population. In the instance where the enrollment of racial minorities drops, the
smaller minority population may find itself isolated, alienated in an environment
that once was supportive. Changing student profiles, heightened hostility toward
non-conforming minorities, and decreased employment opportunity for minorities
in non-clerical positions may all be symptomatic of an unspoken but determined
effort to restrict the presence of non-whites.
IV. MILLENNIUM CHALLENGE: RECLAIMING THE MISSION AND RELOCATING
THE WOLF
A. The Role of Mission
Vision is central to life and living. Without a vision there can be no life or
direction. 241 The millennium public interest advocate must be a part of preserving
the vision and communicating it clearly to each generation of advocates encountered.
Vision serves as both motivation for the work and the standard by
which all conduct or performance is judged. Authority must be transferred from
those who would override or derail the vision to those who would perform the
daily tasks associated with keeping America free for everyone. The rhetoric of
equality must be transformed into energy that fuels day-to-day living for all people
throughout this country. The functioning of institutions positioned to influence
the core of American life must reflect the commitment and consciousness
resulting from careful consideration of the desired outcomes and the effort required
to achieve those ends. There must be a detailed plan, describing how the
organization will progress.
Institutions that lack formal plans and strategies to diversify the work force
and student body are destined to retain the dominant class demographics. There
is neither an expectation nor the capacity to determine accountability or progression
toward diversity. "Wolves" bound politically in the past to at least the rhetoric
of equality and cautious maneuvering may proceed boldly to overlook
diversity considerations in hiring, institutional development, and in student recruitment.
Senior management staff or committees are gatekeepers protecting
the quest for "neutrality." To the extent that there is the successful suppression of
all discourse except that needed to bring about the desired "neutral" end, institutional
health is compromised in several ways.
There are telltale signs when institutional rhetoric has intoxicated or seduced
its proponents. People of color continue to be the individuals afforded the lower
241 Smith, supra note 237.

34 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
and more vulnerable status in the institution. The stature and influence of whites
is directed toward maintaining a racially exclusive and oppressive enterprise. A
culture of institutional dishonesty and racial hostility evolves. Quiet encourages
and enables the continuation of unjust treatment,242 and all but guarantees a
worsening of the environment. 243
The genius of our black foremothers and forefathers was to create powerful
buffers to ward off the nihilistic threat, to equip black folk with cultural
armor to beat back the demons of hopelessness, meaninglessness and lovelessness.
These buffers consisted of cultural structures of meaning and feeling
that created and sustained communities; this armor constituted ways of
life and struggle that embodied values of service and sacrifice, love and
care, discipline and excellence. In other words, traditions for black surviving
and thriving under usually adverse New World conditions were major barriers
against the nihilistic threat. These traditions consist primarily of black
religion and civic institutions that sustained familial and community networks
of support. 244
The majority of historically Black colleges combine their educational mission
with these traditions. 245 Michelle Jacobs says, "Societal values, attitudes, and
stereotypic beliefs dominate our thinking about the poor.,,246 This holds true for
our beliefs about under-represented groups, as well. While history and other data
would indicate that people from the dominant culture and non-white groups
share common values, goals, and aspirations, people cling relentlessly to the myth
that the under-represented have caused their own undesirable circumstance or
status in life. 247 We categorize people as deserving and undeserving. 248 Notions
about group worthiness contribute to the system of norms that organize and direct
daily interaction and life in genera1. 249
Similarly, prejudice is based on group belief that the in group and out group
hold different beliefs. 250 In American society the out group is often one of several
racial minorities, the poor, or other disenfranchised group. The under-repre-
242 Smith, supra note 237.
243 Id.
244 CORNELL WEST, RACE MAlTERS, 15 (1993), cited in Brown Scott, supra note 178 at 77-78.
245 Brown-Scott, supra note 178, at 77-78.
246 See Jacobs, supra note 90, at 267.
247 Id. (regarding attitudes to the poor).
248 Id.
249 Id.
250 See Milton Rokeach & G. Rothman, The Principle of Belief Congruence and the Congruity
Principle as Models of Cognitive Interaction, 72 PSYCHOL. REV. 128-42 (1965) (noting that a similar
concept in law is interest convergence) cited in Jacobs, supra note 90, at 270-71.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 35
sented groups are often seen as "those people" or "them," outsiders. 25t As long
as dominant group members identify the under-represented as an out group, they
will lack the motivation to assist them to secure services, treatment, or status
enjoyed by the dominant group.252 Unfortunately, today, identification with the
out group is limited to appropriating the protection of rights defined as a consequence
of advocacy intended to benefit the out group.253 It would appear that
the dominant group believes it would be disadvantaged by a change in the social
order that rendered the out group equa1. 254
B. Preserving HBCUs
Unfortunately, courts look to the percentage of minority students enrolled in
white institutions to determine whether there is equal educational opportunity.255
As to publicly funded HBCUs, courts have required de jure segregation states to
eliminate racially identifiable schools as vestiges of segregation. 256 De jure segregation
states have resorted to closure, merger with white institutions, or campaigns
to enroll significant numbers of white students to satisfy that directive. 257
This approach to desegregation punishes the victim and reflects the "subtle, not
so subtle" tendency to define and devalue culture, institutions, and people who
are not white. 258 "[This] devaluation ... grows out of our images of society and
the way those images catalogue people. The catalogue need never be taught ...
They act as mental standards against which information about Blacks is evaluated:
that which fits these images we accept; that which contradicts them we suspect."
Thus, the desegregation remedy imposed on de jure segregation states
failed to consider whether closure, merger, or significantly increased white enrolment
operate to erode educational opportunity for Blacks and other under-represented
groups or benefit them. 259
Institutions typically replicate the existing culture, faculty and student profile.
High prestige institutions focus on admission scores, undergraduate grade point
averages, the prestige and social status of the student applicant family and educa-
251 See Jack Katz, Caste, Class, and Counsel for the Poor, 1985 AM. B. FOUND. RES. J. 255;
Jacobs, supra note 90, at 298-99 (discussing how to narrow the psychological distance between lawyers
or law students and their poor clients).
252 See Jacobs, supra note 90, at 299-301.
253 [d.
254 [d.
255 Ware, supra note 36, at 678.
256 [d. at 648-49.
257 [d. at 646-76.
258 [d.; Claude M. Steele, Race and the Schooling of Black Americans, 269 ATLANTIC
MONTHLY 68-78 (April 1992), available at http://www.theatlantic.comlpolitics/race/steele.
259 Ware, supra note 36, at 678.

36 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
tional preparation. 260 Faculty investment in students, mentoring and assistantships,
and recommendations for faculty appointment are determined by these
same factors. Thus, the next generation of faculty is cultivated. The old boy network
is relied upon to identify faculty candidates. 261 Candidates routinely meet
informal and formal institutional cultural and credential profiles, thus ensuring
the traditions, culture, and prestige stature of the institution,262 and the same
profiles reflected in earlier generations. Such faculty hiring processes are inherently
discriminatory. People of color are conspicuously absent from the prestigious
groupings. Students of color do not graduate from prestige institutions in
large numbers or enjoy the other informal and formal grooming essential to
favorable consideration in the faculty hiring process.
While the greater number of non-white students attends lower prestige institutions,
the student selection and faculty hiring processes at lower prestige institutions
parrot the patterns of the prestige institutions. 263 Lower prestige
institutions aspire to improve their prestige standing. 264 Students of color continue
to populate institutions, but the affirmative pursuit of and competition for
higher prestige students necessitates the promotion of an image and values that
exclude and devalue people of color thereby limiting the range of educational
opportunity available for non-whites. 265
With respect to equal opportunity in higher education, we still have something:
the power of the law, coupled with the strength of morality, practicality,
good judgment, and common sense. It is imperative that we understand
"what we've got," and use it to get what we still need in this nation's long
struggle for racial equality and justice. That includes the possibility of racebased
measures necessary to ensure access and an opportunity to succeed
for qualified individual who seek only to complete and excel on a level playing
field. 266
To the extent that leadership can remain focused on the objective factors influencing
equal access for groups traditionally disadvantaged by race, institutional
energy is directed appropriately toward resolving America's racial conflict. On
the other hand, leadership sufficiently enamored with self promotion or recasting
the struggle for access to equal opportunity in race nelitral terms may accomplish
little more than perpetuating the problem.
260 Edgar Epps, Affirmative Action in the Classroom: Affirmative Action and Minority Access
to Faculty Positions, 59 OHIO ST. LJ. 755, 758 (1998).
261 [d. at 760.
262 [d. at 750.
263 Epps, supra note 261, at 760-64.
264 [d.
265 [d.
266 Pace Jefferson McConkie, Race and Higher Education: A Rallying-Cry For Racial Justice
and Equal Educational Opportunity, 21 U. ARK. LITTLE ROCK L. REV. 979 (1999).

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 37
Simply put, resources are efficiently deployed when the institutional environment
retains a favorable community reputation, a faculty committed to nurturing
and developing eager minds, experienced administrators and influential
alumni. 267 The efficacy of the educational opportunity is reflected in the overall
experience available to matriculating students. Intellectual gains should be high
and accompanied by heightened cultural awareness, positive psychological adjustment,
and commitment to excellence. 268 Statistical analysis of student experience
at HBCUs identify these factors as the objective differences which
distinguish these institutions as quality educational programs. HBCUs have
been singularly successful in providing quality education to African-Americans.
Those committed to providing access to quality education for non-whites have
only to accept and adopt the wisdom and supportive character reflected in
HBCUs to avoid less favorable outcomes.
C. Relocating the Predator
It is important to isolate the oppressor from those oppressed. Limit the power
or discretion that the oppressor has over determining the learning environment.
To the extent that there is a belief that Blacks are inadequate or less knowledgeable
than whites about black institutions and people, the learning environment is
hostile and likely to perpetuate the subservience of all non-dominant group personnel
and students. Someone who does not share these specifics of a culture
remains an outsider, no matter how astute a student or how innocent their intentions.
269 Non-dominant group members are likely to engage those outside of
their group in a marginal way. The "wolf" believes that the student is inadequate.
The relationship between the wolf and the student is open to subservience or
permitting the student to be viewed and treated as a freeloader, unwelcome and
less qualified,27o
In graduate and professional schools, the absence of minority faculty is credible
informal indicia of questionable institutional commitment to equal opportunity
for minorities in higher education. 271 This conclusion is based on or easily
adopted in light of research that identifies the presence of minority faculty as the
"most persistent, statistically significant predictor of enrollment and graduation
of African American graduate and professional students. ,,272 Failure to recruit,
employ, and promote to tenure a critical mass of minority faculty is closely associated
with the inability or unwillingness to expend the energy and resources
267 Frank Adams Jr., Why Brown v. Board of Education and Affirmative Action Can Save Historically
Black Colleges and Universities, 47 ALA. L. REV. 481, 496 (1996).
268 Id.
269 Ware, supra note 36, at 681.
270 Atkinson, supra note 217, at 144.
271 Epps, supra note 260, at 759.
272 Id.

38 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
needed to recruit, retain, and graduate significant numbers of minority
students. 273
The failure to educate Blacks and other under-represented groups has and will
continue to cost America generations,274 Education is essential to "meaningful
participation in the economic and political life of [any] society.,,275 Intelligence
open to training is a valuable asset. 276 Failure to cultivate that resource deprives
society of talent and advancement potentia1. 277 The magnitude of the loss is more
apparent when focused on the minority and other under-represented populations
excluded from our educational system. 278 U.S. Department of Education reports
indicate that only 28.6% of the best and brightest Blacks enroll in college. 279
Over 60% of the Blacks and Latinos who enroll in four year colleges will not
complete the baccalaureate in six years. Lower graduation rates translate into
under-employment. 28o There is also limited entry into teaching, law, medicine,
and other professions. 281 Inferior education during years K-12, inadequate financial
aid to support college costs, and the failure of colleges to provide academic
and social support for matriculating students, all contribute to the gap in latino
and black student college completion. 282
A race neutral approach to ending segregation is exacerbating the divide of
the country into white and non-white consciousness or perspective. 283 Recent
court decisions have sanctioned the unequal treatment of Blacks and other racial
minorities by eliminating the requirement that universities, employers, and government
agencies consider race in activities where minorities were previously excluded
or unequally treated. The absence of rules and guidelines in the past had
subjected minorities to unequal treatment. Courts have removed the rules and
given partial to full exemption from court oversight for past discrimination where
de jure states have demonstrated good faith compliance with court decrees for a
reasonable period of time. 284
Participation, association, and membership epitomize a significant benefit of
American citizenship.285 The experience of Blacks and other racial minorities in
273 Epps, supra note 260.
274 Powell & Spencer, supra note 3, at 1289.
275 Powell & Spencer, supra note 3, at 1247.
276 [d. at 1259-60.
277 [d.
278 [d.
279 A Call to Action, available at http://www.naacp.orglworkJeducationleducalltoactn2.pdf.
280 [d.
281 [d.
282 [d.
283 Chambers, supra note 7, at 9.
284 [d.
285 Farber, supra note 186, at 928-30.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 39
America is one of exclusion. 286 The anticipated resegregation of schools and the
work place only serves to aggravate a deep and poorly healing wound. 287 The
very bond forging community is put at risk. 288 Suspicion, fear, and misunderstanding
permeated the interactions between whites and Blacks during the early
days of integration. 289 Educational institutions afforded comfortable environments
and educated professionals to support the early socialization efforts. 290 In
a global society, the capacity to engage people from different cultures is essentia1.
291 The weakening of that capacity in American society would be devastating,
given the current world status.
To the extent that the court tolerates or excuses discrimination, it sanctions
lawlessness. De jure decrees, special admission programs and set asides in government
contracting provided offending states and institutions with much needed
standards and boundaries. These fences constrained and discouraged unequal
treatment or at the bare minimum increased the cost of such intrigue. The court's
demonstrated indifference to America's continuing struggle with race, and the
real life consequences of that failed effort have left minorities defenseless. 292 Opponents
of fairness and equality circle boldly, like wolves before a kill. Then one
vacancy at time, these opponents of fairness and equality consume the limited
opportunities to become more diverse by justifying and supporting hiring selections
that delay and prevent change in the complexion or community composition.
The community remains closed to different people and ideas.
Finally, the refusal of the court to uphold the protection promised in the constitution
and amendments wounds the faith of its people in democracy.293 The
legal system should work for everyone. 294 When the system does not work for
everyone, confidence in the legal system diminishes. 295 We see that denied or
decreased access to education results in decreased employment opportunity.
Blacks faced economic difficulty at the height of de jure segregation. While affirmative
action and civil rights advances of the sixties resulted in improved employment
potential for African Americans, the retrenchment of the eighties, and
nineties now reflects an ever-widening gap between under employment and those
at the lower and middles ranges of the income scale.
286 Farber, supra note 186, at 928-30.
287 Id.
288 Farber, supra note 186, at 928-30; Boger, supra note 18, at 1795.
289 Id.
290 Id.
291 Id.
292 Chambers, supra note 7, at 9.
293 Id.
294 Stephen Breyer, The Legal Profession and Public Service, available at http://a257.g.
akamaitech.netl7!257!2422!14mar20010800!www .supremecourtus.gov!publicinfo!speeches!sp_10-1 0-
OO.pdf.
295 Id.

40 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
There must be a paradigm shift towards balancing rights for the disenfranchised
and under-represented and away from those who are disproportionately
privileged throughout the social order. Public interest lawyers have to do a
better job of identifying the real client. 296 Objective notions of public good must
replace personal ego and comfortable notions of equality for some. 297 The remedies
pursued must protect those at risk and not perpetuate privilege for the perpetrators
of inequality or those who have benefited from wrongdoing. Public
interest advocates must also forge new alliances. 298 The Court has assumed that
race neutral remedies would ensure equal access to education and employment
for minorities without empirical data to confirm it. 299 Public interest advocates
must acquire new knowledge about the people they profess to serve and develop
new approaches to supporting them. Equality is something significantly different
from thinking for the under-represented and substituting white impressions for
the voice of the under-represented. A fresh introduction to the client and the
challenge to support equality should open the door to information needed to
more effectively engage opponents of affirmative action. 3OO
Beliefs and rhetoric must be supported by consistent appropriate action. Discrimination
is the culmination of numerous transactions over a broad range of
ordinary daily occurrences. Preserving equal opportunity requires the same dayto-day
investment. The barriers resulting from business practice and daily custom
or habit will only be dismantled through rigorous, unrelenting effort to observe a
different standard and intolerance for nonconforming behavior. 301 Even our
champions, whether giving cover to integrity challenged leaders or creating a gentler
kinder group of old boys and girls, must be held accountable for diverting
from the path of improved access.
In the law school context, solutions include having the long postponed conversation
about race. 302 The conversation must include all law school constituencies
and support assessment of the institution's strengths and weaknesses. To the extent
that the institution has no plan to support diversity, such a plan should be
developed and implemented. The plan must provide opportunity and inculcate
respect and honesty in communication as institutional values. Institutions
charged with serving under-represented institutions face higher standards of responsibility
to shed the pretext of respectability and begin the long postponed
adjustment of priority and process needed to resume mission driven
administration.
296 Chambers, supra note 7, at 13.
297 Id.
298 Id.
299 Id. at 11.
300 Id. at 12-13.
301 Chambers, supra note 7, at 11.
302 Powell & Spencer, supra note 3, at 1291.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 41
Faculty and administrative leadership must be purged of any conflict with and
contempt for the unambiguous pursuit of and execution of the rules and systems
needed to protect the mission. While emotional acceptance or affection cannot be
legislated, standards can be set and constraining the use of discretion to advantage
whites can be legislated. The opportunity to experience and thrive in a pluralistic
environment will produce its own dividends. Administrators and faculty
alike must be relieved of the notions that the potential, value, or learning capacity
of a student or colleague is in any way related to the degree of whiteness.
Curriculum, class discussions, and teaching techniques must reflect understanding
of divergent learning styles and life experiences that distinguish communities of
interest and problem solving strategies. 303 While this academic endeavor must be
rigorous and integrity bound, fledgling lawyers must acquire a degree of interpersonal
and intergroup skill that is often wanting between their mentors and teachers.
In the same way that leadership is vigilant to exclude overt bigotry, subtle
but equally damaging forms of caste building must be relentlessly uprooted and
abandoned. Institutional culture must be opened to permit the cultivation, enrichment,
and fumigation necessary to sustain a richer, diverse environment. It is
as easy to unify around meeting institutional goals advancing non-white access as
it is to close ranks to privilege a white friend.
Plan implementation and progress should be monitored by boards or committees
of stakeholders external to the day-to-day operation of the enterprise.
Alumni, client and larger community members should be reflected among committee
membership. University governing boards or systems have an equally important
role to play. While the independence or relative autonomy of
professional schools may be leveled in a defensive posture, it is critical that the
full force of university authority be utilized to ensure intended beneficiaries access
to education on every level of the university. It is possible to provide access
without violating accreditation standards. In fact, the university is obligated to
acquire a sufficiently independent understanding of accreditation standards. Officials
must be able to evaluate and defend admission and hiring policy consistent
with the mission and identity. Absent such readiness the university and law
school are susceptible to the manipulation of accreditation standards to legitimate
formal abdication of mission and identity. Advancing diversity in any organization
is time intensive, delicate work. Given the resistance of the academy and
its complicity in jeopardizing access to education for racial minorities, no component
of the system should be exempt from careful review and adjustment. Additional
resources will be required and accountability throughout the educational
enterprise must become the rule and not the exception.
303 Alice M. Thomas, Laying the Foundation for Better Student Learning in the Twenty-First
Century: Incorporating An Integrated Theory of Legal Education into Doctrinal Pedagogy, 6 WID. L.
SVMP. J. 49 (2000). .

42 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Finally, the law school must determine how best to meet the academic and
social support needs of a diverse student body.304 This will necessitate reviewing
the curriculum and teaching strategies to determine whether adjustments in pacing,
sequencing or teaching style are indicated. 305 Blind acceptance of traditional
approaches and standards ensure that the people who negotiate traditional systems
successfully will continue to do so. The 21st century offers law faculty and
administrators a wonderful opportunity to expand pedagogy beyond tradition
while cultivating heretofore marginally accessed potential. There are also quality
and quantity of students' extra-class experience with faculty, administrators and
other relevant professionals. 306 While changes may proceed over time, the vat of
excuses has been thoroughly drained. The global market and social reality suggest
a dwindling tolerance for past inaction. Establishing a nurturing, positive
learning environment to meet the modern challenge of law study free of racial
bias is a good first step toward improving educational opportunity for people of
color. 307
v. CONCLUSION
Educational opportunity is a staple of American freedom that has long eluded
the courageous, persistent efforts of African Americans. While lawyers serving in
the loosely knit collective known as public interest law have continued to work as
co-laborers in pursuit of equal access to educational opportunity for Blacks and
other people of color, the close of the twentieth century witnessed a loss or confusion
of mission that has stunted progress in educational access for people of
color. Clad in the mantle of court sanctioned race neutral desegregation remedies,
white expectation for dominance has succeeded in containing access to educational
opportunity. African Americans and other people of color, the intended
beneficiaries of the civil rights struggle continue to encounter barriers to education
and employment. Non-white students are subject to admission processes biased
in favor of those educated in white upper class systems. The range of
educational opportunities available to these students is threatened by current desegregation
decisions requiring race neutral admission and administrative
policies.
Admission to historically white institutions is available, but these learning environments
continue to reflect racial hostility and tension. The efforts to eliminate
racial identifiable institutions in de jure segregation states have resulted in
the loss of black governance in HBCUs and closure and merger with historically
304 Thomas, supra note 303, at 56-57.
305 Id.
306 Id. at 94.
307 Margalynee Armstrong, Women of Color in the Law: The Duality of Transformation, 31
U.S.F. L. REV. 967, 970-71 (1997); Claude M. Steele, Race and the Schooling of Black Americans,
92.04Atlanticonline 1, 15-17, available at http://www.theatlantic.com!politics/race/steele.htm.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 43
white institutions. In states where there is neither de jure decree nor private litigation
to dismantle affirmative action initiatives, public interest advocates are
positioned to conduct research, initiate legislation or other strategies to comply
with current Supreme Court determinations while preserving equal access to educational
opportunity for Blacks and other people of color. While the opportunity
for progressive lawyering is great, the considerable talent and will of the "public
interest community" has yet to be activated effectively to protect equal access to
education against the tide of contrary legal and social pressure.
The "public interest community" must author and support preemptive strategies
that define and operationalize the constitutionally sound administration of
education and other portals controlling access to the American dream. This exercise
in progressive lawyering must provide the courts, educators, practicing attorneys
and the general population with improved intelligence on the nature of
discrimination, and a work plan that cultivates equal access in every stratum of
American society. The historical victims of racial discrimination must benefit
from this support.
Trustees of the nation's human wealth, educators, university presidents and
governing officials, alumni, and legislators must work with progressive lawyers to
resume control of the precious unique resources that have provided educational
access to racial minorities traditionally. They must preserve the legacy of these
institutions, ensuring opportunities for education, leadership training and community
development. Toward that end, they must reinstate the boundaries violated
by "wolves" and return them to ecologically appropriate surroundings
outside the gate. The day-to-day operation of universities and colleges, graduate
and professional education programs must be entrusted to principled leadership
willing and able to pioneer diversity and change. That work will include employment
of larger numbers of minority faculty members; establishing and supporting
an office of minority affairs; developing and supporting a systematic affirmative
action program; supporting minority students and their organizations by involving
these organizations in decision making associated with minority recruitment;
and providing retention and support services. 308 Support must be evident in the
communication and conduct of high level administrators throughout the institution,
e.g., the university president, law school dean, and all mid-level managers. 309
Faculty composition must reflect the talent and sensibilities needed to engage
and harvest the potential of a racially diverse student body. Equally important is
a commitment to revitalize the curriculum, pedagogy, and faculty relations. 310
Open, thoughtful consideration of the breadth of information covered, teaching
methodology, and strategies for heightening levels of student achievement are
308 Epps, supra note 260, at 771-72.
309 Id. at 773.
310 [d.

44 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
essential to maintaining a competitive academic program and accomplished
alumni. 311 Faculty must also focus attention on cultivating and sustaining a positive
academic environment. 312 They must take every opportunity and make every
effort to ensure that minority faculty and students enjoy racism free study and
work spaces. 313 Fairness and respect must characterize personal interactions in
the classroom, meeting rooms, and hallways.314 Heightened faculty awareness of
and capacity to be open minded and constructive in exchanges with colleagues
and students alike must become first nature in places where there has been no
collaborative consideration or effort. 315 It is also important that faculty acknowledge
and facilitate minority faculty contribution to institutional development.
Students, alumni, legislators and community advisors serve as keepers of the
flame or sentries on the wall. Their experience will chronicle the effectiveness of
the institution's plan and operation. Their input also ensures real world perspective
on the institution's contribution to equal educational access.
The survival of HBCUs is essential to preserving access to educational opportunity
and the continuity of cultural heritage for Blacks and other people of color.
HBCUs have struggled with this challenge for a century. Under-funded and
under-valued, these institutions continue to serve a significant role in providing
educational opportunity to racial minorities. While support has been available
from organizations and individuals working in the public interest, that commitment
must be renewed in terms that support the mission and its constituencies
without overwriting or perverting the mission or the capacity to achieve it. The
law must be used to accomplish something greater than displacing intended beneficiaries
of the struggle for equality or individual advancement. 316 A broader segment
of the public interest legal community must relinquish the rhetoric and
sanctuary of race neutral politics and commit considerable effort to regularizing
equal educational access for racial minorities. Finding the balance between the
public good and serving individual client needs challenges a lawyer to resolve the
dilemma fairly.317
It is important to teach and operate educational organizations consistent with
the goals and realities of the constituent communities we purport to serve. The
definition of objectives, acceptable outcomes and progress influence the very nature
of what future generations will know of justice and well-being. When the
mist evaporates and the violins cease to weep, have the capacity and confidences
311 Epps, supra note 260.
312 Id.
313 Id.
314 Id. at 774.
315 Id.
316 Kathleen M. Sullivan, Access To Justice: The Social Responsibility of Lawyers: The Good
That Lawyers Do, 4 WASH. U. J. L. & POL'y 7, 19 (2000).
317 [d.

MILLENNIUM SHOWDOWN FOR PUBLIC INTEREST LAW 45
of disenfranchised segments of the community been established or restored? Or
has the next generation of lawyers simply learned to seduce, anesthetize, and
incapacitate active pursuit of justice and equal access to it?
The answers to these questions hold special significance for educational institutions.
As architects and facilitators of the next generation of leadership and
lawyers, universities and professional training schools have the opportunity to
study and test alternatives to the current wisdom directed at resolving persistent
social and other ills. Once removed from the sordid fray of daily battle in the
streets, time and the controls are needed to secure the best results efficiently. As
the dust settles from the closing age, the millennium affords an opportunity to
identify the lapses, and take decisive action.

UNTYING THE HANDS OF D.C.:
WAYS TO AVOID CONSTITUTIONAL CONFLICTS WHILE
ADDRESSING SOLID WASTE DISPOSAL
Janell De Gennaro*
INTRODUCTION
Due to pressing serious environmental threats to the health and well being of
communities such as the District of Columbia, public interest law advocates must
define more precisely the philosophy of "environmentalism" and stress its necessity
in resolving environmental disputes. Traditional environmentalism is explained
well by author James Boyle, who stated,
[T]he environmental movement was deeply influenced by two basic analytical
frameworks. The first was the idea of ecology; the fragile, complex and
unpredictable interconnections between living systems. The second was the
idea of welfare economics - the ways in which markets can fail to make
activities internalize their full costs. The combination of the 2 ideas yielded
a powerful and disturbing conclusion. Markets would routinely fail to make
activities internalize their own costs, particularly their own environmental
costs. This failure WOUld, routinely, disrupt or destroy fragile ecological systems,
with unpredictable, ugly, dangerous and possible irreparable consequences.
These two types of analysis pointed to a general interest in
environmental protection and thus helped to build a large constituency,
which supported governmental efforts to that end. 1
New environmentalism is explained by the National Center for Policy
Analysis:
New environmentalism focuses on decision-making processes. It focuses on
finding ways to obtain and use good information and on providing incentives
for environmental stewardship. It focuses on ways of ensuring that individuals
and organizations are able to express the environmental values
they hold. New environmentalism proposes the creation of decision
processes and institutions that: provide incentives for personal responsibility,
stewardship and pollution abatement; help individuals cooperate to
achieve their environmental goals; improve access by individuals, firms and
other organizations to environmental knowledge; foster a balancing of envi-
• Janell De Gennaro (Forgy), J.D., former Deputy Editor-in-Chief of UDC Law Review, is a
member of the New York bar and is currently working at a law firm in Boston, Massachusetts.
1 James Boyle, A Politics of Intellectual Property: Environmentalism For the Net?, 47 DUKE LJ.
87 (1997).

48 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
ronmental values with other human values; and create conditions in which
environmental innovation and creativity can flourish.2
Thus, the essence of the philosophy that needs to be embraced by the Courts is
the balance of environmental values with other human values in limiting destructive
environmental consequences of certain actions. Until recently, environmental
law has been considered a vague category of issues with no clear elements,
such as in contracts or torts, that place legal issues in the "environmental law"
category. Even though statutes such as CERCLA and NEPA govern environmental
policy the statutes are often interpreted in terms of whether they are unconstitutional
or interfere with other state law. Also, cases that contain
environmental components, such as the environmental consequences to land resulting
from a lumber company's contract with the state, are viewed as breach of
contract cases. The judicial system has not known how to handle cases that encompassed
environmental issues, so the courts tried to label these cases under
other more defined areas of law. As author Richard Lazarus explains, the Supreme
Court has led the country in apathy and misunderstanding of environmental
law:
The Supreme Court's attitude towards environmental law during the past
three decades has generally been marked by apathy, but with the Justices
exhibiting increasing signs of skepticism and some hostility. At best, many
of the Justices do not view environmental law as a distinct area of law, but
as merely a factual context for the raising of more important crosscutting
legal issues. At worst, some of the Justices appear to see the kind of legal
regime environmental law promotes as precisely the kind of centralized, intrusive
system of laws that they believe to be both constitutionally suspect
and unwise as a matter of social policy?
This lack of understanding and skepticism must be replaced with an understanding
of the philosophy of environmentalism if our nation is going to maintain
the ecological balance necessary to sustain its citizens and a healthy environment.
Public-interest lawyers in the twenty-first century need to be the advocates for
public policy steeped in environmentalism in hopes that the courts will begin to
more adequately reflect the ecological balance that society must strive to
maintain.
Many of the environmental dilemmas that are facing our country as a whole
are reflected on a local level in the nation's capital. The District of Columbia is
currently confronted with resolving the growing dilemma of trash transfer sta-
2 National Center For Policy Analysis, Searching for a New Vision: New Environmentalism,
available at www.ncpa.orglstudies/s201l5201b.html.
3 Richard J. Lazarus, Restoring What's Environmental About Environmental Law, 47 UCLA L.
REV. 703, 771-72 (2000).

UNTYING THE HANDS OF D.C. 49
tions. 4 Grappling with the transfer and disposal of the District of Columbia's
waste has been a contentious battle on all fronts. The D.C. Council has created
legislationS and numerous amendments 6 to institute waste disposal controls
through Solid Waste Permit Acts, but the D.C. courts have enjoined the enforcement
of parts of that legislation. 7 Private waste management companies have
objected that segments of the Permit acts are unconstitutional, in violation of the
Commerce Clause, and the courts have agreed. s Residents have been registering
complaints with the District government about truck traffic, poor maintenance of
facilities and general failure by the District to enforce existing regulations. 9
Community activists have criticized the D.C. Council's regulations and District
management, and accused the Department of Public Works of not spending any
of the funds allocated to properly address this issue. 10 Activists have held Citizens'
Summits to create action plans to address the problem, such as eliminating
the number of transfer stations, cleaning up current stations, or having a transfer
station in each ward. 11 However, none of those solutions has yet been implemented
due to restrictions in money, politics and the court system. 12 Testimony
to the frustrations that have accompanied the history of this battle, an attorney
and activist for the cause of strictly regulating and enforcing such regulation of
trash transfer stations, Myles Glasgow, believes that,
4 These sites are essentially temporary garbage dumps for small trash collector trucks to deposit
waste for approximately 24 hours until larger trucks can pick up the compacted waste and deposit it in
a Virginia or Maryland landfill. See SOLID WASTE TRANSFER FACILITY SELECfION ADVISORY
PANEL, DRAFT REPORT 3 (2000) and Myles Glasgow, Address at Citizens' Summit on Trash Transfer
Issues, Washington, D.C. (Feb. 24,2001).
5 Recycling Fee and Illegal Dumping Emergency Enforcement Act of 1994, The Solid Waste
Facility Permit Emergency Act of 1994, 1994 D.C. Stat. 10-384, 42 D.C. Reg. 45 (1994); The Solid
Waste Facility Permit Temporary Act of 1994, 1995 D.C. Stat. 10-251; and The Solid Waste Act of
1995, 1998 D.C. Stat. 11-94,45 D.C. Reg. 2700 (1998).
6 Solid Waste Facility Permit Amendment Act of 1998, 1999 D.C. Stat. 12-286; Solid Waste
Facility Permit Amendment Act of 1999, D.C. CODE ANN. §§ 8-1051-1063 (West Supp. 2001).
7 Eastern Transit Waste v. District of Columbia, 758 A.2d 1 (2000).
8 Id.
9 SOLID WASTE TRANSFER FACILITY SELECfION ADVISORY PANEL, DRAFT REPORT 7 (2000).
10 Myles Glasgow, Address at Citizens' Summit on Trash Transfer Issues, Washington, D.C.
(Feb. 24, 2001). Mr. Glasgow is an attorney and member of Neighbors United for Legislative Environmental
Order, Proper and Responsible Development (NULEOPARD); Mr. Glasgow was heavily involved
in litigating nuisance actions against improperly and illegally sited D.C. garbage and trash
transfer stations. See Citizens' Summit on Trash Transfer Contact Information, CITIZEN'S SUMMIT ON
TRASH TRANSFER ISSUES (Sierra Club Environmental Justice Program, Washington, D.C.), Feb. 24,
2001, at 2.
11 Citizens' Summit on Trash Transfer Issues, Washington, D.C. (Feb. 24, 2001).
12 See Myles Glasgow, Suggestions on What to Do About D.C.'s Garbage and Trash Transfer
Stations 10 available at http://ww.ilsr.orglrecycling!historic.html (last modified Mar. 1998) (stating that
"DCRA (Department of Consumer and Regulatory Affairs) has deliberately refused to enforce any
significant part of the licensing regulations and are on record that enforcement at DCRA will do
nothing to enforce the law unless transfer stations act outrageously.").

50 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
As a direct result of this 1992 procrastination by these D.C. agencies and
the personnel who are mostly still with us, the city is a party to at least six
court cases in the D.C. Court of Appeals and others that are headed for
trial and businesses and neighborhoods have lost significant value because
transfer stations have been improperly sited, located, designed and operated
while D.C. government agencies have no clue as to how to correct the
situation. 13
Due to the complexities of the issues involved, recent judicial decisions,14 and
fundamental differences between environmentalism and the perspective of our
judicial system, the hands of D.C. are seemingly bound from addressing the vexing
local problem of solid waste disposal. However, in this paper I will argue
there are ways to untie them without violating the United States Constitution. IS
After providing a historical background of solid waste disposal and trash transfer
stations in the District, I will argue that Congress has the ability to assist the
District through its power to consent to flow control under the Commerce clause,
its power to give authority to the District through the District Clause and Finan-
13 Id.
14 Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir. 2001); District of Columbia
V. Eastern nans-Waste, 758 A.2d 1 (D.C. 2000); District of Columbia v. L.G. Industries, Inc.,
758 A.2d 950, 952 (D.C. 2000).
15 Many D.C. citizens argue that the poor enforcement of environmental and safety regulations
by the District and locations of the trash transfer stations is attributed to environmental racism. I
have declined to discuss this aspect of the issue of trash disposal, however refer to the following
articles and book for an in-depth discussion of environmental racism: Robert W. Collin and Robin M.
Collin, Sustainability and Environmental Justice: Is the Future Clean and Black?, 31 ENVTI.. L. REp.
10968 (2001) ("Cities and other communities of color have been waste sinks for hundreds of years.
Assuming that we would and could protect all communities equally, failure to remediate the environment
of these waste sinks will only continue to degrade environmental quality for that bioregion.
Only a transformation of attitude about the connection between environment, race, and waste will
drive our behavior toward the law and politics of sustainability."); Jeffrey R. Cluett, Two Sides of the
Same Coin: Hazardous Waste Siting on Indian Reservations and in Minority Communities, 5 HASTINGS
W.-Nw.J. ENVTL. L. & POL'y 191,192 (Winter 1999), ("Church of Christ Study is considered one of
the most important analyses of environmental racism. Consequently, activists increasingly use the
Church of Christ Study, along with a growing body of other scientific research, to show that minorities
bear a disproportionate amount of the country's worst pollution .... The study made several important
findings. Race proved to be the most important variable associated with the citing of hazardous waste
facilities nationwide. The study also found that the mean value of homes was a significant factor in
the presence of hazardous waste sites. The study noted, however, that the availability of cheaper land
always influences hazardous waste citing. The fact that minorities are often present in these areas
suggests the interplay of environmental and other institutionalized racism. In communities with one
commercial waste facility, the minority percentage of the population was twice the national average.
In those communities with more than one facility, the minority percentage was three times the national
average. In addition, three of the five largest landfills in the country, comprising 40 percent of
the nation's total estimated landfill capacity, were located in mostly Hispanic or African-American
communities."); Luke W. Cole and Sheila R. Foster, FROM THE GROUND Up - ENVIRONMENTAL RA­
CISM AND THE RISE OF THE ENVIRONMENTAL JUSTICE MOVEMENT 167-183 (2001).

UNTYING THE HANDS OF D.C. 51
cial Responsibility and Management Assistance Authority (FRMAA), and its
power to enact legislation on behalf of the District of Columbia without interfering
with federalism. Next, I will briefly explain impediments to Congressional
assistance, especially given the current government in power, and then move into
reasons why the District should have control over the implementation and enforcement
of solid waste permit regulations. I will explain why the District does
not have a discriminatory purpose in reducing or eliminating out-of-state waste
entering its borders or in implementing its solid waste "tipping fee," and why the
District should be exempt, as a market participant, from the general rule that
states cannot prohibit the transfer of out-of-state waste into its borders. Finally, I
will conclude with the argument that more stringent regulations are needed in the
District, and give proposals for how that can be done through tighter restrictions
on the amount of waste moving through the D.C. and by holding waste management
companies accountable for non-compliance with zoning and environmental
regulations and nuisance laws.
I. HISTORICAL BACKGROUND
Until 1993, the District government was responsible for disposal of all its solid
waste, and did so at the Fort Totten 16 and Benning Road I7 Municipal Waste
Transfer Stations. IS However, as the two facilities became less able to accommodate
D.C.'s growing waste and collapsed with a lack of funding, D.C. was forced
to allow private waste management companies to compete. However, private
haulers were forced to haul directly to the Lorton, Virginia, landfill, which significantly
increased their costS. 19 Thus, the District then allowed private haulers to
open their own transfer stations within the District. 2o In deciding where these
stations were allowed to operate, the Board of Zoning Adjustment (BZA) decided
in 1992, in Zoning Case 91-17, that CM 21 and M22 districts were authorized
16 Fort Totten, 4900 Bates Road, NE, Washington, D.e.
17 Benning Road, 3200 Benning Road, NE, Washington, D.e.
18 Myles Glasgow, Address at Citizens' Summit Trash Transfer Issues, Washington, D.e. (Feb.
24,2001).
19 See supra note 7, at 2.
20 According to the Solid Waste Transfer Facility Site Selection Advisory Panel, the factors that
contributed to the demand for privately run transfer stations are dilapidated municipal facilities, the
decision made by the Supreme Court in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994)
(holding that states cannot prevent the importation of out-of-state waste because it would violate the
commerce clause) and the increase of landfill costs due to stronger environmental standards set by the
Environmental Protection Agency under the Resource Conservation and Recovery Act. SOLID
WASTE TRANSFER FACILITY SELECTION ADVISORY PANEL, DRAFT REPORT 2-3 (2000).
21 A "C-M" District is zoned for heavy commercial and light industrial uses. NAT'L CAPITAL
PLANNING COMM'N, PROPOSED AMENDMENTS To THE ZONING REGULATIONS OF THE DISTRlcr OF
COLUMBIA - SOLID WASTE HANDLING FACILITIES IN THE DISTRICT OF COLUMBIA, NCPC File No.
Z.e. 96-5, at 4 (1998).
22 An "M" District is zoned for heavy industrial uses. [d.

52 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
places where garbage and trash transfer station activity could occur as a matter of
right.23 The D.C. Court of Appeals upheld this interpretation. 24 Needless to say,
these decisions were a catalyst for waste management companies to set up transfer
stations. However, CM districts are defined as those areas which allow for
"light processing," which was defined as any industrial processing involving the
sorting, bailing and shipping of inorganic recyclables as well as disposal of a residue
that was the kind of processing which was entitled as a matter of right in
D.C.'s CM districts. 25 It is questionable whether such activity should be considered
"light processing." As the alarmed D.C. community, especially neighborhoods
in the northeast, raised concerns with the District's government, the
Department of Consumer and Regulatory Affairs (DCRA), Office of Planning
and the Department of Public Works (DPW) promised licensing regulations that
never happened; there was a regulatory vacuum from 1991 - 1995. 26
As a result of the District's decisions made in the 1990's, D.C. now has 74
licensed haulers who operate 364 trucks to collect trash from apartments and
businesses,27 but the waste management facilities were virtually unregulated. 28
Small waste trucks, which are necessary to move through D.C.'s narrow roads,
carry small loads of trash to transfer stations in the District. There, the trash is
compacted and transferred to large hauling trucks that ultimately dump the trash
in Virginia or Maryland landfills. 29
Following the allowance of private haulers, the District quickly passed several
pieces of emergency legislation relating to solid waste disposal in 1994 and 1995,
including the Recycling Fee and Illegal Dumping Emergency Enforcement Act of
1994,30 the Solid Waste Facility Permit Emergency Act of 1994,31 and the Solid
Waste Facility Permit Temporary Act of 1994. 32 The TemporaOry Act of 1994 re-
23 Myles Glasgow, Suggestions on What to Do About D.C.'s Garbage and Trash Transfer Stations
3, available at http://wwwoilsr.org/recyclinglhistoric.html(last modified Mar. 1998).
24 Id.
25 Id.
26 Id.
27 Important Facts About Solid Waste Transfer in the District, CITIZENS' SUMMIT ON TRASH
TRANSFER ISSUES (Solid Waste Transfer Facility Site Selection Advisory Panel, Washington, D.C.),
Feb. 24, 2001, at 10-11.
28 See supra note 21 ("Neither the Zoning Commission, the Office of Planning or the DPW
(Department of Public Works) have done anything in the past to obtain professional reports on what
design criteria should govern a state of the art garbage and trash transfer station in D.C. The companies
in that industry have not produced such a report. The guiding princip:c has been don't do it
properly if no one knows the difference.").
29 Myles Glasgow, Address at Citizens' Summit on Trash Transfer Issues, Washington, D.C.
(Feb. 24, 2001).
30 Recycling Fee & Illegal Dumping Amendment Act of 1995, 1995 D.C. Stat. 11-12.
31 Solid Waste Facility Permit Emergency Act of 1994, 1994 D.C. Stat. 10-284,42 D.C. Reg. 45
(1994).
32 Solid Waste Facility Permit Temporary Act of 1994, 1995 D.C. Stat. 10-251. (codified as
amended at D.C. CODE ANN. § 8-1060 (West Supp. 2(01».

UNTYING THE HANDS OF D.C. 53
quired private solid waste facilities to obtain a solid waste facility permit, to pay a
non-refundable $15,000 permit application fee, and pay a $10 per ton annual capacity
tax. 33 The Act also "authorizes the Mayor to order immediate closure of
any private transfer facility which the Mayor deems to be in violation of the interim
permit or any health, safety, environmental or zoning law or regulation. ,,34
In 1995, the District enacted the Solid Waste Act of 1995;35 which requires a $4
tipping fee 36 per ton of waste transferred to any private waste facilities in the
District. The Act of 1995 was amended in 1998 and again in 1999. 37 The Permit
Amendment Act of 1998 was created to "protect residential communities and
commercial districts within the District of Columbia from the harmful effects of
solid waste facilities, by requiring stricter standards of operation for solid waste
facilities. ,,38 Former Mayor Marion Barry vetoed the legislation, believing that
two of the sections violated the principles of due process 39 and the Home Rule
Act,40 respectively.41 Mayor Barry vetoed Section 11(d) of Bill 12-582 because it
requires a facility to close upon a finding that the facility was in noncompliance
with the Permit Act. Barry stated that suspension of a business license prior to a
hearing is permitted only where there is a need for prompt government action. 42
Barry requested the D.C. Council to add that a business license would be immediately
suspended only if there is endangerment to human health and public welfare
and the environment. 43
Mayor Barry likewise rejected Section 11(g) of the same act because it set
forth court procedures to be followed if the Corporation Counsel petitions for
issuance of a contempt order against a solid waste facility for violation of the
Permit Act. Barry explained that these court procedures fall within the rulemaking
authority conferred upon District of Columbia courts by D.C. Code §11-
33 Id.
34 Id. at § 8-1060 (2)(d)(I) (" If the Mayor determines, after investigation, that the conduct of a
solid waste facility present an imminent danger to the health or safety of the residents of the District,
the Mayor shall close and seal the facility.").
35 D.C. CODE ANN. §§ 8-1051-1063 (West Supp. 2001).
36 "Tipping fees" are those fees paid to the District for the privilege of disposing the trash in the
District. D.C. CODE ANN. § 8-1057(b)(I) (West Supp. 2001).
37 Solid Waste Facility Permit Second Emergency Amendment Act of 1998,1999 D.C. Stat. 12-
623,42 D.C. Reg. 1364 (1999); Solid Waste Facility Amendment Act of 1998, 1999 D.C. Stat. 12-286;
Solid Waste Facility Permit Amendment Act of 1999, D.C. CODE ANN. §§ 8-1051-1063 (West Supp.
2001).
38 COMMITIEE ON CONSUMER AND REGULATORY AFFAIRS, REPORT OF BILL 13-30, SOLID
WASTE FACILITY PERMIT AMENDMENT ACT OF 1999, at 2 (1999) (prepared by Sharon Ambrose).
39 U.S. CONST. amend V.
40 D.C. CODE ANN. tit. 10 § 233(a)(4) (1995).
41 Letter from Marion Barry, Jr., Former Mayor of D.C. to Linda Cropp, Chairman of D.C.
Council 1 (Dec. 24, 1998).
42 Id.
43 Id.

54 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
946. Thus, he believed such a Council enactment is prohibited by Section 602(4)
of the Home Rule Act (D.C. Code § 1-233(4)).44 Nevertheless, the D.C. Council
overrode the Mayor's veto and enacted the 1998 emergency and temporary
amendment in 1999. 45 The permanent legislation, entitled the "Solid Waste Facility
Permit Amendment Act of 1999," took into consideration Mayor Barry's concerns
and was enacted to amend the Act of 1998 "to require a compliance
hearing prior to the closing of a solid waste facility and to allow a summary closing,
with the opportunity for a post-closing hearing, where the facility poses an
immediate threat to public health, safety and welfare to citizens and the environment,
and to clarify that the rules of the court govern in cases of contempt.,,46
The creation of legislation led inevitably to litigation battles with the private
waste management companies that were now required to comply with these permit
rules before they could operate in the District. Two important cases were
reviewed by the Court of Appeals after the Superior Court enjoined the District
from enforcing its regulations. 47 The D.C. Court of Appeals has not been overly
supportive of either case. The Court determined that L.G. Industries, which argued
it had a valid Certificate of Occupancy (CO),48 was subject to the Board of
Zoning Adjustment's administrative review of that C.O.'s validity, and the other
issues in the case will not be determined until the administrative review has taken
place. The same court has likewise not been enforcement-friendly in the E. T. W.
case. 49 Thus, resolution of these cases in favor of strict compliance of permit
regulations has not yet occurred.
The issues in E. T. W. included whether the court had jurisdiction over interlocutory
appeals, whether the solid waste facility charge was a tax rather than a fee,
and whether this charge was constitutiona1. 50 The Court addressed only the first
two issues, and remanded the case to the trial court for further factual development
and determination of the facility charge's constitutionality. In July 1995,
Honorable Mitchell-Rankin of the D.C. Superior Court granted a Temporary Restraining
Order (TRO) against the District, enjoining D.C. from enforcing the
temporary version of the Permit Act and its emergency rule, along with the Ille-
44 Id. at 1-2.
45 COMMllTEE ON CONSUMER AND REGULATORY AFFAIRS, COMMllTEE REPORT ON BILL 13-
30, SOLID WASTE FACILITY PERMIT AMENDMENT ACT OF 1999 3 (1999) (prepared by Carol
Schwartz).
46 See D.C. CODE ANN. § 8-1060 (U)(d) and (g) (West. Supp. 2001).
47 District of Columbia v. L.G. Industries, Inc., 758 A.2d 950, 952 (2000) (L.G.1. was renamed
USA Waste of D.C. on Apr. 23, 1998); Eastern Trans-Waste, 758 A.2d 1.
48 D.C. CODE ANN. § 5-426 (1995) (defining Certificate of Occupancy as a certified statement
from the applicant that its facility is designed in a manner capable of complying with all applicable
D.C. laws). Requirements for a valid Certificate of Occupancy can be found in D.C. CODE ANN. § 6-
3432.
49 Eastern Trans-Waste, 758 A.2d at 16.
50 Id. at 3-4.

UNTYING THE HANDS OF D.C. 55
gal Dumping Enforcement ACt. 51 The trial court concluded that the $4 per ton
fee "tipping fee" was unconstitutional, as applied under the Commerce clause of
the U.S Constitution, as to waste processed in the District for less than 24 hours,
which originates and is destined for disposal out of the District. 52 Judge Eilperin
explained that because solid waste deposited at the E.T.W. facility is already in
interstate commerce, it is not subject to local taxation. 53
The Court of Appeals foreshadowed its view on the issue of the constitutionality
of the facility charge when it stated, "While the court thinks that E.T.W. has
the better of the argument that the regulatory scheme unconstitutionally forces
the interstate commerce hauler to pay a double fee - namely the D.C. collection
fee and any surcharge imposed by the state in which it ultimately dumps - the
court is of the view that a fuller record would help explicate the regulatory
scheme so that the court could be surer of its views. ,,54 Judge Eilperin granted
the injunction because not doing so would threaten E.T.W.'s existence due to the
possible economic loss E.T.W. would incur. 55 The Court of Appeals also stated
that in the balance of harms and public interest factor, "the Court is persuaded by
the trial court's view that the public interest is served by preventing impermissible
burdens on interstate commerce which have the effect of stifling competition
in the recycling, waste management and transfer business. Thus, according to the
record, the Court finds no evidence that the injunction presents a danger to public
health and safety and; likewise, there's no basis for disturbing the trial court's
assessment.,,56 The trial court was silent on the issue of whether the fee is constitutional
on waste that originates in D.C. because it felt the issue was not ripe for
discussion. 57
The Temporary Restraining Order was modified and extended in September
1996,58 and the District requested an interlocutory appeal,59 arguing the solid
waste facility charge of $4 per ton 60 does not violate the Commerce Clause and
that the trial court erred in enjoining the District from enforcing its zoning laws
against E.T.W.61 Eastern Trans-Waste argued that, in addition to violating the
Commerce clause, the solid waste facility charge and collection fee violates the
Due Process and Equal Protection clauses of the Constitution. 62
51 [d. at 5.
52 [d. at 7.
53 [d. at 16.
54 [d. at 17-18.
55 [d. at 15.
56 [d. at 46.
57 [d. at 7.
58 [d. at 6.
59 [d. at 4.
60 D.C. CODE ANN. § 8-1057(b){1).
61 Eastern Trans-Waste, 758 A.2d at 4.
62 [d. at 5.

56 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
The E. T. W. Court sets forth the analysis that the trial court must use to determine
the constitutionality of the solid waste facility charge based on the principles
of the Commerce Clause and the dormant Commerce Clause doctrine. In
cases involving taxes on interstate activities, the Court presents the framework
the Supreme Court set forth in Complete Transit Inc. v. Brady, 430 U.S. 274
(1977).63 However, the E. T. W. Court does not actually apply the framework to
the current situation, but rather concludes that "applying these approaches require
further factual development which isn't available to the court." The Court
agreed with the trial court that there is a substantial likelihood of success on the
merits for purposes of injunctive relief. Thus, did not grant the District's interlocutory
appeal. 64 Thus, the District is currently enjoined from enforcing the tipping
fee requirement of the Permit Act against Eastern Trans-Waste.
Nevertheless, there is hope for the District: "The court is unable to say, without
more factual development, that under no circumstances could the Government
ultimately prevail.,,65 The Court points out that D.C.'s zoning laws, which
are not discussed in the case, are not an issue and, therefore, are enforceable. 66
Given the Court's current holdings, enforcement of D.C.'s regulations are enjoined
due to their alleged violation of the U.S. Constitution's Commerce Clause.
Meanwhile, a Solid Waste Transfer Facility Selection Advisory Panel was established
in 1999 to analyze D.C.'s growing dilemma. Through analysis of the
District's trash transfer stations and current laws, the Panel found that D.C. has
no suitable sites for transfer stations that meet the criteria identified in the law. 67
D.C. law, which allows three years for waste management facilities to come into
compliance with a 50-foot set back of actual facility from the property line and
SOD-foot buffer requirements from any residential property or park, become effective
in 2002. 68 As of 2001, none of the present transfer stations conform with
this law. 69 Given the urgency to solve D.C.'s growing dilemma, D.C. must find a
way to deal with its trash transfer problem, without discriminating against interstate
commerce, but still integrating important health, safety and environmental
interests of the community. This paper will offer possible ways this can be accomplished
through the integration of legal analysis and the philosophies of
environmentalism.
63 Id. at 43-44.
64 Id. at 45.
65 Eastern Trans-Waste, 758 A.2d at 30.
66 Id. at 47.
67 SOLID WASTE TRANSFER FACILITY SELECfION ADVISORY PANEL, DRAFT REPORT 11 (2000).
68 See D.C. CODE ANN. § 8-1058 (West Supp. 2001).
69 Did You Know?, CITIZENS' SUMMIT ON TRASH TRANSFER ISSUES (Solid Waste Transfer Facility
Site Selection Advisory Panel, Washington, D.C.), Feb. 24, 2001, at 11.

UNTYING THE HANDS OF D.C. 57
II. CONGRESSIONAL ASSISTANCE
Congress has the power to enact legislation that the D.C. Council does not
have the authority to do on its own because of the District of Columbia's historical
development. On December 19, 1791, Maryland ratified an act for cession
from the area now known as Washington, D.C., and relinquished the land and full
jurisdiction to Congress'?o In December of 1800, the District became the government
seat, and in Congress's Organic Act of 1801, Congress assumed exclusive
jurisdiction over the District. 71 As a result, the federal government must work
together with the D.C. Council to find workable solutions to the District's mounting
trash problem. Congress can authorize many legislative solutions: one option
is to prohibit the transfer of out-of-state waste altogether in the District. 72 Another
solution is to authorize the D.C. Council to create these types of trade
barriers rather than Congress. 73 A third option is to enact legislation identical or
similar to the Solid Waste Permit Act. 74 Regardless of the type of regulation enacted,
none of the above-mentioned options would be unconstitutional, as described
below, because of Congress's express and implied constitutional powers.
A. Commerce Clause
Congress has plenary power under Article I, section 8, clause 3 of the U.S.
Constitution 75 to consent to local flow contro1. 76 This Congressional power deserves
some explanation and historical background. The principal purpose of the
Commerce Clause was to prevent individual states from enacting trade barriers
to interstate and foreign trade. 77 The cases which laid the foundation for interpretation
of the Commerce Clause begin with McCulloch v. Maryland,78 which
vested Congress with plenary authority, and continued on with Gibbons v.
Ogden,79 which explained that Congress's power under the Commerce Clause is
plenary, that the only activities beyond Congress's regulation are those activities
completely within a state and which do not affect other states. 80 The Supreme
Court has interpreted the clause as granting Congress the authority to positively
70 Adams v. Clinton, 90 F. Supp. 2d 35, 57 (2000).
71 Id. at 56.
72 U.S. CONST., art. I, § 8, ct. 3.
73 U.S. CONST., art. I, § 8, ct. 17 and U.S. CONST., art. VI, ct. 2.
74 U.S. CONST., art. I, § 8, ct. 17 and U.S. CONST., art. VI, ct. 2.
75 U.S. Const., art. I, § 8, ct. 3 ("[The Congress shall have the power] To regulate commerce
with foreign nations, and among the several states, and with the Indian tribes").
76 "Flow control" is regulation of trash coming into and out of an area.
77 MA Y, supra note 76, at 175. See THE FEDERALIST No. 11, at 53-54 (Alexander Hamilton),
and THE FEDERALIST No. 42, at 214-15 (James Madison).
78 Mc Culloch v. Maryland, 17 U.S. 316 (1819) (holding that Congress is vested with plenary
authority under the Commerce Clause).
79 Ogden, 22 U.S. at 1.
80 Id. at 236-37.

58 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
exercise the agenda of Congress. This was an economic agenda that surpasses a
vision of a free market system between states. 81
The Supreme Court's interpretation of Congress's power through the Commerce
Clause evolved over time. The prevailing rule used to be that when there
is a need for a uniform national rule, the power to regulate belongs exclusively to
the federal government. 82 But if the activity is one that does not demand a uniform
rule, the states are free to regulate the area until Congress chooses to do
SO.83
This holding was later abandoned in favor of the view that concurrent power
was not allowed, that the federal government had control over certain issues and
states had power over other issues, none of which were concurrent. For example,
in United States v. E.C. Knight Co., the Supreme Court held that power over
interstate commerce could not extend into manufacturing of sugar because this
was a local activity, regularly reserved to the states. 84 This view changed once
again in United States v. Darby,85 to what is the modern interpretation of the
Commerce Clause: the "substantial effects" test. 86 Congress may regulate interstate
commerce itself, as well as any activity that substantially affects interstate
commerce. 87
There are two modem doctrines under the Commerce clause, pursuant to a
state law, which can be considered invalid: the preemption doctrine, where a state
regulation violates the Supremacy clause of the U.S. Constitution by interfering
with national regulations, or under the dormant Commerce clause doctrine,
where state laws unduly burden interstate commerce. 88 Here, the transfer of
waste into and out of the District necessarily involves interstate commerce but
would not violate the Supremacy clause because the District is governed by federal
regulation, not state law. The Necessary and Proper clause 89 allows the federal
government to do what is reasonably necessary to carry out the enumerated
powers. 90 thus, Congress can consent to the prohibition of out-of-state waste
transfer in the District or a $4 tipping fee on the same waste if it is reasonably
related to the regulation of interstate commerce.
81 MAy, supra note 76, at 175.
82 Cooley v. Board of Wardens, 53 U.S. 299 (1851).
83 Id. at 301.
84 United States v. E.C. Knight Co., 156 U.S. 1 (1895).
85 United States v. Darby, 312 U.S. 100 (1941).
86 MAY, supra note 76, at 182.
87 See United States v. Lopez, 514 U.S. 549 (1995) (holding that when economic activity substantially
effects interstate commerce, legislation regulating that activity will be sustained).
88 DANIEL A. FARBER ET AL, CONSTITUTIONAL LAW: THEMES FOR THE CONSTITUTION'S THIRD
CENTURY 749 (2d ed. 1998).
89 U.S. CONST., art. I, § 8, cl.18.
90 Mc Culloch v. Maryland, 17 U.S. 316 (1819).

UNTYING THE HANDS OF D.C. 59
"Dormant" commerce clause means there is an area of the commerce clause in
which Congress has not made active use of its power. 91 The history of this dormant
or negative power is unclear, but it has evolved over time. The dormant
Commerce clause is only concerned with discrimination against interstate or foreign
community.92 If the issue of whether the dormant Commerce Clause has
been violated by a state arises, there are five inquiries that need to be made: (1)
Is the law rationally related to a legitimate state purpose;93 (2) does the law have
the practical effect of regulating out-of-state transactions; (3) if the law discriminates
against interstate or foreign commerce, does it represent the least discriminatory
means for the state to achieve its purpose;94 (4) are the burdens the law
places on interest or foreign commerce clearly excessive in relation to the benefits
which the law affords the state;95 and (5) does the law represent the least
burdensome means for the state to achieve its goal?96 If a state law would otherwise
violate the dormant Commerce Clause because it fails to meet one of the
five requirements, the state may be able to show that its conduct is excused, either
because the action was authorized by Congress or because the state was
acting as a market participant,97 both of which are options discussed within this
paper.
The Commerce Clause allows Congress to authorize a trade barrier even
though a state itself cannot do so unilaterally.98 It is constitutional for states to
adopt regulations or join multi-state compacts that are consistent with federal
guidelines. In fact, according to the E.P.A., 39 states and the District of Columbia
have enacted flow control laws or have the power to do so through home
rUle. 99 Thus, in New York v. United States,lOO the Supreme Court held that a state
could impose a discriminatory tax or regulation use to take other state's waste if
91 MA Y, supra note 76, at 296.
92 Id.
93 See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) (holding extraordinary
deference is accorded to states in applying the rational relationship requirement). CONSTITUTIONAL
LAW: NATIONAL POWER AND FEDERALISM, EXAMPLES AND EXPLANATIONS 293 (Christopher N. May
et at. eds., 1998) (concluding that once a legitimate purpose is identified, it is highly improbable that
the measure will be struck down on the basis that it is not reasonably adapted to that end).
94 C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994) (holding state laws will be invalidated
if the state has less discriminatory ways to accomplish its purpose).
95 MAY, supra note 76, at 285 (A law will be deemed to be economic protectionist if it was
enacted because of the fact that it will shield locals from the effects of out-of-state competition.) See
also South-Central limber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984).
96 MAY, supra note 76, at 288.
97 Id. at 306.
98 New York v. United States, 505 U.S.144 (1992).
99 James E. McCarthy, Environment and Natural Resources Policy Division, Congressional Research
Service Issue Brief for Congress 97006: Solid Waste Issues in the J051h Congress, available at
http://www.cnie.orglnle/waste-16.htm#_C4. (last modified Dec. 23, 1998).
100 New York, 505 U.S. 144.

60 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
those states are not in compliance with that state's regulations. lot Under this
theory, Congress can impose the $4 tipping fee without violating the Commerce
Clause of the United States Constitution.
B. District Clause
Congress also has sole power to exercise exclusive legislation over the District
of Columbia. 102 The District Clause reads, "To exercise exclusive Legislation in
all cases whatsoever, over such District (not exceeding ten Miles square) as may,
by Cession of particular States, and the Acceptance of Congress, become the Seat
of the Government of the United States .... "103 However, through the Home
Rule Act 104 Congress relinquished some authority to the D.C. Council. 105 Laws
enacted by the Council are subject to Congressional oversight 106 and, "subject to
the retention by Congress of the ultimate legislative authority over the Nation's
capital granted by Art. I § 8 of the Constitution.,,107 Thus, Congress has the ability
to consent to legislation, or create its own legislation, concerning the tipping
fees or the outright prohibition of out-of-state waste flow into the District.
Even though D.C. is not a state, the D.C. Council is subject to the same constitutional
constraints as are those of the states, but is additionally subject to Congressional
oversight. 108 The D.C. Council is treated as a state in certain respects:
"specifically, acts passed by the D.C. Council are subject to analysis under the
federal preemption doctrine and the Commerce Clause.,,109 The D.C. Code applies
to claims in the District if the claims have a sufficient nexus to D.C., but are
not so interstate in nature to offend the Commerce Clause. 110
C. Financial Responsibility and Management Assistance Authority
Congress is also able to extend its authority over the District by other means:
through the Financial Responsibility and Management Assistance Authority
(FRMAA). Shook v. District of Columbia Financial Responsibility and Manage-
101 New York, 505 U.S. at 149 (1992).
102 U.S. CONST., art. I, § 8, cI. 17.
103 U.S. CONST., art. I, § 8, cI. 17.
104 The Home Rule Act is officially called the District of Columbia Self Government and Government
Reorganization Act of 1973; Pub. L. 93-198 (1973)], D.C. CODE ANN. § 1-206-233 (1981).
105 Sun Dun, Inc. v. Coca-Cola Co., 740 F. Supp. 381, 394 (D. Md. 1990).
106 D.C. CODE ANN. § 1-206.
107 Sun Dun, 740 F. Supp. at 394-95 (quoting D.C. CODE ANN. § 1-201(a) (1981».
108 Sun Dun, 740 F. Supp. at 395.
109 See Don't Tear It Down, Inc. v. Pennsylvania Ave. Dev. Corp., 642 F.2d 527, n.2 (D.C. Cir.
1980) and Quality Brands, Inc. v. Barry, 715 F. Supp. 1138, 1139 (D.D.C. 1989) (holding that "a
conventional Commerce Clause analysis does apply to laws passed by the D.C. government").
110 Sun Dun, 740 F. Supp. at 398.

UNTYING THE HANDS OF D.C. 61
ment Assistance Authority 111 explains D.C.'s recent history of control. In 1995,
when D.C. was plagued by financial crisis, the Financial Responsibility and Management
Assistance Act of 1995 established a Control Board, the District of Columbia
Financial Responsibility and Management Assistance Authority
(FRMAA), appointed by the President of the United States. The Board was established
with a wide range of powers to improve D.C.'s government operations.
The Act was later amended (Section 207(d)) to strengthen the Control Board,
giving the Board the ability to issue orders, rules or regulations considered appropriate
to carry out the purpose of the act to the extent its within the authority of
the Mayor or head of any department in the D.C. government. The Shook Court
held, "The Control Board, after consultation with Congress, may implement any
of its own recommendations to ensure compliance with the District's financial
plan or to improve the delivery of public services over the objection of the Council.
,,112 In fact, Senator Cohen, who at the time of the passage of the act was the
Chairman of the Subcommittee on Oversight of Government Management and
the District of Columbia, viewed section 207 as granting the Control Board the
authority to enact local legislation if the Council rejected its recommendations. 113
Thus, the FRMAA appears to have the authority to legislate for the District and
could possibly enact legislation regarding caps on the amount of waste or the type
of waste allowed into the District.
According to the D.C. District Court in Chavous v. Financial Responsibility
and Management Assistance Authority,114 the history of the FRMAA shows the
"Congressional intent to create a governmental composite of legislative, executive
and administrative powers that were co-extensive with those of the Mayor
and Council while simultaneously attempting to preserve home rule.,,115 The
Plaintiffs in Chavous, including Councilmen Kevin Chavous and David Catania,
argued that the Control Board's authority violated the separation of powers because
the Board members are authorized and appointed by the President in the
executive branch, but have a legislative function. 116 However, the District Court
rejected this: "Congress is the ultimate legislative authority for the District. As it
carries out its lawmaking powers, Congress has the right to devise the mechanism
by which its authority will be exercised and the Control Board is simply the most
recent of these mechanisms."117 The Court continues, "No authority cited which
111 Shook v. District of Columbia Financial Responsibility and Management Assistance Authority,
132 F.3d 775 (D.C. Cir. 1998).
112 Shook, 132 F.3d at 779 (D.C. Cir. 1998).
113 Chavous v. Financial Responsibility and Management Assistance Authority, 154 F. Supp. 2d
40 (2001).
114 Id.
115 Id.
116 Id.
117 Id.

62 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
support the notion that merely because Control Board members are appointed -
through Congressional design - by the President, that this action by the Control
Board constitutes an enroachment by one co-equal branch of the national government
into the powers of another. Since the Control Board's power to act
devolves from, and cannot exceed, Congress's own power to act, it is legislative
power rather than executive power that has affected the Council's own authority
here.,,118
Although the Control Board was given a sunset provision of February 1, 2001,
it appears that Congress, through FRMAA § 221, can determine that a new control
period is necessary if the District is not able to meet its borrowing needs and
cannot keep a balanced budget. 119 Thus, the FRMAA is another possible means
in which Congress could delegate legislative powers on this issue.
D. Federalism
Congress's ability to enact legislation concerning trash transfer stations under
these constitutional powers could raise the question of whether Congress would
be overstepping the bounds of federalism;12o however, consenting to flow control
through creation of a federal statute or empowering the D.C. Council to create a
flow control statute does not conflict with the values of federalism.
Federalism is the cooperation and cohabitation of both state and federal
power,121 which is exactly what D.C. needs in regards to this issue: cooperation of
the federal government to further the District's interests. Although the federal
government may not push states to enact or administer federal statutes,122 in this
instance D.C. would welcome Congress's assistance in creation or enforcement of
regulations controlling waste management.
If Congress were to create trade barriers on behalf of D.C. under its Commerce
Clause power, the Supreme Court would most likely validate that legislation
under its theory of judicial restraint. 123 The Supreme Court is exceedingly
reluctant to overrule majoritarian decisions of other branches of government,
branches that have been elected by the people. 124 Thus, the Supreme Court will
not invalidate Congress's regulations unless they are designed for the accomplishment
of objectives not given to the Congress. In review of a regulation, the Su-
118 [d.
119 [d.
120 See generally FEDERALIST PAPER No. 47 (James Madison) (defining Federalism is the division
of governmental power between various states and holds to the belief that as many decisions as
possible should be decided locally).
121 See generally FEDERALIST PAPER, No. 47 (James Madison) (excerpts in DANIEL A. FARBER
ET AL., CONSTITUTIONAL LAW app. at 24 (1998).
122 U.S. CONST., amend. X (empowering the states to retain residuary sovereignty).
123 See generally DANIEL A. FARBER ET AL., CONSTITUTIONAL LAW 85-86 (2d ed. 1998).
124 [d.

UNTYING THE HANDS OF D.C. 63
preme Court asks whether Congress had constitutional authority to legislate over
this issue. In accordance with both the District Clause 125 and the Commerce
Clause, Congress does have constitutional authority to legislate trash transfer stations.
The Supreme Court then asks whether the statute violates some affirmative
power that is an express constitutional provision, such as the Bill of Rights.
Although Virginia and Maryland may argue that such a statute prohibiting the
transfer of out-of-state waste to D.C. facilities violates their right of state sovereignty
and immunity, Congress has the power to regulate interstate commerce
and create trade barriers if it sees fit. 126 The Supreme Court explained in C & A
Carbone, Inc. v. Clarkstown,127 that it is within Congress's power to authorize
local imposition of flow control if there is a clear indication that Congress intends
states and localities to implement flow control. 128 Thus, the Commerce Clause
allows Congress to erect trade barriers between D.C. and other local jurisdictions
concerning the transfer of its trash to the District if Congress clearly intends that
result. 129 D.C. should be considered an exception to the majority opinion that
states cannot impede the flow of trash from one state to another,130 because it is
not a state. The District has very limited space and natural resources in its ten
square miles and should not be required to accommodate waste beyond its borders
when it cannot do so in an environmentally-safe manner.
E. Impediments to Congressional Assistance
The Bush administration's policy of limited federal intervention in environmental
issues, along with the Supreme Court's apparent trend of limited federal
intervention in state rights, might affect Congress's ability to empower D.C. to
grapple with its trash problem.
The Clinton administration advocated a strong federal role in the environment;
however the new administration has a contrasting policy objective of generally
limiting federal regulation,131 which could mean it will be an uphill battle
for D.C. to involve Congress in this controversial issue. The Supreme Court, like-
125 U.S. CONST., art. I, § 8, cl. 17.
126 U.S. CONST., art. I, § 8, cl. 17 and U.S. CONST., art. VI, cl. 2.
127 C & A Carbone, Inc. v. Clarkstown, 511 U.S. 583 (1994).
128 Carbone, 114 S. Ct. at 1691 (O'Connor, J., concurring).
129 The standard set forth in Gregory v. Ashcroft, 501 U.S. 452, 460 (1991), requires Congress
to clearly and plainly put its intent on the face of an act, or the act will be considered unconstitutional.
See also McCarthy, supra note 100 (stating that Congress can authorize use of flow control under its
Commerce Clause authority).
130 See Carbone, at 511 U.S. 383 (1994) (holding that states cannot attach restrictions to exports
or imports flowing through their state) and Philadelphia v. New Jersey, 437 U.S. 617, 626-27 (1978)
(holding that states may not discriminate against articles of commerce unless there is some reason,
apart from their origin, to treat them differently).
131 Lawrence R. Liebsman and Rabe Petersen, For the Birds, LEGAL TIMES, Feb. 2001, at 67.

64 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
wise, has not been overly supportive of environmental law initiatives. Richard
Lazarus provides poignant criticism of the Court's analysis:
The Courts analysis of facially discriminatory laws is wholly unforgiving. To
sustain any facial discrimination against interstate products (including waste or
services), the state government must proffer "some reason, apart from their origin,
to treat them differently." The Court's rulings, however, provide yet another
classic instance in which the Justices' failure to appreciate the special character of
ecological injuries undermine the Court's legal analysis. The Court irrefutably
presumes the illegitimacy of any consideration of the outsider status of the products
or services at issue. 132
Recent Supreme Court cases involved intrastate commerce that Congress attempted
to regulate. The narrow view of these cases is that the Commerce
Clause power should not be used to shift traditional state law power to federal
power. 133 In January 2001, the Supreme Court continued this trend when it overturned
the Seventh Circuit in Solid Waste Agency v. United States Army Corps of
Engineers,l34 holding that the state has traditional and primary power over land
and water use. Thus the Army Corps was not allowed to deny Illinois the right to
dredge ponds for the purpose of creating landfills. 135 Although this decision was
based on narrow statutory grounds rather than the pertinent constitutional issue
of interstate commerce,136 the decision should "allow the new administration to
assert that the federal government cannot use its environmental regulations to
usurp state and local environmental and land use controls, at least not without
clear direction from Congress. ,,137 Chief Justice Rehnquist's opinion in Solid
Waste moved away from the environmental protection he so strongly advocated
in the dissent of Oregon Waste Systems, Inc. v. Department of Environmental
Quality138 only a few years ago. Thus, under this current Court's vision, D.C. has
only a slim hope that Congress will assist in creating legislative trade barriers.
Still, it is a legal option for which activists should lobby.
01. DISTRICT CONTROL
A. Injunction Removal
If Congress refuses to create legislation pertaining to this issue under the philosophy
of limited federal intervention in state rights, then the District of Colum-
132 Richard J. Lazarus, Restoring What's Environmental About Environmental Law, 47 UCLA
L. REV. 703, 756 (2000).
133 United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 531 U.S. (2000).
134 Solid Waste Agency v. United States Army Corps of Engineers, 121 S. Ct. 675 (2001).
135 Solid Waste.
136 [d.
137 Lawrence R. Liebesman and Rafe Petersen, For the Birds, LEGAL TIMES, Feb. 2001, at 66.
138 Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 98, 1355
(1994) (Rehnquist, CJ., dissenting).

UNTYING THE HANDS OF D.C. 65
bia should be allowed to enforce its own legislation. Unlike the Supreme Court,
the D.C. Court of Appeals has declined to defer to the Council of the District of
Columbia, which is equivalent to a state's legislature. The D.C. Court of Appeals
should lift the injunction against the District's ability to enforce the $4 tipping fee
in its own regulations because the Solid Waste Permit Act's provision is not, as
explained herein, unconstitutional.
B. Discrimination
The constitutionality of a state regulation depends on a sensitive consideration
of the weight and nature of the state regulatory concern in light of the extent of
burden imposed on the course of interstate commerce. 139 State law is invalid
under the dormant Commerce Clause if its burdens on interstate or foreign commerce
heavily outweigh whatever benefits the measure affords the state. 140 In
balancing, there might be a need to take into account the existence of other legislation.
141 The courts should take into consideration the D.C. Council's efforts
towards regulating solid waste disposal.
A recent appellate case in the Fourth Circuit, Waste Management Holdings,
Inc. v. Gilmore,142 addressed the issue of whether its statutory provisions would
discriminate against municipal solid waste (MSW) generated outside of Virginia
in their practical effect, or were enacted for the purpose of discriminating against
MSW generated waste outside of Virginia. 143 This case is similar to D.C.'s situation,
but D.C.'s factual circumstances do differ in important respects. Virginia
landfills rely heavily on out-of-state waste to pay maintenance costs. Waste Management
Holdings, Inc. is the primary contender for a 20-year contract to dispose
of 12,000 tons of residential waste per day from the New York City area. 144 In
July, 1998, Virginia Senator Bill Bolling wrote to the Attorney General requesting
that this plan be blocked. Governor Gilmore, meanwhile, put a moratorium
on landfill development. 145 In March and April of 1999, five statutory provisions
relating to capping the amount of waste that could be accepted for dumping in
Virginia and regulating the means of transporting that waste to Virginia was approved
and put into law. 146 Thus began the history of this current case.
139 Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 668 (1981).
140 MAY, supra note 76, at 301. See also Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945)
(concluding the Supreme Court concluded that burdens of prohibiting trains to move through the
state if they did not meet a certain length outweighed the state's benefit in its claim of increased
safety).
141 MAY, supra note 76, at 302.
142 Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316 (4th Cir. 2(01).
143 Id. at 334.
144 Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 326 (4th Cir. 2(01).
145 Id. at 325-36.
146 Id. at 327.

66 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Several Virginia landfill operators brought an action against the Virginia governor
and related officials in their professional capacity arguing that these provisions
violate the dormant Commerce Clause, Contracts Clause and Equal
Protection Clause of the U.S. Constitution. 147 On June 30, 1999, a preliminary
injunction was instituted by the Eastern District Court to prevent enforcement of
the cap provisions. l48 On August 24, 1999, the District Court struck down motions
by Virginia asserting the affirmative defense that New York City had taken
steps to discourage disposal in New York.149 On February 2, 2000, the Court
granted the Plaintiff's motion for summary judgment on the dormant Commerce
Clause issue; however, no summary judgment was granted on the issue of the cap
provision. 150 The Fourth Circuit found that Virginia did have a discriminatory
purpose, evidenced by the historical background of the statutory provisions,
statements showing an intent to block the plan, a consistent pattern of actions by
decision-making body impacting a particular group, events leading up to this
point, a departure from normal proceedings and contemporary statements from
decision-makers shown in meeting records. 151 The Court held that if Virginia
purposely discriminated, then the Court must strictly scrutinize their actions. 152
The statute must impose the least burden possible on interstate commerce to be
considered valid. ls3
In the present case, the District of Columbia is not purposefully discriminating
against out-of-state waste because the $4 per ton fee is applied to all solid waste
facility operators, regardless of where the waste came from and who is doing the
dumping. Likewise it is the least burdensome alternative, by treating both intrastate
and interstate waste alike.
The Supreme Court explained in Oregon Waste Systems that for a surcharge to
be justified as a compensatory tax necessary to make shippers of out-of-state
waste pay their fair share, it must be roughly equivalent to an identifiable and
substantially similar surcharge on intrastate commerce. 154 In the same year the
Supreme Court held in C & A Carbone, Inc. v. Clarkstown,lss that a tax is discriminatory
without regard to the underlying purposes when it entails differential
treatment of in-state and out-of-state economic interests that benefits the former
and burdens the latter. 156 Here, the $4 per ton fee is subject to any waste that is
transferred to a private waste management facility in the District, regardless of its
147 Id. at 324.
148 Waste Management Holdings, Inc. v. Gilmore, 64 F. Supp. 2d 523 (E.D. Va. 1999).
149 Gilmore, 252 F.3d at 328.
150 Waste Management Holdings III, 87 F.Supp. 2d 536, 545 (E.D. Va. 2000).
151 Gilmore, 252 F.3d at 336.
152 [d. at 334.
153 [d. at 343.
154 Oregon Waste Systems, Inc. v. Department of Environmental Quality 511 U.S. 97 (1994).
155 C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994).
156 Id.

UNTYING THE HANDS OF D.C. 67
origin. The statute does not differentiate between the transfer of out-of-state
waste versus in-state generated waste. Thus, it is difficult to see how this is
discriminatory .
C. State Tax
This fee meets the requirements of a state tax and, therefore, should be upheld.
The issue in District of Columbia v. Eastern Trans-Waste 157 was whether the
$4 surcharge is a tax 158 or a fee. 159 The District argued it was a tax, while E.T.W.
argued it was a fee. The Court of Appeals concluded that the $4 tipping fee is
actually a tax rather than a fee because income from the rule would benefit the
public. 160 The D.C. Council "was concerned with the impact on the health and
safety of D.C. residents of illegal dumping of waste in open areas and the
proliferations of unregulated companies that handle or process waste in the District.,,161
Given that conclusion, the Court mentioned the Supreme Court's state
tax test discussed in Complete Auto Transit, Inc. v. Brady,162 which holds that
state taxes on interstate activities will be upheld if the taxed activity has a substantial
nexus with the taxing jurisdiction, if the tax is fairly apportioned, if the
taxing legislation does not discriminate against interstate commerce and if the
amount of tax is fairly related to services provided the taxing jurisdiction. 163
However, the D.C. Court of Appeals in E. T. W. refused to resolve the constitutional
issue of whether this state tax is constitutional until the trial court has further
proceedings. 164 D. Police Power
The Courts should acknowledge that a state could favor its own citizens in
times of shortage. Although D.C. is not technically a state, it is treated as such
for purposes of interstate commerce, and thus, is entitled to the state right to
utilize its police power to protect its own citizens' health and safety. Rehnquist,
dissenting, explained in Oregon Waste, "The availability of environmentally
sound landfill space and the proper disposal of solid waste strike me as justifiable
safety or health rationales for the fee. As far back as the tum of the century, the
Court recognized that control over the collection and disposal of solid waste was
157 District of Columbia v. Eastern Trans-Waste, 758 A.2d 1 (2000).
158 [d. at 10 (explaining that a "tax" charge is for revenue-raising purposes).
159 [d. at 10 (explaining that a "fee" charge is for regulatory or punitive purposes).
160 [d. at 12.
161 [d. at 27.
162 Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977).
163 [d. at 276.
164 [d. at 18.

68 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
a legitimate, nonarbitrary exercise of police power to promote health and
safety." 165
Rehnquist was referring to California Reduction Co. v. Sanitary Reduction
Works,166 where the Court declared, "Moreover, in the absence of a contrary
view expressed by Congress, we are reluctant to condemn as unreasonable, measures
taken by a State to conserve and preserve for its own citizens this vital
resource in times of severe shortage. Our reluctance stems from the 167 'confluence
of [several] realities.",168 The Court continued, "First, a State's power to
regulate the use of water in times and places of shortage for the purpose of protecting
the health of its citizens-and not simply the health of its economy-is at
the core of its police power. For Commerce Clause purposes, we have long recognized
a difference between economic protectionism, on the one hand, and
health and safety regulation, on the other. ,,169 Thus, D.C. has legitimate police
power to promote the health and safety of its own citizens. The Supreme Court
declared in Sporhase v. Nebraska,170 "every intendment is to be made in favor of
the lawfulness of the exercise of municipal power making regulations to promote
the public health and safety, and that it is not the province of courts, except in
clear cases, to interfere with the exercise of the power reposed by law in municipal
corporations for the protection of local rights and the health and welfare of
the people in the community.,,171
In the Fourth Circuit's analysis in Gilmore, the Court asked whether Virginia
could show factors unrelated to economic protectionism, such as health and
safety concerns. I72 The Plaintiffs argued that Virginia caps should only target the
municipal state waste (MSW) from states that have lesser health and safety standards
regarding MSW than Virginia. 173 The Court granted Plaintiffs summary
judgment on this issue, concluding that in order to show that out-of-state waste
must be prohibited from entering Virginia, the state must show that waste generated
outside of Virginia is more dangerous than that generated inside Virginia,
which Virginia failed to do. 174 However, the Defendants did meet their burden
of showing that the movement of waste by barges through the waterways be-
165 Oregon Waste Systems, Inc. v. Department of Environmental, 511 U.S. 93 (1994).
166 California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306 (1905).
167 [d. at 319.
168 Hicklin v. Orbeck, 437 U.S. 518, 534 (1978).
169 California Reduction Co. v. Sanitary Reduction Works of San Fransisco, 199 U.S. 306,319
(1905).
170 Sporhase v. Nebraska, 458 U.S. 941 (1982).
171 [d.
172 Waste Management Holdings, Inc. v. Gilmore, 252 F.3d 316, 341 (4th Cir. 2001).
173 [d. at 343.
174 [d.

UNTYING THE HANDS OF D.C. 69
tween New York City and Virginia present serious and unique health and safety
risks to Virginia citizens. 175
According to the Solid Waste Transfer Facility Site Selection Advisory Panel,
Virginia requires a 50-foot set back between the facility and the boundary of the
transfer station, and a 200-foot distance between the facility and a residential
home or park. Maryland law is less specific, simply stating that a facility must be
in conformance with the county's solid waste management plan. 176 If D.C. can
provide regulations that are more stringent and enforced than Virginia or Maryland,
the D.C. courts might agree with the Fourth Circuit's analysis in Gilmore,
holding that waste generated outside the District is more dangerous than that
generated within it.
IV. MARKET PARTICIPANT
Even if the D.C. Courts do not buy into the philosophy of environmentalism
or do not agree that the District of Columbia's regulations are an exercise of its
police powers, the Court should recognize that D.C.'s participation in the commerce
market gives it the right to act without regard to the economic interests of
other states. Numerous cases support the proposition that if D.C. is acting as a
market participant, the dormant Commerce Clause places no limit on its activities.
l77 The Supreme Court declared in South-Central Timber Dev., Inc. v. Wunnicke,178
"Our cases make clear that if a state is acting as a market participant,
rather than as a market regulator, the dormant Commerce Clause places no limitations
on its activities." 179 Virginia made the argument in the District Court
case that the statutory provisions were not in violation of the dormant Commerce
Clause because Virginia was a market participant. However, the District Court
said, and the Circuit Court agreed, that Virginia was not acting as a private participant
in waste disposal market but as a regulator of "the conduct of others in
that market as only a state can dO.,,180 Even though Virginia was not considered
a market participant because it only had private transfer stations, D.C. is different
because the District has municipal transfer stations that are competing with
the private transfer stations.
175 Id. at 343-44.
176 SOLID WASTE TRANSFER FACILITY SITE SELECTION ADVISORY PANEL, DRAFT REPORT, at
3 (Oct. 16, 2000).
177 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984); Reeves, Inc. v. Stake, 447
U.S. 429 (1980); White v. Massachusetts Council of Construction Workers, Inc., 420 U.S. 204 (1983).
178 South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984).
179 Id. at 93. See also Reeves, 447 U.S. at 436 (holding that a state can refuse to deal with
particular parties when participating in the market); White, 420 U.S. at 211 (holding that a state is
allowed influence a particular class of economic activity if it is a market participant).
180 Waste Management Holdings, Inc, v. Gilmore (11),64 F. Supp.2d at 544.

70 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
The Supreme Court has gone so far as to recognize that a state can favor its
own citizens. In Hughes v. Alexandria Scrap Corp.,181 the Court rejected a Commerce
Clause attack on a Maryland program aimed at reducing the number of
junked automobiles in the state. The Court held that the Maryland action was
not "the kind of action which the Commerce Clause is concerned,,,182 because
"nothing in the purposes animating the Commerce Clause prohibits a state, in the
absence of congressional action, from participating in the market and exercising
the right to favor its own citizens over others."183 Thus, it would seem that the
District of Columbia could favor its own citizens by rejecting trash generated in
Virginia and Maryland.
If D.C. improved its two municipally-owned and managed trash transfer facilities
significantly enough to accommodate all of the District's trash needs, then
D.C. could legally exclude 30-35% of its yearly waste stream that is strictly outof-state
waste l84 because it would be a market participant. Municipal D.C. trash
transfer stations can currently only manage approximately 230,000 tons of waste
yearly,185 but if the District allocated and utilized funds to create state-of-the-art
facilities, it could expand its processing and holding capacity tremendously.
D.C. 's goal as a market participant should be to eliminate many of the currently
managed and environmentally unsound private trash transfer stations,
which could be accomplished if D.C. improved its own public facilities. In fact,
D.C. Council member Vincent Orange, Sr. recently introduced a bill that would
restrict waste transfer and processing to only the public transfer stations at Fort
Totten and Benning Road. 186 D.C. should require state-of-the art municipal
waste facilities, which would include technologies such as double-door vestibules,
(where the facility remains enclosed when a truck enters the first set of doors and
does not open until the first set of doors is again closed), air filtration, air dust
monitors and scrubbing devices. I87
v. STRINGENT REGULATIONS
Despite the improvements supposedly occurring in the District, according to
Myles Glasgow,
181 Hughes v. Alexandria Scrap Corp., 426 U.S. 794 (1976).
182 Id. at 810.
183 Id.
184 Fig. 7 - Total Solid Waste Managed in the District by Ward and Source Type, CITIZENS'
SUMMIT ON TRASH TRANSFER ISSUES (Solid Waste Transfer Facility Site Selection Advisory Panel,
Washington, D.C.) Feb. 24, 2001, at 17.
185 Fig. 1 - Thinking abolll Solid Waste Management in the District of Columbia, CITIZENS'
SUMMIT ON TRASH TRANSFER ISSUES, (Institute for Local Self-Reliance, Washington, D.C.) Feb. 24,
2001, at 7.
186 Solid Waste Facility Location Amendment Act of 2001, Bill 14-39, D.C. Council (2001).
187 Discussion of possible solutions among participants at the Citizens' Summit on Trash Transfer
Issues, Washington, D.C. (Feb. 24, 2001).

UNTYING THE HANDS OF D.C.
There are no measurable 'environmental permit restrictions' governing
solid waste transfer stations and the only "market place" power is the bold,
illegal efforts of those who opened up garbage and trash transfer stations
before going to the BZA to ask for a special exception and permission to
open one up, as was the clearly known and stated policy of the Zoning Administrator,
Mr. Botner, in 1993 and 1994. 188 71
Thus, there is a need for stringent regulations, not only in place, but enforced.
A. Flow Control
If the District continues to allow private transfer stations to operate, D.C.
could dodge interstate commerce violations by creation and enforcement of
stricter regulations in zoning and permit compliance to pinch private waste management
systems' desire to import of out-of-state waste. 189 Tighter restrictions
on the amount of accumulated waste that can be filtered through D.C. trash
transfer stations could force private waste management companies and the D.C.
government to alter its current waste management practices. Since the Carbone
decision, there has been a great deal of lobbying for legislation authorizing flow
control. 190 The National Association of Counties, National League of Cities, The
U.S. Conference of Mayors and individual governments have strongly advocated
restoration of flow control. 191 Flow control can be accomplished through economic
methods, such as uniform user fees, rather than charging disposers a fee
per ton of waste that they dump.192
New Jersey has had its share of issues over importation of solid waste, and as a
result, some municipalities are contracting for flow control. The local government
contracts with third parties to provide collection services. Given that the
contract is a mutually voluntary agreement, New Jersey does not violate the
Commerce Clause. 193 Thus, D.C. could contract with waste management companies
to only allow them to handle certain waste, ideally, only D.C.-generated
waste.
188 See Myles Glasgow, Suggestions on What to Do About D.C.'s Garbage and Trash Transfer
Stations 9, available at http;/Iww.ilsr.org/recycling/historic.html (last modified Mar.1998).
189 Neil SeIdman, Address at Citizens' Summit on Trash Transfer Issues, Washington, D.C.
(Feb. 24, 2001). Mr. SeIdman is President of The Institute for Local Self-Reliance (ILSR).
190 Geoffrey L. Oberhaus, Note, The Dormant Commerce Clause Dumps New Jersey's Solid
Waste "Flow Control" Regulations: Now What? Possible Constitutional Alternatives To the Current
"Flow Control" System, 29 RUTGERS LJ. 439 (1998).
191 McCarthy, supra note 99.
192 Oberhaustn, supra note 190. See also McCarthy, supra note 99.
193 Oberhaus, supra note 190.

72 THE UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEW
B. Cap on Trash
Capping the amount of waste that can be accepted at transfer stations would
force private companies to choose between hauling District-generated waste and
the more costly importation of out-of-state waste. For example, in 1997, D.C.
alone generated 630,200 tons of private and commercial waste, but, private companies
still imported another 366,900 tons of trash from Virginia and Maryland,
which is 997,000 tons of trash that is annually streamed through the District trash
transfer system. 194 Virginia, which is a source of on-going litigation on this issue,
restricts dumping levels at 2,000 tons per day at each landfill or the average
amount accepted by landfills in 1998, whichever is greater. 195 If D.C. were to
pass a regulation that capped the waste stream level to 700,000 tons of trash per
year, for example, the private haulers would either choose to primarily haul D.C.
waste, and, thus, cut its out-of-state waste load in half, or would travel the further
distance to Virginia and Maryland to haul its waste and forego collecting part of
the District's waste. Cost efficiency could force private waste management companies
to choose the District's waste.
C. Accountability
Holding private waste management companies accountable for non-compliance
with zoning regulations and environmental controls is not unconstitutional.
The District of Columbia has not enforced its environmental regulations against
waste management companies, and thus, solid waste disposal in the District goes
virtually unregulated. For example, when Bill 13-30 was under advisement,
Myles Glasgow testified in front of the D.C. Council that "[the] Council uses
vague terms of immediate danger .... without setting clear, attainable standards,"
and "unfairly leaves the real legislation up to some bureaucrat or judge to decide
what is immediate danger.,,196 The SOD-foot buffer goes into effect next year and
should have minimum impacts on neighborhoods. No facilities, private or public,
meet this requirement. 197 As Justice Kennedy mentioned in Carbone, a state
"cannot discriminate against out-of-state waste, but that doesn't mean you have
to cut comers on environmental regulations within your jurisdiction.,,198 The Supreme
Court suggested in Carbone that the town could ensure proper processing
194 SOLID WASTE TRANSFER FACILITY SITE SELEcrlON ADVISORY PANEL, DRAFT REPORT 6
(2000).
195 VA. CODE ANN. § 10.1 - § 14.08.3.
196 COMMITTEE ON CONSUMER AND REGULATORY AFFAIRS, COMMITTEE REPORT ON BILL 13-
30, SOLID WASTE FACILITY PERMIT AMENDMENT Acr OF 1999 3 (1999) (prepared by Carol
Schwartz).
197 Carol D. Leonnig, Panel Advises Against D.C. Village Trash Station, WASH. POST., May 19,
2001, at B2.
198 C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994).

UNTYING THE HANDS OF D.C. 73
by setting specific environmental standards with which all town processors must
comply.199 This suggestion should be embraced in the District of Columbia.
1. Certificates of Occupancy
The District's requirement that waste management companies hold a valid
Certificate of Occupancy (CO) is an issue that has been put before the local zoning
board by order of the D.C. Court of Appeals in District of Columbia v. L.G.
Industries, Inc.,2oo but the decision has been delayed until the Solid Waste Advisory
Panel makes its recommendations. 201
In 1996, in accordance with the Temporary Act of 1994, the District denied
LGI's assertion that it was licensed by the District to operate a solid waste and
recyclable material transfer facility and that it had a valid Certificate of Occupancy
that permitted it to operate a trash transfer facility.202 The Department of
Consumer and Regulatory Affairs granted LGI an interim permit in August,
1996, if LGI applied within 30 days for a Certificate of Occupancy describing use
of the facility as a solid waste handling facility.203 Instead of complying, LGI
moved for a Preliminary Injunction against the District. That motion was denied.
204 Following the denial, in May 1997, the District demanded payment for
the facility charge due under the Act. 205 In June, 1997, L.G.I. filed a second
motion to enjoin the District from enforcing this demand for payment, and, in
1998, L.G.I. filed for a Temporary Restraining Order and Preliminary Injunction
against the District after D.C. served L.G.I. with 11 administrative notices of infractions.
206 The D.C. Superior Court issued the TRO on August 17, 1998, and
an Order Staying Administrative Proceedings on September 21, 1998.1 07 The
District was then enjoined and restrained from conducting any administrative enforcement
or criminal proceeding, making any findings of fact and/or seeking or
imposing any penalties, fines or sanctions regarding the validity of the Certificate
of Occupancy that was issued to L.G.I. in June 1994. 208 The Court of Appeals
decided in 2000 that the trial court should not have exercised its jurisdiction to
stay administrative proceedings and, thus reversed the trial court. 209 The Court
directed the case to the Board of Zoning Adjustment to determine the validity of
199 [d. at 1690.
200 District of Columbia v. L.G. Industries, Inc., 758 A.2d 950, 957 (2000).
201 Electronic mail from Sara Benjamin, Public Relations Specialist. Office of Zoning (Aug. 7,
2(01).
202 L.G.!., 758 A.2d at 952.
203 [d.
204 [d.
205 L.G.!., 758 A.2d at 953.
206 L.G.I.. 758 A.2d at 953 (2000).
207 [d.
208 [d. at 953-54.
209 [d. at 957.

74 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
the Certificate of Occupancy for L.G. Industries, Inc.,210 but the BZA has yet to
reach a conclusion.
This decision may open the door to enforcement of other zoning requirements,
such as a 500 foot buffer requirement, which was already mandated in the Solid
Waste Facility Permit Amendment Act of 1998. 211 Prince George's County and
other area jurisdictions already require that solid waste handling facilities be set
back at least 500 feet from the facilities' property lines to reduce the risk of infringement
of solid waste handling facilities on adjacent land,z12
2. Nuisance Laws
Another way to force waste management companies to comply with environmental,
health and safety regulations is to keep them accountable through actions
for violation of nuisance laws. 213 According to community activists, the District
refuses to enforce regular nuisance laws. 214 Common law public nuisance is "an
unreasonable interference with a right common to the general public," including
interference with the public health, safety, peace comfort or convenience. 215 The
assumption could be made from all the community complaints regarding truck
traffic, vermin, and health problems in areas surrounding these transfer stations
that many of the facilities are a public nuisance. A private nuisance is "an unreasonable
interference with the use or enjoyment of a property interest in land." It
is essentially a tort to an owner or possessor of land. 216 Properties adjoining the
trash transfer stations would have the right to bring a nuisance action against
such facilities if the use or enjoyment of their property were being disturbed.
VI.
CONCLUSION
Environmentalism is the real commodity at issue here, not commerce, and the
trash problem in D.C. should be treated as such. Given the apathy of courts located
in D.C., including, as previously mentioned, the U.S. Supreme Court, this
theory might be difficult for the courts to embrace. Although the Supreme Court
has declared that states are not allowed to engage in resource protectionism by
210 Id.
211 D.C. CODE ANN. § 8-1058(a)(2» (West Supp. 2(01).
212 NATIONAL CAPITAL PLANNING COMMISSION, NCPC File No. Z.e. 96-5, PROPOSED RE.
VISED AMENDMENTS TO THE ZONING REGULATIONS OF THE DISTRlcr OF COLUMBIA - SOLID WASTE
HANDLING FACILITIES IN THE DISTRICT OF COLUMBIA 8 (1999).
213 Neil Seidman and Myles Glasgow, Address at Citizens' Summit on Trash Transfer Issues,
Washington, D.e. (Feb. 24, 2001).
214 Neil Seidman, Address at Citizens' Summit on Trash Transfer Issues, Washington, D.e.
(Feb. 24,2(01).
215 PROSSER, WADE AND SCHWARTZ'S TORTS: CASES AND MATERIALS 811 (John W. Wade et
al. eds. 9th ed. 1994).
216 Id.

UNTYING THE HANDS OF D.C. 75
discouraging the importation of out-of-state waste to conserve space for in-state
waste,217 not all of the justices are in agreement with that philosophy. Chief Justice
Rehnquist, dissenting, vehemently admonished the Supreme Court, "Once
again, however, as in Philadelphia 218 and Chemical Waste Management,219 the
Court further cranks the dormant Commerce Clause ratchet against the States by
striking down such cost-based fees and by doing so ties the hands of the State in
addressing the vexing national problem of Solid Waste disposal. ,,220 He continues,
"Nevertheless, the Court stubbornly refuses to acknowledge that a clean and
healthy environment, unthreatened by the improper disposal of solid waste is the
commodity really at issue in cases such as these.,,221 Rather, the Court tries to
see if the particular issue fits within another area of law, such as contracts or
commerce, and analyzes its legality and necessity through that lens. Rehnquist
was echoing an argument he had made twice before in 1992 dissenting opinions.
222 He declared in Chemical Waste Management, Inc. v. Hunt,223 "In a case
also decided today, I express my further view that States may take actions legitimately
directed at the preservation of a State's natural resources, even if those
actions incidentally work to the disadvantage of some out-of-state waste generators.
,,224 This is the type of view that must be embraced before states will make
any progress in enforcement of environmental regulations.
District of Columbia courts need to find another perspective in which to view
environmental issues, or environmental activists will have to continue struggling
to show that an environmental vision is not invalid under another area of law.
The courts should acknowledge the principles of environmental justice that were
adopted at the "First People of Color Environmental Leadership Summit,,225
when balancing the harms and benefits of certain regulations because D.C. has
the right to have a clean and healthy environment as much as waste management
companies have a right to run a business. One of the principles adopted at the
Environmental Leadership Summit reads, "Environmental justice demands the
cessation of the production of all toxics, hazardous wastes, and radioactive materials,
and that all past and current producers be held strictly accountable to the
people for detoxification and the containment at the point of production. ,,226
217 Philadelphia v. New Jersey, 437 U.S. 617, 627 (1978).
218 [d.
219 Chemical Waste Management, Inc. v. Hunt, 112 S. Ct. 2009 (1992).
220 Oregon Waste Systems, Inc. v. Department of Environmental Quality, 511 U.S. 93 (1994).
221 [d.
222 Hunt, 504 U.S. 334 and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dep't. of Natural
Resources, 504 U.S. 353 (1992).
223 Hunt.
224 Hunt, (reference to Fort Gratiot).
225 FIRST PEOPLE OF COLOR ENVIRONMENTAL LEADERSHIP SUMMIT, PRINCIPLES OF ENVIRON­
MENTAL JUSTICE, app. at A-I (1991).
226 [d.

76 THE UNIVERSITY OF THE DISTRlCf OF COLUMBIA LAW REVIEW
Despite the seemingly uphill battle ahead, the District of Columbia has a number
of available options to tackle its growing trash dilemma without violating the
Commerce Clause, despite the holdings of the D.C. courts. The District must
look at creative options and pursue them vigorously, such as enlisting the assistance
of Congress, capping the amount of trash flow into the district and improving
the District's municipal waste transfer facilities. There is hope for
improvement of these facilities. Mayor Williams recently rejected a proposal to
build another transfer station at D.C. Village 227 and a five-member panel established
by the Mayor's office has recommended that the city improve and expand
the outdated Fort Totten and Benning Road stations. 228
Meanwhile, the courts must acknowledge the trash problem is primarily about
the health and safety of its citizens, and the burdening cost of trash disposal on
the District, rather than commerce. Decisions regarding trash problems in D.C.
should not be based solely on economic decisions, but should take into consideration
environmental justice principles and health and safety issues. As Chief Justice
Rehnquist pointed out in his dissent in Oregon Waste Systems, "While I
understand that solid waste is an article of commerce, it is not a commodity sold
in the marketplace, rather it is disposal of it at a cost to the state.,,229 The D.C.
judiciary must not severely limit D.C.'s ability to adequately address this issue.
Rehnquist criticized the Supreme Court majority in Oregon Waste Systems for
their failure to uphold a higher surcharge on the importation of out-of-state waste
into Oregon, scolding, "The Court, in deciding otherwise, further limits the dwindling
options available to States as they contend with the environmental, health,
safety and political challenges posed by the problem of solid waste disposal in
modern society.,,23o The fewer options D.C. is left with, the more creative it must
be to avoid the pitfalls of unconstitutional regulations but still accomplish its
objectives of a nation's Capital that is clean and healthy.
227 Leonnig, supra note 197.
228 [d.
229 Oregon Waste Systems, 511 U.S. 93.
230 [d.

A REPRESENTATIVE DEMOCRACY: AN UNFULFILLED
IDEAL FOR CmZENS OF THE DISTRICT OF COLUMBIA
Aaron E. Price, Sr.*
I. INTRoDucnoN
The right of voting for representation is the primary right by which other
rights are protected. To take away this right is to reduce a man to slavery, for
slavery consists of being subject to the will of another, and he that has not a
vote in the election of representation is in this case. 1
The Preamble of the United States Constitution introduces the notion of individual
rights for citizens,2 but the Bill of Rights is the legal genesis for individual
rights. 3 The essence of civil rights is to freely and equally participate in the body
politic and public affairs in order to actively promote a preferred public policy
alternative through personal participation in the electoral process. The Framers
of the Constitution wanted to ensure the greatest availability and protection of
these individual rights. Accordingly, the Framers specified that all rights not delegated
to the national government and not prohibited by the states are reserved
to the people. 4 Therefore, the Constitution represents a compact between the
national government and its citizens.
To warrant the protection and fulfillment of individual and civil rights, the
Framers intended that citizens be directly represented in the new government.
The Framers' first criterion for the new national government was for it to be a
body of powers derived from the people. 5 The delegation of this sovereign power
* J.D. Candidate 2003, David A. Clarke School of Law, University of the District of Columbia;
Deputy Editor-in-Chief, District of Columbia Law Review, 2002 - 2003; BBA 1999, University of the
District of Columbia. The author wishes to thank Professors William Robinson and Wade Henderson
(Rauh Professor of Law) of the David A. Clarke School of Law for their thoughtful suggestions and
criticisms of this comment. The author immensely thanks his wife and children for their unwavering
love, support and patience.
1 Thomas Paine, DISSERTATION ON FIRST PRINCIPLES OF GOVERNMENT (1795).
2 U.S. CONST. pmbl. ("We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.")
Id.
3 Loan Association v. Topeka, 87 U.S. 655 (1875).
It must be conceded that there are ... rights in every free government beyond the control of the
State .... There are limitations on [governmental] power which grow out of the essential nature of all
free governments. Implied reservations of individual rights, without which the social compact could
not exist, and which are respected by all governments entitled to the name.
4 U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the States respectively, or to the people.")
5 THE FEDERALIST No. 39 (James Madison).

78 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
from the people to elected representatives is the republican form of national government
that the Framers had envisioned. This republican form of government
equates to the modern definition and experience of democracy. Further, the Supreme
Court held that the right to vote for members of Congress emanates from
the Constitution. 6
During the Constitutional Convention of 1784 much deliberation was had regarding
the proposed structure of the new national government. The impeding
conviction was that this new national government "should not fashion itself after
any form of representation of inconsiderable proportion nor should it fashion
itself after a favored class, or a handful of tyrannical nobles, exercising their oppression
by a delegation of their powers and claim for their government the honorable
title of republic.,,7 Representation in the national legislature consists of an
individual's prerogative to vote directly for congressional representation in the
Houses and the Senate. 9 Notwithstanding these prerogatives, the privilege and
right of democracy does not exist in the District of Columbia, the home and seat
of the nation's capital. IO
It is without question that all other citizens paying federal income taxes and
claiming national citizenship enjoy the rights and benefits of elective franchise for
the national legislature. Yet, the basic elective franchise is not available for citizens
of the District of Columbia. District of Columbia citizens are, after all, citizens
of the United States first, then citizens of District of Columbia. I I This
comment proposes that denial of this fundamental right is a blatant violation of
basic constitutional and civil rights. The Supreme Court has stated that "[t]he
fact that an individual lives here or there is not a legitimate reason for ... diluting
the efficacy of his vote.,,12 Are there any lawful barriers to prevent enjoyment of
this fundamental constitutional and civil right and the realization of the Framers'
intent in the 21st Century? Citizens of the nation's capital find themselves in this
distressing predicament, despite the compelling American principle of a representative
democracy.
Since the recognition of the District of Columbia as a separate and semi-free
entity in 1801, its citizens have been accorded disparate treatment regarding this
6 United States v. Classic, 313 U.S. 299, 314-15 (1941).
7 THE FEDERALIST No. 39 (James Madison).
8 U.S. CON ST. art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States .... ")
9 U.S. CONST. amend. XVII, § 1 ("The Senate of the United States shall be composed of two
Senators from each State, elected by the people thereof, .... ")
10 Roy P. Franchino, The Constitutionality of Home Rule and National Representation for the
District of Columbia, 46 GEO. LJ. 207, 208 (1957-58).
11 U.S. CONST. amend. XIV, § 1 ("All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they
reside.")
12 Reynolds v. Sims, 377 U.S. 533, 567 (1964).

A REPRESENTATIVE DEMOCRACY 79
basic right. 13 Citizens of the District of Columbia have been under varied forms
of nationally created governance in spite of apparent federalism violations. Many
of these forms of government have failed to provide for District of Columbia
representation in the national legislature. Citizens of the District of Columbia
deserve a proper and equal application of the laws, requiring a legitimate, cogently
reasoned, and non-political resolution of their cause. Consequently, citizens
of the District of Columbia are entitled to their constitutional guarantee of
their right to representation in the national legislature. The resultant representation
will minimally produce two senators and one congressional representative in
the House.
This comment will survey possible mechanisms available for effecting the right
to representation in the national legislature for citizens of the District of Columbia
and recount previously employed measures and attempts. As a matter of
law, the Draconian position currently in effect results in the denial of the right to
representation in the national legislature for citizens of the District of Columbia.
Not surprisingly, this antithesis of American democracy continues to be feverishly
debated and contested in political fora, while serving as a casus belli for
native Washingtonians and civil and suffrage rights activists. The United States
Congress is currently considering this oddity through identically proposed bills in
the House 14 and Senate. 1S This exact matter was before the United States District
Court for the District of Columbia in 2000. 16 A special three-judge (trial)
court was convened to hear the case. I7 The result of the trial was not favorable
for District of Columbia citizens. Nonetheless Judge Oberdorfer wrote a well
reasoned dissent in support of limited representation. The Supreme Court by
mandatory review 18 affirmed the decision of the lower court without opinion. 19
13 Lawrence M. Frankel, Comment, National Representation for the District of Columbia: A
Legislative Solution, 139 U. PA. L. REV. 1659, 1709 (1991).
Thus, even if it is conceded that District disenfranchisement was not a major problem two hundred
years ago, it is today. To suggest it is not amounts to a casual dismissal of the fundamental rights
of 600,000 American citizens and constitutes an insult not only to those being deprived of a voice in
the affairs of their nation, but also to the republican principles upon which this nation was founded.
Id.
14 No Taxation Without Representation Act of 2001, H.R. 1193, 107th Congo (2001) (introduced
by Delegate Eleanor Norton Holmes (D-DC), Non-Voting Delegate from the District of
Columbia).
15 No Taxation Without Representation Act of 2001, S. 603, 107th Congo (2001) (introduced by
Senator Joseph Lieberman (D-CT), Chair of the Senate's Governmental Affairs Committee).
16 Adams V. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000).
17 28 U.S.c. §2284(a) (1948) provides that "[a] district court of three-judges shall be convened
. . . when an action is filed challenging the constitutionality of apportionment of congressional
district."
18 28 U.S.c. §1253 (1948) (decisions of U.S. District Courts consisting of three-judges are directly
appealable to Supreme Court).
19 Adams V. Clinton, 531 U.S. 941 (2002) (per curiam).

80 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Nevertheless, the Supreme Court has reasoned that an earlier unconstitutional
action not vindicated does not render the action any less unconstitutional at a
later date. 20 Ultimately, the Supreme Court may have to resolve this matter. 21
The Constitution by way of the District Clause confers on Congress exclusive
legislative jurisdiction for the District of Columbia as the seat of the national
government. 22 The clause has been bastardized in its purpose. The origin of this
clause is a 1784 session of Continental Congress in Philadelphia, Pennsylvania.
During this session an angry mob of rebellious soldiers outraged at actions of the
Continental Congress surrounded the building and gestured threats and taunts
against its occupants. Nevertheless, neither the city of Philadelphia nor the state
of Pennsylvania provided any protection or security for the members of the Continental
Congress upon their request. During this period of consternation, the
Continental Congress recessed and subsequently reconvened for their safety in
Princeton, New Jersey. Upon their reconvening in Princeton, their deliberations
were monopolized by identifying means to provide for Congress' own safety and
security. This Continental Congress adopted a resolution providing the Continental
Congress with exclusive jurisdiction over places in which Congress meets.
This language made its way to the Constitutional Convention of 1787 and ultimately
to the ratified Constitution.
The historical and current reasoning and application of the clause excluding
District of Columbia citizens from complete and full representation in the nationallegislature
has been much more inclusive than originally intended in terms
of Congress' power over the District of Columbia. The historical and current
reading proposes that citizens of the District of Columbia are inhibited from participation
and representation in the national legislature because of the exclusive
jurisdiction Congress maintains over the District of Columbia, ipse dixit. This
reasoning deprives citizens of the District of Columbia of their basic fundamental
civil right to full elective franchise for representation in the national body
politic?3
20 Powell v. McCormack, 395 U.S. 486, (1969).
21 Marbury v. Madison, 5 U.S. 137 (1803) (quoting Chief Justice Marshall, "It is emphatically
the province of the judicial department to say what the law is").
22 U.S. CONST. art. I, § 8, cl. 17 ("To exercise exclusive Legislation in all Cases whatsoever, over
such District (not exceeding ten Miles square) as may, by Cession of particular States and the Acceptance
of Congress, become the Seat of the Government of the United States.")
23 Adams v. Clinton, 90 F. Supp. 2d 35, 72 (D.D.C. 2000) (Oberdorfer, J., dissenting)
The plain language of the Constitution does not necessarily deny the people of the District the
right to voting representation in Congress. Neither the Seat of Government nor any other provision
of Article I addresses, much less directly precludes, congressional representation for the people of the
District. If the Framers intended to deny voting representation in Congress to inhabitants of the Seat
of Government, the Seat of Government clause was an appropriate place to say so. It does not.
Id.

A REPRESENTATIVE DEMOCRACY 81
The District of Columbia has experienced intermittent involvement by the
President and Congress regarding its citizens' individual rights and political character.
24 Via these political branches of government, the citizens of the District of
Columbia have been granted most basic and conventional individual franchise
rights, albeit on a piecemeal basis. 25 These same two institutions, on numerous
occasions, have vacillated between favoring partial congressional representation
and no congressional representation at all for the citizens of the District of
Columbia.
This comment rests on the a priori position that citizens of the District of Columbia
are being denied full and complete representation in the nationallegislature,
presenting an aberration in the American principle of a representative
democracy. Under due process of law,26 any branch of government conducting
an exhaustive reading of the Constitution and performing a normative reasoning
consistent with the Framers' intent relative to a republican form of government
guarantee will accord District of Columbia citizens elective franchise for representation
in the national legislature.
It surveys the current status, law, and doctrines that support the disenfranchisement
of District of Columbia citizens. It analyzes the strengths, weaknesses,
and opportunities available to proponents of complete elective franchise
for representation in the national legislature for District of Columbia citizens. It
concludes with proposals to solve the problems of misconstruing constitutional
principles and theories resulting in the disenfranchisement of citizens of the District
of Columbia.
Concluding this comment are several proposals to raise awareness of the historic
disenfranchisement plight of citizens of the District of Columbia and suggest
possible mechanisms to provide these citizens with their complete right of elective
franchise for representation in the national legislature. Additionally, federal
case law and substantive law doctrines will be submitted to rebut and counter the
status quo ante, limited representation.
24 See THE UNITED STATES GOVERNMENT MANUAL 1998-1999, 780 (1999) (showing the historical
status of the District of Columbia).
25 U.S. CON ST. amend. XXIII, § 1 ("The District constituting the seat of Government of the
United States shall appoint ... electors of President and Vice President equal to the whole number of
Senators and Representatives in Congress to which the District would be entitled if it were a State
.... "); Delegate to the House of Representatives from District of Columbia, 2 V.S.C.A. § 25a (1970).
26 Pennoyer v. Neff, 95 V.S. 714, 733 (1877) ("a course of legal proceedings according to those
rule and principles which have been established in our system of jurisprudence for the protection and
enforcement of private rights").

82 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
II BACKGROUND
Origin of Suffrage in the District of Columbia
The District of Columbia was established by The Residence Act of 1790, which
provided that the area to become the seat of the national government be located
on ceded land portions from the states of Maryland and Virginia. 27 Both Maryland
and Virginia enacted laws whereby portions of these respective states were
ceded to the United States to become the seat of the national government. The
original inhabitants of these ceded lands portions totaled approximately eight
thousand and were to be governed under the laws of the states of Maryland and
Virginia until the national government would provide for the land and its inhabitants.
Maryland's legislation included a proviso for continued jurisdiction over
the land it was to cede and its inhabitants until Congress accepted the cession and
began providing government for the ceded portion. 28 Virginia's cession legislation
provided similar shelter for the land it was to cede and its inhabitants. 29
Accordingly, with the cession legislation both states recognized that the inhabitant
citizens would continue to be governed by their respective existing state laws
until the national government actually moved to the District of Columbia and
began providing for the inhabitants.
The original citizens of what is now termed the District of Columbia enjoyed
complete elective franchise and representation in the national legislature. Upon
the national government's occupying of the ceded lands and providing for the
citizens of those lands through an independent District of Columbia government,
Maryland and Virginia discontinued their jurisdiction and law making for the
ceded portions. Congress did not convene in the District of Columbia until November
22, 1800. Initially, Congress authorized continued recognition of the respective
states rights in the District of Columbia to calm questions of law and
jurisdiction in the new city.3° This new city would take the form of a federal
district. 31 The lapse between 1790 and 1800 reflects the period in which citizens
of the District of Columbia enjoyed full suffrage rights and privileges through the
respective ceding states. One of these rights was the basic civil right to participate
in the direct election of congressional representatives in the national legislature,
both in the House and in the Senate.
27 Act Establishing the Temporary and Permanent Seat of the Government of the United
States, ch. 28, 1 Stat. 130 (1790).
28 An Act Concerning the Territory of Columbia and the City of Washington, 1791 Md. Acts
ch. 45, §2.
29 Act Cession from the State of Virginia, William W. Herring, Virginia's Statutes at Large, ch.
32, at 43 (1823).
30 An Act Concerning the District of Columbia, ch. 15,2 Stat. 103 (1801).
31 See Black's Law Dictionary 330 (6th ed., 1991) ("it is legally neither a state nor territory").

A REPRESENTATIVE DEMOCRACY 83
Upon ratification of the Constitution and through constitutional grant, Congress
has exercised exclusive legislative authority over the District of Columbia. 32
The purpose of this exclusive legislative authority was intended to ensure that the
ceding states were mindful that there would not be shared jurisdiction between
the national government and either of the two ceding state governments. 33 Since
the creation of the District of Columbia, numerous forms of government have
been enacted and repealed. There have been several attempts to provide District
of Columbia citizens with local government or management. To date, however,
only two measures have provided for participation in the national legislature.
These two measures have resulted only in limited participation privileges and
only in the House of Representatives. The varied and mixed forms of governance
have ranged from local municipal government, federal commission, territorial
government, quasi-state government to a federal agency.3 4
An illustrative account of the forms of governance in the District of Columbia
follows. Since the land comprising the District of Columbia had been ceded by
Maryland and Virginia, the multifarious government forms that the District of
Columbia has experienced are as follows:
• A presidentially appointed three-member commission (1790-1802);35
• A popularly elected two chamber council with a presidentially appointed
mayor (1802-1820);36
• A popularly elected board of common council, board of alderman, and
mayor; the elected mayor was replaced by a mayor appointed by the
council and alderman 37 and subsequently the mayor being again popularly
elected (1820-1871 );38
• A presidentially appointed governor and council along with a popularly
elected house of delegates, and for the first time a popularly elected
non-voting delegate to the House of Representatives (1871-1874);39
32 U.S. CON ST. art. I, § 8, d. 17.
33 Thompson v. Lessee of Carroll, 63 U.S. 422. (1859); see also District of Columbia v. John R.
Thompson, 346 U.S. 100 (1953).
34 See notes 35 - 45 infra.
35 Act Establishing the Temporary and Permanent Seat of the Government of the United
States.
36 Act of 1802 Incorporating the City of Washington, ch. 53, 2 Stat. 195 (1802).
37 Act of 1812 Amending the Charter of Washington, ch. 75, 2 Stat. 721 (1812).
38 Act of 1820 Reorganizing the Government of the City of Washington, ch. 104,3 Stat. 583
(1820).
39 Act of 1871 Creating Legislative Assembly, ch. 62, 16 Stat. 419 (1871) (in this act, the jurisdiction
and territorial government came to be called the District of Columbia and the motto "Justitia
Omnibus" (Justice for All) is adopted).

84 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
• Another presidentially appointed three member commission (1874-
1878);40
• Another presidentially appointed commission; this commission consisted
of two civilians and one senior Army engineer officer (1878-
1967);41
• A presidentially appointed mayor/commissioner and nine-member
council (1967-1973);42
• A non-voting delegate to the House of Representatives, independent of
the form of government (1970-Present);43
• Home Rule, a congressional invention, providing for a popularly elected
mayor and city council (1974-Present);44
• and finally, a congressionally established transitory Control Board, consisting
of five members appointed by the President exercising sovereign
authority over the popularly elected mayor and council (1995-2001).45
District of Columbia Suffrage Movement
It is well documented that during the period 1790 - 1800 the original inhabitants
of the District of Columbia participated in the election of representatives in
the national legislature, congressional representatives and senators via cession
acts of Maryland and Virginia. 46 It was not until Congress began legislating for
the District of Columbia that the basic American civil right of national elective
franchise was violated and became non-existent. 47
National representation for the seat of government was lightly deliberated at
the Constitutional Convention. 48 During the Constitutional Convention two ad
hominem sentiments were expressed with respect to the seat of government.
40 Temporary Organic Act of 1874, ch. 337, 18 Stat. 116 (1874) (the District of Columbia delegate
to the House of Representative is eliminated from the political scene. Additionally, Congress
approved the establishment of the District of Columbia government as a municipal corporation).
41 Organic Act of 1878, ch. 180,20 Stat. 102 (1878).
42 Reorg. Plan No.3 of 1967, 32 F.R. 11669 (1967), reprinted in 5 U.S.C.A. app., and in 82 Stat.
1315 (1968).
43 2 U.S.C. § 25a.
44 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No.
93-198,87 Stat. 777 (1973).
45 District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub.
L. No. 104-8, 109 Stat. 97 (1995).
46 Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional
Analysis, 12 HARV. J. ON LEGIS. 167, 174 (1974); Archive of Maryland, new series I, An Historical
List of Public Officials of Maryland, Vol. 1, at 229, Maryland State Archives, 1990 (Thomas Beall a
resident of Georgetown during those years, an area encompassed by the newly drawn District boundaries,
was a representative in the Maryland House of Delegates in 1800).
47 Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional
Analysis, 12 HARV. J. ON LEGIS. 167, 175 (1974).
48 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES (1833).

A REPRESENTATIVE DEMOCRACY 85
First, Congress' right to exclusively legislate with regard to the seat of government.
The aim was to provide Congress with the power to ensure for its own
protection and security via a police power. 49 The convention's deliberators contemplated
the term police power in its purest form, intending that Congress act
independently in providing their own police protection. Second, Congress' fear
that citizens in the Nation's Capital might be politically advantaged because of
their residence within the Nation's Capito1. 5o National legislature representation
and participation on behalf of District of Columbia citizens warranted little deliberation
at the Constitutional Convention. It was deduced that the citizens of the
seat of the government would retain and have voting rights rooted in their citizenship.51
There are no historical facts to illuminate any motives for the Constitutional
Convention's de liberators' haste in addressing franchise for the seat of
government.
The District of Columbia as a body politic has been without its own representation
in the national legislature since its inception in 1790, save the residual effects
of the Maryland and Virginia cession provisions. There are two periods in
which limited representation has been enjoyed, April 21, 1871 through March 4,
1875 52 and November 5, 1971 to the present. 53 The representation on both occasions
has been in the form of a single non-voting Delegate to the House of Representatives.
These two periods are diametrically opposed in terms of the
governance and status of the District of Columbia. During the first period in
which there was limited congressional representation the District of Columbia
government took the form of a territorial government. The second period is
marked by a quasi-state model of government. The distinction is quite relevant.
The territorial government operated as if it were "unincorporated" within the
United States. This "unincorporated" status in effect relegated the District of
Columbia to chattel of and belonging to the United States rather than part of the
United States. 54 Consequently, as people not part of the United States residents
49 THE FEDERALIST No. 43 (James Madison).
50 The only tangible item of advantage received by the District of Columbia appears to be the
District of Columbia Emancipation Act, Compensated Emancipation Resolution, Pub. L. No. 26, 12
Stat. 617 (1862) signed by President Lincoln on April 16, 1862, nine months before the Emancipation
Proclamation. The District of Columbia Emancipation Act provided for immediate emancipation,
compensation of up to $300 for each slave to loyal Unionist masters, voluntary colonization of former
slaves to colonies outside the U.S., and payments of up to $100 to each person choosing migration.
51 THE FEDERALIST No. 43 (James Madison).
52 Biographical Directory of the U.S. Congress 1774 - Present at http://www.bioguide.congress.
govlbiosearch/biosearch.asp (Delegate Norton P. Chipman, serving April 21, 1871 through March 4,
1875).
53 Biographical Directory of the U.S. Congress 1774 - Present at http://www.bioguide.congress.
govlbiosearchlbiosearch.asp. (Delegate Walter E. Fauntroy, serving November 5,1971 through January
3, 1991 and Delegate Eleanor Holmes Norton, serving January 3, 1991 - Present).
54 Downes v. Bidwell, 182 U.S. 244, 287 (1901) (""Incorporation" of territories is a judicial
concept developed by the Supreme Court after the Spanish-American War to deal with "the difficult

86 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
were not entitled to full representation in the national legislature. The quasistate
model of Home Rule has the identical effect in its treatment of national
legislature representation. Nevertheless, the District of Columbia and its citizenry
are claimed to be absolutely incorporated within the American ideal of
shared governance, without its full compliment of representation in the national
legislature. 55
Numerous unsuccessful attempts have been made to provide representation in
the national legislature for citizens of the District of Columbia. In 1846, an attempt
was made, but to no avail, to retrocede the District of Columbia back to
Maryland to effect congressional representation. 56 The land tract from the Maryland
cession is all that remains from the original joint Maryland and Virginia
cession legislation. In 1846, several citizens of the District of Columbia unsatisfied
with the lack of representation in the national legislature successfully lobbied
for the retrocession of the Virginia land grant to revive their right of elective
national franchise. 57 An amendment to the Constitution was submitted to the
states that would have given full and complete congressional representation for
the District of Columbia. 58 This amendment contained the proposed and ratified
Constitution for the State of New Columbia. 59 It failed for lack of ratification by
the requisite number of states within the congressionally approved time. 60
In spite of the foregoing attempts, District of Columbia citizens still lack the
elective franchise for representation in the national legislature. Under its current
problem of the extent to which the guarantees of the Constitution applied to newly acquired
territories. ")
55 See [d. at 260-61.
This District had been part of the States of Maryland and Virginia. It had been subject to the
Constitution, and was part of the United States. The Constitution had attached to it irrevocably.
There are steps which can never be taken backward. The mere cession of the District of Columbia to
the Federal government relinquished the authority of the states, but it did not take it out of the
United States or from under the aegis of the Constitution.
[d.
56 12 Annals of Congo 499 (1803).
57 An Act to Retrocede the County of Alexandria in the District of Columbia, to the State of
Virginia, ch. 35, 9 Stat. 35 (1846).
58 Joint Resolution to amend the Constitution to provide for representation of the District of
Columbia in the Congress, H.R.J. Res. 554,95 Congo 2d Sess. (1978); see KEITH MELDER, A CITY OF
MAGNIFICENT INTENTIONS, A HISTORY OF WASHINGTON, DISTRICT OF COLUMBIA 587 (2d ed. 1997)
(the D.C. Voting Rights Amendment was to give the District the same representation in the national
legislature without any change in the city government or its authority).
59 N. COLUM. CONST. (1987).
60 See generally Coleman V. Miller, 307 U.S. 433 (This time requirement is not derived from
any constitutional mandate, but the Supreme Court holding that the question of the reasonableness of
the time within which a sufficient number of States must act is a political question to be determined
by the Congress. This time requirement began with the proposed Eighteenth Amendment. Congress
has customarily included this provision requiring ratification within seven years from the time of the
submission to the States.)

A REPRESENTATIVE DEMOCRACY 87
structure of Home Rule, the District of Columbia continues to press onward for
complete and full representation in the national legislature. The two prominent
venues in operation are a statehood movement and judicial relief.
In spite of the struggle for participation in the elective franchise for the national
legislature, District of Columbia citizens do have the right to participate in
the election of the President and Vice President of the United States. 61 This right
came about as the result of a Constitutional Amendment. This was a first step in
achieving full franchise for the citizens of the District of Columbia. The grant
and acknowledgment of this basic right demonstrates the validity of the District
of Columbia and its citizenry possessing franchise rights which were not precisely
given when the Constitution was drafted and ratified over 200 years ago.
Fulfillment of a Fundamental Civil Right
The District of Columbia is currently governed under a charter granted by
Congress. 62 This current form of government provides the most democracy District
of Columbia citizens have enjoyed to date. The irony of Home Rule lies in
its birth, an unequivocal all or none proposition. Congress again devised the plan
of government for the District of Columbia and then allowed the citizens of the
District of Columbia to vote upon its implementation through a local referendum.
The referendum passed with a favorable vote. 63 The decision involved the
continuation of a presidentially appointed commissioner/mayor and its appendages
or the opportunity to have a popularly elected organic government with
separate executive and legislative functions and officers.
This quasi-state form of government provides less than complete autonomy
over local affairs with no mention of representation in the national legislature.
The lack of autonomy is particularly secured to the District of Columbia's budget
and courts. 64 The citizens of the District of Columbia have accepted Home Rule
as an interim solution while continuing to seek the full and complete national
elective franchise enjoyed by the citizens of the several states. The Supreme
Court has on occasions viewed the District of Columbia as a state. 65 More importantly,
it does not and has not analogized the District of Columbia with a
61 U.S. CONST. amend XXIII, §1.
62 District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No.
93-198, 87 Stat. 777 (1973).
63 On May 7,1974, a special referendum was held in the District of Columbia to accept or reject
the Congressionally formulated District of Columbia Charter. The vote passed with a majority of
voting citizens in the District of Columbia supporting the measure, while it was vigorously opposed by
the business community.
64 District of Columbia Self-Government and Governmental Reorganization Act §§ 302 and
303(a) (extending veto authority even to locally generated revenue).
65 See e.g., Coleman v. Miller, 307 U.S. 433 (1939).

88 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
territory.66 Still lacking in its fullness, the current form of government with all of
its progress and promise over the previous forms of national control and governance
proves temporarily acceptable to citizens of the District of Columbia. The
lacking component is elective franchise for full congressional representation.
District of Columbia citizens are not content nor should they be with Home Rule
as the conclusion to their demand for elective franchise for representation in the
national legislature.
Solidity of Home Rule
At no point since 1800, have citizens of the District of Columbia enjoyed full
and complete national legislature representation. The Home Rule legislation
provides the District of Columbia with the general legislative authority
equivalent to the several states with few exceptions. The Congress retains legislative
veto authority over all of the District of Columbia's municipal affairs and
locallegislation. 67 By analogy, the District of Columbia, having been granted the
general functions and powers of a state, should have citizens who also enjoy all of
the functions and powers of state citizens. It is undoubtedly true that the District
of Columbia is a separate political community.68 Moreover, Chief Justice Marshall,
speaking for the Supreme Court, assented "that the District of Columbia is
a separate state, or sovereignty, being a distinct political society. ,,69 The District
of Columbia is not an ephemeral subdivision of the outlying dominion of the
United States, but the capital and permanent abiding place of the government. 70
Enjoyment of full elective national franchise rights can only be assured through
an affirmative act of one of the branches of government.
m ANALYSIS
This section details the nature, current application, and suggested reasoning of
the essential areas of law involved in the debate for the expansion of national
elective franchise for citizens of the District of Columbia.
Statutory Interpretation
The proponents of continued disenfranchisement of District of Columbia citizens
premise their position and argument on the absence of an affirmative declaration
within the Constitution. This argument fails because the Constitution is
not a perfect document. The Constitution with its latent defects has evolved from
66 Callan v. Wilson, 127 U.S. 540 (1888); see also Virgin Islands v. Bodle, 427 F.2d 532 (3d Cir.
1970).
67 District of Columbia Self-Government and Governmental Reorganization Act § 601 et seq.
68 Metropolitan R. Co. v. District of Columbia, 132 U.S. 1,9 (1889).
69 Hepburn & Dundas v. Ellzey, 6 U.S. 445, 452 (1805).
70 Q'Donoghue v. United States, 289 U.S. 516, 539 (1933).

A REPRESENTATIVE DEMOCRACY 89
a humble document governing the original thirteen states to its current reach of
fifty states, eight federal territories,71 and the District of Columbia. To correct
flaws and errors, the Framers included an amendment process. This process has
been successfully executed only twenty eight times.
The term "state" is not defined in the Constitution. To draw a definitive
meaning requires analysis of United States Supreme Court case law. The Court's
current interpretation selectively integrates the District of Columbia in the meaning
of the term "state" as expressed within the Constitution.72 Given this fact,
the national legislature naturally posits the District of Columbia as a state in numerous
enactments?3 The thrust of this comment and suffrage activists' lies in
the chief exclusion. The chief exclusion being limited franchise and representation
for citizens of the District of Columbia. The District of Columbia can be
embraced in the meaning of the term "state" as expressed in the Constitution.
This existing interpretation of selective integration is in conflict with at least
one universally accepted principle of American jurisprudence 74 and the nation's
founding principles.
The District of Columbia in its infancy once took the form of a territory 75 and
has graduated to an organized body of people of considerable number and wealth
seeking to invoke all outstanding Constitutional promises. The U.S. Court of
Appeals for the Fourth Circuit and the Connecticut Superior Court have held the
modest assessment of a state as an organization of people under its own rule of
law. 76 Holdings of these two courts would bring the District of Columbia within
the realm of the meaning of the term "state." The word "state" is often used in
contradistinction to "territory," yet in its general public sense, and as sometimes
71 America Samoa, Guam, Puerto Rico, United States Virgin Islands, Northern Mariana Islands,
Federated States of Micronesia, Marshall Islands, and Midway Island.
72 Hepburn, 6 U.S. at 540.
73 Jamin B. Raskin, Is This America? The District of Columbia and the Right to Vote, 34 HARV.
C.R.-C.L. L. REV. 39, 97 n.271 (Winter 1999).
There are 537 federal statutes that treat the District of Columbia as though it were a State for
programmatic, governmental and constitutional purposes. See, e.g. 2 U.S.C. § 431 (1994) (Federal
Election Campaign Act); 15 U.S.c. § 1692a (1994) (Fair Debt Collection Act of 1977); 17 U.S.c. § 101
(1994) (Subject Matter and Scope of Copyright); 18 U.S.c. § 1961 (1994) (Racketeer Influence and
Corrupt Organizations); 23 U.S.c. § 101 (1994) (Federal-Aid Highways); 42 U.S.c. § 1973ee-6 (1994)
(Voting Accessibility for the Elderly and Handicapped); 42 U.S.c. § 1973ff-6 (1994) (Uniformed and
Overseas Citizens Absentee Voting Act of 1986); 42 U.S.c. § 1973gg-1 (1994) (National Voter Registration
Act of 1993). See also D.C. Representation in Congress: Hearings Before the Subcomm. On
the Constitution of the Senate Comm. On the Judiciary, 95th Congo 7-12 (1978) (testimony of Senator
Edward M. Kennedy).
Id.
74 RESTATEMENT (SECOND) OF CoNFLICT OF LAWS § 3 (1969) (defining "state" as a territorial
unit with a distinct general body of law).
75 Act of 1871 Creating Legislative Assembly.
76 Maisano V. Mitchell, 231 A.2d 539, 542 (Conn. Super. Ct. 1967); see also Delany V. Moraitis,
136 F.2d 129, 130 (4th Cir. 1943).

90 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
used in Federal statutes and the proceedings of the national government, it has
the larger meaning of any separate political community, including the District of
Columbia and the territories, as well as those political communities, known as the
"states of the union. ,,77
This aspect of vindicating the right to participate in the elective franchise for
representation in the national legislature for citizens of the District of Columbia
is an exercise in constitutional interpretation. The fact that we have a written
constitution leads us to the point that the Constitution must be interpreted to
gain its full and accurate meaning. 78 Interpretivisms 79 and textualism 80 techniques
are in effect to disenfranchise citizens of the District of Columbia. These
two techniques suggest that judicial interpretation should not venture beyond the
actual text of the Constitution and if necessary only in the most limited way.
The major premise for interpretivists and textualists is that the Constitution
does not explicitly give national elective franchise to any other organized body
other than the states. This canon of statutory interpretation and technique, Expressio
unius est exc/usio aiterius, of interpretation is not a binding rule of law. 81
The Supreme Court itself has rejected this canon of statutory construction when
its application leads to inconsistency or injustice. 82 This rigid position is unworkable
in that its result is fallacious, contrary to the Framers' intent, and violative of
fundamental American political values. The starting point for any constitutional
interpretation exercise should be guided by the fundamental democratic principles
upon which this nation was founded. 83 The District of Columbia is comparable
to many of the several states. 84 The Constitution was not meant to be a static
document. 85 To give District of Columbia citizens the national elective franchise
they qualify for and are entitled to, a more lenient interpretation is needed, in
concordance with Chief Justice Marshall's belief of an evolving Constitution to
77 Symons v. Eichelberger, 144 N.E. 279, 280 (Ohio 1924).
78 Marbury, 5 U.S. at 176-78 (1803).
79 BLACK'S LAW DICTIONARY 825 (7th ed., 1999) ("A doctrine of constitutional interpretation
holding that judges must follow norms and values expressly stated or implied in the language of the
Constitution. ")
80 BLACK'S LAW DICTIONARY 1486 (7th ed., 1999) ("The doctrinal view of judicial construction
holding that judges should interpret a document or statute according to its literal terms, without looking
to other sources to ascertain the meaning. ")
81 Martini v. Federal Nat'l Mortgage Ass'n, 178 F.3d 1336, 1342 (D.C. Cir. 1999).
82 Ford v. United States, 273 U.S. 593, 612 (1927).
83 Powell v. McCormack, 395 U.S. 486, 547 (1969).
84 Spencer S. Hsu, D.C. Takes Fight for Vote to the Hill, THE WASHINGTON POST, May 24, 2002,
at Bl. ("More District residents have died in wars protecting the national than have residents of 20
states. . .. District residents pay more federal income taxes per capita. .. than 49 states. . .. More
Americans live in the District than in the state of Wyoming. ")
85 See generally McCulloch v. Maryland, 17 U.S. 316, 407 (1819) (quoting Chief Justice John
Marshall, "We must never forget that it is a constitution we are expounding.")

A REPRESENTATIVE DEMOCRACY 91
adapt to crises of human affairs. 86 Submission to a noninterpretivism 87 method
of interpretation provides the judiciary with extra relevant sources of logic, history,
natural law, and social and political policy to achieve results consistent with
the Framers' core values more than two centuries later.
Republican Form of Government
The Federal Government's guarantee of a republican form of government is
contained in the body of the Constitution within the Guaranty Clause. 88 The
republican form of government segment was intended as part of the federalism
dogma. This tenet ensures a splitting of power between the national and state
governments. The major aim was for a national government of limited powers to
work in conjunction with state governments of general powers. 89 The vast responsibilities
and functions of state and local governments were never conceived
to be inherent in nor commuted to the national government.
The Guaranty Clause's republican form of government meaning and intent has
been lost as a result of diminutive historical references combined with scarce
scholarship in this area. Hence, the Supreme Court has viewed controversies
under this clause as non-justiciable, committing these claims to the unattainable
area of political questions. 9o Notwithstanding this circumstance, the Supreme
Court has fashioned a connotation for the term republican form of government.
The Supreme Court asserts that within the meaning of the Constitution, a repub-
86 McCulloch, 17 U.S. at 415.
87 BLACK'S LAW DICfIONARY 1077 (7th ed., 1999) ("In constitutional interpretation, the doctrine
holding that judges are not confined to the Constitutional text or pre-ratification history but
must look to evolving norms and values as the basis for constitutional judgment.")
88 U.S. CaNsT. art. IV, § 4. ("The United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of them against Invasion; and on Application
of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic
Violence. ")
89 THE FEDERALIST No. 45 (James Madison)
The powers delegated by the proposed Constitution to the Federal Government are few and
defined. Those which are to remain in the State Governments are numerous and indefinite. The
former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce;
with which last the power of taxation will for the most part be connected. The powers reserved
to the several States will extend to all the objects, which, in the ordinary course of affairs,
concern the lives, liberties, and properties of the people; and the internal order, improvement, and
prosperity of the state. The operations of the Federal Government will be most extensive and important
in times of war and danger; those of the State Government, in times of peace and security. As
the former periods will probably bear a small proportion to the latter, the State Governments will
here enjoy another advantage over the Federal Government. The more adequate indeed the federal
powers may be rendered to the national defense, the less frequent will be those scenes of danger
which might favor their ascendancy over the government of the particular States.
[d.
90 Luther v. Borden, 48 U.S. 1, 26 (1849).

92 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
lican form of government is one constructed on the principle that the superior
power resides in the body of the people. 91
The federal judiciary is constitutionally empowered to review acts and actions
of the executive and legislative branches of the federal government 92 along with
opinions and orders of federal questions of state courts of last resort. 93 Questions
of a political order are removed from the grasp of federal judiciary review
under the political question doctrine, as political questions are not matters commonly
decided by judges. 94 A two-pronged analysis is used to determine whether
an issue falls within this doctrine. The first step involves the implication of the
separation of powers doctrine, and the second step queries the text of the Constitution
for justification to refer the controversy to either the executive or legislative
branch of government. The first prong bound to the doctrine of separation
of powers embodies the notion that political questions are best resolved by the
political units, the executive and legislative branches thereby averting incongruities
between the federal judiciary and the coordinate branches of government. 95
The second question defers to the Constitution's explicit or implicit textual delegation
of the controversy to a coordinate branch. 96 Both prongs being satisfied in
the affirmative, results in the controversy being deemed a political question. Beneath
these two illusive questions lie the Supreme Court's prudential judgment.
James Madison is credited as the greatest proponent of the republican form of
government. He is particularly credited with the republican form of government
guarantee being inserted in Article IV.97 The essence of a republican form of
government is established in the idea that the ultimate power is inherent in the
people, exercised through elected officials to execute for the benefit of the general
good. 98 There are no state citizenship requirements for shelter under the
republican form of government. 99 The Guaranty Clause was written into the
Constitution and ratified nine years before the District of Columbia came into
existence. This chronological fact is the only logical explanation for the clause
exclusively containing the term "state." To assert and maintain that citizens of the
District of Columbia are not encompassed within the ambit of a republican form
of government guarantee merely because of the chronological sequence is nonsensical
and an effort to avoid the substantive legal issue.
91 Chisholm v. Georgia, 2 U.S. 419, 457 (1793).
92 Marbury v. Madison, 5 U.S. 137 (1803).
93 Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
94 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
95 Baker v. Carr, 369 U.S. 186, 210 (1962).
96 Baker, 369 U.S. at 217.
97 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787, 22 (rev. ed. 1937).
98 In re Pfahler, 88 P. 270, 280 (Cal. 1906).
99 Contra Eckerson v. City of Des Moines, 115 N.W. 177, 181 (Iowa 1908) (holding the guarantee
of a republican form of government as a guarantee to the states).

A REPRESENTATIVE DEMOCRACY 93
Political questions can become justiciable through the Supreme Court's reconsidering
its prudential norms. The Supreme Court has stated that when matters
of fundamental law arise, it is not bound by the common law convention of stare
decisis; the Court must review the substance and adjudicate the matter. tOo The
Supreme Court reasoned that an earlier unconstitutional action not vindicated
does not render the action any less unconstitutional at a later date. IOl District of
Columbia citizens' right to participate in the elective franchise for representation
in the national legislature is of vital import to trigger the Supreme Court's involvement
in addressing this controversy as justiciable as opposed to a political
question. I02 Having met the political question doctrine test, opponents of the
complete and full enfranchisement for citizens of the District of Columbia would
tacitly suggest that this is a matter of states' rights. On the contrary, the prerogative
to vote for national leadership is a "right and privilege of national citizenship"
and of grave significance warranting advance intervention. lo3 The
historical references and judicial holdings relating to the language of the republican
form of government have concluded that this guarantee inextricably coalesces
the ultimate or supreme power in the American people. Thus, citizens of
the District of Columbia are entitled to satisfaction of their constitutional guarantee,
at least minimally, as citizens of the United States.
Tenth Amendment
Augmenting the Framer's intent to ensure a federalist government configuration,
the Tenth Amendment was added to ensure a weaker national government.
t04 The Tenth Amendment serves to limit Congress' power in relation to
the states. lOS The significant precept of the Tenth Amendment is its limitation of
Congress' interference with a state's law-making processes. The Tenth Amendment
does not explicitly or implicitly deny national legislature franchise to the
citizens of the District of Columbia. It is a foregone conclusion that Congress has
legislative power over the District of Columbia as the seat of government. 106
Under this challenge, the Tenth Amendment proves of limited utility to the citizens
of the District of Columbia. Nonetheless, the task is to demonstrate that the
delegation of a general police power is contrary to the principle of federalism. 107
100 Mugler v. Kansas, 123 U.S. 623, 661 (1887).
101 Powell, 395 U.S. at 546-47.
102 Adams, 90 F. Supp. 2d. 72 (Oberdorfer J., dissenting).
103 1\vinning v. New Jersey, 211 U.S. 87, 97 (1908).
104 C. WARREN, THE MAKING OF THE CONSTITUTION 267-312 (1928).
105 U.S. CONST. amend. X ("The powers not delegated to the United States by the Constitution,
nor prohibited by it to the States, are reserved to the State respectively, or to the people.")
106 Northern Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 76 (1982).
107 National League of Cities v. Usery, 426 U.S. 833 (1976) (holding federalism is a check on
the power of the national government).

94 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Such a delegation of general power to the national government violates the principle
of federalism as embodied in the Tenth Amendment.
Equal Protection Clauses
The Constitution proffers an Equal Protection Clause in the Fourteenth
Amendment. At first reading, this amendment seems inapplicable to citizens of
the District of Columbia, as the Fourteenth Amendment is only applicable to the
states. Nonetheless, it would prove judicially unacceptable to allow the federal
government to discriminate in a manner prohibited the states by the Fourteenth
Amendment. As a result of the Supreme Court's decision in Bolling v. Sharpe, 108
the Fifth Amendment's Due Process Clause encompasses an equal protection
condition identical in scope to that of the Fourteenth Amendment. The Supreme
Court concluded that requirements for challenges under either Amendment are
the same. I09
Citizens of the District of Columbia are indefeasibly vested United States citizens
as are the citizens of the several states. District of Columbia citizens are
similarly situated as citizens of the several states but are being denied their constitutional
right of voting for and having representation in both chambers of the
national legislature. Yet, the Supreme Court has consistently held that it is unconstitutional
to preclude a class of voters. IIO
The United States Government and its officers are subject to the equal protection
requirements by the Fifth Amendment. 111 The point of the Equal Protection
Clause is to ensure that all persons of the United States enjoy equal protection of
the laws. 112 Basic equal protection principles require the government, state or
national, to treat similarly situated persons equally, particularly with respect to
constitutionally based rights and privileges. II3 Equal Protection Clause challenges
are subject to one of three levels of scrutiny: strict, intermediate, and rational
basis. The classification is dispositive of the level of scrutiny to be applied
to the situation. Under current practice, only controversies comprising the suspect
classifications of race and national origin or fundamental rights justify strict
108 347 U.S. 497 (1954).
109 See generally Buckley v. Valeo, 424 U.S. 1,93 (1976); Schlesinger v. BuUard, 419 U.S. 498.
110 Carrington v. Rash, 380 U.S. 89, 94 (1965).
111 See generally Bolling v. Sharpe, 347 U.S. 497, 500 (1954) (holding that the principles embodied
by the equal protection clause of the Fourteenth Amendment that prohibited States from
maintaining racially segregated schools were applicable in the District of Columbia by virtue of the
FIfth Amendment due process clause).
112 U.S. CONST. amend. XIV, § 1 (UNo State shall make or enforce any law which will abridge
the privileges or immunities of the citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.")
113 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

A REPRESENTATIVE DEMOCRACY 95
scrutiny.114 Intermediate scrutiny is applied to controversies comprising gender,
illegitimacy, and alienage. l15 Finally, all other classifications are reviewed under
the rational basis scrutiny}16 The strict scrutiny and rational basis review levels
are highly dispositive of the controversy. An act or statute will only survive the
strict scrutiny review when the act or statute is necessary to achieve a compelling
governmental objective and is implemented through the least restrictive
means. 1t7 This is the highest standard, calling for the government's objective to
be of extreme importance and the objective being furthered using the least restrictive
means. Additionally, the burden of persuasion is on the government to
demonstrate the need for such legislation. On the other end of the spectrum is
the impotent rational basis standard. ltS This standard calls for sustaining an act
or statute whenever there is any conceivable legitimate governmental objective,
and the means of implementation are rationally related to a legitimate objective
and are not arbitrary or capricious. This faint standard has great legislative deference
built into it. Along the spectrum between these two polar standards lies the
intermediate review standard. t19 This standard demands that the act or statute
be upheld where the government's interests are substantial and the means to further
those objectives are substantially related.
The disparate treatment of similarly situated people brings this analysis within
the realm of the Equal Protection Clause. The equal protection classification in
this analysis is triggered by the classification between citizens of the several states
and citizens of the District of Columbia. 120 Considering and paralleling national
expectations of federal taxes, selective services registration, et cetera, all things
are equal; citizens of the District of Columbia and citizens of the several states
are similarly situated. The scrutiny level in this controversy is driven by the fundamental
issue and demand for a right to vote. 121 It is unquestionable that the
Constitution confers the right to vote in federal elections. 122 The right to vote
has been firmly established as a fundamental right therefore requiring heightened
scrutiny for all persons with rightful connections with this country.123 The onus is
114 Korematsu v. United States, 323 U.S. 214, 216 (1944).
115 Craig v. Boren, 429 U.S. 190 (1976).
116 Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-58 (1988).
117 ERWIN CHEMERINSKY, CONSTITIJTIONAL LAW: PRINCIPLES AND POLICIES 416 (1997)
118 See supra note 117, at 415.
119 See supra note 117, at 415-16.
120 Wesberry v. Sanders, 376 U.S. 1, 17 (1964) ("Our Constitution leaves no room for classification
of people in a way the unnecessarily abridges that right.")
121 Reynolds, 377 U.S. at 561-62.
122 Harper v. Virginia State Bd. of Elections, 38 U.S. 663, 665 (1966).
123 See generally Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886); see generally Reynolds, 377 U.S.
at 562. ("Especially since the right to exercise the franchise in a free and unimpaired manner is
preservative of other basic civil and political rights, any alleged infringement of the right of citizens to
vote must be carefully and meticulously scrutinized."); United States v. VerdugO-Urquidez, 494 U.S.
259 (1990).

96 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
on the national government to present a compelling governmental objective for
deprecating the right to elective franchise for representation in the national legislature
for citizens of the District of Columbia. With this nation being founded
upon principles of a republican form of government, there are no compelling
governmental objectives in excluding the citizens of the District of Columbia
from participation in the nationallegislature. 124 This component of the test provides
the strongest grounds for declaration of the right of the citizens of the District
of Columbia to participate in the elective franchise for complete and full
representation to the national legislature. l25 Depriving the citizens of the District
of Columbia of the right of franchise and suffrage is a most constraining method
of effecting a non-governmental objective. There being no governmental objective
furthered, surely this means to effect a non-objective is not the least
restrictive.
The federal government fails on both aspects of a fundamental rights challenge
brought under the Equal Protection Clause. Provided an analysis is conducted
absent the fundamental right, the same result will ensue. There remains the obstacle
of no compelling, important, substantial, or legitimate governmental interest
or objective furthered by depriving citizens of the United States, namely
citizens of the District of Columbia the right to participate in the elective
franchise for national legislature representation.
Privileges and Immunities Clauses
A Privileges and Immunities Clause challenge can be used to demonstrate a
denial of an essential citizenship guarantee. The challenge is for expansion of the
Fifth Amendment's Due Process Clause to encompass the Fourteenth Amendment's
privileges and immunities jurisprudence.
The Constitution includes two Privileges and Immunities Clauses, one in Article
IV,126 the other in the Fourteenth Amendment. 127 These identically named
clauses serve two distinct purposes and protect two equally distinct groups.
The Privileges and Immunities Clause of Article IV limits the ability of the
several states to discriminate against citizens of other states. 128 The discrimina-
124 See generally Dunn v. Blumstein, 405 U.S. 330, 337(1972} ("If a challenged statute grants
the right to vote to some citizens and denies the franchise to others, the Court must determine
whether the exclusions are necessary to promote a compelling state interest.")
125 See, e.g., Adams v. Clinton, 90 F. Supp. 2d 35, 101 (D. D.C. 2000) (Oberdorfer, J.,
dissenting).
126 U.S. CONST. art. IV, § 2 ("The Citizens of each State shall be entitled to all Privileges and
Immunities of Citizens in the several States.")
127 U.S. CONST. amend. XIV, § 1 ("No State shall make or enforce any law which shall abridge
the Privileges or Immunities of citizens of the United States .... ")
128 See generally Hague v. Committee for Indus. Org., 307 U.S. 496 (1939) ("The Court reasoned
U[t]he section, in effect, prevents a State from discriminating against citizens of other States in
favor of its own.")

A REPRESENTATIVE DEMOCRACY 97
tion that District of Columbia citizens seek to eviscerate originates from the national
government. For this controversy the Article IV clause is of no utility to
citizens of the District of Columbia.
The identically titled clause of the Fourteenth Amendment should be made
available to the citizenry of the District of Columbia in their pursuit of representation
in the national legislature. The elective franchise for representation in the
national legislature sought by citizens of the District of Columbia equates to a
fundamental privileges and immunities bearing upon the spirit of the Nation as a
single entity.129 The outline of the Fourteenth Amendment's Privileges and Immunities
clause has not been fully exacted, but there is a basic requirement for a
fundamental right to be at issue. Justice Washington described this Privileges and
Immunities Clause as protecting rights "which are, in their nature, fundamental;
which belong, or right, to the citizens of all free governments.,,130
Commencing with basic constitutional law levels of review, the Fourteenth
Amendment's Privilege and Immunities Clause is subject to intermediate level
review. The government action of treating citizens of the District of Columbia
and citizens of the several states disparately with respect to the national citizenship
privilege and right of participation in the elective franchise of the national
legislature can only survive upon the national government's demonstration of an
important or substantial governmental objective furthered by substantially related
means. Again, based upon the nation's founding principles and the growth
of suffrage through various movements, no important or substantial reason can
be proffered. There being no valid important or substantial reason for this disparate
treatment, any means used to further the exclusion of District of Columbia
citizens from participating fully and completely in the elective franchise of the
national legislature surely bears no substantial relationship.131
The Fourteenth Amendment's Privileges and Immunities Clause is not absolute.
Accordingly, the national government may discriminate under this Privileges
and Immunities Clause only if the discrimination is substantially related to a
substantial or important governmental objective. This median test cannot be
overcome. Citizens of the District of Columbia should have this tool available in
their arsenal for vindication of their right to full and complete representation in
the national legislature.
Due Process Clauses
There are two aspects of the Constitution's Due Process Clauses. One aspect
of the clause affects material rights while the other aspect focuses upon procedural
protocols. The material rights aspect limits the substantive power of govern-
129 Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371,383 (1978).
130 Corfield v. Coryell, 6 F.Cas. 546, 551 (C.C.E.D. Pa. 1823) (No. 3,230).
131 Supreme Court of New Hampshire v. Piper. 470 U.S. 274, 284 (1985).

98 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
ment to regulate various areas of human life. Hence, the name Substantive Due
Process. The other aspect reflects more closely the title of the clauses. This aspect
calls for procedural correctness when a deprivation has occurred at the
hands of the government. Hence, the name Procedural Due Process. Like the
Privileges and Immunities and Equal Protection Clauses, there are two Due Process
Clauses. The Due Process Clause of the Fifth Amendment 132 is intended to
be applied to the national government,133 while the Due Process Clause of the
Fourteenth Amendment 134 is intended to be applied to the states. All persons
within the United States are entitled to due process protection, including citizens
of the District of Columbia. 135
A challenge to regulating the disenfranchisement of the District of Columbia
citizens' right to participate in the elective franchise of the national legislature
can be waged utilizing both substantive and procedural due process law.
Fashioning a substantive due process claim of lack of representation in the
national legislature and non-participation in the national elective franchise has to
be an issue of denial of liberty. "In the United States, the right to vote is regarded
as an essential element of liberty, freedom, and self-expression.,,136 In
order to satisfy the liberty interest requirement, the government's deprivation of
the vote and representation in the national legislature for citizens of the District
of Columbia must be an unreasonable interference with a human right, "fundamental
in the context of the process maintained by the American states.,,137 The
essence of substantive due process is grounded in an objective regimen. "[T]he
guaranty of due process law shall not be unreasonable, arbitrary, or capricious,
and that the means selected shall have a real and substantial relation to the object
sought to be attained.,,138 The legal standard of review for due process challenges
will be strict scrutiny or rational basis. The determinative factor being
whether or not a fundamental right is at issue. 139
The Supreme Court has established its roster of fundamental substantive due
process rights. This list is exhaustive of the Supreme Court's apparent current
application of heightened scrutiny for substantiative due process purposes
follows:
132 U.S. CONST. amend. V (" ... nor be deprived of life, liberty, or property, without due process
of law.")
133 Barron v. Mayor of Baltimore, 32 U.S. 243, 247 (1833).
134 U.S. CONST. amend. XIV, § 1 (" ... nor shall any State deprive any person of life, liberty, or
property, without due process of law")
135 Wight v. Davidson, 181 U.S. 371, 384 (1901).
136 Alice E. Harvey, Ex-Felon Disenfranchisement and its Influences on the Black Vote: The
Need For a Second Look, 142 U. Pa. L. Rev. 1145 (1994).
137 Duncan v. Louisiana, 391 U.S. 145, 149 (1968).
138 Nebbia v. New York, 291 U.S. 502,525 (1934).
139 MUgier v. Kansas, 123 U.S. 623 (1887).

A REPRESENTATIVE DEMOCRACY
99
Right to acquire knowledge,140
Parents' rights in educating and rearing their children, 141
Individual's right to use contraceptives, 142
Related persons' right to live together, 143
Individual's right to marry, 144
Biological fathers' rights,145
Individual's right to decline unwanted medical procedures. 146
Citizens of the District of Columbia are squarely on the grounds of a denied
liberty interest. Realizing that the right to vote for representation in the national
legislature is not analogous to anyone of the above detailed rights associated
with personal privacy and liberty warrants the expansion of fundamental rights to
include the venerated prerogative of national elective franchise for all citizens.
Agreeing with the Warren Court's ideal of the denied liberty interest being fundamental
in the context of the processes maintained by the American states,
"[ n]o right is more precious [and fundamental] in a free country than that of
having a voice in the election of those who make the laws under which, as good
citizens, we must live.,,147 Not only is national franchise and representation in
the national legislature a fundamental right, it is a liberty interest. Should the
Supreme Court adopt the right to the elective franchise in the national legislature
as a fundamental right, a strict scrutiny analysis is to be conducted. The inevitable
result of defeat attained by the strict scrutiny review is unsurprisingly the
same as that of the currently employed rational basis review. Having established
a liberty interest, the next task is to review the disenfranchisement under a rational
review standard. This test being unduly lenient still defeats a claim for
reasons mentioned above relating to the complete lack of a governmental
objective.
Under a substantive due process challenge, citizens of the District of Columbia
would also prevail for the arbitrariness 148 of their exclusion from the elective
franchise for representation in the national legislature. No intelligible principle
exists for the establishment of two classes of American citizens, the first class
140 Meyer v. Nebraska, 262 U.S. 390 (1923).
141 Pierce v. Society of Sisters, 268 U.S. 510 (1925).
142 Eisenstadt v. Baird, 405 U.S. 438 (1972).
143 Moore v. East Cleveland, 431 U.S. 494 (1977).
144 Zablocki v. Redhail, 434 U.S. 374 (1978).
145 See generally Michael H. v. Gerald D., 491 U.S. 110 (1989) ("Although an unwed father's
biological link to his child does not, in an of itself, guarantee him a constitutional stake in his relationship
with that child, such a link combined with a substantial parent-child relationship will do so.")
146 Cruzan v. Missouri Dep't of Health, 497 U.S. 261 (1990).
147 See generally Wesberry, at 17 (invalidating malapportioned state legislature districts).
148 Black's Law Dictionary 69 (6th ed., 1991).

100 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
being citizens of the several states and the second class being citizens of the District
of Columbia.
The national government's continued deprivation of District of Columbia citizens'
right of elective franchise for representation in the national legislature without
proper formalities is a denial of procedural due process.
Surprisingly, there is no general rule that the government must act uprightly
and circumspectly. The government is only compelled to act credibly using
proper procedural mechanisms when the government has committed a deprivation
of life, liberty, or property. Deprivation of life is a categorically unambiguous
proposition. Deprivation questions are typically centered around property
and liberty. Property deprivations are easily identified by traditional state property
laws. Liberty deprivation are not so easily cataloged. For procedural due
process doctrinal purposes, traditional liberty interests suffice. Additionally, to
satisfy the property interest requirement, a property interest can be shown
through the present enjoyment and legitimate claim of entitlement to a public
benefit evinced through informal practices and customs. I49 Likewise, the Court
in Roth declared a liberty interest is raised where "those privileges long recognized
... as essential to the orderly pursuit of happiness by free men" are generally
possessed. I SO Establishing the deprivation or impairment of a
constitutionally protected life, liberty, or property interest provokes the entitlement
to proper procedure. The procedure or procedures to be afforded are addressed
through a balancing test. An illustration of the balancing test purports
the private interest at stake for the individual (loss to individual without the additional
procedural mechanism) multiplied by the likelihood that an error will be
reduced by providing the additional procedural mechanisms compared to the
costs of granting the additional procedural mechanism. ISI
The original property interests (voting and representation) vested in and with
those original citizens to be passed down to subsequent and ultimately the current
citizens of the District of Columbia. There is no historical proof or confirmation
of the volitional waiving or extinguishing of this essential right. 1S2 The
original citizens of the District of Columbia enjoyed the right of elective franchise
for representation in the national legislature. Is3 This right has not been and is
not capable of being waived. 1S4 The Supreme Court has stated that an individual's
constitutionally protected right to vote cannot be denied even by a vote of a
149 Board of Regents v. Roth, 408 U.S. 564 (1972).
150 Id. at 572.
151 Mathews v. Eldridge, 424 U.S. 319 (1976).
152 Contra Loughboro v. Blake, 18 U.S. 317, 324 (1820).
153 Peter Raven-Hansen, Congressional Representation for the District of Columbia: A Constitutional
Analysis, 12 HARV. J. ON LEGIS. 167, 174 (1974).
154 O'Donoghue v. United States, 289 U.S. 516, 540 (1933).

A REPRESENTATIVE DEMOCRACY 101
majority of a state's electorate. 155 Likewise, Congress as the "super-legislature"
for the District of Columbia is precluded from extinguishing this right. The current
deprivation of this previously enjoyed right without a valid waiver equates to
a governmental deprivation of a property right which triggers procedural due
process recompense. "Given the weight of the private interest at stake, the social
cost of even occasional error is sizable. ,,156 District of Columbia citizens are entitled
to a procedure that will balance the inequities of living under a national
government which does not have representatives of its citizenry, amplified by the
continued subjection to national government actions that affect the citizenry of
the District of Columbia without full and complete input compared to the administrative
costs of adding two new senators and reappointment of minimally two
representatives in the House of Representatives.
In terms of outlays, the addition of two new senate seats for the District of
Columbia will bring the total to 102, giving the District of Columbia less than
two percent of the total voting strength. The Congress is currently authorized
435 members, according to statute. 157 The 435 congressional districts are apportioned
based upon decennial census figures. The District of Columbia will gain at
least one Congressional Representative and an area decreasing in popUlation will
lose one, a zero net effect. Whatever the forum, the procedural discovery will
yield that national legislature representation for the District of Columbia is
obligatory.
IV PROPOSALS
These proposals are submitted to counter the current disenfranchisement of
the citizens of the District of Columbia and to effectuate the desired goal of affording
the District of Columbia its own cadre of voting congressional representatives.
To achieve the goal of full and complete representation in the national
legislature, a combination of these proposals may need to be initiated concurrently.
The presentation and discussion of these proposals serves as a launchpad
for further development and strategic implementation.
Statehood
District of Columbia citizens must employ a six step process to effectuate
statehood for the District of Columbia. 15s The process calls for (1) a majority of
the citizens to pass a referendum exhibiting their desire for statehood; (2) election
of representatives or delegates to a state constitutional convention; (3) citi-
155 Lucas v. Colorado, 377 U.S. 713, 736 (1964).
156 Santosky v. Kramer, 455 U.S. 745 (1982) (quoting Justice Blackmun).
157 Reapportionment of Representatives; time and manner; existing, 2 U.S.C.A. § 2a (1959).
158 Julius W. Hobson, Six Steps to Statehood for D.C., WASHINGTON STAR, Dec. 6, 1976, at
Letter to Editor.

102 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
zens of the District of Columbia ratifying the state constitution via a referendum;
(4) presentation of the state constitution to the United States Congress along
with a request for admission as a state; (5) Congressional deliberation of admission
terms, conditions, and state boundaries; and (6) a majority vote of Congress.
159 A Congressional vote is sufficient to grant statehood, a simple
legislative technique. 16o Having exacted the process, Congress via a majority
vote has the authority to admit new states into the union. 161 Accordingly, Congress
has on various times admitted new states into the Union. "The common
theme associated with the admission of prospective states into the Union has
been: a commitment to democratic principles; resources and population similar to
existing states; and a desire for statehood.,,162
What will the District of Columbia gain through statehood? Statehood is the
most secure means of effecting all the constitutional guarantees inasmuch as
statehood cannot be repealed or overruled. Statehood perfunctorily furnishes
two seats in the Senate 163 and at least one seat in the House. l64
The equal footing doctrine ensures parity for newly admitted states. 165 District
of Columbia statehood anchored by the equal footing doctrine will put the District
of Columbia and its citizenry on political par with the several states of the
union. l66 The federal government is constitutionally barred from implementing
any condition that would reduce the District's status (as a new state ).167 Upon
statehood the representation the citizens of the District of Columbia seek could
not be hampered or conditioned by any branch or act of government.
Constitutional Amendment
District of Columbia citizens can gain their constitutional right to elective
franchise for representation in the national legislature through a constitutional
amendment. The constitutional amending process as presented in Article V of
159 See id.
160 STEPHEN MARKMAN, STATEHOOD FOR THE DISTRICf OF COLUMBIA 33 (1988).
161 U.S. CONST. art. IV, § 3 ("New States may be admitted by the Congress into this Union
.... ")
162 STEPHEN MARKMAN, STATEHOOD FOR THE DISTRICf OF COLUMBIA 69 (1988).
163 U.S. CONST. art. I, § 3, cI. 1.
164 U.S. CONST. art. I, § 2, cI. 1.
165 Com. of Virginia v. State of West Virginia, 246 U.S. 565 (1918) (holding when a new state is
admitted into the Union, it is admitted with all of the powers of sovereignty and jurisdiction that
pertained to the original states, and such powers may not be constitutionally diminished, impaired, or
shorn away by any conditions, compacts, or stipulations embraced in the act under which the new
states come into the Union that would not be valid and effectual if the subject of Congressional
legislation after admission).
166 United States v. Gardner, 107 F.3d 1314 (9th Cir. 1997) (holding equal footing doctrine
applies to the political rights and sovereignty of newly created states, and not their economic or physical
characteristics).
167 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999).

A REPRESENTATIVE DEMOCRACY 103
the Constitution is quite cumbersome. 168 Both chambers of Congress must be
amiable to the proposed amendment (two-thirds of each chamber (66 in the Senate
and 290 in the House ».169 Should both chambers support the proposed
amendment it would be submitted directly to the states. 170 The proposed amendment
must receive affirmative support, i.e., ratification of at least 38 of· the 50
state legislatures. 171 This amounts to a proposition requiring a super-majority.
Additionally the ratification process must generally be completed within a congressionally
approved period or the proposed amendment shall be defunct. 172
This period of review by the states must be reasonable. 173 This method, if successful,
would provide great stability or permanency effect to the elective
franchise for representation in the national legislature, simply because the same
herculean effort would be needed for its repeal. This method proves fallacious in
that it further subordinates citizens of the District of Columbia. Citizens of the
District of Columbia in effect would be soliciting equivalent United States citizens
for national suffrage rights. This method of expanding suffrage has only
been attached to Black (African) Americans,174 women,175 District of Columbia
168 U.S. CaNsT. art. V.
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose
Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the
several States, shall call a Convention for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Convention in three fourths thereof, as the one or the other
Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be
made prior to the year One thousand eight hundred and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article; and that no Stat, without its Consent, shall be
deprived of its equal suffrage in the Senate.
Id.
169 U.S. CaNST. art. V.
170 Hollingsworth v. Virginia, 3 U.S. 379 (1798) ("The approval of the President is not necessary
for a proposed [Constitutional] amendment.")
171 Dillion v. Gloss, 256 U.S. 368, 376 (1921) (a District of Columbia Statehood Constitutional
Amendment would be effective upon ratification of the 38th state and not proclamation by the Secretary
of State).
172 Coleman, 307 U.S. at 228.
173 Dillion, at 375 (reasonable is determined by the gravity of the matter under consideration).
174 U.S. CaNST. amend. XV, § 1 ("The right of citizens of the United States to vote shall not be
denied or abridges by the United States or by any State on account of race, color, or previous condition
of servitude.")
175 U.S. CaNST. amend. XIX, § 1 ("The right of citizens of the United States to vote shall not
be denied or abridged by the United States or by any State on account of sex.")

104 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
Presidential and Vice Presidential electors,176 and minors reaching the age of
majority. 177
Judicial Relief
The federal judiciary has determined that an action of this nature has standing,
surviving the Court's avoidance techniques of the nonjusticiable doctrines. 178
The Supreme Court has held that the Constitution is the source of, and guarantees
protection for, the right to vote for members of the House of Representatives.
179 Accordingly, an opinion recognizing this fundamental right is within the
prerogatives of the federal judiciary and therefore may not lawfully be revised or
refused full faith and credit by the two political branches of government. 180 This
holding can be extended to the Senate. Moreover, support for this proposition
can be found in Harper v. Virginia. 18l This appears to be the third most secure
form of protection available. There are two venues of retreat from this hypothesized
holding. The first being a subsequent Supreme Court decision reversing
itself. This reversal of fortune is improbable based upon the doctrine of stare
decisis and more germanely the Supreme Court will risk its legitimacy. "The
Court is more vulnerable and comes nearest to illegitimacy when it deals with
judge-made constitutional law having little or no cognizable roots in the language
or design of the Constitution.,,182 The second venue being subsequent federal
legislation. This deed is also improbable, for it would equate to legislative commandeering.
183 Additionally, the District of Columbia would have representation
in the originating forum. This representation would spark self interest and
preservation motives, inciting its insolvency. Moreover, political death is almost
certain for opponents, politicians and political parties alike, supporting disenfranchisement.
The major distinction between the current state of affairs and
that hypothesized is commandeering the right to vote from a people exercising it.
176 U.S. CONST. amend. XXIII, § 1 ("The District constituting the seat of Government of the
United States shall appoint in such manner as the Congress may direct: A number of electors of
President and Vice President .... ")
177 U.S. CONST. amend. XXVI, § 1 ("The right of citizens of the United States, who are eighteen
years of age or older, to vote shall not be denied or abridged by the United States or by any State
on account of age.")
178 Adams v. Clinton, 90 F. Supp. 2d 35, 40 (D. D.C. 2000).
179 Ex parte Yarborough (The Ku-Klux Cases), 110 U.S. 651, 665 (1884) ("the exercise of the
right [to vote] [for minorities and for other citizens] is guaranteed by the constitution, and should be
kept free and pure by congressional enactments whenever that is necessary").
180 Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-14 (1948).
181 38 U.S. 663.
182 Bowers v. Hardwick, 478 U.S. 186 (1986).
183 Printz v. United States, 521 U.S. 898 (1997).

A REPRESENTATIVE DEMOCRACY 105
Federal Legislation
Enacting federal legislation is almost the simplest remedy to this issue. To
effect the national elective franchise for citizens of the District of Columbia
through federal legislation involves the national legislature, the House and the
Senate developing and agreeing on an enactment and obtaining presidential approval.
There appear to be no heroic obstacles to effecting the enactment in this
fashion other than the typical committee processes which mask individual accountability
and obtaining the required affirmative votes needed on the floor of
each chamber for presentation to the President. The President wishing to veto
such a measure passing both chambers of Congress would be doomed to a political
demise. l84 Again the issue becomes association with disenfranchisement, an
ideal totally un-American.
Under what authority can the United States Congress legislate for District of
Columbia representation in the national legislature? Recognizing that Congress'
power are finite,185 Congress may act pursuant to the Commerce Clause,l86 District
of Columbia Clause,187 and section five of the Fourteenth Amendment. l88
Moreover, Congress may also legislate via the Necessary and Proper Clause to
effect an implied power. 189
The Commerce Clause avails itself as a result of the Court holding that Congress
has plenary power relative to interstate commerce. 190 Congress alone is the
arbiter of what activities affect interstate commerce,191 despite recent counterconstitutional
movements. Congressional findings independent of further evidence
of interstate commerce affectation are luminous of legislative judgment
that the activity substantially affects interstate commerce, even though the effect
may not be readily apparent. 192 Courts must continue to give great deference to
Congressional findings of sufficient affectation. Nonetheless, the cumulative affect
doctrine 193 and the "close and substantial relationship test,,194 of the Com-
184 Adams v. Clinton, 90 F. Supp. 2d 35, 37 (D.D.C. 2000) ("None of the [defendant] parties
[William J. Clinton, 42nd President of the United States et a1.] contest the justice of the plaintiff's
cause.")
185 U.S. CONST. art. I, § 1 ("All legislative Powers herein granted shall be vested in a Congress
of the United States, which shall consists of a Senate and House of Representatives.")
186 U.S. CONST. art. I, § 8, cl. 3 ("To regulate Commerce ... among the Several States.")
187 U.S. CONST. art. I, § 8, cl. 17.
188 U.S. CONST. amend. XIV, §5.
189 McCulloch, 17 U.S. 316.
190 Gibbons v. Ogden, 22 U.S. 1 (1824).
191 U.S.C.A. CONST. art. I, § 8, cl. 3; United States v. Morrison, 529 U.S. 598 (2000).
192 See generally, Hodel v. Virginia Surface Min. and Reclamation Ass'n, Inc., 452 U.S. 277
(1981) ("When Congress has determined that an activity affects interstate commerce, the courts need
only inquire whether the finding is rational.");U.S.C.A. CONST. art. I, § 8, d. 3; United States v. Morrison,
529 United States 598 (2000).
193 Wickard v. Filbum, 317 U.S. 111 (1942).

106 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
merce Clause are sufficient to justify a decision supporting implication via the
Commerce Clause for a purely intra-"state" activity.
Congress may undoubtedly act according to the exclusive jurisdiction provision
of the District of Columbia Clause. 195 Additionally, Congress may act under
its broad powers of Section 5 of the Fourteenth Amendment, specifically acting
to protect District of Columbia citizens from invidious conduct endangering the
constitutionally protected right of representation. 196 This extensive power of
Congress has been extended to protecting persons from government conduct that
might not be unconstitutional but that could be viewed by Congress as endangering
constitutionally protected rights.
Executive Order
The President of the United states is vested with the executive authority of the
nation. 197 A precise demarcation of this executive power has not been established.
The Court in one case delivered seven different opinions regarding executive
authority.198 The theory of this executive authority is juxtaposed against a
categorical span. Youngstown brings forth the following different techniques for
assessing Presidential authority:
The President has no inherent or implied authority and can only act where
explicitly authorized by the Constitution or statute. l99
The President has inherent or implied authority which is limited, to extent
the President interferes with the objective of another branch of the
government. 200
The President has inherent or implied authority which is limited only by
express Constitutional restrictions or statutes. 20l
The President has inherent or implied authority that cannot be restricted by
Congress and only limited by Constitutional violations. 202
In spite of the Youngstown opinion, which appears to be an attempt to measure
the unmeasurable, then Professor Woodrow Wilson articulated, "[The Presi-
194 Houston E. & W. Texas Railway Co. v. United States, 234 U.S. 342 (1914) (holding that the
commerce power allows the regulation of totally intrastate activities that have a "close and substantial"
affect on interstate activity).
195 Northern, 458 U.S. 50.
196 See Memorandum from Norman Redlich, to Barbara R. Arnwine, Thomas J. Henderson,
TIm S. Wierzbicki and Gary Johnson, 1 (Aug. 13,2001).
197 U.S. CONST. art. II" § 1 (liThe executive Power shall be vested in a President of the United
States of America.")
198 Youngstown Sheet & Thbe Co. v. Sawyer, 343 U.S. 579 (1952).
199 See id. at 587.
200 Youngstown Sheet & Thbe Co. v. Sawyer, 343 U.S. 579, 631-32 (Douglas, J., concurring).
201 Youngstown Sheet & Thbe Co. v. Sawyer, 343 U.S. 579, 635 (Jackson, J., concurring).
202 Youngstown Sheet & Thbe Co. v. Sawyer, 343 U.S. 579, 688 (Vinson, C.J., dissenting).

A REPRESENTATIVE DEMOCRACY 107
dent] has the right, in law and conscience, to be as big a man as he can ... only his
capacity will set the limit. ,,203 The prevailing view of Presidential authority emanates
from the Hamiltonian belief that executive authority is a general grant of
power subject only to exceptions and qualifications in the Constitution. 204 The
counter position of explicitly delineated power advocated by the Madisonian cohorts
has not gained widespread acceptance. 205
A Presidential executive order giving and acknowledging a right to elective
franchise for representation in the national legislature is the simplest and frailest
means of accomplishing this prodigious duty. An order of this nature would fall
within the third or fourth technique listed above, thereby questioning the constitutionality
of the instrument disenfranchising citizens of the District of Columbia.
Such an order appears valid, as there is no legislative act to sustain disenfranchisement
while there is prior legislative support for enfranchisement. 206
V
CONCLUSION
But for legal purposes a right is only the hypostasis of a prophecy - the imagination
of a substance supporting the fact that the public force will be brought
to bear upon those who do things said to contravene it . ... No doubt behind
these legal rights is the fighting will of the subject to maintain them, and the
spreads of his emotions to the general rules by which they are maintained; but
that does not seem to me the same thing as the supposed a priori discernment
of a duty or the assertion of a preexisting right. 207
A lesser democracy in the District of Columbia is unacceptable in view of the
radical principles of federalism, republican form of government guarantee, and
the Framers' intent to afford the most protection possible to individual rights.
Having particularized the quagmire of the lack of full and complete national legislature
representation in our Nation's Capital, timely resolution is of utmost import.
Provided both chambers of Congress and the Supreme Court complete an
inclusive reading of the Constitution and perform a normative reasoning of the
Framers' intent relative to a republican form of government, according District of
Columbia citizens elective franchise for representation in the national legislature
will prove to be just. Is this conundrum of prejudicing District of Columbia citizens
to be perpetuated? A fortiori, failure to correct this problem challenges the
203 See WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 205 (New
York: 1908).
204 See generally Myers v. United States, 272 U.S. 52, 115-126 (1926); United States v. Curtiss-
Wright Corp., 299 U.S. 304 (1936).
205 1 Letters and Other Writings of James Madison (Philadelphia: 1865), 611-654.
206 H.R.J. Res. 554.
207 Oliver Wendell Holmes, Jr., Natural Law, 32 HARV. L. REV. 40,42 (1918).

108 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEw
nation's stake and credibility in the global community as a protector of civil and
human rights.

DAVID A. CLARKE SCHOOL OF LAW
University of the District of Columbia
LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM
Mental Health Issues in
Correctional Institutions
March 25, 2002

THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
SYMPOSIUM INTRODUCTION
Dr. H. Russell Cort and The Honorable Arlene L. Robinson*
For more than forty years in the District of Columbia, psychiatric social
worker Louisa Van Wezel Schwartz was a dynamic advocate of a multi-disciplinary
approach to mental health issues. Working with faculty and administration
of the V.D.C. David A. Clarke School of Law, she brought together a group of
professionals from law, medicine, and social work to focus on mental health issues
in prison. The Louisa Van Wezel Schwartz Symposium - sponsored by the
Law School on March 25, 2002 - is the fruit of her efforts and honors her
memory.
This Symposium focused on identifying the needs of prisoners with mental
health issues. It sought to generate discussion and development of ideas for improving
the conditions of prisoners with mental health needs. Invited speakers
presented four papers in the morning session, followed by an afternoon panel of
additional invited speakers. In the keynote address at mid-day, correctional psychiatrist
Dr. Raymond Patterson, M.D. vividly described the difficulties of trying
to deliver mental health services in correctional facilities. His remarks illustrated
the inherent tension resulting from the widely differing and often seemingly incompatible
goals of mental health treatment and prison administration.
The symposium opened with an address by Paul Quander, J.D., Director,
Court Services and Offender Supervision Agency for the District of Columbia.
Victor Elion, Ph.D., a forensic psychologist, moderated a panel discussion of
problems and solutions, with panelists the Hon. Gerald I. Fisher, Associate Judge
of the District of Columbia Superior Court; Martha B. Knisley, Director, Department
of Mental Health of the District of Columbia; Susan Rosenberg, prisoners'
and human rights advocate; and J. Michael Ryan, J.D., of the District of Columbia
Public Defender Service.
The presentation of papers covered a range of subjects, from Karen Cropsey's
analysis of Suicide Issues in Jail: What the Numbers Tell Us to Public Defender
Olinda Moyd's Mental Health and Incarceration: What a Bad Combination. Professor
Brenda Smith addressed Intimacy, Fertility, and Sexuality. Dr. Andrea
Weisman focused on Mental Health Issues in Juvenile Detention Facilities. Karen
Cropsey, Psy.D. and Olinda Moyd, J.D. both prepared their presentations as pa-
* Dr. Cort retired as the Associate Dean for Education of the Law School. Mrs. Arlene L.
Robinson retired as a Magistrate Judge of the Superior Court of the District of Columbia.

112 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
pers for publication in this Symposium issue, together with solicited papers from
Robert Bernstein, Ph.D. and Tammy Seltzer, J.D. of the Bazelon Center for
Mental Health Law; Fred Cohen, J.D.,LL.M.; Clarence J. Sundram, J.D.; D.C.
Public Defender Giovanna Shay, J.D.; and Mark Soler, J.D. of the Youth Law
Center.
The first paper is Fred Cohen's Correctional Mental Health Law and Policy: A
Primer. Cohen is a Professor Emeritus of Law and Criminal Justice at the State
University of New York at Albany and the author of THE MENTALLY DISOR­
DERED INMATE AND THE LAW (2000) on which his primer is based. He notes that
for people who can neither afford mental health care nor avoid the criminal justice
system, jails and prisons today are the resource of last resort. He emphasizes
the special legal domain that prisoners with impaired mental health inhabit. They
have no constitutional right to treatment in prison, but based on their physical
custody, they are owed a duty of care by the government to preserve their lives
and health. Professor Cohen examines this duty of care, analyzing the application
of the deliberate indifference standard, based in criminal law, which the Supreme
Court articulated in Farmer v. Brennan, 511 U.S. 825 (1994). He faults the
standard for its lack of precision, a deficiency that is a common flaw found also in
lower court cases dealing with other aspects of mental health issues, such as the
concept of "serious needs." In light of the prevailing caselaw and standards, Professor
Cohen develops and explains minimal and desirable components of a
mental health treatment program for inmate mental health care: diagnosis, treatment,
recordkeeping, and evaluation of treatment. He also addresses the special
topics of substance abuse, isolation, restraint, pre-trial detention, suicide, mental
retardation, and transfers for treatment. He recommends development of programs
and mental health courts to divert more offenders with mental illness towards
treatment and rehabilitation programs.
Mental health courts are the subject of Criminalization of People with Mental
Illnesses: The Role of Mental Health Courts in System Reform, by the Executive
Director of the Judge David L. Bazelon Center for Mental Health Law, Robert
Bernstein, Ph.D., and Bazelon Staff Attorney Tammy Seltzer, J.D. Bernstein and
Seltzer decry the de facto role of prisons and jails as psychiatric institutions for
the poor. Bernstein and Seltzer recommend mental health courts as a means to
divert defendants who are mentally ill to mental health systems. Noting that the
development of mental health courts is still in its infancy, Bernstein and Seltzer
focus on how to improve these courts and their procedures. The Bazelon Center
analysis of twenty mental health courts in the nation describes how mental health
courts operate and recommends a comprehensive system of prevention and intervention
aimed at (1) breaking the cycle of worsening mental illness and criminal
behavior and (2) providing an array of effective treatment alternatives to incarceration.
Bernstein and Seltzer outline minimal procedures that both protect defendants'
constitutional rights and maintain public health and safety, including

SYMPOSIUM INTRODUCTION 113
voluntary transfer into the court, right to withdraw, appointment of counsel, plea
requirements, types of offenses covered, diversion to treatment services, court
jurisdiction over the defendant, sanctions for noncompliance, accountability of
mental health providers, and medical privacy.
Olinda Moyd, Staff Attorney at the D.C. Public Defender Service, provides
insight into the problem of caring for and coping with the mentally ill offender in
two case studies of clients she represented. The problems of offenders with
mental health conditions are exacerbated in the District of Columbia, which incarcerates
offenders first in the D.C. Jail and, after conviction, in the federal
prison system. In 1995, the D.C. Jail was placed under court-ordered, five-year
receivership, but problems continue, as Moyd explains in her description of two
clients. Before the final hearing for parole, unbeknownst to Moyd, Mr. J.H. was
abruptly transferred from the Jail to the CCAlCorrectional Treatment Facility
and given psychotropic medications. His drugged behavior so devastated his
presentation on his own behalf that the hearing was continued to a later date,
and, consequently, he remains incarcerated. Ms. Moyd has not been able to find
out why he was transferred or what medications he was given. In the other case,
Mr. T.P., a longtime sufferer of schizophrenia, was released from the Jail into the
community in the middle of the night with no preparation and no notice to his
mother to pick him up. He wandered through the neighborhoods and, eventually
ended up close to the home of relatives. His story, however, illustrates the desperate
need for discharge planning for inmates with mental illness and a continuum
of care to help them get established in the community. Both these cases
illustrate the lack of the minimal and desirable components of mental health
treatment programs for inmates that Fred Cohen and Robert Bernstein and
Tammy Seltzer recommend in their articles.
For some, the inadequacy of mental health treatment in prisons and jails may
be fatal. Karen L. Cropsey notes that the third leading cause of death in prisons
and jail is suicide, in Suicide in Jails and Prisons: What the Numbers Tell Us.
Cropsey analyzes studies of incarcerated individuals in England and makes comparisons
with the United States. Although suicide rates in jails and prisons are
far higher than in the general population, her research shows that mental health
services interventions are very effective. She correlates more awareness of the
suicide problem in prisons and implementation of prevention programs with a
400/0 reduction in suicides over a fifteen year period, between the years 1984 to
2000. To strengthen this trend, she recommends greater implementation of the
suicide prevention policies of the American Correctional Association (ACA) and
the National Commission on Correctional Health Care (NCCHC). She notes
that in New York State where suicide prevention measures were implemented,
the suicide rate dropped by two-thirds. At present 790/0 of jails and prisons have
suicide prevention policies, but only 15% of them include the majority of elements
from the ACA and NCCHC guidelines.

114 THE UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEW
To ensure more uniform implementation of mental health policies, Clarence J.
Sundram, Special Master for the United States District Court in Washington,
D.C., proposes a system for Monitoring the Quality and Utilization of Mental
Health Services in Correctional Facilities. He recommends that design of a monitoring
process should consider the structural issues of policies and procedures,
people, and places, in addition to outcome assessment. The most common
problems found in correctional mental health programs fall into three categories:
diagnosis, treatment, and record keeping. Sundram notes that monitoring quality
and use of mental health services provides agencies with tools for determining
goals and meeting standards, as well as for avoiding exposure to legal challenges
of the adequacy of mental health services. He notes that in Madrid v. Gomez,
889 F. Supp. 1265 (N.D. Cal. 1995), and Coleman v. Wilson, 912 F. Supp. 1282
(B.D. Cal. 1995), federal courts have faulted prisons and jails for failure to institute
quality control procedures as evidence of "deliberate indifference" to inmates'
needs.
Substantial barriers to litigation over conditions of confinement, however,
have been raised by the Prison Litigation Reform Act (PLRA) and United States
Supreme Court opinions such as Buckhannon v. Board and Care Home, Inc. v.
West Virginia Department of Health and Human Resources, 532 U.S. 598 (2001),
in the form of stringent requirements for prospective, injunctive relief and denial
of attorneys' fees resulting from the dismantling of the "catalyst" theory. Mark
Soler, J.D., lead counsel for plaintiffs in Christina A. ex rei. Jennifer A. v. Bloomberg,
167 F. Supp. 2d 1094 (D.S.D. 2001), 315 F.3d 990 (8th Cir. 2003), clarifies
the resulting dilemma of attorneys who cannot collect fees for their representation.
As long as the current statute and caselaw remain unchanged, attorneys
must consider alternatives such as seeking funding from not-for-profit organizations,
encouraging public interest law firms to take on the litigation, and litigating
under state civil rights laws in state courts, where the PLRA does not apply.
For many prisoners, unfortunately, insufficient attention to mental health
problems and even discriminatory treatment does not necessarily end with parole.
Giovanna Shay, J.D., staff attorney at the Public Defender Service for the
District of Columbia, notes that corrections officials sometimes make parole decisions
based on factors related to conditions considered to be disabilities under
both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of
1973 (Rehab Act). The Supreme Court, however, has recognized that TItle II of
the ADA does apply to state prisons as public entities, and the Ninth Circuit, in
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001), cert. denied, 123 S. Ct. 72 (2002)
and Thompson v. Davis, 295 F.3d 890 (9th Cir. 2002), cert. denied, 123 S. Ct. 1570
(2003), has affirmed that paroling authorities violate both the ADA and the
Rehab Act when they discriminate against parolees on the basis of their disabilities.
Shay highlights the issues regarding sovereign immunity of states and the
federal government to disability discrimination. Shay also analyzes the compli-

SYMPOSIUM INTRODUCTION 115
cated legal circumstances of District of Columbia parolees who as felons are in
the custody of the Federal Bureau of Prisons and have their parole matters decided
by the U.S. Sentencing Commission. These parolees cannot bring claims
under the ADA, which applies only to state and local entities, and must, therefore,
bring claims only under the Rehab Act, which applies to programs and activities
of federal executive agencies. Shay concludes that despite the undecided
issues of sovereign immunity and damages, the ADA and Rehab Act do provide
useful avenues for pursuing relief related to institutional reform.
Paul Quander, J.D., Director of the Court Services and Offender Supervision
Agency for the District of Columbia, in his opening presentation, noted that the
need for mental health services in the offender population is not confined to
prison and jail settings. Individuals with untreated mental health problems often
end up as offenders who need mental health services and, finally, as released
offenders who need mental health services. Mr. Quander sees an opportunity to
provide mental health intervention and treatment for persons entering the corrections
system, and a parallel opportunity to address longterm care and support
as individuals exit incarceration.
In the keynote address at mid-day, correctional psychiatrist Dr. Raymond Patterson,
General and Forensic Psychiatry in the District of Columbia, vividly described
the difficulties of trying to deliver mental health services in correctional
facilities. His remarks illustrated the inherent tension resulting from the widely
differing and often seemingly incompatible goals of mental health treatment and
prison administration. Dr. Patterson notes that after decades of litigation, however,
prisons are now becoming somewhat more accommodating in providing
mental health services. Dr. Patterson observed that improvement of mental
health services in prisons will go much more smoothly if the prison establishment
can see that their interests are also served by providing mental health services.
Inmates who have adequate mental health services create fewer problems of order
and discipline. Thus, prison administrators may realize that these services
complement the system's mission of maintaining order. Dr. Patterson believes
that the focus of the next round of inmate litigation is aftercare, providing inmates
who leave the system with a safety net to help them re-integrate successfully.
He notes, however, that the numbers of offenders in need of mental health
services while in prison is very high.
Andrea Weisman, Ph.D., Senior Analyst and Special Projects Director for the
Department of Mental Health in Washington, D.C., quoted Bureau of Justice
Statistics showing that 16% of all persons in the criminal justice system have serious
mental health disorders; and she notes that the rate for juveniles is even
higher. Citing studies of toxicity increases related to overcrowding, she contends
that incarcerated juveniles in crowded facilities are in danger of being made even
more ill by incarceration. She concludes that focusing on only juvenile inmates
who have diagnosed mental health problems is an insufficient approach to meet-

116 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
ing mental health needs because the likelihood is high that all youth in the juvenile
justice system require mental health services.
Brenda Smith, J.D., Associate Professor at Washington College of Law, American
University, noted that 40% of women in prison come into the system after
experiencing physical or sexual abuse and, in addition, often suffer from depression
and drug abuse. Once within the system, they then, in addition, suffer from
the loss of intimate relationships with spouses, lovers, and children, or the loss of
the opportunity to have those relationships. She concludes that the use of restraints,
over medication, administrative segregation, violence and social isolation
is contrary to good mental health practice.
Finally, Susan Rosenberg, added her perspective on prison mental health services
from her own experience of sixteen years in prison. She, too, focused on
women in prison, particularly women who committed suicide there. She contends
that they all had in common one thing: they suffered the "agony of mental
illness in prisons" with needs that were never met. Even in the prisons with the
best programs, women's mental health needs are seriously underserved. She
challenged the audience to go to the prisons and see for themselves.

CORRECTIONAL MENTAL HEALTH LAW & POLICY:
A PRIMER
Fred Cohen*
Correctional mental health resides in a legal policy and administrative domain
of its own. Persons who are in penal captivity as arrestees, detainees, or sentenced
offenders are owed a basic duty of carel that flows either from the Eighth
Amendment's proscription of cruel and unusual punishment 2 or the due process
clause of the Fourteenth Amendment. 3
Persons who are in some fashion civilly committed based on their impaired
mental health and "dangerousness" mayor may not possess a constitutional right
to treatment. In my reading, the Supreme Court of the United States has never
unequivocally found a constitutional right to treatment for the civilly committed. 4
Indeed, in Kansas v. Hendricks 5 the Court upheld the indefinite commitment of
"so-called" sex predators; individuals who suffer a mental disorder, are found to
be dangerous, and are not amenable to treatment. 6 The Hendricks decision then
becomes a handmaiden to a virulent form of preventive detention and to the
conversion of a civil process into a criminal-like sentence for a status.
Shifting our focus for the moment from various forms of deprivation of liberty,
let me briefly survey mental health treatment as it exists in the community. As
John Petrila brilliantly points out in a recent work, there has been a profound
change in the treatment of persons with mental illness since 1970.1 No, he does
not mean the demise of Freudian psychoanalytical principles and the triumph of
behaviorism and psychopharmacology. Rather, Petrila refers to the dramatic
change in the role of government. Services formerly provided by government
* Professor Emeritus of Law & Criminal Justice, SUNY at Albany, author of THE MENTALLY
DISORDERED INMATE AND THE LAW, Executive Editor, Correctional Mental Health Report and Juvenile
Correctional Mental Health Report. Author may be contacted at fredlaw97@aol.com.
1 See DeShaney v. Wmnebago Dep't of Soc. Serv., 489 U.S. 189 (1989).
2 See Estelle v. Gamble, 429 U.S. 97 (1976).
3 See Bell v. Wolfish, 441 U.S. 520 (1979). This decision halted a trend to extend greater constitutional
protections to detainees and is the basic citation to support Eighth and Fourteenth Amendment
parallelism in the area of law under discussion.
4 O'Connor v. Donaldson, 422 U.S. 563 (1975). This decision exhibits as close as the Court
came in completely addressing this matter; see Lessard v. Schmidt, 349 F. Supp 1078 (E.D. Wisc.
1972). This is one of the leading lower court decisions finding that there is a right to treatment.
5 521 U.S. 346 (1997).
6 See Robert A. Burt, Promises to Keep, Miles To Go: Mental Health Law Since 1972, in THE
EVOLUTION OF MENTAL HEALTH LAW, ch. 1 (Lynda E. Frost & Richard J. Bonnie eds. 2001). Burt
decries the current inhospitality of the federal courts to people with disabilities. There was an activist
moment in time when people truly in need were made visible and extended promises of care.
7 John Petrila, From Constitution to Contracts: Mental Disability Law at the Turn of the Century,
in THE EVOLUTION OF MENTAL HEALTH LAW, ch. 4 (Lynda E. Frost & Richard J. Bonnie eds. 2001).

118 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
directly now have been privatized. The public mental health system has been
transformed in many states. Indeed, the freestanding mental health agency no
longer exists in many states. The states' designated Medicaid agency often controls
mental health policy.
Petrila's most important point for our purposes, however, is that constitutional
principles no longer dominate mental disability law in the open community. The
1960's challenges to commitment procedures, a right to treatment and a right to
refuse treatment, have been superseded by contract-like questions: Am I covered?
For how long? Suppose I am an alcoholic, can I get help? Does my insurance
move with me? Where is this supposed safety-net?
As I indicated at the outset, correctional mental health is different; it rests on a
footing of constitutional obligation that initially is based on custody alone. That
is, there is no debate resembling the 1960's mantra of "You can't confine me if
you don't treat me." There are, of course, some debates. The right to treatment
in penal captivity is no open ticket to care on demand. When obtained, it is not a
right to the best care, the clinician or treatment modality of choice, or the locus of
care. Like so much of prisoner's rights law, this right to mental health treatment
resides at the outer edge of our notions of civilized decency. It most assuredly is
not a "best practices" or even "community standards" level of care.
Corrections is hardly a consumer-driven institution and the federal courts today
are in no mood to be accused of spawning socialized medicine for those, in
Jeremy Bentham's words, who are least [socially] eligible.
What follows is a guide, a primer if you prefer, to the basic legal issues in
correctional mental health laws. It is a roadmap of major arteries and not a
Global Positioning System (GPS). For those who desire or require a GPS, I refer
you to the book from which most of this material is derived: Fred Cohen, The
Mentally Disordered Inmate and the Law, (Civic Research Institute, Inc., 1998).8
THE OBLIGATION OF BASIC CARE
Having physical custody of another person, as I have indicated, invariably creates
a legal duty to care for that person, while the legal basis for the actual custody
determines the particular care required. And one wonders how it could be
otherwise in a mostly civilized society that adheres to a rule of law. Custody in
penal confinement is sufficiently complete that prisoners must depend on their
keepers for food, water, clothing, and medical care, the basic stuff of survival.
There are very few shopping opportunities and even fewer private clinicians
available for prison or jail house calls. Parenthetically, officials likely would deny
such clinicians entry should they appear at the gates.
8 A cumulative supplement for 2003-04 is to be available early in 2003. The book and supplement
are available from Civic Research Institute, Inc., 4490 U.S. Rt. 27, PO Box 585, Kingston, NJ
08528 or CivRes@aol.com.

CORRECfIONAL MENTAL HEALTH LAW & POLICY 119
Phrased somewhat differently, the most fundamental obligation of a prison
system to those in its charge, indeed, of any system that confines persons, is to
maintain their life and health. Corrections officials would define that duty as to
provide for the security of staff and inmates. This obligation of basic care now
clearly includes the physical and psychological dimensions of the person and has
moved from the exclusive domain of private contract or tort law to include the
public domain of constitutional law. That is, we are in an era where inmates'
right to basic decency and protection as well as medical and psychological care
has moved from private legal actions to constitutionally based legal actions. This
is not the era of origin nor is it an era where inmates' rights are viewed
expansively.
Preservation of Life and Health
At the outset, a major distinction must be established as to the type of care
owed an inmate. When the law insists, as it does, that an inmate be provided with
basic shelter, food, water, clothing, and insulation from known inmate predators,
the objective is to preserve physical integrity, health and life. All inmates (or
penal captives) are entitled to the minimal conditions necessary to sustain life and
avoid needless suffering.
This duty, the preservation of life and health, resembles the duty to provide
medical and psychological care but it is also more expansive. Prison officials, for
example, must take preventive measures against predators to protect prospective
victims. The duty to the victim is not to provide relief from a physical or psychological
malady, it is to prevent the infliction of harm. Keeping inmates adequately
warm, clothed, and fed are similarly protective rather than regenerative.
As we shall see, the affirmative duty to provide medical or psychological care
and the duty to protect inmates both flow from the Eighth Amendment's ban on
cruel and unusual punishment. Indeed, in Farmer v. Brennan,9 the Supreme
Court recently clarified the meaning of "deliberate indifference" in the context of
a failure to prevent a rape of an inmate. Deliberate indifference is central to the
duty to provide care as well and Farmer, then, will apply to both duties. In the
ensuing brief discussion of custodial suicide as well as the use of physical restraints,
we will encounter judicial confusion over the duty of care and the duty of
protection. 10
Medical and Psychological Care
The duty to provide medical or psychological care most clearly arises at the
point where an inmate is known to be ill or injured. When that condition is a
9 511 U.S. 825 (1994).
10 FRED COHEN, THE MENTALLY DISORDERED INMATE AND THE LAW, ch. 14.
(1998) (dealing with suicide).

120 THE UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEW
recognizable and serious psychiatric disorder, the Eighth Amendment's ban on
cruel and unusual punishment kicks in. The duty to provide medical or psychological
care is preventive and ameliorative; and emphatically includes an obligation
to relieve pain, prolong life, and stabilize (if not cure) the malady. Indeed,
the avoidance of gratuitous suffering is at the core of the constitutional
obligation.
The Eighth Amendment's proscription of cruel and unusual punishment has
been interpreted to require that state and federal prison officials must avoid deliberate
indifference to the serious medical and psychological needs of inmates. I I
This less-than-demanding duty places the constitutional obligation of care a notch
below the general standards of reasonableness for determining medical malpractice.
What must be stressed, however, is that while constitutional minima may be
met, state officials may still be liable civilly for what is the equivalent of malpractice
in the omission or provision of medical or psychological care. In other words,
meeting minimal federal requirements is no guarantee that officials responsible
for medical and psychiatric care may not be liable under state law. Since existing
state law varies greatly on standards of liability, it is incumbent on attorneys,
mental health workers and correctional officials to ascertain the law of their
jurisdiction.
The essence of the Eighth Amendment is an obligation of government to avoid
the needless infliction or prolongation of pain and suffering. Courts well understand
that prisons are not likely to be models of comfort or free from damaging
stress and conflict. Psychological stress and possible deterioration often are accepted
as an inherent aspect of imprisonment and thus beyond the realm of legal
protection. Whatever the source or cause - self-inflicted, inflicted by others, or
"natural" - there exists the legal duty to identify and treat inmates with serious
mental disorders.
There are two critical phrases in the statement of the legal obligation of care
owed a mentally disordered inmate: "deliberate indifference" and "serious medical
needs." Unfortunately, there is no single, authoritative definition for what
constitutes a serious medical condition or mental health condition but it is possible
to distill a workable understanding from a number of leading decisions. As
noted earlier, Farmer v. Brennan now provides us with an authoritative, reasonably
clear definition of deliberate indifference. I2
11 This article does not document all specific statements such as the one to which this footnote
is attached. The reader will find citations to the cases noted here and complete documentation in the
author's book cited supra note 10.
12 511 U.S. 825 (1994).

CORRECTIONAL MENTAL HEALTH LAW & POLICY 121
DELIBERATE INDIFFERENCE
"Deliberate indifference" is an awkwardly phrased mental state in the same
general category as "intention," "reckless," or "negligence." From its earliest use
in 1976, it was clear that it required more than poor judgment and something less
than intentional acts or omissions calculated to cause needless suffering. After
letting the lower courts grapple with its meaning for some eighteen years, in
Farmer v. Brennan the Court engaged in its first effort to define the seemingly
oxymoronic term.
Justice Souter stated, "With deliberate indifference lying somewhere between
the poles of negligence at one end and purpose or knowledge at the other, the
courts of appeals have routinely equated deliberate indifference with recklessness.,,13
Recklessness, however, does not have a single meaning in law. Once the
Court decided on recklessness as the functional equivalent of deliberate indifference,
it then had to choose between the civil standard and the criminal standard.
Civil versus Criminal Recklessness
Under civil law, most often tort law, a person is reckless when he or she acts,
or fails to act when there is a duty to do so, in the face of a high risk of harm
which is known or should have been known. Under the criminal law, however,
recklessness may be found only where the accused is found to have acted or
failed to act with actual knowledge of the particular risk. Obviously, the major
hurdle here is whether there is a duty to inquire and ascertain facts relevant to
actual risks.
For example, in the area of custodial suicide, a credible threat to commit suicide
coupled with knowledge of a recent attempt would establish actual knowledge
of the risk. On the other hand, a general awareness of risk factors might
qualify for "should have known" but would likely flunk the "actual knowledge"
test.
The Court in Farmer opted for the criminal law version of recklessness but
softened the potentially harsh impact on prisoners by noting that a claimant need
not show that an official actually believed that some harm actually would occur,
only that there was knowledge of a substantial risk of harm. Thus, the first question
on liability is what was known (in Farmer, that the rape victim was obviously
homosexual). One then asks, what risks flow from that knowledge (here, sexual
assault); what duty is thereby established (protection); and was that duty
breached (possibly).
13 Farmer, 511 U.S. at 835-6.

122 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
Effect on Intake Screening
What then is Farmer's possible impact on the mentally ill? The most crucial
question is whether Farmer's actual knowledge requirement obviates the need to
do intake screening and evaluation. It might be asked theoretically why should
correctional officials seek out the knowledge (e.g., prior suicide attempts, hospitalizations,
or use of psychotropic medication) that may create the duty to do
more? It then would be argued that officials should deal only with clear manifestations
of mental illness as inmates "come in the door" or where the illness
plainly erupts later.
First, I know of no jurisdiction that consciously has adopted such an approach.
Indeed, more and more correctional systems are using refined multi-level techniques
for screening and evaluating persons in need of mental health care or at
special risk of committing suicide.
Second, the above comment may be said to beg the question: suppose a system
actually did abandon intake screening? The argument in response that should be
made is given the high percentage of inmates known to be experiencing serious
mental illness, there is actual knowledge of high risk among the entire population.
Just as not all feminine-appearing inmates will be sexually assaulted, the
risks to that group are such that a special duty of care arises. The risks of a large
number of seriously mentally ill persons arriving at any given prison are high, the
duty then is to engage in individual detection, diagnosis, and appropriate care. 14
Third, at a policy level, a "see no evil" approach is inhumane and ultimately
more expensive when preventable deterioration leads to a more serious condition
which, in turn, may lead to injury or hospitalization, by far the most expensive
arena for treatment.
Fourth, recent courts seem more intent on constitutionalizing a duty to do intake
classification for housing-security purposes. To condemn random doublecelling
assignments, as courts do, for example, is also to condemn a "blinkers on"
approach to screening for mental illness.
SERIOUS NEEDS
What is or is not a "serious" medical/psychological need suffers from the same
lack of precision as the "deliberate indifference" standard. However, the seriousness
component has not received an authoritative Supreme Court decision. This
requires reaching some understanding of this important concept through a distillation
of leading decisions. The test for seriousness begins with clinical (or medical)
necessity and not simply what may be desired. Because the constitutional
14 This analogy is far from perfect. Feminine-appearing inmates are, of course, a discrete class.
Those with mental illness do not similarly display "class membership" and, thus, must be sought and
identified. Knowing that one or two of every ten inmates will be entitled to care, it may be argued,
creates the duty.

CORRECTIONAL MENTAL HEALTH LAW & POLICY 123
basis for the right to treatment is in the Eighth Amendment's ban against cruel
and unusual punishment, courts tend to equate seriousness with the needless infliction
or endurance of pain and suffering. Clearly then, such minor ailments as
mild anxiety, depression, or headaches are not within the judicial parameters for
seriousness. Insisting on care for mild depression becomes the constitutional
equivalent of demanding cosmetic surgery.
On the other hand, a debilitating clinical depression where an inmate is virtually
immobilized and is not attendant to even basic hygienic needs almost certainly
would qualify. In the wake of a major lawsuit, the Michigan Department of
Corrections adopted a definition which may commend itself to other jurisdictions
and which clearly meets legal criteria:
Serious mental illness (or severe mental disorder) means a substantial disorder
of thought or mood, which significantly impairs judgment, behavior, capacity
to recognize reality, or ability to cope with the ordinary demands of
life.
A serious/severe mental state or condition (1) manifested by substantial discomfort,
pain, and/or disability that cannot be legitimately ignored by appropriate
clinical staff, (2) requires a mental health assessment, diagnostic
evaluation, treatment planning and disposition planning, and (3) is generally
associated with (a) the inability to attend to and effectively perform the
usual/necessary activities of daily living, (b) extreme impairment of coping
skills, rendering the patient exceptionally vulnerable to unintentional or intentional
victimization and possible mismanagement and/or (c) behaviors
that are dangerous to self and others.
Serious mental illness/severe mental disorder includes psychiatric conditions/states
that span the entire diagnostic spectrum of Diagnostic and Statistical
Manual (DSM) - III and is not limited to specific diagnosis. 15
15 This definition appears in the "Comprehensive Mental Health Plan" of June 6,1986, submitted
to Judge Enslen in USA v. Michigan, No. G84-63CA (W.D. Mich.). The Plan's pages are not
numbered, thus making more precise citation impossible. The first paragraph of the definition is
drawn from ABA Criminal Justice Mental Health Standards, Standard 7-1O.1(b). The DSM-III reference
is to the AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTI­
CAL MANUAL OF MENTAL DISORDERS (3d ed. 1980). A somewhat different approach was
taken in Dunn v. Voinovich, Case No. Cl-93-0166 (S.D. Ohio 1993). Section VIII of the Consent
Decree in Dunn includes the following definition:
Serious mental illness means a substantial disorder of thought or most which significantly
impairs judgment, behavior, capacity to recognize reality or cope with the ordinary demands
of life within the prison environment and is manifested by substantial pain or disability. Serious
mental illness requires a mental diagnosis, prognosis and treatment, as appropriate, by
mental health staff. It is expressly understood that this definition does not include inmates
who are substance abusers, substance dependent, including alcoholics and narcotic addicts, or
persons convicted of any sex offense, who are not otherwise diagnosed as seriously mentally
ill.

124 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
DUTY TO DIAGNOSE
However minimal the constitutional duty of treatment, important ancillary (or
supportive) rights and duties are thereby created. The right to treatment, at least
for serious disorders, would be meaningless without an additional, and anterior,
duty to provide diagnosis, and this duty to diagnose sweeps more broadly than
the underlying right to care. More inmates must necessarily be examined rather
than treated unless one makes the absurd assumption that all inmates eligible for
diagnosis (or screening and evaluation) somehow are also seriously mentally ill.
All jail and prison systems must have some screening, evaluation and classification
or diagnostic system. This is a duty also owed the healthy inmate who has
a right not to be disturbed or injured, let us say, by a violent, psychotic inmate.
The seriously disturbed inmate, in turn, has a right to be identified for treatment
so that the needless continuation of pain and suffering-and that should include
preventable deterioration-is avoided.
Every prison system should have in place a regular screening and evaluation
process, adequately staffed with qualified personnel, where the information and
conclusions developed are used and periodically reviewed. Any system that can
be evaluated on the factors just noted and pass need not worry about a successful
legal challenge to this aspect of their mental health care. However, the cases
reveal that the more glaringly deficient the classification-diagnostic system, the
more sweeping the judicially mandated or endorsed relief. Indeed, where a system
seems utterly primitive in treatment and classification resources, judges have
been inclined to mandate diagnostic information more clearly related to rehabilitation
and education than the more restrictive right to treatment.
A number of federal courts have insisted that prisons deficient in classification
or diagnostic systems prepare plans to learn about the inmates' skills, background,
or psychological difficulties. They have ordered large scale and expensive
epidemiological studies and insisted that mental health specialists be
involved in this process and that certain standardized tests be used.
Thus, glaringly deficient prison systems have invited some federal judges to
require programs and penal objectives they would not likely impose if the particular
claim (rehabilitation, for instance) was made in isolation or if the overall
prison conditions were minimally acceptable. The point is, the greater the deficiency,
the more extensive the likely relief. It is difficult to imagine a constitutionally
acceptable correctional mental health care system that inherently breaks
down at the front door.
This particular section was the subject of more pre-Decree negotiation than any other provision
in the 33 page Decree. The definition section also describes the class in Dunn and, thus,
actually establishes who is eligible for mandatory treatment.

CORRECfIONAL MENTAL HEALTH LAW & POLICY 125
RECORDS
The basic right to treatment for serious disorders has spawned not only a right
to diagnosis-classification but also a right to the maintenance of minimally adequate
clinical records. Records are necessary for continuity of care, for review of
the efficacy of care, future diagnosis, and certainly to respond to questions raised
about the legal obligation to provide mandated care. Courts that have decided
challenges to a facility's record keeping have looked for a written plan for future
treatment, how well the files are organized, notations as to physical and mental
examinations, progress notes, medical history, and, certainly, medication records.
Mental health professionals, and especially psychiatrists, move in and out of
correctional systems. Inmates are subject to frequent transfers. Where records
are incomplete, inconsistent, or simply barren, continuity of care is severely compromised.
Indeed, in my own experience in monitoring correctional mental
health care systems, considerable time was spent reviewing patients' charts which
were quite often in shambles. Individual treatment plans will be missing, progress
notes absent, reasons for medication omitted, and even records on certain
lab testing where such testing involves life-threatening situations (e.g., lithium
levels) will be absent. When the records are so deficient, one certainly has grave
overall doubts about the efficacy of treatment.
Where a clinician's notes are lucid and reasonably comprehensive and the
course of future treatment clear, the legal demands here likely will be met.
Clearly, if any administrator has doubts about the medical records system the
time to have a professional evaluation is now and not with the plaintiffs' lawyers
looking over your shoulders.
Curiously, courts are divided on whether access by fellow inmates to such
records is legally permissible. As a matter of policy, one should condemn the
practice on the grounds of privacy and the potential for corrupt usage.
COMPONENTS OF A TREATMENT PROGRAM
Minimal Components
It is difficult, although not impossible, to predict what may be constitutionally
acceptable for inmate mental health care, diagnosis, and records. Six legally acceptable
components, as articulated first in Ruiz v. Estelle,16 a landmark decision
involving the Texas Department of Corrections, provide a very useful initial guide
to a solution:
1. First, there must be a systematic program for screening and evaluating
inmates in order to identify those who require mental health treatment;
16 503 F. Supp. 1265 (S.D. Tex. 1980). affd in part, rev'd in part. 679 F.2d 1115 (5th eire 1982).

126 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
2. Second, as was underscored in other cases, treatment must entail more
than segregation and close supervision of the inmate patients;
3. Third, treatment requires the participation of trained mental health professionals,
who must be employed in sufficient numbers to identify and
treat in an individualized manner those treatable inmates suffering from
serious mental disorders;
4. Fourth, accurate, complete, and confidential records of the mental health
treatment process must be maintained;
5. Fifth, prescription and administration of behavior-altering medications in
dangerous amounts, by dangerous methods, or without appropriate supervision
and periodic evaluations, is an unacceptable method of
treatment;
6. Sixth, a basic program for the identification, treatment, and supervision
of inmates with suicidal tendencies is a necessary component of any
mental health treatment program.
Desirable Components
It is useful to compare this guide to what may be minimally acceptable with a
set of factors I have prepared that may be described as ideal or at least
comprehensive:
1. Diversion of Selected Offenders with Mental Illness. There is a virtual
unanimity in the literature and among experts that too many prisoners
with serious mental illness are swept into jail and prison, and often for
minor offenses. A progressive system would provide legal authorization
for pre-trial examinations and diversion to treatment where
appropriate. 17
2. Identification of Inmates with Mental Illness Entering the System. Unless
the system has in place mechanisms to identify those needing care,
either at reception or after confinement, it simply cannot meet its
treatment obligations. Better systems will have a computerized classification
and tracking system.
3. Identification for appropriate care of those inmates suffering from alcoholism,
drug addiction, some form of sexual dysfunction, or problems
associated with the "Battered Woman Syndrome." These conditions
generally fall outside of legally mandated care. However, a correctional
system that is "full service" is responsive to these impaired individuals,
and that in itself is deemed desirable. Compliance with basic
constitutional requirements, as noted, would encompass only the seri-
17 See Brian D. Shannon, Diversion of Offenders wilh MenIal Illness: Recent Legislalive Reforms,
59 Tex. BJ. 330 (1996).

CORRECfIONAL MENTAL HEALTH LAW & POLICY 127
ously mentally ill. However, a comprehensive system would have a
fully integrated system and not draw artificial distinctions between
"special needs" categories.
4. Training of staff on the signs and symptoms of mental disorder and
those inmates with "special needs." The identification of those who
need care does not end at the front door, nor is it limited to mental
health specialists. Security staff, especially those assigned to mental
health special care units and to segregation units, must be able to identify
those who need care and understand the behavior associated with
the condition or any medications involved. Such training should be
subjected to rigorous evaluation of the information conveyed, attitudes
changed and behavior changed.
5. Adequate (in quantity and quality) human resources available for the
various tasks associated with mental health treatment. Mental health
staff should be appropriately licensed, multi-disciplined and function
administratively in an integrated fashion. Staffing ratios for psychiatrists,
psychologists, social workers, and others should be established at
least as a rough guide for judging the objective quality of a system.
Opportunities will exist for staff development and enrichment. "Bum
out" and "dry out" seem endemic to staff members in this highly
charged work area and comprehensive programs will provide opportunities
for growth and respite.
6. Adequate (in quantity and quality) physical resources available. Obviously,
a certain amount of physical space designed for various treatment
or program objectives must be available. The available space
should be designed to meet the need for hospitalization; longer term
care needs not necessitating hospitalization; crisis care (e.g., suicidewatch
placements); transitional care units; and, perhaps, a special
needs unit (housing, e.g., the dual-diagnosed inmate). A "least restrictive
environment" approach would suggest enhanced concern for the
inmates' needs.
7. Access to Care. Without ready access to diagnosis and care, human
and physical resources become virtually meaningless. This calls for a
study of waiting lists, responses to "kites," knowledge by security staff
and inmates on how to gain access to care, appropriate training and
orientation of inmates on gaining such access. From the standpoint of
actually auditing a system, access must be evaluated on site. Cells,
beds, and staff may be counted but access is a dynamic concept and
must be observed. A model system would perform regular audits;
question inmates and staff; assess the orientation process and even do
emergency "trial runs." In evaluating access to care, one necessarily
also evaluates the relationship between security and mental health

128 THE UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEW
staff. Without a collaborative approach, no system will function very
well.
8. Contents of Records. Records, as described earlier, are crucial to the
legal requirement of continuity of care. They are evidence of the care
and also instrumental in assuring its quality. As a barometer of quality,
the use of regular progress notes and a comprehensible individual
treatment plan will show whether appropriate care is given and will
make the personnel changes that are endemic to corrections less interruptive
of the care process. The legal concern here is with continuity
of care. The mental health record is a necessary, although not sufficient,
factor in meeting that obligation.
9. Medication Management. We must recognize that medication is the
treatment of choice for the mentally ill inmate. This means that there
should be reasonable access to the psychiatrist, a formulary that allows
access to the newer psychopharmacological agents that are emerging
at a rapid pace, and regular monitoring and testing. In systems with
rapid turnover or the use of locum tenens psychiatrists, special attention
must be paid to medication practices, especially changes in
medication.
10. Restorative Opportunities. For the seriously mentally ill, medication
may well be the treatment of choice but it should not be the only treatment
or programming available. For those not taking medication it is
even more important to have a full-range of activities, along with individual
and group therapy. Comprehensive programs offer work opportunities
along with structured physical activities, horticultural
programs, guide-dog training, vocational training and the like. Programs
dealing with anger management and social skills, along with educational
opportunities and the like, often enhance restorative
opportunities.
11. Management Information System (MIS). A model MIS should be
computerized and used for needs assessment, quality assurance and
tracking. Model programs will produce concrete examples of how the
MIS is used in the system.
12. Data/Research on Treatment Outcomes. Comprehensive programs will
not be content to simply "build, hire and provide access." They will be
concerned with the articulation of treatment objectives and be engaged
in acceptable research on outcomes. Articles in peer reviewed
publications would be extremely good evidence on this point.
13. Economy of Scale. The administrative and organizational structures
should be designed to provide the maximum care for the funds allocated.
Are services regionalized or clustered? Are services shared
and accessible? Are actual costs actually known?

CORRECfIONAL MENTAL HEALTH LAW & POLICY
129
14. Policy Procedure: Contemporary, Comprehensive, Accessible. In the
interest of uniformity and consistency of practice, a system must have
contemporary policy and procedures that are readily available and understandable.
Special attention should be paid to transfers from correctional
settings to mental hospitals, forced medication, restraints and
isolation, disciplinary proceedings, confidentiality, consent, and suicide.
These areas generate the most legal concern and have the clearest
legal mandates.
15. Discharge Planning. A comprehensive care system should not end at
the institution's walls. Inmates needing care inside are not magically
going to not need care on their release. Discharge planning begins
inside, and appropriate community care, including medication and
housing arrangements, will be the hallmark of a comprehensive
system.
16. Quality Assurance Program. An ongoing internal survey, evaluation,
and feedback system accompanied by an evidentiary privilege to safeguard
such studies from disruptive discovery demands should be part
of any sophisticated system.
To reiterate, the above sixteen factors are a combination of the legally required
and the professionally desired. Anyone wishing to evaluate a correctional
mental health program might well use these factors as their guide. For attorneys
seeking to evaluate the merits of a case - particularly a class action challenge -
this list should be indispensable.
EVALUATION OF TREATMENT
There are essentially two approaches to evaluating the adequacy of treatment:
the objective and the subjective approach. An objective approach focuses on
such empirical items as inmate-staff ratios, available beds, the number of clinician-patient
contacts, and so on. A subjective approach is primarily evaluative.
It asks about the quality of the services provided and expresses some concern for
outcomes. This approach, of course, may be, and often is, used in conjunction
with the objective approach.
Courts seem to prefer the objective approach, probably because it is easier to
work with. It is empirically demonstrable, standards are available, and expert witnesses
can speak authoritatively as to needed numbers of personnel, clinicianinmate
contact, beds, and so on. Of course, experts will also be relied on for their
subjective or qualitative judgments.
The term "treatment" in this context most often refers to efforts to provide
short-term relief from acute psychic distress. Treatment in the sense of forwardlooking,
future-oriented improvement in, say, coping and social skills is not the
type of treatment referred to (or likely offered) here. Perhaps the most widely

130 THE UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEW
espoused correctional treatment objective is preparation for life in the prison's
general population. More recently, "preparation for release" is being used and
this objective is at once more difficult to achieve and more desirable.
SUBSTANCE ABUSERS
The question of whether to treat substance abusers, and if so how, often arises
in the prison and jail setting. Indeed, we should pose the most fundamental question
for this subsection and attempt to answer it squarely: do prison inmates have
a constitutional right to treatment for their alcoholism or drug addiction? Although
there are some caveats to the answer, the basic answer is perhaps a surprising
no.
This again is not a question that ~sks whether it would be good policy to treat
such persons or whether it would be humane, effective, and so on. The question
is asked only in terms of legal obligation and the answer is - no. The key to
understanding this answer lies in the fact that courts generally have not characterized
alcoholism or drug addition as serious medicaUmental health conditions.
Parenthetically, a drug reaction withdrawal may well be "serious" and require an
appropriate clinical intervention.
In rejecting a claim for alcohol treatment programs at New Jersey's Rahway
Prison the federal judge indicated that not every illness or injury is "serious." He
appeared to leave room for a claim that some substance abusers were seriously ill
but, like many of his judicial colleagues, he ultimately viewed the claim as one for
non-mandated rehabilitation. I8
There simply is no constitutional right to rehabilitation. If alcoholism and
drug addiction are viewed as a kind of status or condition, as opposed to disease,
then the claim is translated as one to rehabilitation and it is lost. It should also be
said that in a number of judicial proceedings a trial judge will order, or the parties
may enter into an agreement for, a substance abuse program. Among the sixteen
desirable factors previously listed is the treatment of such conditions in an integrated
system.
A prison system may be found so deficient that the judge requires things that
are otherwise viewed as desirable and the government sees no point in challenging
the requirement. This may help explain consent decrees that sweep more
broadly than constitutional minima. Thus, while there are examples of judiciallymandated
substance abuse programs, they result from unusual aspects of the litigation
or from agreement, and not from strict adherence to legal norms.
18 Pace v. Fauver, 479 F. Supp. 456 (D.NJ. 1979), affd, 649 F.2d 860 (3d Cir. 1981); see supra
note 15 for the Ohio approach to this matter.

CORRECTIONAL MENTAL HEALTH LAW & POLICY 131
isOLATION
Returning now to some specific problems encountered by jail and prisons in
dealing with their mentally disturbed inmates, the use of isolation often creates
legal entanglements. No case has been found that totally forbids isolation of the
mentally ill, even though some experts find its use, especially with suicidal inmates,
counterproductive. Very recent litigation has posed this question dramatically
in the context of the supermax prison. Jones 'EI v. Berge 19 is the most
comprehensive judicial decision on point.
The inmate's mental condition is a crucial factor in determining whether the
overall conditions of isolation are cruel and unusual. Prison officials must be
especially judicious in their use of isolation (or other forms of temporary restraint)
and be certain to follow local rules closely on such items as duration,
authorization, and monitoring. A "sentence" of some form of isolation by a disciplinary
committee should take into account the likely impact on an inmate known
to be suffering with mental illness.
In assessing the likely quality of a prison's mental health services, the first
place to visit is disciplinary segregation. This is where the sickest inmates will be
housed (hidden actually) with minimal or no treatment. 20
RESTRAINT
Restraint and seclusion are often joined for discussion and analysis in the literature
and in various standards. By restraint I refer to the use of a mechanical
immobilizing device - typically and preferably leather padded wristlets and anklets
- used during a crisis period to prevent injury to the individual and others.
Such restraints may never be used for punishment whether or not an inmate is on
a mental health caseload.
On the other hand, isolation is an acceptable form of punishment, as well as a
device to prevent injury for the mentally ill and for those who are not mentally ill.
When disciplinary segregation - or isolation - is imposed upon a mentally ill
inmate then there are special considerations involving the projected impact on
the inmate. There also is case law to support the notion that marginally acceptable
conditions for those not mentally ill may be marginally unacceptable in light
of the known mental condition of certain inmates.
19 See Jones v. Berge, 172 F. Supp. 2d 1128 (W.D. Wise. 2001) and Jones 'EI v. Berge, 164 F.
Supp. 2d 1096 (W.D. Wisc. 2001).
20 The New York State Department of Correctional Services is being challenged in a class action
that focuses on the frequent and extended housing of inmates with mental illness in the Special
Housing Units (SHU).

132 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Challenges to Restraint
When the use of restraints is challenged, it is often analyzed as an alleged
application of excessive force. Looked at in this way, the problem falls within the
contours of Hudson v. McMillian,21 which holds that in order to constitute cruel
and unusual punishment the application of official force must involve the unnecessary
and wanton infliction of pain. There is no "significant injury" requirement
but the mental element requirement is very difficult to prove. One must show
that force, here in the form of restraints, was applied for the very purpose of
causing pain or other harm. Thus, even a misguided or gratuitous strapping down
might not amount to constitutional injury.
The use of restraints on an inmate who is on the mental health caseload may
also be challenged as a variety of deliberate indifference to th~ treatment needs
of one who is seriously mentally ill. This approach then becomes a right to treatment-type
claim and the deliberate indifference test is not as difficult for the
inmate to meet. At this juncture we need only note the possibility of parallel
claims and the need to approach restraints in a judicious manner with early medical
involvement and close monitoring.
PRETRIAL DETAINEES
Pretrial detainees have at least the same right to diagnosis, adequate records,
treatment and other cognate rights as persons convicted of crime. 22 Indeed, in
the hierarchy of legal rights retained by those in some form of penal confinement,
convicted prisoners occupy the lowest rung. It is safe to assume that the unconvicted
detainee possesses whatever rights the convicted possess and is entitled to
at least the same level of care.
The source of the right to care for pretrial detainees, however, is not the
Eighth Amendment, but the Due Process Clause of the Fourteenth Amendment.
The distinction creates some interesting constitutional issues, but for present purposes
the bottom line is the nature, rather than the specific source, of the right.
To repeat: detainees are entitled to at least the same level of care as the
convicted.
Pretrial detainees clearly present a different package of mental health
problems than convicted prisoners. Their stay is relatively brief; alcohol and drug
abuse problems abound; suicide is far more prevalent; examinations for trial may
be performed; and the initial shock of jailing is itself traumatic for many. Many
observers find that local jails may indeed be the only mental health resource
21 503 U.S. 1 (1992).
22 See MARTIN DRAPKIN, MANAGEMENT AND SUPERVISION OF JAIL INMATES
WITH MENTAL DISORDERS (1999), the best practical guide on point available.

CORRECTIONAL MENTAL HEALTH LAW & POLICY
l33
available to them. As mental hospitals close and community mental health facilities
fail to keep pace, the jail seems always to be there.
Suffice it to say that the right to care (and protection) is there; it is at least as
demanding as the "deliberate indifference" standard which applies to the convicted;
and jails must have ready access to diagnostic and treatment resources and
personnel. Long-term care will not likely be an issue but short-term, acute care,
detoxification issues, and the threat of suicide are dramatically involved.
Jails, especially smaller, more rural facilities, probably are more vulnerable to
successful lawsuits than most prisons. Many jail administrators simply hope they
won't be sued or studied; they actually have no acceptable arrangements for
mental health care. The newly invigorated diversion movement, however, may
be the jail's best friend.
SUICIDE
Suicide, of course, is not a problem that is confined to jails although about four
times as many suicides occur in jails as in prisons. The risk of suicide is sufficiently
greater in the jail setting that every jailer must immediately confront the
phenomenon as a problem of appropriate care, surveillance, and custody. In reviewing
lawsuits that have resulted from custodial suicide, the following questions
emerge:
1. Did the facility have the basic capacity to respond to the problem?
2. How many staff were in place and how were they trained?
3. Is the structure of the facility itself a contributory factor?
4. How well did staff respond to the threat posed, for example, by a highly
intoxicated or highly agitated detainee?
5. How closely was the at risk person monitored?
6. Exactly what steps, in compliance with what suicide protocols, were
taken to prevent the suicide?
7. Were clinical personnel involved andif not, why not, and if so, when and
how?
These questions are not exhaustive but they are highly representative. Jails
confine a highly diverse popUlation and often receive people who are in an extreme,
albeit temporary, emotional condition. It is incumbent on jailers to initially
screen and provide humane and protective care for the potential suicide.
This, of course, is crisis intervention in its most basic form and not a commitment
of resources to long-term care.
It would be misleading, even in a brief summary, to leave the impression that
custodial suicide cases pose major liability questions for custodians. Deliberate
indifference, with the Farmer standard of criminal recklessness as the mental requirement
for constitutional liability, is difficult, indeed, to establish. Even where
an inmate was known to be suicidal and was placed in an inpatient psychiatric

134 THE UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEW
unit where he suffocated himself with a plastic bag, the reviewing court found no
deliberate indifference. 23 Why? The clinical judgment of low risk was found
within professional judgment norms and, thus, there was not a strong likelihood
that a suicide would occur or, if so, would occur with that instrumentality.
THE MENTALLY RETARDED
The mentally retarded inmate presents a special package of problems that may
confound correctional administrators. Some mental health professionals believe
that the plight of the retarded inmate is even worse than that of a mentally ill
inmate. Retarded inmates often are gullible, vulnerable and too often victimized
and manipulated by fellow inmates.
At the outset, there is a serious question concerning just how a severely retarded
person is able to negotiate the criminal justice system and end up in
prison. Persons who are severely retarded are likely to be incompetent to be
tried or enter a plea since they may not understand the criminal charges or be
able to assist counsel. Therefore, an inmate who is functionally impaired to the
point where a conviction is improper should not be in prison. But they are and
they often are dual diagnosed.
One recent study estimated that about 2 percent of our prison population is
retarded. On the other hand, some courts have found 10 to 15 percent of the
prison population to be retarded. Persons who are severely or profoundly retarded
simply should not be in prison and if they are, there is a failure somewhere
along the way in the system.
With problems ranging from exploitation to the serving of longer terms, no
one seems to deny the plight of this group of people. Do the mentally retarded
have a constitutional right to treatment in prison? Unfortunately, the answer is
no. Do the mentally retarded have any special claims to help while imprisoned?
The answer is a guarded yes, grounded on a due process claim to physical safety
and freedom from undue restraints.
It is enough to say in this primer that the right to treatment in prison exists
within a disease or illness model. However, mental retardation is classified, it is
not a disease and inmates do not become retarded in prison. Their learning or
developmental disability may contribute to problems of adjustment in prison but
that, of course, is different than acquiring a condition in prison.
The mentally retarded are prime candidates for diversion from prison and,
once in prison, for programs designed to enhance their social and educational
skills, and to allow them to maximize their human potential. The claim to positive
help, however, as opposed to special protective concerns, is not of the same
legal stature as that of the seriously mentally ill inmate.
23 See Estate of Max G. Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996).

CORRECTIONAL MENTAL HEALTH LAW & POLICY 135
TRANSFERS FOR TREATMENT
While all prisons and jails must provide basic treatment at least for the seriously
disordered inmate, the choice as to the type of treatment and where it is
provided raises few, if any, legal questions. Discretion clearly exists as to the mix
of on-site and off-site medical and psychological services. However, when a prisoner
appears to need care in a mental hospital and a transfer is contemplated,
then the Supreme Court's decision in Vitek v. Jones 24 applies.
A Vitek-like situation arises when a decision is made that a particular prison
does not have the treatment resources or security appropriate to a seriously mentally
disordered inmate. Correctional officials will seek a transfer to a mental
hospital and the inmate may seek to resist. This creates an adversary situation
and one in which the inmate has important procedural rights.
Quite simply, Vitek decided that the combination of additional stigma, a drastic
alteration in the conditions of confinement, and being subjected to a
mandatory behavior-modification program created a protected liberty interest
traceable to the Fourteenth Amendment Due Process Clause.
The following minimal due process safeguards are now constitutionally required
by Vitek before such a transfer:
1. Written notice to the prisoner that a transfer to a mental hospital is
being considered.
2. A hearing sufficiently after the notice to permit the prisoner to prepare,
at which disclosure to the prisoner is made of the evidence being relied
on for the transfer and at which an opportunity to be heard in person
and to present documentary evidence is given.
3. An opportunity at the hearing to present testimony of witnesses by the
defense and to confront and cross-examine witnesses called by the state,
except upon a finding, not arbitrarily made, of good cause for not permitting
such presentation, confrontation, or cross-examination.
4. An independent decision maker who need not come from outside the
prison or hospital administration.
5. A written statement by the fact-finder as to the evidence relied on and
the reasons for transferring the inmate.
6. Availability of "qualified and independent assistance," furnished by the
state, if the inmate is financially unable to furnish his own.
7. Effective and timely notice of all the foregoing rights.
Perhaps the most basic question relates to whether Vitek-mandated procedures
apply where the transfer is to a treatment facility administratively within the
prison system. The answer suggested here is that when a finding of mental illness
is a predicate for admission to a treatment facility, then the physical location and
24 445 u.S. 480 (1980).

136 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
administrative responsibility should be irrelevant to Vitek's applicability. Indeed,
as more and more mental health services are provided by corrections - a clear
movement since Vitek was decided - such a result is necessary to give meaning to
the procedural safeguards the Court sought to provide.
Parenthetically, when such a transfer is for a relatively brief period of observation,
then Vitek does not apply. In my experience, such transfers actually are
made because a diagnosis and "need to treat" decision will have been made at the
sending facility. It is also somewhat ironic that in practice the problem is not an
overreliance on hospitalization or the procedural accommodation of protesting
inmates. Protests are extremely rare and the problem more likely is gaining rapid
access to desperately needed care.
Finally, in Sandin v. Conner25 the Supreme Court recently adopted a radically
different approach to establishing the liberty interest it requires before procedural
due process is mandated. Whatever impact Sandin will have on prison discipline,
the Court specifically exempted Vitek transfers from its reach. Thus, Vitek
and its progeny remain "good law."
THE TREATMENT RELATIONSHIP
Confidentiality vs. Institutional Security
The treatment relationship in the institutional setting presents recurring and
profound legal questions regarding confidentiality and privilege, the duty to disclose
when a clinician learns about a particular kind of danger and the problems
of consent to treatment. The need for confidentiality and privilege, as a matter of
law and professional ethics, rests on the individual's expectations of privacy and
nondisclosure along with recognition that the need for information in order to
provide needed treatment generally outweighs even compelling demands for disclosure.
Where the relationship with the inmate is for diagnosis-evaluation-classification
( or something similar), then the full impact of privilege and
confidentiality does not apply.
In laffe v. Redmond 26 the Supreme Court determined that Rule 501 of the
Federal Rules of Evidence, which creates a psychotherapist-patient privilege rule,
was broad enough to encompass psychiatrists, psychologists, and licensed social
workers. The ruling preserved the confidentiality of a female police officer who
participated in some fifty counseling sessions with a licensed clinical social
worker who, in tum, refused to turn over notes on the demand of plaintiff's counsel
in a wrongful death action.
25 515 U.S. 472 (1995). In the first few years of its existence, Sandin was discussed in perhaps
800 appellate decisions.
26 518 U.S. 1 (1996).

CORRECTIONAL MENTAL HEALTH LAW & POLICY 137
While this is a surprisingly liberal view about the scope of the privilege, it must
be emphasized that the ruling applies only in the federal courts although it is
likely to have persuasive value in other jurisdictions. Justice Scalia wrote a scathing,
indeed mocking, dissent expressing doubt about whether the privilege enhances
treatment and he wondered why we do not also have a mother-child
privilege.
The mental health professional in a prison or mental hospital setting is well
advised to disclose his or her agency to the individual before proceeding, disclose
the purpose of the meeting, indicate the uses to which the information will or
may be put, and indicate a willingness to answer questions as concretely as possible
concerning the risks of disclosure.
The really difficult problems for the clinician are to balance the generally applicable
principle of confidentiality in a treatment relationship with the countervailing
demands of security: the security of specific individuals who may be in
jeopardy and the general security of the institution. The treatment security issue
has become blurred as correctional officers increasingly become a part of the
treatment team.
When Confidentiality Does Not Apply
Every jurisdiction should adopt a clear set of rules as to when confidentiality is
inapplicable. One solution is to require mental health personnel to report to correctional
personnel when they identify an inmate as one of the following:
• Suicidal
• Homicidal
• Presenting a reasonably clear danger of injury to self or to others either
by virtue of conduct or oral statements
• Presenting a reasonably clear danger of escape or the creation of internal
disorder or riot
• Receiving psychotropic medication
• Requiring movement to a special unit for observation valuation or treatment
of acute episodes
• Requiring transfer to a treatment facility outside the prison or jail
When a mental health professional has reason to believe that an inmate-patient
presents a danger of violence to persons who are readily identifiable, a duty
arises to use reasonable care to protect the intended victim. This often is referred
to as a Tarasoff7 problem and the safest response would be for the clinician to
alert appropriate security personnel and allow them to implement security as
needed.
27 Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).

138 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
An even more difficult Tarasoff problem arises when an inmate with mental
illness is to be discharged having received the full criminal sentence, and there is
a belief that the person is dangerous. What action, if any, is required and does
this vary with the specificity of the person or persons who are endangered?
Some jurisdictions, Ohio among them, have adopted a rather progressive view
of the role of the correctional officer who interacts regularly with inmates suffering
with mental illness. An officer assigned to the Residential Treatment Unit
will also be assigned to an inmate's treatment team and, thus, sit through sessions
where the most personal and sensitive material likely will be discussed.
The officer is not under any professional, ethical obligation to not gratuitously
disclose but certainly may be subject to employment-related sanctions or even a
civil suit for damages. 28 The key, of course, is gratuitous disclosure of a medical
condition: the shouting down the cell block as to who has AIDS, harassing inmates
about their psychotropic medications, or needlessly keeping the door open
during sensitive treatment sessions or meetings. With the added professionalism
comes an added responsibility to protect the medical privacy of inmates.
CONSENT
On the question of the need to obtain consent for various types of treatment,
there is a general formula which may be useful in developing an answer: the more
intrusive the treatment, the more likely the risk of permanent side effects and the
more experimental the procedure, the more likely the need to obtain consent.
Where informed consent is required, then the legal minima include a competent
adult, the absence of duress or coercion, the disclosure of information on
risks, and the disclosure of information on the likely consequences of not accepting
the proffered care. Inmates and detainees have gained considerable
ground in the effort to require consent either to various forms of psychotherapy
or drug therapy. Drugs that are intended to cause paralysis or vomiting as a part
of a behavioral modification program have been characterized as cruel punishment
unless there is consent.
The Constitution does not forbid "cruel treatment," only cruel punishment.
Occasionally there will be a threshold argument concerning whether a particular
intervention is punishment or treatment. However, characterizing an intervention
as treatment does not wholly insulate it from legal challenge. If a due process
liberty interest or a First Amendment interest in religious freedom or
expression is implicated, then a constitutional barrier to the intended treatment
may be found.
28 Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001) (stating a right to privacy in prison for medical
information and records); but see Doe v. Wigginton, 21 F.3d 733 (6th Cir. 1994).

CORRECfIONAL MENTAL HEALTH LAW & POLICY 139
Again, the Sandin decision alluded to earlier does not impact existing decisions
on the constitutional necessity for consent. 29
THE FUTURE
Looking into the future, it would appear that the conservative tone established
by the present Supreme Court will prevail for the foreseeable future. Among
other things, this means that an inmate's basic constitutional right to minimal
physical and psychological care is not likely to be enriched or expanded. It also
means continued, and perhaps enhanced, deference to mental health professionals
as to what is or is not appropriate diagnosis and care. And it surely seems
unlikely that more in the way of inmate consent to care will be required.
The basic legal framework for a mentally disordered inmate's claim to care
and services has been established and is not likely to be undone. However, it is
also unlikely that the Supreme Court will further cultivate those rights, although
some of the more liberal and activist federal district courts may continue to expand
prisoners' rights. The substance and the direction of care for the mentally
disordered and mentally retarded inmate and detainee more likely will be determined
by state and federal officials and by professionals seeking to expand and
improve prison and jail care.
Some legislative developments, particularly the Prison Litigation Reform Act
(PLRA) will likely have an impact on the availability of certain remedial measures
now widely used in the federal courts. 30 Under PLRA, consent decrees and
injunctive measures must rest on a finding of unconstitutional conditions; any
such remedies are severely limited by time. Fees for counsel and Masters are
quite limited, along with a host of other restraints.
I must emphasize that PLRA does not - and, indeed, under the restraints of
separation of powers could not - affect any of the substantive rights and duties
which are the subject of this article. Beyond that, where the Court has found a
liberty interest, for example, in the avoidance of the supposed stigma of mental
illness or unwanted psychotropic drugs and it has also mandated procedures ancillary
to the right, then again PLRA does not, and could not, alter such
solutions.
Failure to accommodate the special needs of physically and mentally disabled
inmates may give rise to a statutory claim under the as yet largely unexploited
Americans with Disabilities Act (ADA).31 Most important is the ADA's prohibition
against discrimination in services, programs, or activities. Inmates with a
29 See supra note 25.
30 18 U.S.C.A. § 3626.
31 42 U.S.c. §§ 12101-12213. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998);
Sutton v. United Airlines, 527 U.S. 471 (1999); Board of Trustees of the Univ. of Ala. v. Garrett, 531
U.S. 356 (2001).

140 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
variety of physical disabilities are entitled to reasonable access or accommodation
and this has led to major architectural changes in prisons and the relocation of
certain activities from, for example, an upper floor to a ground level floor. There
is, however, no caselaw of any consequence dealing with the ADA and mentally
disordered inmates.
I have personally encountered instances where mental illness alone purportedly
disqualified an inmate from a "boot camp" program or a particularly desirable
housing or work situation. In each instance, when the matter was brought to
the attention of authorities, the policy was changed to require an individual decision
on the program, job or housing and that appears to satisfy the intent of the
ADA.32 With prison and jail populations continuing to rise and bringing with
them a tide of additional inmates who are mentally ill, the problems addressed
here will only grow more severe. Ultimately, of course, a policy of selective diversion
from the criminal justice system and of carefully coordinated reintegration
into the community after a prison or jail term is far more desirable than what
we presently have.
The boundaries of constitutional obligation have been the boundaries of actual
physical custody. Some recent developments suggest that the DeShaney boundaries
may not be as rigid as first appeared. The Ninth Circuit held in Wakefield v.
Thompson 33 that the state of California must continue providing medical attention
and medication even after release from prison. The medication and attention
must be in sufficient quantity and quality to allow the released prisoner
reasonable time enough to consult a doctor and obtain a new supply once released.
The court's rationale is that the duty of care while confined rests on the
premise that the inmate is unable to secure needed medical or mental health care
on his own behalf. The prisoner's ability unilaterally to secure medication is not
necessarily restored the instant he walks into the civilian world. 34 It may take
days or weeks, suggests the court, for the former inmate to secure medication.
While Wakefield factually appears limited to medication, conceptually it may
be argued that the court's reasoning applies as well to needed out-patient care,
residential care, continuing psychiatric or psychological counseling, or some form
of day care. 35 In Brad H. v. City of New Yor~6 the plaintiffs filed a class action
32 See also The Rehabilitation Act of 1973, 29 U.S.C. §§ 504, 794.
33 177 F.3d 1160 (9th Cir. 1999). The case is based on a continuing obligation under the Eighth
Amendment to provide mental health care.
34 Wakefield, 177 F.3d at 1163. The inmate was prescribed psychotropic medication by the
prison psychiatrist which a correction officer then allegedly refused to provide Wakefield on his
release.
35 See Releasing Inmate Without Medication May Violate Eight Amendment, XI CORREC·
TIONAL L. Rpt. 17 (1999).
36 729 N.Y.S.2d 348 (N.Y. Sup. Ct. 2001), (referring to the Temporary Restraining Order but
dealing specifically with plaintiff's claim to receive discharge planning records of former inmates as
part of discovery).

CORRECTIONAL MENTAL HEALTH LAW & POLICY 141
lawsuit in state court arguing that the City must provide discharge planning and
continuing community treatment to some 25,000 detainees and sentenced inmates
who annually receive mental health treatment in city jails. Plaintiffs based their
claims on state legislation and the state constitution and appeared to prove that
on release without continuing care plaintiffs will suffer irreparable injury, which
is highly predictable and avoidable. 37 Should Wakefield be expanded and Brad
H. successfully implemented, the walls created by DeShaney will be breached and
it is possible that sensible social policy and decent clinical practice would be employed
rather than tortuous litigation to achieve those results.
At the front end of the system one must increasingly consider various devices
by which to divert more offenders with mental illness. One such device is the
mental health court pioneered in Broward County, Florida, as a division of the
criminal court. 38 The court handles cases involving nonviolent misdemeanor defendants
identified as mentally ill or retarded. The judge may order treatment
but has great difficulty enforcing the order. Facilities can, and do, refuse admission
and without adequate community resources the court is powerless. 39
Whether a new court is needed to achieve diversion remains an open question.
The front line operatives here are the police who could be trained to avoid arrest
in the first place and thus avoid judicial involvement. According to Murphy's
groundbreaking work, police rely on informal guidelines and informal dispositions
in managing encounters with the mentally ill. 40 An officer's decision on
how to proceed will be guided by some combination of the following factors:
• The type of incident or behavior involved;
• The concerns of the complainant;
• Characteristics of the subject, victims, complainant, and bystanders;
• The relationship between complainant and subject (e.g., family, friend,
employer, stranger);
• Whether there is evidence of a crime;
• Legal criteria for emergency detention;
• Police agency policy, organizational structure, and resources;
37 See N.Y. TIMES Sept. 13,1999, at A17 (discussing the TRO that was obtained by plaintiffs).
38 See Debra Baker, A One-of-a-Kind Court May Offer the Best Hope for Steering Nonviolent
Mentally III Defendants Into Care Instead of Jail, 84 A.B.A. J. 20 (1998).
39 There are plans to build a forensic mental health treatment center at a cost of about $13
million.
40 G.R. Murphy, Special Care: Improving the Police Response to the Mentally Disabled, PO­
LlCE EXECUTIVE RESEARCH FORUM 63 (1986), reprinted in FRED COHEN, THE LAW OF
DEPRIVATION OF LIBERTY 31 (1991). The Memphis, Tennessee police diversion project has
garnered high praise from experts in the field. See also HENRY J. STEADMAN, DENIS W. MC­
CARTY, JOSEPH P. MORRISSEY, THE MENTALLY ILL IN JAIL (1989) and recent
monographs by HENRY J. STEADMAN AND BONITA M. VEYSEY, PROVIDING SERVICES
FOR JAIL INMATES WITH MENTAL DISORDERS (1997), funded by the National Institute of
Justice.

142 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
• Awareness of community mental health and social service resources and
their availability; and
• The officer's attitudes toward the mentally ill and this aspect of police
work.41
Law enforcement policy could be sharpened; officers could receive training on
the recognition of mental illness and alternative dispositions; law enforcement
agencies could work closely with mental health care agencies to effectuate diversion
and treatment.
In conclusion, jails and prisons likely will remain the major repositories of persons
with serious mental illness, at least that portion of the population that cannot
afford other routes to mental health care and who cannot avoid the criminal
justice system. That group, of course, are the poor; the visible among us who act
out their illness on a public stage. There is always the dilemma of improving care
in an inhospitable environment to the point that more worthy alternatives - diversion,
expansion of criminal irresponsibility - are not vigorously pursued.
On the other hand, how can we ignore the hundreds of thousands of persons
with mental illness who enter and leave penal confinement? And how can we fail
to work to make things better?
41 Murphy, supra note 40.

CRIMINALIZATION OF PEOPLE WITH MENTAL
ILLNESSES: THE ROLE OF MENTAL HEALTH COURTS
IN SYSTEM REFORM
Robert Bernstein, Ph.D. *
Tammy Seltzer, J.D.**
INTRODUCTION
In a recent report based on two years of study and meetings of hundreds of
individuals involved in criminal justice or mental health systems at the state and
local levels, the Council of State and Local Governments ("CSG") found that
"people with mental illness are falling through the cracks of this country's social
safety net and are landing in the criminal justice system at an alarming rate."t
The report noted that many people with mental illnesses are "[0 ]verlooked,
turned away or intimidated by the mental health system" and "end up disconnected
from community supports.,,2 As a result, and "not surprisingly, officials in
the criminal justice system have encountered people with mental illness with increasing
frequency.,,3
Contact with the criminal and juvenile justice systems obviously has significant
negative consequences for anyone who is subject to arrest, booking and incarceration.
It can be doubly traumatic for people with mental illnesses, and the resulting
criminal record can impede their later access to housing and mental health
services. Their increasing "criminalization" is generating concern among policymakers,
criminal and juvenile justice administrators, families and advocates. A
great many of the individuals arrested are charged with only minor offenses for
which others are not usually subject to arrest. 4 For most, the underlying issue is
their need for basic services and supports that public systems have failed to deliver
in meaningful ways.s In the past few years, this concern has led a number of
communities to establish some form of mental health court to process criminal
* Robert Bernstein is Executive Director of the Judge David L. Bazelon Center for Mental
Health Law, Washington D.C.
** Tammy Seltzer is a staff attorney at the Judge David L. Bazelon Center for Mental Health
Law, Washington D.C.
1 COUNCIL OF STATE GOVERNMENTS, CRIMINAL JUSTICE/MENTAL HEALTH CONSENSUS PRO.
JECT xii (June 2002).
2 Id. at xiii.
3 Id.
4 BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PuB. No. NCJ 174463, MENTAL
HEALTH TREATMENT OF INMATES AND PROBATIONERS 1 (July 1999). Over one-quarter of the inmates
with mental illnesses in local jails were incarcerated for a public order offense. Id. at 4.
5 Id. at 7-9.

144 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
cases involving people with serious mental illnesses. 6 These specialty courts strive
to reduce the incarceration and recidivism of people with mental illnesses by linking
them to the mental health services and supports that might have prevented
their arrest in the first place.
Mental health courts straddle the two worlds of criminal law and mental
health, requiring collaboration and consideration from practitioners in both
fields. They typically involve judges, prosecutors, defense attorneys and other
court personnel who have expressed an interest in or possess particular mental
health expertise. Today there are 25 to 30 of these courts, depending on the definition
used, and more are being planned. Congress addressed the issue in 2000,
passing America's Law Enforcement and Mental Health Project Act,7 which
makes federal funds available to local jurisdictions seeking to establish or expand
mental health specialty courts and diversion programs. This paper examines efforts
in a growing number of concerned communities to respond to the immediate
problem by establishing mental health courts to promote court-imposed
treatment as a substitute for incarceration. It presents issues that arise when a
mental health court is being contemplated-issues that apply, for the most part,
to all courts because all courts share an obligation under the Americans with
Disabilities Act ("ADA") to accommodate individuals with mental illnesses. 8
Part I illustrates the scope of the problem facing courts and communities. Part
II describes the Bazelon Center's review of information about 20 of these mental
health courts and makes recommendations for improving the functioning of such
courts.
I. SCOPE OF THE PROBLEM
Policymakers' concern stems from the shockingly high percentage of jail and
prison inmates who have mental illnesses, the incarceration of people with mental
illnesses typically for much longer periods than other offenders,9 the fact that
while incarcerated these inmates become especially vulnerable to assault and
other forms of intimidation by other inmates lO and the awareness that mental
6 Bazelon Center study (on file with author).
7 Pub. L. No. 106-515, 114 Stat. 2399 (2000) (codified as amended in scattered sections of 42
U.S.C.).
8 Americans with Disabilities Act of 1990, 42 U.S.C.A. §§ 12101 et seq. See, e.g., Lane v. Tennessee,
315 F.3d 680, 682-83 (6th Cir. 2003) (affirming denial of defendant's motion to dismiss, concluding
that "it was reasonable for Congress to conclude that it needed to enact legislation to prevent
states from unduly burdening constitutional rights, including the right of access to the courts"); Gregory
v. Administrative Office of the Courts of New Jersey, 168 F. Supp. 2d 319 (D.NJ. 2001) (holding
that Eleventh Amendment did not preclude ADA claim against the court for failing to provide special
translation for hearing impaired plaintiff).
9 COUNCIL OF STATE GOVERNMENTS, supra note 1, at 9.
10 Id. at 5 (citing testimony of Reginald Wilkinson, then Vice President, Association of State
Correctional Administrators and Director, Ohio Department of Rehabilitation and Correction,

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 145
health treatment in prison is rarely successful and usually not even adequate to
combat the worsening of psychiatric conditions caused by incarceration itself. The
following statistics illustrate the scope of the problem that needs to be addressed:
• Approximately a quarter million individuals with severe mental illnesses
are incarcerated at any given moment - about half arrested for nonviolent
offenses, such as trespassing or disorderly conduct. 11 This does
not include more than half a million probationers with serious mental
illnesses.
• Sixteen percent of state and local inmates suffer from a mental illness
and most receive no treatment beyond medication. 12
• During street encounters, police officers are almost twice as likely to
arrest someone who appears to have a mental illness. A Chicago study
of thousands of police encounters found that 47 percent of people with a
mental illness were arrested, while only 28 percent of individuals without
a mental illness were arrested for the same behavior .13
In 1999, in response to requests from state government officials for recommendations
to improve the criminal justice system's response to people with mental
illnesses, the Council of State Governments (CSG) convened a small, national,
bipartisan working group of leading criminal justice and mental health policymakers
from across the country. The group identified key issues affecting people
with mental illnesses who were involved with the criminal justice system. That
meeting was the genesis of the Criminal Justice/Mental Health Consensus Project,
a two-year effort to prepare recommendations that local, state and federal
policymakers and criminal justice and mental health professionals can use to improve
the criminal justice system's response to people with mental illnesses.
Guided by a steering committee of six organizations and advised by more than
100 of the most respected criminal justice and mental health practitioners in the
United States, the Consensus Project provides concrete practical approaches that
can be tailored to the unique needs of communities.
U. SPECIAL COURTS FOR MENTALLY ILL OFFENDERS:
THE BAZELON CENTER REVIEW
Under the Americans with Disabilities Act, states and municipalities cannot
discriminate against people with disabilities and must make reasonable accombefore
the House Judiciary Committee, Subcommittee on Crime, Terrorism and Homeland Security,
oversight hearing on "The Impact of the Mentally III on the Criminal Justice System," Sept. 21, 2000).
11 BUREAU OF JUSTICE STATISTICS, supra note 4, at 1.
12 BUREAU OF JUSTICE STATISTICS, supra note 4, at 1.
13 Linda A. Teplin, Keeping the Peace: Police Discretion and Mentally III Persons, NATIONAL
INST. OF JUST. J., July 2000, at 12

146 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
modations in their programs and services. 14 These legal obligations apply to
courts as well as to diversion and alternative sentencing programs and practices
administered by law enforcement, prosecutors and pretrial services.
All jurisdictions have some ability to divert offenders from the criminal justice
system, either by exercising discretion not to arrest or prosecute or by providing
formal diversion programs or alternative sentencing. However, in practice many
courts do not even consider such options for people with mental illnesses. This
may occur because of stereotypes about mental illness, such as the erroneous
belief that people with mental illnesses are more dangerous than others,15 or for
lack of information about how people with mental illnesses could be successfully
accommodated in these programs.
During the CSG development process, some judges, prosecutors and defense
attorneys observed that defendants with mental illnesses are treated more harshly
in court-that they are more likely to be remanded without the opportunity to
post bail and given harsher sentences. According to the Consensus Project, "the
court should never enhance a sentence solely because of the offender's mental
illness. Rather, the sentence should be based on the behavior that brought the
offender to court. ,,16
In 2001, the Bazelon Center for Mental Health Law embarked on a project of
assessing the effectiveness of mental health courts as an alternative to criminal
courts. The Center, founded in 1972, is the leading national legal-advocacy organization
representing people with mental disabilities. Through precedent-setting
litigation in the public-policy arena and by assisting legal advocates across the
country, it works to define and uphold the rights of adults and children who rely
on public services and ensure them equal access to health and mental health care,
education, housing and employment.
A. Bazelon Center Review of 20 Mental Health Courts
The Bazelon Center reviewed information relating to 20 mental health courts
around the country and, through interviews with judges, public defenders and
other stakeholders, studied a dozen more intensively.17 From the study, the
center reached the following conclusions:
14 42 U.S.C. §§ 12131-12134.
15 People diagnosed with mental illnesses, as a class, are no more violent than the general society.
"There was no significant difference between the prevalence of violence by patients without
symptoms of substance abuse and the prevalence of violence by others living in the same neighborhoods
who were also without symptoms of substance abuse. Substance abuse significantly raised the
rate of violence in both .... " MacArthur Foundation, Violence Risk Assessment Study, 55 ARCHIVES
OF GENERAL PSYCHIATRY 393 (1998).
16 COUNCIL OF STATE GOVERNMENTS, supra note 1, at 116.
17 Bazelon Center study (on file with author).

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES
147
• There is no single "model" of a mental health court; each court operates
under its own, mostly unwritten, rules and procedures and has its own
way of addressing service issues.
• Many of the existing courts include practices that are unnecessarily burdensome
to defendants, that make it harder for them to reintegrate into
the community and that may compromise their rights.
• Few of the courts are part of any comprehensive plan to address the
underlying failure of the service system to reach and effectively address
the needs of people at risk of arrest. Substantial numbers of mental
health court participants are people who should not have been arrested
in the first place. However, some courts are beginning to accept defendants
who are more appropriate for such a program, such as people who
have committed serious felonies.
• Addressing the issues raised by the escalating number of contacts between
individuals with serious mental illnesses and the criminal justice
system requires a broad and comprehensive approach that should include
mechanisms giving all police, prosecutors and judges effective options
for alternatives to arrest or incarceration. These options should be
available to offenders with mental illnesses just as they are available to
all other offenders, with reasonable accommodations provided as necessary
to ensure fair access and improve opportunities for their successful
completion.
• No diversion or alternative disposition program, whether prosecutordriven,
court-based, within law enforcement or jail-based, can be effective
unless the services and supports that individuals with serious mental
illnesses need to live in the community are available. Moreover, it is
critical that these services exist in the community for everyone, not just
offenders, and that supports not be withdrawn from others in need and
merely redirected to those who have come in contact with the criminal
justice system. Additional, specialized resources and programs are
needed to reduce the risk of arrest for people with mental illnesses and
the recidivism of those who have encountered the criminal justice
system.
B. Bazelon Center Analysis and Recommendations
This paper reflects the assessments of the Bazelon Center's study and highlights
issues for communities to consider when choosing to implement a mental
health court. It also encourages a broader range of diversion programs as alternatives
or supplements to mental health courts. These recommendations are designed
to ensure that if mental health courts are used, they are part of a broad-

148 THE UNIVERSITY OF TIlE DISTRIcr OF COLUMBIA LAW REVIEW
based approach and operate with policies and procedures that protect the individual
rights of defendants who come before them.
The best approach to the problem of criminalization is to create a comprehensive
system of prevention and intervention. Mental health courts may provide
immediate relief to criminal justice institutions, but alone they cannot solve the
underlying systemic problems that cause people with mental illnesses to be arrested
and incarcerated in disproportionate numbers. Furthermore, without careful
consideration of several factors discussed in this report, reliance on mental
health courts carries significant risks for individuals with mental illnesses.
1. The Role of Mental Health Courts
From the criminal law perspective, two rationales underlie the therapeutic
court approach: first, to protect the public by addressing the mental illness that
contributed to the criminal act, thereby reducing recidivism, and second, to recognize
that criminal sanctions, whether intended as punishments or deterrents,
are neither effective nor morally appropriate when mental illness is a significant
cause of the criminal act. The goals of mental health courts, then, are: 1) to break
the cycle of worsening mental illness and criminal behavior that begins with the
failure of the community mental health system and is accelerated by the inadequacy
of treatment in prisons and jails; and 2) to provide effective treatment options
instead of the usual criminal sanctions for offenders with mental illnesses.
Breaking the cycle of repeated contact with the criminal or juvenile justice
systems must start with expanded and more focused community-based services
and supports. As currently configured in many communities, public mental health
services are substantially targeted at prioritized popUlations: people exiting state
psychiatric institutions, people regarded as being at risk of admission to these
facilities, people in crisis and people whose treatment is governed by court orders.
Individuals not falling into a defined priority group may fmd very limited
services available to them. Improving access to meaningful services and supports
will inevitably reduce the number of incidents between individuals with mental
illnesses and the law enforcement and justice systems. Furthermore, such access
is critical to the effectiveness of any diversion program directed toward people
who have mental illnesses, including mental health courts. 18
Communities should ensure that criminal justice systems have a range of
choices for diversion and disposition. Effective police diversion programs that
prevent arrest for minor offenses and lead instead to services and supports are
the first step in such a continuum. Various effective strategies then exist for people
who have committed more serious offenses, including programs to reintegrate
18 Eric Trupin, et ai., King County District Court Mental Health Court Phase I Process Evaluation
Report (undated) (on file at The Washington Institute for Mental Illness Research & Training,
University of Washington).

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 149
into the community those who have served time in jail or prison. The proper role
of courts in this continuum is to address the needs of those who cannot, because
of the nature of their offense, be diverted without arrest or at pre-booking or
arraignment, but for whom punishment through incarceration is not appropriate.
While most specialty mental health courts handle only defendants charged
with minor offenses, several court-based alternative disposition programs focus
on individuals with serious felony charges. Sometimes, individuals who have already
received a sentence to jail or prison are offered mental health services as a
likely more effective option.
The Bazelon Center strongly believes that all courts, including mental health
courts, following the approaches outlined here, can accommodate people with
mental illnesses and achieve successful outcomes for them without compromising
public safety if they function within a broader program of system reform. 19
2. The Operation of Mental Health Courts
Each mental health court is unique. Some have a single judge who presides
over a mental health court held once or twice a week or as often as necessary.
Eligible defendants usually include people who appear to have a mental illness;
some courts also include people with developmental disabilities or head injuries.
2o The courts typically have special court or pretrial-services personnel who
are responsible for developing treatment plans and dedicated probation officers
who monitor defendants' compliance with the plans once incorporated into court
orders.
From the earliest stages of its development and continuing through implementation,
a mental health court must coordinate not only with police, sheriff and
prosecutors but also with state and local service systems. Only thus can a comprehensive
and realistic picture be developed of how and why people with mental
illnesses fall through the cracks, come in contact with law enforcement and get
processed through the criminal justice system. Understanding the gaps and the
reasons for these individuals' behaviors can lead to better targeted alternatives.
In this regard, the participation of mental health consumers is critical. People
who have "been there" can offer the most relevant perspective on how systems
fail and what meaningful alternative(s) should be in place.
Of particular note to jurisdictions planning to apply for federal funds, Congress
viewed coordination of services as crucial to the success of any mental
health court. Specifically, Congress required both initial consultation and ongoing
19 See Bazelon Center for Mental Health Law, A New Vision of Public Mental Health, including
the model law, An Act Providing Recovery-Oriented Mental Health Services and Supports (2002).
20 Not all courts require proof that the person has been diagnosed with a mental illness. See,
e.g., King County District Court, Washington. For some people, the first time a mental illness is recognized
by the family or the individual is when the person is arrested for bizarre or unusual behavior.

150 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
coordination during implementation with "all affected agencies ... including the
State mental health authority.,,21
Three critical elements are needed in communities considering the establishment
of mental health courts:
(1) treatment and service resources in the programs to which offenders
will be referred;
(2) alternatives to arrest and diversion programs at the time of arrest, at
jail before booking and at arraignment, to keep the court from being
overwhelmed by individuals whose offenses are minor and to prevent
its becoming a routine point of entry to mental health services for individuals
whose real problem is the limited availability of help through
more appropriate channels; and
(3) court procedures that do not have the effect of making a mental health
court more coercive than a standard criminal court or more damaging
to a defendant's future prospects for housing, employment and health
care.
3. Mental Health Court Procedures
Mental health courts have a separate docket with a judge, prosecutors and
defense attorneys who all have training in dealing with defendants with mental
illnesses, who are familiar with existing service resources, and who are willing to
work together with defendants and service providers to get the proper services
for each defendant. Beyond these basic principles, every mental health court
needs to put a number of procedures in place to ensure a fair balance between
defendants' constitutional rights to trial and legal counsel and the protection of
public safety and public health. Even existing mental health courts are not static;
procedures and practices tend to be modified over time. While the small number
of mental health courts and their evolving nature preclude definitive conclusions,
the Bazelon Center's review does provide a glimpse of significant factors and
trends relating to important procedural issues that any community will need to
address if it chooses to establish a mental health court:
• Voluntary Transfer into the Mental Health Court. It is crucial from the outset
that transfer to the mental health court be entirely voluntary. Otherwise, singling
out defendants with mental illnesses for separate and different treatment by the
courts would violate the equal protection guarantee of the 14th Amendment and
would likely violate the 6th Amendment right to a trial by jury and the prohibition
against discrimination by a state program found in the Americans with Disabilities
Act.
21 42 U.S.CA. § 3796ii-2(d)(5).

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 151
Truly voluntary transfers to mental health courts entail much more than a simple
declaration by the defendant. On its face, a defendant's selection of a therapeutic
court over one structured around determining guilt and meting out
punishment would appear an obvious choice. In fact, as explained below, mental
health courts have their own risks, sometimes subtle, that a defendant needs to
understand in order to make an informed decision. According to the CSG report,
"Defense attorneys should present all possible consequences to their clients when
discussing options for the resolution of the case. ,,22
For example, a mental health court may function as a coercive agent in many
ways similar to the controversial intervention of outpatient commitment, compelling
an individual to participate in treatment under threat of court sanctions.
However, the services available to the individual may be only those offered by a
system that has already failed to help. Too many public mental health systems
offer little more than medication and very occasional therapy. As with outpatient
commitment, almost all mental health court orders require the individual to "follow
the treatment plan." That plan may include little beyond medication and do
nothing to address the factors associated with the criminal contact or the individual's
need for housing or other healthcare or vocational services. Obviously, a
defendant should be fully informed of such factors and, in the alternative, of the
potential outcomes of a conventional criminal hearing.
Some defendants, and their attorneys, may feel it would be more in the person's
interest to go before a conventional criminal hearing. These situations
should be assessed on an individual basis. According to the CSG report: "On the
one hand, the attorney has an obligation to reduce the defendant's possible exposure
to sanctioning by the criminal justice system by removing him or her as
quickly as possible from its jurisdiction. On the other hand, the attorney may
recognize that the defendant will continue to be rearrested if his or her mental
health needs are not addressed. ,,23
Further complicating the voluntary election of mental health court involvement
is the fact that such decisions are made when the defendant is likely to be
under considerable stress, having been arrested and taken into custody, and perhaps
having spent some time in a jail cell, often without treatment of any kind.
• Right to Withdraw. Defendants in mental health courts have come to the attention
of the legal system because they have been charged with criminal conduct,
not because they have met criteria for involuntary treatment. To ensure that
mental health courts and the services they may initiate are truly voluntary, it is
important for defendants to be allowed to withdraw and have their cases heard in
criminal court without prejudice. In some courts, a defendant pleading guilty
knows ahead of time what his or her sentence would be before choosing whether
22 COUNCIL OF STATE GOVERNMENTS, supra note I, at 76.
23 [d.

152 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
to participate in a mental health court. While the defendant's decision to opt for a
hearing in a mental health court, as described above, is more complex than might
first appear and has some attendant risks, 56 percent of the courts providing the
Bazelon Center with information on this factor do not allow a defendant to reverse
his or her decision and to withdraw from the mental health court program
without prejudice. Of the courts that do permit this option, about half impose
some restriction-for example, making withdrawal without prejudice available
only with a 3D-day time limit or only when program participation is not a condition
of probation. The other half employ an approach supported by the Bazelon
Center; they provide an unrestricted right for defendants to have their cases reheard
in criminal court without prejudice. It has also been suggested that people
who voluntarily withdraw or "fail" in treatment monitored by mental health
courts should be given credit for time "served" in the mental health court program;24
no court in the survey reported that it was utilizing this approach.
• Appointment of Counsel. As a practical matter, mental health courts provide
a form of pretrial diversion, most likely at or soon after the arraignment stage. A
defendant who accepts transfer into a mental health court will be effectively
waiving the right to a trial. It is the court's responsibility to ensure that the waiver
of such a basic right is both voluntary and chosen with a realistic understanding of
the legal consequences of the decision. The most reliable way to ensure that the
waiver is both voluntary and informed is to provide defense counsel as soon as
the defendant is identified as a candidate for the mental health court. The American
Bar Association Standards Relating to Providing Defense Services state that
"[c]ounsel should be provided to the accused as soon as feasible and, in any
event, after custody begins, at appearance before a committing magistrate, or
when charges are filed, whichever occurs earliest. ,,25
It is particularly important for an individual with a mental illness to have access
to an advocate. Knowing that his or her advocate is participating in each step
of the legal process can significantly improve the defendant's understanding of
the process and the chance of success in the diversion program. The presence of
defense counsel also helps with a number of court procedures, including obtaining
authorization from the defendant to make available privileged information
that may be used for a more positive outcome and limiting disclosure of
private treatment information about the defendant. All of the courts on which
the Bazelon Center has information provide for defense counsel, and at least one
of the courts ensures that trained clinicians from the public defenders office assess
offenders at the time of the bail hearing to determine whether they should be
24 CENTER FOR COURT INNOVATION, RETHINKING THE REVOLVING DOOR: A LOOK AT
MENTAL ILLNESS IN THE COURTS (2001).
25 American Bar Association, ABA Standards for Criminal Justice: Providing Defense Services,
Standard 5-6.1, Initial Provision of Counsel (1992) at hUp:llwww.abanet.orglcrimjustlstandards/
defsvcs_blk.html.

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 153
considered for the mental health court. For representation to be meaningful, defense
counsel must have a background in mental health issues and in communicating
with individuals who may be in crisis, an understanding of how the
jurisdiction's public mental health system operates, resources that enable the attorney
to actively participate in or challenge development of a treatment plan,
and enough time to spend with the defendant for adequate representation.
• Plea Requirement. Of the courts studied, approximately half require guilty or
no contest pleas as a condition of participation. Some courts utilize a pre-adjudication
model whereby charges are suspended or held in abeyance as the individual
participates in treatment. More than a third of the courts surveyed allow for
dismissal of the charges or expungement after successful completion of treatment.
In most cases, dismissal of charges is not automatic and an individual must
request expungement of the record, which is at best a cumbersome and difficult
process. Furthermore, it is unclear what "successful completion of treatment"
means, given that serious mental illnesses, by definition, are long term and often
require many years of services and supports. Moreover, several courts retain participants'
records of conviction.
The argument put forward by those who favor requiring a plea is that it is an
effective form of coercion to increase treatment compliance. Beyond the irony of
requiring an individual to follow a treatment plan developed by a mental health
system with its own history of failures and which indeed may have placed the
individual at risk of arrest in the first place, there are important reasons not to
require a gUilty plea:
• A gUilty plea adds a conviction to the individual's record, making it
harder to get or keep the housing and employment that are so crucial to
effective mental health treatment, community tenure and management
of a long-term psychiatric disability.26 One out of four of the courts surveyed
report that the individual will have a record of conviction even if
the course of court supervision is successfully completed.
26 The National Center on Institutions and Alternatives, The Mark of Cain: The Collateral Consequences
of an Individual Arrested or Convicted in the United States (visited Feb. 19,2003) at http://
www.ncianet.orgiconsequences.htmI.Inpublichousing.forexample.the .. OneStrikeandYou·re
Out" policy provides that "any criminal activity that threatens the health, safety, or right to peaceful
enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises,
engaged in by a public housing tenant, any member of the tenant's household, or any guest or
other person under the tenant's control, shall be the cause of the termination of tenancy." 42 U.S.c.
§1437d(I)(6) as amended (2000), upheld by Department of Housing and Urban Development v.
Rucker, 535 U.S. 125 (2002). See also Jane Fritsch and David Rohde, For New York City'S Poor, A
Lawyer with 1,600 Clients, NEW YORK TIMES, Apr. 9, 2001 ("For indigent defendants, even those
charged with the least serious transgressions, the stakes are growing. New laws have made criminal
convictions grounds for denying people jobs, evicting them from city-owned housing, denying college
financial aid and cutting off welfare benefits.").

154 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
• Pressuring a defendant with a mental illness into a guilty plea continues
(and even exacerbates) the existing disparities between arrest rates and
subsequent jail time for individuals with mental illnesses compared to
other defendants.
• If a defendant without a mental illness would typically have charges dismissed,
it is discriminatory to require a person with a mental illness to
plead gUilty in order to access services and supports.
Mental health courts are intended as an alternative to a traditional trial, but
they should not be more punitive. If a guilty plea is required, a defendant should
be given information that would allow him or her to weigh the likely jail or prison
time associated with a conviction against the scope and duration of treatment that
would be monitored by a mental health court. For individuals opting for mental
health court, a guilty· plea should be dismissed upon successful completion of a
defined period of monitoring by the court.
• Types of Offenses Covered. Half of all arrests of people with mental illnesses
are for nonviolent crimes such as trespassing or disorderly conduct. 27 While it
would appear reasonable and fair to divert the least serious offenses before
reaching the court, most of the early mental health courts focus primarily on misdemeanor
cases. 28 It is important to divert such cases, both to avoid overwhelming
the criminal justice system and to prevent use of the court as a pathway to
services,29 for example, for people who are homeless or temporarily incapacitated
and in need of treatment.
Mental health courts should focus their resources on individuals who are not
considered appropriate for other types of diversion, either pre-booking or at
arraignment.
• Of the courts studied, half limit eligibility to defendants with misdemeanor
charges and half accept people charged with felonies, at least
under certain circumstances.
• Eighty percent of the courts allow for cases involving violent acts, although
40 percent require some special process before these cases are
accepted-for example, the victim's consent or a review of the specific
charges.
• Twenty percent of the courts studied apply a blanket exclusion of defendants
who have a history of violent behavior.
Based on Bazelon Center interviews with court personnel, mental health
courts appear to be gradually expanding their jurisdiction to accept people
27 BUREAU OF JUSTICE STATISTICS, supra note 4, at 1.
28 Patricia A. Griffin et al., The Use of Criminal Charges and Sanctions in Mental Health Courts,
53 PSYCHIATRIC SERVICES 1285, 1285 (2002).
29 John Petrila et al., Preliminary Observations From an Evaluation of the Broward County,
Florida Mental Health Court 2, 23 (undated) (on ftle with author).

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 155
charged with more serious offenses. This is a positive trend, reflecting the most
appropriate use of mental health courts. Individuals with mental illnesses who are
charged with more serious offenses are likely to be the least suited to the
prebooking diversion programs the Bazelon Center recommends as companions
to mental health courts. To avoid becoming the entry point for people abandoned
by the mental health system, mental health courts should close their doors to
people charged with minor misdemeanors, as does the Brooklyn Mental Health
Court, which handles only felonies.
• Avoiding Court Involvement Through Services. Many encounters between
people with serious mental illnesses and the police should not result in arrest, let
alone court appearance and detention. For example, homeless people engaging in
minor "crimes of survival" associated with living on the streets should not be
arrested. According to the CSG report, "It is particularly important ... that
mental illness itself not be used as a reason to detain a defendant in a case where
a defendant with no mental illness facing similar charges and with a similar criminal
record would likely be released.,,3o Accomplishing this will require collaboration
between law enforcement and the mental health system. A far more effective
solution for many is a law enforcement diversion program, using trained officers
backed up by readily accessible mental health services and coupled with a deliberate
effort to address mental health system reform. However, 50 percent of the
courts included in the Bazelon Center survey operate in isolation without any
defined pre-booking diversion program.
The CSG report includes examples of post-booking diversion programs and
practices that do not utilize the mental health court model: 31
• The Mental Health Diversion Program, Jefferson County, Kentucky,
serves nonviolent defendants charged with either misdemeanors or felonies
who suffer from chronic mental illnesses and have a history of treatment
for mental illness. Defendants who are placed in pretrial diversion
undergo intensive treatment for a period of six months to one year.
Upon successful completion, the charges are dismissed.
• In the Lane County, Oregon drug court, a mental health specialist
trained to deal with co-occurring disorders is assigned to the drug court
in the dual role of case manager and court liaison to assist with defendants
who have co-occurring disorders.
• Project Link, Monroe County, New York, has developed a close working
relationship with the probation department to identify offenders
most in need of mental health services. It has a mobile treatment team
consisting of a psychiatrist, nurse practitioner and five culturally diverse
30 COUNCIL OF STATE GOVERNMENTS, supra note 1, at 90.
31 For detailed program descriptions and contact information, see.

156 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
case workers who are available 24 hours a day to focus on 40 of the most
serious cases.
• The Nathaniel Project in New York, New York, run by the Center for
Alternative Sentencing and Employment Services, has established a dispositional
alternative for people charged with serious offenses. The project
is a two-year intensive case management and community
supervision alternative-to-incarceration program for prison-bound defendants
with serious mental illnesses. It targets defendants who have
been indicted on a felony charge, including violent offenses, most of
whom are homeless and suffer from co-occurring substance abuse disorders.
Forensic Clinical Coordinators, who are masters-level mental
health professionals and have expertise in negotiating the criminal justice
system, create a comprehensive plan for community treatment.
Starting work with participants prior to release, the project creates a
seamless transition to community care. Once released, program participants
are closely monitored and engaged in appropriate supervised community-based
housing and treatment. Participants are required to attend
periodic court progress dates. Charges are dismissed upon successful
completion of the program.
• The Nathaniel Project has also developed a program that seeks to prevent
a probation revocation by offering intensive treatment rather than
incarceration for those who violate probation conditions. It targets offenders
with mental illnesses who have violated conditions of probation.
Case managers are clinically trained professionals with caseloads of only
10. Staff assist participants in obtaining medication, housing and other
services, including day treatment, psychosocial clubhouse, vocational
training and job placement.
• Scope and Length of Judicial Supervision. One of the fundamental aspects of
a mental health court is that the court maintains jurisdiction over the defendant
while in services. Usually, mental health courts require the individual to "complete"
a period of treatment. The Bazelon Center study found that the scope and
duration of mental health courts' supervision varied from court to court. Even
within a court, though, there may be significant variation. 32
• Most courts lack any written procedures, so uncertainty is great and the
outcome depends on the judge's decision. In several courts the length of
supervision is not specified, but is decided on a case-by-case basis. However,
several courts place specific limits, generally from one to two
years.
32 See, e.g., Eric Trupin et al., Mental Health Court Evaluation Report, City of Seattle Municipal
Court 41 (Sept. 5, 2001) (on file with author) (fmding length of participation ranged from 4 to 424
days).

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 157
• In at least 40 percent of the courts reporting, the limits of court supervision
significantly exceed the possible length of incarceration or probation
for the offense. Such policies likely discourage many individuals
with mental illnesses from transferring their cases to the mental health
courts.
The duration of the court's supervision of treatment should be based on the
individual's treatment plan, but should never exceed the typical sentence and
probationary period for the underlying criminal charge. To do so would compound
the discriminatory inequities people with mental illnesses already face in
the criminal justice system. While individuals with mental illnesses may require
long-term services and supports, it is unnecessary and inappropriate for the court
to continue to supervise such services beyond the typical period of court supervision
for the underlying offense. It is the task of the mental health system to engage
its clients in needed service programs, not to cede this function to criminal
courts.
Accordingly, the court should carefully limit the scope and duration of its supervision.
Conditions of release should be individualized, the least restrictive necessary
and reasonably calculated to accomplish the court's goal, which is to
reduce the likelihood that the person will recidivate. It is inappropriate and
demeaning for the court to maintain protracted supervision based on the individual's
mental illness, not on alleged criminal activity.
• Sanctions for Non-Compliance. The performance standards of the National
Association of Pretrial Services Agencies state that diversion conditions should
be clearly written in a service plan signed by the defendant. 33 This plan should
detail what action could be taken in response to the individual's failure to comply
with conditions, so that individuals know exactly what is expected of them. At the
same time, the plan must consider the nature of serious mental illnesses. According
to the CSG report, "it must be recognized that decompensation and other
setbacks are common occurrences for people under treatment for mental illness
as the attending mental health clinician seeks the most appropriate treatment.,,34
Moreover, "overburdening defendants with mental illness with extraneous conditions
of release raises the possibility that they will be unable to handle them and
will fail to meet their requirements. ,,35 The Bazelon Center found that courts use
an array of mechanisms as sanctions for non-compliance with a service plan:
• Thirty-six percent of the courts reported that non-compliance is handled
via adjustments in services.
33 NATIONAL ASSOCIATION OF PRETRIAL SERVICES AGENCIES, PERFORMANCE STANDARDS
AND GOALS FOR PRETRIAL RELEASE 22-23 (1998).
34 COUNCIL OF STATE GOVERNMENTS, supra note I, at 89.
35 Id. at 97.

158 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
• At least 27 percent try lectures, more frequent court appearances and
increased judicial persuasion.
• Sixty-four percent 36 of mental health courts reporting, however, use jail
time as a sanction and 18 percent reported that the individual may be
dropped from the program, actions that may be particularly unhelpful if
the issue is one of normal relapse and the ups and downs of recovery
from mental illness.
If the goal is to lessen the incarceration of people with mental illnesses, then
using incarceration as punishment is a perversion of the whole idea of mental
health courts. According to the CSG report: "Before imposing punitive sanctions
for non-compliance, the court should conclude that the defendant was capable of
complying but chose not to. ,,37 This finding requires careful investigation. Mental
health treatment is much more difficult to quantify than drug abuse treatment,
which has easily defined measures of compliance and where non-compliance itself
is a crime. The success of mental health services is gauged in outcomes, not
adherence to a specific plan of care. Setbacks may have no relation to the individual's
desire to comply with court orders or adherence with a treatment program.
In fact, for many individuals with mental illnesses, various treatment and service
options must be tried before an appropriate and effective service plan is established.
In fact, "the key ... is to identify frrst the offender's individual needs and
then identify the services in the community that can meet those needs. ,,38
When individuals run into difficulties while in a services program operating in
collaboration with the court, the court should explore the causes. Noncompliance
should be assessed in order to determine "whether any noncompliance with diversion
conditions ... was willful, was a symptom of the mental health illness or
was an indication of the need to change the treatment plan. ,,39 These factors
should be carefully considered before any sanctions are contemplated. Often, "a
more appropriate response would be to modify the treatment plan rather than to
seek the revocation of (diversion).,,4o
Case managers or social workers can be particularly helpful in monitoring
treatment and coordinating services across various providers and systems, especially
if they take a proactive approach, rather than just reacting to compliance
problems.
• Accountability of Mental Health Providers. Too often, the criminalization of
defendants with mental illnesses begins with the failure of mental health programs
to meet these individuals' needs or to accept them into services because
36 Numbers exceed 100 percent because several courts reported more than one strategy.
37 COUNCIL OF STATE GOVERNMENTS, supra note 1, at 100.
38 [d. at 120-21.
39 [d. at 88-89.
40 [d. at 123.

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 159
they have difficult problems (such as co-occurring substance abuse) or because
they already have a criminal record. Solving the problem, in the context of a
mental health court, should begin with service providers' active participation in
the mental health court plan and in the processing of individual cases moving
through the court. This should include conducting assessments, designing personcentered
service plans that seek to engage people in treatment that encompasses
their own life goals (e.g., employment), and accepting responsibility for implementing
the plan, in collaboration with the individual, once the defendant is referred
by the court.
If the court is to be responsible for continuing supervision of the offender,
including the possibility of applying sanctions for any type of noncompliance with
the service plan, the court must also have the power to ensure that service providers
are delivering appropriate services to defendants who are making a genuine
effort to participate in their service plan. However, 63 percent of the courts reporting
indicated that they have no authority to hold mental health providers
accountable. The best ways to exercise this authority will depend on local circumstances,
but may include the court's contempt powers, writs of mandamus or control
over funds targeted toward service diversion plans.
Seventy percent of the courts reporting indicated that they have access to
some, albeit limited, services beyond what the mental health system customarily
offers. Vastly preferable would be better services integrated in the mainstream
mental health system, rather than court oversight of a parallel system for offenders.41
Mental health systems should not be allowed to abdicate their role and
their responsibilities on behalf of people with mental health care needs.
• Medical Privacy. To work effectively, mental health courts often require medical
and psychiatric treatment information about defendants, both as part of the
disposition of a case and for ongoing monitoring. All of the courts surveyed reported
some provisions to safeguard the privacy of information about defendants,
for example, limiting discussion of clinical information in open court or delegating
maintenance of clinical information to case managers and keeping the court
record to a minimum. Use of treatment information in a criminal proceeding
raises questions of doctor-patient privilege, and disclosing medical information in
open court raises serious privacy concerns. Ensuring the early appointment of
defense counsel can help to solve some of these problems by using defense counsel
as a filter or reporting point for any potentially privileged treatment information.
Mental health courts can address the privacy concern with rules that keep
the medical information out of the public record of the proceedings and through
sidebar or chamber conversations for sensitive discussions. They can also protect
individual privacy with rules that limit judges' and prosecutors' access to the specific
information they need to know to make their decisions.
41 See Bazelon Center for Mental Health Law, supra note 19.

160 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
• Intended and Unintended Consequences. 'TYPically, the genesis of mental
health courts can be traced to concerns by local judges, attorneys and criminal
justice personnel that people with mental illnesses were being wrongly subjected
to arrest and incarceration. Their goal is to ensure not only that these
individuals are diverted from the correctional system, but also that beneficial
services are made available. Mental health courts should be evaluated carefully
to determine whether these objectives are, in fact, being met. For example,
courts should ascertain whether individuals under their supervision are
being rearrested and whether services are working to improve the individual's
quality of life. Furthermore, given that mental health courts are largely reactive
to failing mental health systems, the evaluation should also consider
whether reform efforts are underway by the public mental health system toward
identifying and making services available to people with mental illnesses
who are at risk of arrest. There is an inherent risk that any court-based diversion
program, if not accompanied by such reforms and an effective pre-booking
diversion program, might lead law enforcement officers to arrest someone
with a mental illness in the expectation that this will lead to the provision of
services. However, as stated above (and by the CSG),42 individuals with
mental illnesses should not be arrested in situations where someone without a
mental illness would not be. It is therefore important to also include arrest
data in these evaluations. Finally, the court should create a mechanism for
stakeholders, including people with mental illnesses, to have a say about its
operations and to play an active role in the evaluation process.
No rational purpose is served by the current system. Public safety is not
protected when people who have mental illnesses are needlessly arrested for
nuisance crimes or when the mental illness at the root of a criminal act is
exacerbated by a system designed for punishment, not treatment. 43 Individual
rights are violated when people with mental illnesses are denied treatment
and subjected to more frequent arrests and harsher sentences than other offenders.
And beyond the trauma of arrest and incarceration are the unintended
collateral consequences, such as social stigmatization based on a
criminal record and the resulting denial of housing or employment or treatment
services, even if charges are dropped. 44
The criminal and juvenile justice systems are not the appropriate "front
door" to access mental health care. The factors that determine whether someone
who has demonstrated problematic behavior enters the criminal justice
system or the mental health system are often capricious rather than objective.
For example, police officers may find it easier to process someone through the
42 COUNCIL OF STATE GOVERNMENTS, supra note I, at 44.
43 CENTER FOR COURT INNOVATION, supra note 24.
44 See supra note 26.

CRIMINALIZATION OF PEOPLE WITH MENTAL ILLNESSES 161
criminal justice system than to navigate the hurdles that mental health consumers
routinely face to obtain services through the public mental health system.
Ironically, community mental health programs often refuse to serve the
very individuals who are most likely to benefit from their intervention and
who are least appropriate for prosecution: those who have engaged in misdemeanors
and who have low priority within mental health systems because
they are not at risk of involuntary psychiatric hospitalization.
Perversely, the drift of people with mental illnesses into the criminal justice
system has benefited public mental health systems by shifting their financial
burden for "hard to serve" groups to the budgets of state corrections departments.
As a result, taxpayers' resources are wasted on expensive and counterproductive
incarceration instead of financing more appropriate and effective
community mental health and supportive services. Police, court and jail personnel
are forced to devote inordinate amounts of time to arresting, processing
and incarcerating individuals with mental illnesses, a process that also
diverts their attention from more serious crimes, defendants and inmates.
To eliminate the unnecessary and harmful criminalization of people with
mental illnesses, communities must address the causes of the problem, not just
its symptoms. The substantial gaps in effective community services are the
root of the problem and addressing them must be the first step toward its
solution. Training court personnel and law enforcement officers to enable
them to make better informed decisions about people with mental illnesses
and about new and existing treatment resources is also critical. Both of these
steps can have a major impact on the presence of people with mental illnesses
in the criminal justice system, even without creating a formal mental health
court. Communities looking to create or expand court-based diversion programs
should consider the wide range of existing programs, such as the examples
listed above. Jurisdictions that do create specialized mental health courts
will have far more success and will better serve the cause of justice if they
include treatment and diversion programs as part of a broad package of systemic
reform.
If communities do choose to set up mental health courts, they should be
aware of the need to focus on the final outcome, successful reintegration into
the community and reduced recidivism. These outcomes are more likely to be
achieved if the court focuses on ensuring the success of community services
and avoids actions that hinder reintegration, such as insisting on guilty pleas
that lead to denial of housing or employment.
CONCLUSION
This article described the Bazelon Center's study review of mental health
court and its recommendation for reform. It analyzed the potential problems and

162 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
benefits posed by these alternative courts and concluded that they should be
used, if at all, with great caution for individual rights and only when defendants
face significant jailor prison sentences and when part of a broad reform of the
community mental health system. Specialty mental health courts, when used for
more serious offenses and responsive to the issues raised in this paper, can playa
productive role in a comprehensive strategy to break the cycle of poor treatment,
worsening mental illness, escalating criminal behavior and increasing arrest and
incarceration. But court-based diversion, whether through specialty mental
health courts or through regular criminal courts, is not a panacea for addressing
the needs of the growing number of people with mental illnesses who come in
contact with the criminal justice system. Rather, it should be seen as but one part
of the solution.
Certainly, not every crime committed by an individual diagnosed with a
mental illness is attributable to disability or to the failure of public mental health.
But homelessness, unemployment and a lack of access to meaningful treatment
services have clearly put many people with mental illnesses at risk of arrest. The
Bazelon Center for Mental Health Law strongly endorses efforts to address these
root causes of criminalization, recognizing at the same time that this will require a
fundamental change in the mental health systems that have so tragically deviated
from their goal of promoting community living with dignity. Yet in large measure
the reforms proposed to date come from the criminal justice sector, which finds
itself both ill-equipped to address the needs of people with mental illnesses and
alarmed about the de facto role of jails and prisons as today's psychiatric institutions.
Mental health systems, even while attempting to address the criminalization
of the populations they are charged with serving, have not typically
originated reform efforts. For this reason, it is important to build any reforms in
such a way as not to bypass the mental health and other service systems or allow
them to shirk their responsibilities. Every effort should be made to assist people
with serious mental illnesses before they come to the attention of law enforcement
and to identify and address system failures that result in their inappropriate
arrest or incarceration for minor offenses.
Innovation and, above all, a dedication to reform are necessary to address the
growing problem of criminalization from both a public safety and a public health
point of view. Communities that are committed to change, where mental health
and criminal justice interests work collaboratively on solutions, can find cost-effective
and just ways to reverse the present trend of neglected lives and wasted
resources.

MONITORING THE QUALITY AND UTILIZATION
OF MENTAL HEALTH SERVICES IN
CORRECTIONAL FACILITIES
Clarence J. Sundram, J.D. *
INTRODUCTION
Explosive growth in the population of seriously mentally ill inmates in prisons
has created new demands for mental health services. Increased public expenditures
for such services require increased accountability. This article identifies essential
elements of an adequate system of mental health care in a correctional
environment. It describes the common areas of vulnerability when the adequacy
of correctional mental health services is challenged in court. It proffers several
arguments in favor of a proactive program of monitoring the adequacy of mental
health services in correctional facilities. Finally, the paper suggests specific areas
and methods for monitoring both by internal quality assurance or quality improvement
programs and by external bodies, including court-monitoring bodies.
Much has been written about the dramatic transformation of correctional institutions
housing a rapidly growing population of inmates with serious mental illnesses
and other mental disorders. This transformation has been traced to a
number of changes in laws, policies, and practices of public mental health systems
regarding civil commitment, a significant reduction in bed capacity in state psychiatric
hospitals, and lack of adequate development of a range of community
support programs. 1 Another contributing factor is the rapid rise in the overall
prison population and concomitant overcrowding, which increases tensions in
prisons and causes more mental illnesses than previously existed. 2 Recent studies
suggest that 6 percent to 15 percent of persons in city and county jails and 10
percent to 15 percent of persons in state prisons have severe mental illness? Another
15 percent to 20 percent will require some psychiatric intervention during
* Special Master. United States District Court, Washington. D.C. Mr. Sundram has been involved
in court-ordered monitoring of conditions in institutions and community programs for individuals
with mental disabilities in several states. He can be reached at 28 Tierney Drive, Delmar, NY
12054, or bye-mail: cjsundram@alumni.ksg.harvard.edu.
1 E. Fuller Torrey, Editorial: Jails and Prisons-America's New MenIal Hospitals. 85 AM. J. OF
PUB. HEALTH 1611-13 (1995); H. Richard Lamb & Linda E. Weinberger, Persons with Severe Mental
Illness in Jails and Prisons, 49 PSYCHIATRIC SERVICES 4 (1998); E. FULLER TORREY ET AL., CRIMINAL.
IZING THE SERIOUSLY MENTALLY ILl.: THE ABUSE OF JAILS AS MENTAL HOSPITALS (Public Citizen
Health Research Group, 1992).
2 TERRANCE THORNBERRY ET AL., OVERCROWDING IN AMERICAN PRISONS: POLICY IMPLICA.
TIONS OF DOUBLE-BUNKING SINGLE CELLS (1982).
3 Richard L. Elliott, Evaluating The Quality Of Correctional MenIal Health Services: An Approach
To Surveying A Correctional Mental Health System, 15 BEHAV. SCI. & L. 427-39 (1997).

164 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
their term of confinement. 4 Female inmates display symptoms of serious mental
illness in significantly higher proportion than males. 5
The changing population in prisons and jails creates a dramatically different
mission for these institutions, one that they have been historically ill-prepared to
implement. Penal institutions typically have not had the physical facilities, staff,
training, and clinical resources to meet the needs of the seriously mentally ill
population they are currently called upon to serve. Yet the courts have made it
abundantly clear that these institutions are legally and constitutionally required
to develop a capacity to provide adequate mental health services for the inmates
in their custody.6 More precisely, they cannot be "deliberately indifferent" to
"serious medical needs" of inmates, including the need for mental health treatment?
In meeting these needs, institutions cannot rely on psychotropic medications
alone, but need to develop a full range of mental health services to meet the
foreseeable needs of the seriously mentally ill inmates in their custody.s
To aid in implementing appropriate services, a number of professional organizations
have promulgated standards and guidelines describing the critical elements
of professionally adequate mental health services in correctional facilities.
Organizations which have published standards for mental health services include
the American Psychiatric Association,9 the American Public Health Association,lO
the American Correctional Association,ll the National Commission on
Correctional Health Care,12 the American Bar Association 13 and the United Na-
4 Jeffrey L. Metzner, Guidelines for Psychiatric Services in Prison, 3 CRIM. BEHAV. & MENTAL
HEALTH 252-67 (1993).
5 Henry J. Steadman, Estimating Mental Health Needs and Service Utilization among Prison
Inmates, 19 BULL. AM. ACAD. PSYCHIATRY & L. 297-307 (1991).
6 Estelle v. Gamble, 429 U.S. 97 (1976).
7 Farmer v. Brennan, 511 U.S. 825 (1994).
8 Madrid v. Gomez, 889 F. Supp. 1146, 1218 (N.D. Cal. 1995); Balla v. Idaho State Bd. of Corr.,
595 F. Supp. 1558 (D. Idaho 1984); Casey v. Lewis, 834 F. Supp. 1477 (D. Ariz. 1993); Cody v. Hillard,
599 F. Supp. 1025 (D.S.D. 1984), affd in part, rev'd in part, 830 F.2d 912 (8th Cir. 1987); Langley
v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989), affd, 888 F.2d 252 (2d Cir. 1989).
9 AMERICAN PSYCHIATRIC ASSOCIATION, GUIDELINES FOR PSYCHIATRIC SERVICES IN JAILS
AND PRISONS (Psychiatric Services, Jails And Prisons Task Force Report No. 29, 1989) [hereinafter
APA GUIDELINES].
10 AMERICAN PuBLIC HEALTH ASSOCIATION, STANDARDS FOR HEALTH SERVICES IN CORREC.
TIONAL INSTITUTIONS (1986) [hereinafter APHA STANDARDS].
11 AMERICAN CORRECTIONAL AsSOCIATION & COMMISSION ON ACCREDITATION FOR CORREC­
TIONS, STANDARDS FOR ADULT CORRECTIONAL INSTITUTIONS (3d ed. 1990) [hereinafter ACA
STANDARDS].
12 NATIONAL COMMISSION ON CORRECTIONAL HEALTH CARE, POSITION STATEMENT: MENTAL
HEALTH SERVICES IN CORRECTIONAL SETTINGS (1992) [hereinafter NCCH POSITION STATEMENT];
STANDARDS FOR HEALTH SERVICES IN PRISONS (1997).
13 AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE MENTAL HEALTH STANDARDS (1984)
(hereinafter ABA STANDARDS). .

MENTAL HEALTH SERVICES IN CORRECfIONAL FACILITIES 165
tions. I4 Standards have also been promulgated for federal correctional facilities.
IS The key provisions of these standards and guidelines, as well as several
others, are summarized in a very useful manual by the Advocacy Trainingffechnical
Assistance Center. I6
A general caveat applies to the statements in this paper. Correctional facilities
vary greatly in their size, mix of inmates, the scope of the mental health programs
they deliver, average length of an inmate's stay, and specific mission. The state
laws, policies, and regulations governing psychiatric care differ in significant respects
in different jurisdictions. I7 Thus, the suggestions that follow should be
viewed as a menu from which correctional officials and others can select items
appropriate to their programs, regulatory environment, and needs.
I. AN ADEQUATE SYSTEM OF CORRECI10NAL MENTAL HEALTH SERVICES
Professor Jeffrey L. Metzner has identified the following six types of services
that an adequate system of mental health care must provide:
• Crisis intervention for short-term treatment, usually in an infirmary for less
than ten days;
• Acute care, usually in an inpatient, hospital-type facility;
• Chronic care, including special needs housing for those unable to function in
the general population but not needing hospitalization;
• Outpatient services;
• Consultation; and
• Discharge/transfer planning. IS
Viewed from the perspective of the judicial system, Professor Fred Cohen has
distilled the core elements of a mental health program that meets constitutional
requirements 19 to include at least the following six components identified in the
landmark case of Ruiz v. Estelle: 2o
14 Standard Minimum Rules for the Treatment of Prisoners: Resolution of the First United Nations
Conference on the Prevention of Crime and the Treatment of Offenders, E.S.C. Res. 663C, U.N.
ESCOR, 24th Sess., Supp. No.1, at 11, U.N. Doc. AlConfl611 (1955), amended by E.S.C. Res. 2076,
U.N. ESCOR, 62nd Sess., Supp. No.1, at 35, U.N. Doc. El5988 (1977).
15 UNITED STATES DEPARTMENT OF JUSTICE, FEDERAL STANDARDS FOR PRISONS AND JAILS
(1980) [hereinafter FEDERAL STANDARDS].
16 ADVOCACY TRAININOffECHNICAL ASSISTANCE CENTER, MENTAL HEALTH SERVICES IN
PRISONS AND JAILS (1998).
17 Ira K. Packer, Privatized Managed-Care and Forensic Mental Health Services, 26 J. AM.
ACAD. PSYCHIATRY & L. 123-29 (1998).
18 Jeffrey L. Metzner, An Introduction to Correctional Psychiatry. Part III, 26 J. AM. ACAD.
PSYCHIATRY & L. 107-15 (1998).
19 FRED COHEN, THE MENTALLY DISORDERED INMATE AND THE LAW 2-8 (Civic Research
Institute ed., 1998).
20 503 F. Supp. 1265 (S.D. Tex. 1980), affd in part and rev'd in part, 679 F.2d 1115 (5th Cir.
1982).

166 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
• A systematic program for screening and evaluating inmates in order to identify
those who require mental health treatment:
• Treatment that is more than simply segregating and closely supervising inmate
patients;
• Trained mental health professionals, in sufficient numbers to identify and
treat in an individualized manner those inmates suffering from treatable serious
mental disorders;
• Complete, accurate and confidential records of the mental health treatment
provided;
• Prescription and administration of psychotropic medications by qualified
staff in a manner that complies with prevailing professional standards; and
• A program for identification, treatment and supervision of inmates with suicidal
tendencies.
There is no general constitutional right to recreational, vocational or rehabilitative
programs in prison. 21 Courts that have reviewed the adequacy of correctional
mental health programs, however, have found several types of programs to
be essential, including access to inpatient and outpatient mental health treatment,
suicide prevention programs, and individual and group therapy programs to address
issues such as anger control and stress management. The purposes of such
forms of treatment, along with access to psychotropic medications, include stabilizing
the symptoms of mental illness, relieving suffering, and providing inmates
with the tools to cope with their mental illness in the prison environment.
II. MOST COMMONLY FOUND PROBLEMS IN CORRECIlONAL
MENTAL HEALTH PROGRAMS
The most common problems in the delivery of mental health services identified
by courts and studies of various correctional systems fall into three categories:
diagnosis, treatment, and record-keeping.
1. Diagnosis: Identifying and responding to indications of mental illness
A number of courts have recognized the following situations or incidents as
indicating problems in diagnosing mental illness among inmates:
• The failure to diagnpse a serious mental condition upon intake;22
• The failure to respond to a known psychiatric history upon intake;23
21 Madrid v. Gomez, 503 F. Supp. 1265, 1262 (N.D. Cal. 1995).
22 See, e.g., Coleman v. WIlson, 912 F. Supp. 1282 (E.D. Cal. 1995); see also Madrid v. Gomez,
889 F. Supp. 1146, 1218 (N.D. Cal. 1995); Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558 (D.
Idaho 1984); Casey, 834 F. Supp. 1447; Cody, 599 F. Supp. 1025; Langley v. Coughlin, 715 F. Supp. 522
(S.D.N.Y. 1989), affd, 888 F.2d 252 (2d Cir. 1989); Ruiz, 503 F. Supp. 1265; Dunn v. Voinovich, No.
CI-93-0166 (S.D. Ohio 1995) (consent decree on fIle with author) discussed in FRED COHEN, THE
MENTALLY DISORDERED INMATE AND THE LAW, supra note 19, at 7-39-7-41.
23 See, e.g., Langley, 715 F .Supp. 522.

MENTAL HEALTH SERVICES IN CORRECTIONAL FACILITIES 167
• Finding persons with untreated mental illness in segregation or on disciplinary
status;24
• The failure to respond to bizarre behavior and consider a diagnosis of
mental illness;25
• The failure to train corrections officers in recognizing the signs of serious
mental illness;26
Clearly, identification of prisoners' mental illnesses is but the first step. Diagnosis
simply lays the foundation for the next obligation, which is to provide access
to timely, adequate, and appropriate treatment.
2. Treatment: Access to timely, adequate and appropriate treatment
Among the aspects of mental health treatment which the courts have found to
be constitutionally inadequate are the following:
• The lack of mental health treatment other than medications;27
• The use of medications without adequate professional involvement and
monitoring;28
• The failure to provide for involuntary administration of psychotropic medications
when clinically indicated;29
• The lack of access to mental health professionals in a crisis, or in sufficient
numbers to provide treatment to the treatable inmates with serious mental
disorders;3o
• The failure to have an adequate program of suicide prevention;31 and
• Prolonged delays in access to treatment, during which the inmate's condition
substantially deteriorates or the inmate experiences needless suffering. 32
3. Record keeping: Adequate and reliable record keeping
In all institutions, responsibility for medical and mental health treatment is
shared by many professional and paraprofessional staff members, across three
24 Id.; see also Madrid, 503 F. Supp. 1265; Coleman, 912 F. Supp. 1282; Dunn v. Voinovich,
supra note 22.
25 See, e.g., Langley, 715 F. Supp. 522; JAMES R. P. OOLOFF ET AL, Screening, Assessment and
Identification of Services for Mentally 11/ Offenders, in MENTAL ILLNESS IN AMERICA's PRISONS 61, 64
(Henry J. Steadman & Joseph J. Coccozza eds. 1993).
26 See, e.g., Coleman, 912 F. Supp. 1282.
27 See, e.g., note 8 supra.
28 See, e.g., Lightfoot v. Walker,486 F. Supp. 504 (S.D. Ill. 1980); see also Madrid, 503 F. Supp.
1265; Coleman, 912 F. Supp. 1282; Casey, 834 F. Supp. 1477.
29 See, e.g., Madrid,503 F. Supp. 1265; Coleman, 912 F. Supp. 1282.
30 [d.; see also Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558 (D. Idaho 1984); Ruiz, 503 F.
Supp. 1265; Lightfoot, 486 F. Supp. 504.
31 See, e.g., FRED COHEN, LIABILITY FOR CUSTODIAL SUICIDE: THE INFORMATION BASE RE.
QUIREMENTS (Jail Suicide Update no. 4, 1-11, 1992).
32 See, e.g., Madrid, 503 F. Supp. 1265; Coleman, 912 F. Supp. 1282.

168 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
shifts daily. Thus, record keeping is an essential component of the system of care
to ensure that all responsible persons have access to necessary information.
Problems with record keeping include:
• The failure to keep adequate records of medical and mental health
treatment;33
• The lack of continuity of care;34
• The failure to communicate essential information between mental health
staff and corrections officers;35
• The failure to transfer necessary information about inmates' mental health
needs and prescriptions upon transfer to a new institution or residential setting;36
and
• The failure to make adequate provisions for treatment and care upon
discharge. 37
III WHY EXAMINE CORRECTIONAL MENTAL HEALTH SERVICES?
State and local governments have sharply increased expenditures for mental
health services in correctional facilities over the last few years. This expansion of
governmental responsibilities and expenditures for services inevitably and correctly
creates concern over the manner in which public funds are being spent.
Whether the services are delivered by employees of a correctional facility, by
contract with a governmental mental health agency or with a private entity, the
rise in expenditures brings heightened attention to the results or outcomes produced
by these expenditures. Government managers and leaders must be conscious
of the environment of accountability that now permeates government
service systems. 38
The sharp rise in governmental expenditures for correctional mental health
services is a function of combined pressures. One source of pressure is class action
lawsuits - filed in about half the states - challenging the adequacy of mental
health services in correctional facilities. Another source of pressure on state and
local governments is individual damage actions brought when inmates suffer serious
harm due to lack of treatment. A third source of pressure is the weight of
professional opinion as represented in the standards and guidelines promulgated
by various professional organizations.
33 [d.; see also Ruiz, 503 F. Supp. 1265; Cody, 599 F. Supp. 1025; Langley, 715 F. Supp. 522.
34 See, e.g., Burks v. Teasdale, 492 F. Supp. 650, 676 (W.D. Mo. 1980); See also Consent Decree,
Dunn v. Voinovich, supra note 22; APA GUIDELINES § D.4.b (2).
35 See, e.g., NCCH POSITION STATEMENT, P-53 at 68.
36 See, e.g., Arnold v. Lewis, 803 F. Supp. 246 (D. Ariz. 1992); see also Madrid, 503 F. Supp.
1265; Coleman, 912 F. Supp. 1282.
37 APA GUIDELINES § D.4.b (1)(2).
38 DAVID OSBORNE & TED A. GAEBLER, REINVENTING GOVERNMENT (1992).

MENTAL HEALTH SERVICES IN CORRECTIONAL FACILITIES 169
Correctional institutions are unlikely to be targets of class action institutional
reform lawsuits if they have identified critical mental health needs, organized
their resources to meet their legal obligations, and developed reliable methods of
monitoring to identify and correct any deficiencies that occur. The more clearly it
can be demonstrated that a service system recognizes its legal obligations and has
a process for internal monitoring of its compliance with such obligations, the less
often courts will find it necessary to intervene. 39 Even if they do, the scope of the
intervention is likely to be narrower and less intrusive. Conversely, the failure to
monitor effectively often leads to seriously deficient conditions, which in tum has
led to major class actions over conditions. Class action lawsuits severely tax judicial
resources during the litigation phase, as well as during judicial supervision of
long-term implementation of remedial measures. Having a system of monitoring
may help to identify and correct service problems before they become legal
problems. Furthermore, if the system is already involved in litigation over the
adequacy of mental health services, a court will usually require the implementation
of such a monitoring system as a condition for termination of judicial
supervision. 40
Quality assurance programs are recommended by many of the standard-setting
professional organizations, and these professional opinions urging the adoption
of some organized method of monitoring mental health services are making their
way into judicial opinions. For example, the APA principles state:
Each facility or each administrative authority should have prepared a quality
assurance plan that describes the mission and goals of the mental health
services delivery system, the means by which these goals are to be achieved,
and the means of evaluation of these objectives. 41
In two cases involving the California prison system, the courts made pointed
reference to the absence of functioning quality assurance programs. In Madrid v.
Gomez, the district court clarified the functions of these programs:
[A] Quality Assurance program is designed to enable a medical institution
or department to review, on an ongoing basis, staff medical decisions and
practices in order to assess whether corrective measures are necessary or
appropriate. Such a program is considered 'standard practice' in virtually
every health care facility in the country and is considered a 'fundamental
part' of a health care operation .... Failure to institute quality control
39 Association for Retarded Citizens of N. D. v. Schafer, 872 F. Supp. 689, 709 (D.N.D. 1995).
40 See Joseph A. v. New Mexico Dep't of Human Services, 69 F.3d 1081 (10th Cir. 1995);
Powell v. Coughlin, 953 F. 2d 744 (2d Cir. 1991); Celestineo v. Singletary, 147 F.R.D. 258 (M.D. Fla.
1993).
41 APA GUIDELINES, § B.2. a

170 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
procedures has had predictable consequences: grossly inadequate care is
neither disciplined nor redressed. 42
In Coleman v. Wilson, the court found the absence of a quality assurance program
to be evid~nce of "deliberate indifference" to the inmates' need for mental
health services, and stated that "the development of a quality assurance program
is an appropriate remedy for constitutional deficiencies in the delivery of prison
health care.,,43 The next part describes and analyses the elements of a quality
assurance program.
IV. RECOMMENDATIONS FOR MONITORING THE ADEQUACY OF MENTAL
HEALTH SERVICES IN A CORRECTIONAL SYSTEM
In designing a monitoring process, it is useful to separate the structural aspects
of a system from its actual performance in achieving the desired outcomes for
mentally disordered inmates. A determination of adequacy requires a consideration
of four distinct areas of structure and outcome assessment:
• Policies and procedures;
• People - adequate numbers of staff with appropriate qualifications;
• Places - adequate space for programs and housing; and
• Performance - how people implement the policies and procedures and utilize
the available resources to deliver timely, appropriate and quality
services.
The first three areas are all structural. They reveal whether the conditions
exist that would permit delivery of timely, adequate, and appropriate mental
health services, but not whether such services are actually being provided. In the
substantial absence of these conditions, however, one can reasonably conclude
that the facility is unlikely to be able to deliver timely, adequate, and appropriate
mental health services. The last area, performance, requires a more direct examination
of the actual delivery of mental health services to inmates with serious
mental disorders.
A. Structural Issues
The following are the three specific types of structural issues to be considered:
Policies and procedure, people, and places.
1. Policies & Procedures
Adopting and implementing essential policies and procedures creates a framework
to guide staff in implementing a mental health program. These policies and
procedures should be comprehensive enough to give specific guidance to staff
42 889 F. Supp. at 1209.
43 Coleman, 912 F. Supp. at 1308.

MENTAL HEALTH SERVICES IN CORRECTIONAL FACILITIES 171
regarding the issues addressed by the policy in question. Of course, it is essential
that staff be adequately trained to properly implement the policies. The following
list of basic policies is drawn from a comprehensive consent decree in the case of
Dunn v. Voinovich. 44 It includes:
1. Mental health screening by trained staff's to identify inmates with possible
mental health problems for further evaluation and linkage to treatment if
needed;46
2. Mental health classification to identify inmates for different levels of service
and security;47
3. Mental health services orientation for inmates,48 in a language they can
understand, to make them aware of how to access mental health services;
4. Treatment planning and delivery which addresses the need for individualized
treatment plans and services;49
5. Medication prescription and administration,sO including informed
consent;Sl
6. Involuntary medication for inmates with serious mental illness who pose a
danger to themselves or others;s2
7. Suicide prevention;s3
8. Physical restraints and seclusioniisolation;s4
9. Segregation rounds by mental health professionals to check on the condition
of inmates who may display symptoms of mental disorders in segregation
units;55
10. Record-keeping, including confidentiality of medical and mental health
records and information;s6
44 See supra note 22.
45 ACA STANDARDS §§ 3-4345, 3-4349; APA GUIDELINES §§ O.1.a. (2), O.1.b. (l)(c); § 5.16.
46 APA GUIDELINES §§ C.1.b.(l)(c), 0.1. (b)(l)(a); ACA STANDARDS § 3-4343; NCCH POSI-
TION STATEMENT, P-32 at p. 41; FED STANDARDS § 5.15.
47 ACA STANDARDS § 3-4282, at 95; ACA STANDARDS § 2-4129 (1994 Supp. P. 43); FRED CO­
HEN, supra note 19.
48 FED STANDARDS § 5.18.
49 ACA STANDARDS § 3-4355 at 12; APA GUIDELINES § F.5 at 11-12; § 0.3.a.5 at 30; NCCH
POSITION STATEMENT, P-50 at 61.
50 ACA STANDARDS § 3-4342 at 114; APA GUIDELINES § O.3.a. & b. at 30; § F.5.c. at 13;
APHA STANDARDS, at 40; NCCH POSITION STATEMENT, P-24 at 26; P-30 at 24.
51 APA GUIDELINES § 0.2; NCCH POSITION STATEMENT § P-64 at 77.
52 NCCH POSITION STATEMENT, P-67 at 79.
53 ACA STANDARDS § 3-4364 at 123; NCCH POSITION STATEMENT § P-54 at 65; APHA STAN­
DARDS at 38.
54 ACA STANDARDS § 2-4312 (1994 Supp.) at 53; APA GUIDELINES § F.5.d. at 13-14; NCCH
POSITION STATEMENT P-66 at 78; APHA STANDARDS at 41.
55 NCCH POSITION STATEMENT P-43 at 51.
56 APA GUIDELINES § E.2. at 8-9; ACA STANDARDS § 3-4377 at 127; NCCH POSITION STATE­
MENT P-60, P-61 at 72; APHA STANDARDS at 45-46.

172 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
11. Transfer of seriously mentally ill inmates to other facilities or to a psychiatric
hospital;57 and
12. Discharge from caseload. 58
2. People
The second structural issue is the need for an adequate and appropriately
trained staff. This includes hiring and deploying a sufficient number of service
providers in various disciplines (e.g., psychiatrists, psychologists, nurses, social
workers, etc.) to provide adequate mental health services. There are no fixed staff
ratios that are universally applicable to all types of correctional facilities. Rather,
the number and type of staff required will depend upon the qualifications and
training of the staff, the scope of the mental health program being provided and
needed, the organization of mental health service delivery, and the duration of
confinement. 59
For example, Way and colleagues conducted a national survey of all 50 states
and the District of Columbia, gathering information about the staffing of every
public forensic hospital in the United States. 60 They reported a national mean of
1.3 direct patient care staff, with a range from .35 to 4.0 direct care staff per
patient. 61 Condelli reported that a typical intermediate care unit (i.e., a unit for
inmates with serious mental disorders who have difficulty coping in the general
prison population) in the New York Department of Corrections serves 60 inmates
and is staffed by a .5 full-time equivalent (FfE) psychiatrist and three to five
other full-time mental health professionals (psychologists, nurses, social workers,
or occupationaUrecreational therapists). 62
In Dunn v. Voinovich,63 the consent decree, which involved prison mental
health services provided by the Ohio Department of Rehabilitation and Correction,
specified mandatory staffing levels based on a total prison population of
40,253 inmates. The decree required a total of 246.5 FTE mental health staff to
be allocated solely for the provision of mental health services mandated by the
decree. This number specifically included 25.5 FfE psychiatrists, with the remaining
staff to be allocated to different disciplines according to the professional judg-
57 ABA STANDARDS § 7-10.2(b) at 510; ACA STANDARDS § 3-4360 at 121; APA GUIDELINES
§ D.4.a, b. at 31; NCCH POSITION STATEMENT P-33 at 41-42.
58 APA GUIDELINES § D.4.a. & b. at 31.
59 ACA STANDARDS § 3-4050 at 14; APA GUIDELINES § B.2.b. at 6; NCCH POSITION STATE­
MENT, P-20, P-21 at 23-24.
60 B.B. Way, et ai., Staffing of Forensic Inpatient Services in the United States, 41 Hosp. & CMTY.
PSYCHIATRY 172-74.
61 Id.
62 W.S. Condelli et ai., Intermediate Care programs for Inmates with Psychiatric Disorders, 22
BULL. AM. ACAD. PSYCHIATRY & L. 63-70 (1994).
63 No. CI-93-0166 (S.D. Ohio, 1995), discussed in FRED COHEN, THE MENTALLY DISORDERED
INMATE AND THE LAW, supra note 19, at Appendix 0-5.

MENTAL HEALTH SERVICES IN CORRECfIONAL FACILITIES 173
ment of correctional officials. These staffing numbers do not include security and
support staff, but relate solely to the provision of mental health treatment.
The issue of staffing also includes providing effective training for mental
health staff and correctional officers to equip them to perform their expected
duties and to implement the policies and procedures. 64 One measure of the effectiveness
of training will be revealed in an examination of the performance of
various duties, as described more fully in section B.
3. Places
The final structural issue is the provision of adequate numbers of beds and
program spaces for inmates with a need for differing levels of mental health services.
In long-term correctional facilities, this will require having specific areas for
crisis stabilization, acute treatment, specialized housing, and space for operating
therapeutic programs. In the Dunn v. Voinovich consent decree, for a total prison
population of 40,253 inmates, the state of Ohio agreed to provide 120 inpatient
psychiatric hospital beds for male patients and 11 for female patients. An additional
710 residential beds for seriously mentally ill inmates were to be allocated
between crisis beds and "residential treatment units" or specialized housing and
programming areas for such inmates. 65
B. Performance Issues
The actual performance issues can be considered by examining the six functional
areas described below. The content of the monitoring of each of these areas
should be drawn from what is required by the policies described earlier or
from prevailing professional standards.
1. ACCESS TO SERVICES
This concept includes several distinct areas of operations of a correctional facility,
including:
1. Reception screening. This is a process of trained observation and structured
inquiry designed to identify those inmates who may have mental disorders
and to refer them for further evaluation and appropriate placement within
the correctional facility.
2. Mental Health Evaluation. This is a function performed by mental health
professionals, and, if the evaluation results in a diagnosis of mental illness, it
should lead to the development of an individualized treatment plan.
64 ACA STANDARDS § 3-4082 at 24; APHA STANDARDS at 38; NCCH POSITION STATEMENT,
P-20, P-2l, P-23 at 23-25.
65 See supra note 22.

174 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
3. Segregation rounds. The rounds are intended to ensure that inmates are not
kept in segregation solely due to mental illness, and that when mentally-ill
inmates are placed in segregation, they are kept there for the minimum
time necessary and continue to receive treatment and protection. Segregation
rounds should be done by properly trained mental health professionals
at least weekly and documented in clinical records.
4. Self-referrals by inmates. Is there evidence that inmates know how to access
mental health services?
S. Correction Officer Referrals. Is there evidence that correction officers know
how to recognize the signs and symptoms of mental illness and to make
referrals to mental health staff?
2. DIAGNOSIS, EMERGENCY CARE, TREATMENT PLANNING & TREATMENT
This area of examination is the heart of the mental health program.
1. Individualized treatment plans. Are there appropriate clinical diagnoses reflected
in individualized written treatment plans developed by interdisciplinary
teams and periodically reviewed with the inmate's participation and
consent?
2. Crisis Intervention Services. Is there effective and timely availability of appropriate
professionals in a crisis and access to a full range of crisis
services?
3. Psychotropic Medications. This area examines the most widespread form of
treatment and covers such issues as whether medications are prescribed on
the basis of a bona fide clinical diagnosis and not for punishment or control;
whether medications are administered by qualified nurses and periodically
monitored for effectiveness, side effects, and polypharmacy; whether appropriate
lab tests are done and recorded; and whether the formulary provides
for access to the full range of medications that are safe and effective for the
treatment of mental illness, including the newer generation of medications.
Informed consent is required except in narrowly defined emergencies. 66
4. Individual & group therapy programs (e.g., anger control, stress management,
sexual dysfunction and victimization, substance abuse, etc.) Are these
available and provided by qualified staff?
S. Hospitalization/transfers. Is there ready access to hospitalization when this
is the least restrictive environment for appropriate treatment of the inmate's
condition? Is the rationale for hospitalization or transfer adequately
documented?
66 Washington v. Harper. 494 U.S. 210 (1990).

MENTAL HEALTH SERVICES IN CORRECTIONAL FACILITIES 175
3. High Risk/High Volume Restrictive Interventions
1. Restraints/seclusion/isolation. Are these interventions used in compliance
with policies and professional standards?
2. Involuntary Medications. Are involuntary medications administered in
compliance with policy supported by adequate rationales and administered
only in a hospital or residential treatment unit?
3. Crisis bed placement. Is there an appropriate clinical rationale for placements,
24-hour nursing coverage and a length of stay less than ten days for
such placements?
4. Segregation. Is there involvement of mental health professionals in the decision-making
process leading to disciplinary placement of inmates with
mental illness in segregation units? Such involvement is usually necessary
to ensure that inmates are not being punished for behaviors that are the
product of untreated mental illness. 67
4. Actual and Potential Harm
1. Suicides, suicide attempts. Is there an effective program to identify potentially
suicidal inmates, availability of safe cells, communication between
mental health and corrections officers, effective intervention in suicide attempts,
and timely access to emergency medical care?
2. Abuse/neglect incidents, injuries, self-abuse, mutilations, fires, deaths and
other incidents of harm. Are these reported and investigated in compliance
with policies? Are appropriate preventive and corrective measures implemented
as a result of such investigations?
3. Use of force by corrections officers. Are these incidents reported and investigated
to assure compliance with policies? Are appropriate preventive and
corrective measures implemented as a result of such investigations?
5. Conditions of Confinement
1. Least restrictive environment. Are mentally ill inmates kept in the prison
general population unless individualized clinical rationales are in the record?
Are mentally ill inmates, except for those hospitalized, integrated
with non-mentally ill inmates for meals/recreation?
2. Out of cell time. Do mentally ill inmates get the same amount of out-of-cell
time as non-mentally ill inmates unless there is an individualized clinical
rationale?
3. Reasonable accommodation. Are reasonable accommodations made in
prison educational and vocational programs to enable inmates with mental
illness to participate in such programs? Do they actually participate in such
67 Casey, 834 F. Supp. at 1550.

176 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
programs in approximately the same proportion as their representation in
the prison population?68
6. Transfer/Discharge from Caseload
Mentally ill inmates should not be discharged from the caseload solely due to
the failure to comply with treatment, but must meet discharge criteria as set forth
in the treatment plan. In cases of substantial noncompliance with treatment, it
would be advisable to explore the inmate's reasons for noncompliance and consider
revisions to the treatment plan based on such a discussion. As with nonforensic
patients, discharge planning and linkage to follow-up services are essential
components of adequate and appropriate mental health services. Just as intake
screening is intended to ensure that the system of mental health services
does not break down at the front door, discharge planning is intended to ensure
that the responsibility is not abdicated at the back door.
C. Utilization Review
Adequate monitoring of correctional mental health services requires periodic
review of service utilization. Utilization review is a systematic way of examining
whether available resources are being used in a cost-effective and clinically appropriate
manner to achieve the desired outcomes. The concept of utilization
review includes examining the following:
• Over-utilization of services, which wastes scarce resources (e.g., excessively
long inpatient hospitalization);
• Underutilization of services (e.g., the prescription of medications at below
therapeutic levels or the failure to prescribe them at all when clinically indicated),
which is also wasteful of resources because such underutilization
does not produced the desired clinical effect and may lead to the use of
more expensive resources and restrictive measures such as crisis beds, segregation,
or inpatient hospitalization.
• Inefficient utilization (e.g., a one-day hospitalization which is likely to be
either too brief to do any good or unnecessary in the first place); and
• Inappropriate utilization (e.g., placing seriously mentally ill inmates in segregation
because of behaviors which are the product of untreated mental
illness).
In a correctional context, given the usual scarcity of resources, a system-wide
retrospective review is an appropriate starting point, enabling a system to develop
baseline information about mental health service delivery. As a reliable
68 See Americans with Disabilities Act of 1990 (ADA). 42 U.S.c. § 12101 et seq. (2000); Pennsylvania
Dep't of Corr. v. Yeskey, 524 U.S. 206 (1998) (applying ADA to correctional settings);
PAULA N. RUBIN & SUSAN W. MCCAMPBELL, THE AMERICANS WITH DISABILITIES ACT AND CRIMI­
NAL JUSTICE: MENTAL DISABILITIES AND CoRRECTIONS (Sept. 1995).

MENTAL HEALTH SERVICES IN CORRECfIONAL FACILITIES 177
picture emerges, the system can consider whether the data suggest patterns of
over-utilization or underutilization of services in specific facilities or programs,
and determine whether other approaches such as concurrent review or prior authorization
are needed to bring practice into line with expected norms. 69 The
process of collecting data is likely to reveal that there are specific facilities or
clinicians whose patterns of diagnosis and treatment deviate significantly from
the norms one would expect with the population and in the particular facility.
The detection of such significant deviations should prompt further inquiry to determine
the appropriateness of clinical practices.
The data required for an effective utilization review program can be designed
into a management information system. The management information system
should include:
(1) Continual collection of objective performance data of the type described
above, as well as other data believed to be useful for management
purposes.
(2) Regular aggregation and analysis of performance data and reporting to
clinical managers. The most common failing of many information systems,
especially in public institutions, is that data are not used for any discernible
purpose. This creates a vicious cycle in which staff soon stop being
careful in collecting and reporting the data, making the system unreliable,
leading to further reluctance to use it for decision-making, and further discouraging
care in data collection and reporting.
(3) Regular provision of comparative performance data to each institution to
help in their performance improvement activities. Such data provide an
impetus for change, particularly for those who have ranked poorly among
their peers.
(4) Identification of trends and patterns that may call for more focused attention
either system-wide or at individual institutions. It is important to emphasize
that the data be used as the start of an inquiry about clinical
appropriateness, not as a rigid measure from which conclusive judgments
are to be formed. 70
What are some of the indicators to examine?
For outcome assessment, there are generically two types of indicators: indicators
of clinical outcomes and indicators of utilization of resources. Management
information systems are generally more proficient at identifying and collecting
69 G.L. Tischler, Utilization Management of Mental Health Services by Private Third Parties, 47
AM. J. PSYCHIATRY 967-73 (1990); Kenneth G. Terkelsen et aI., Development of Clinical Methods for
Utilization Review in Psychiatric Day Treatment, J. MENTAL HEALTH ADMIN. 298-313 (1994).
70 Linda O. Prager, Standards Challenge Rigid Uses of Utilization Guides, 41 Am. Med. News 8
n.28 (1998).

178 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
data about resource utilization, as such data are often necessary to develop and
justify budget requests, and are more easily obtained. There has generally been
less of an emphasis on collecting data about clinical outcomes.
Indicators of clinical outcomes include
(1) Increased ability to function in prison, as determined by:
• Movement of mentally ill inmates through the level system;
• Better management of environmental stress by mentally ill inmates;
• Increased socialization and leisure activities;
• Increased participation in work, vocational and educational activities; and
• Increased medication compliance and participation in other treatment
activities.
(2) Reduced harm and attempts, measured by:
• Reduced suicide attempts and gestures;
• Reduced self-abuse and mutilation;
• Reduced incidents, infractions, and discipline; and
• Reduced impulsive behaviors.
(3) Symptom reduction and increased well-being as reported by the inmates
themselves or by corrections staff.
In order for such clinical outcome data to be useful, it is necessary that baselines
be established and that such data be collected regularly over a period of
time to assess changes in performance and conditions.
Utilization review also requires access to reliable sources of the data. One of
the primary sources of data is the clinical record. A minimally adequate clinical
record would include at least the following:
• A written plan of individualized treatment;
• Notes of physical and mental exams;
• A medical and mental health history;
• Medication records including laboratory tests and evaluations;
• Evidence of periodic tests for tardive dyskinesia and other side effects of
medications;
• Regular progress notes; and
• Organization of the file for easy use by many different staff persons.
CONCLUSION
Monitoring the quality and utilization of mental health services in correctional
facilities can help an agency assess how well it is meeting its own expectations for
the delivery of timely, adequate, appropriate, and cost-effective mental health

MENTAL HEALTH SERVICES IN CORRECfIONAL FACILITIES 179
services. 71 Each organization must determine its goals and establish its expectations.
While there are thresholds below which one cannot perform without legal
peril,72 there is a great deal of room for judgment about what is appropriate care.
This is a judgment that each agency must make with the help of its clinicians.
An effective program of monitoring the quality and utilization of mental
health services will not only assist correctional facilities in continually improving
the quality and cost-effectiveness of their programs, but also should sharply reduce
the risk of exposure to individual and systemic lawsuits challenging the adequacy
of mental health services.
71 C.D. Naylor, Editorial: What is Appropriate Care? 338 N. ENG. J. MED. 1918-20 (1998); Am.
Ass'n of Correctional Psychologists, Standards for Psychological Services in Adult Jails and Prisons, 7
CRIM. JUSTICE & BEHAV. 81, § 09 at 92, § 40 at 113 (1980); Grubbs v. Bradley, 821 F. Supp. 496,500
(M.D. Tenn. 1993).
72 E.g., a finding of "deliberate indifference" to inmates "serious medical needs," constitutes a
violation of the Eighth Amendment's prohibition of cruel and unusual punishment. See, e.g., Coleman,
912 F. Supp. at 1298, (quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991» (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976».

PROTECTING PAROLEES UNDER THE
ADA AND REHAB ACT
Giovanna Shay*
Prisoners and parolees, their family members, and advocates have all seen that
paroling authorities sometimes make decisions based on factors that can be considered
disabilities under the Americans with Disabilities Act (ADA)1 and Rehabilitation
Act of 1973 (Rehab Act).2 These conditions may include mental
illness,3 HIV status,4 or a history of substance abuse. s A few years ago, in a case
litigated by the University of the District of Columbia Prisoners Rights and Advocacy
Clinic and the District of Columbia Prisoners' Legal Services Project
(DCPLSP), the United States Parole Commission denied parole to a District of
Columbia prisoner because she was HIV-positive and had worked as a prostitute.
6 "We really can't support a decision to knowingly parole a prisoner that we
believe would deliberately infect oth~r persons with a fatal disease," explained
one Commission official. 7 In the face of a legal challenge and negative publicity,
the Commission released the District of Columbia inmate in that case. s
Disability discrimination may also arise in situations affecting prisoners and
parolees with mental illnesses. Paroling or supervising authorities may consider
revoking parole if a parolee with a mental illness fails to comply with community
services or a medication regime. In still other cases, paroling authorities may be
reluctant to parole a prisoner with a mental illness. It is likely that many prisoners
and parolees in these situations have not come to the attention of lawyers and
journalists.
* Staff Attorney, Public Defender Service for the District of Columbia (PDS); J.D., Yale Law
School, 1997. The views expressed do not necessarily represent the views of PDS, nor of any litigant(s)
represented by PDS. Thanks to Paul Denenfeld, James Forman, Jr., Deborah Golden, Sara
Norman, Leila Thamer, and Margaret Winter for their helpful comments.
1 The ADA defines "disability" with respect to an individual as "(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.c.
§ 12102(2)(A)-(C) (2000).
2 Under the Rehab Act, an "individual with a disability" means a person who "i) has a physical
or mental impairment which substantially limits one or more of such person's major life activities; ii)
has a record of such impairment; or iii) is regarded as having such an impairment." 29 U.S.c.
§ 705(20)(B) (2000).
3 See, e.g., Olmstead v. Zimring, 527 U.S. 581 (1999). See also 28 C.F.R. § 35.104 (2002).
4 Bragdon v. Abbott, 524 U.S. 624 (1998); School Bd. of Nassau County v. Arline, 480 U.S. 273
(1987). See also 28 C.F.R. § 35.104 (2002).
5 28 C.F.R. § 35.104 (2002).
6 Tom Schoenberg, Suddenly Free, LEGAL TIMES, Sept. 10,2001.
7 Id.
8 Id.

182 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
Two recent decisions from the Ninth Circuit, Armstrong v. Davis 9 and Thompson
v. Davis,lO make clear that paroling authorities violate Title II of the ADA
and Section 504 of the Rehab Act when they discriminate against parolees with
disabilities. The ADA and the Rehab Act provide important protection for prisoners
and parolees, for whom few sources of relief exist apart from the minimum
protections of the United States Constitution.
Title II of the ADA prohibits a "public entity" from discriminating against a
"qualified individual with a disability" on account of that individual's disability.ll
A "public entity" is defined as any state or local government, any department,
agency, special purpose district, or other instrumentality of a state or local government,
the National Railroad Passenger Corporation or any commuter authority.12
Section 504 of the Rehab Act provides in part that:
no otherwise qualified individual with a disability ... shall, solely by reason
of her or his disability, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or activity
receiving Federal [mancial assistance or under any program or activity conducted
by any Executive agency .... 13
Under both the ADA and the Rehab Act, claims and defenses "are virtually
identical. ,,14
Over four years ago, in Pennsylvania Department of Corrections v. Yeskey,15
the Supreme Court concluded that the plain text of Title II covers state prisons. 16
In Yeskey, a prisoner with hypertension had been denied admission to a motivational
boot camp that would have allowed him to be paroled in just six months. 17
Writing for the Court, Justice Scalia analyzed the text of the ADA and concluded
that it "provides no basis for distinguishing [prison] programs, services, and activities
from those provided by public entities that are not prisons.,,1s The Court's
decision in Yeskey confirmed that there is no "prisoner exception" to the ADA.
Prisoners and parolees and their advocates in California have used the ADA
and the Rehab Act to challenge discriminatory actions of the California Board of
Prison Terms (Board). Tho recent decisions from the Ninth Circuit, Armstrong v.
Davis 19 and Thompson v. Davis 20 make clear that paroling authorities violate
9 275 F.3d 849 (9th Cir. 2001), cert. denied, 123 S. Ct. 72 (2002).
10 295 F.3d 890 (9th Cir. 2002), , cerl. denied, 71 U.S.L.W. 3366 (March 24, 2003).
11 42 U.S.c. § 12131 et seq. (2000).
12 [d.
13 29 U.S.C. § 794 (2000).
14 Harrison v. Rubin, 174 F.3d 249 (D.C. Cir. 1999). See also Armstrong, 275 F.3d at 862 n.17.
15 524 U.S. 206 (1998).
16 [d. at 212.
17 [d. at 208.
18 [d. at 210.
19 275 F.3d 849 (9th Cir. 2001), cerl. denied, 123 S. Ct. 72 (2002).

PROTECTING PAROLEES UNDER THE ADA AND REHAB ACT 183
TItle II of the ADA and Section 504 of the Rehab Act when they discriminate
against parolees with disabilities. In Armstrong, a class of prisoners and parolees
with mobility, sight, hearing, learning, and developmental disabilities claimed
that the Board had failed to make accommodations as required by the ADA and
Rehab ACt. 21 This failure caused prisoners and parolees with disabilities to forfeit
their rights to parole hearings. Other class members were unable to represent
themselves effectively?2 The district court found for the plaintiffs, and
the Ninth Circuit affirmed. The Court of Appeals stated, "As a consequence of
the Board's unlawful discrimination, plaintiffs were unable to comprehend various
parts of the parole and parole revocation process or denied the opportunity
to attend the required hearings, and may even have been wrongfully incarcerated
or denied parole.,,23 Significantly, the Ninth Circuit noted that the state had
waived any possible claim of sovereign immunity by failing to raise it, and thus
the Court was not called upon to decide whether Congress had properly abrogated
the state's Eleventh Amendment immunity in passing TItle 11.24 The Supreme
Court denied the government's petition for a writ of certiorari. 25
Another recent Ninth Circuit decision, Thompson v. Davis,26 is in some ways
an even greater victory for the prisoners. Several prisoners with a history of substance
abuse claimed that the Board violated the ADA by denying them parole
based on their histories of substance abuse. The district court dismissed the complaint,
reasoning that the ADA did not apply to substantive decisions by paroling
authorities. 27 The Ninth Circuit reversed and remanded for further proceedings,
concluding that the Board would violate the ADA if it considered prisoners' histories
of substance abuse in making parole decisions. 28 The Court stated that
"[ d]rug addiction that substantially limits one or more major life activities is a
recognized disability under the ADA. ,,29 "While the term 'qualified individual
with a disability' does not include an individual who is currently engaging in the
illegal use of drugs, the ADA does protect individuals who have successfully completed
or are participating in a supervised drug rehabilitation program and are no
longer using illegal drugs. ,,30
20 295 F.3d 890 (9th Cir. 2002), cert. denied, 71 U.S.L.W. 3366 (Mar. 24, 2003).
21 275 F.3d at 856-57.
22 275 F.3d 849.
23 275 F.3d at 864.
24 [d. at 877-78.
25 Davis V. Armstrong, 123 S. Ct. 72 (2002).
26 295 F.3d at 894-95
27 [d. at 894.
28 In Bogovich V. Sandoval, 189 F.3d 999, 1003-04 (9th Cir. 1999). the Ninth Circuit concluded
that the prisoners were not restricted to bringing their challenge in habeas corpus, because they were
not necessarily challenging the fact or duration of their confinement.
29 Thompson, 295 F.3d at 896.
30 Thompson, 295 F.3d at 896.

184 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
The Court of Appeals' decision was particularly striking because parole decisions
are largely committed to agency discretion. 31 However, just as a parole
board cannot discriminate on the basis of race, the Ninth Circuit reasoned, it
cannot discriminate on the basis of disability:32
Since a parole board may not categorically exclude African-Americans
from consideration for parole because of their race, and since Congress
thinks that discriminating against a disabled person is like discriminating
against an African-American, the parole board may not categorically exclude
a class of disabled people from consideration for parole because of
their disabilities. 33
The Ninth Circuit concluded, "The fact that considering a prisoner for parole
is a substantive criminal law decision does not license the decision-maker to discriminate
on impermissible grounds. ,,34 The Supreme Court denied the government's
petition for a writ of certiorari. 35
DISTRICT OF COLUMBIA PRISONERS' AND PAROLEES' UNIQUE SITUATION
District of Columbia prisoners and parolees can raise claims of disability discrimination,
but their situation is somewhat different from prisoners in other jurisdictions.
The National Capital Area Revitalization Act (Revitalization Act)
transferred certain local District of Columbia criminal justice functions to federal
officials. 36 As a result, District of Columbia sentenced felons are now in the custody
of the Bureau of Prisons (BOP),37 and their parole matters are decided by
the United States Parole Commission (Commission).38 District of Columbia prisoners
challenging federal actors must bring their claims under the Rehab Act,39
which covers programs and activities of executive agencies. 4o Title II of the ADA
31 See, e.g., Duckett v. Quick, 282 F.3d 844, 847 (D.C. Cir. 2(02), cerro denied, 123 S. Ct. 247
(2002) (decision of a paroling authority will be upheld unless it is "either totally lacking in evidentiary
support or so irrational as to be fundamentally unfair."); see also Hackett v. United States Parole
Com'n, 851 F.2d 127, 129 (6th Cir. 1987) (decisions to grant or deny parole are committed to agency
discretion); Thrner v. Henman, 829 F.2d 612, 614 (7th Cir. 1987) (parole decisions of the U.S. Parole
Commission are committed to agency discretion for purposes of the Administrative Procedure Act
(APA»; Edmundson V. Thrner, 954 F.2d 510 (8th Cir. 1992) (parole decisions are committed to the
discretion of the U.S. Parole Commission).
32 295 F.3d at 898.
33 Id.
34 Thompson, 295 F.3d at 898.
35 Davis V. Thompson, 71 U.S.L.W. 3366 (March 24, 2003).
36 Pub. L. 105-33 (1997)
37 D.C. Code § 24-101 (2002) (formerly codified as D.C. Code § 24-1201). :
38 D.C. Code § 24-131 (2002) (formerly codified as D.C. Code § 24-1231).
39 Alternatively, D.C. prisoners could consider arguing that the federal government has assumed
the responsibilities of a state or local entity under the Revitalization Act.
40 29 U.S.c. § 794 (2000).

PROTECTING PAROLEES UNDER THE ADA AND REHAB ACT 185
covers only state and local entities. 41 In contrast, detainees and misdemeanants
who remain at the District of Columbia Central Detention Facility and are challenging
the actions of D.C. officials may bring their claims under the ADA, because
D.C. is considered a state or local entity for ADA purposes. 42 Since claims
and defenses under the two statutes are largely interchangeable,43 D.C. prisoners
should enjoy materially similar protections.
POTENTIAL OBSTACLES TO LITIGATION
Although Yeskey, Armstrong, and Thompson provide cause for celebration,
there are some barriers to litigation. One of these barriers is the Prison Litigation
Reform Act (PLRA).44 The PLRA bars recovery for mental or emotional
injury without a prior physical injury.4s In Davis v. District of Columbia,46 the
D.C. Circuit concluded that this provision bars damages awards for violations of
the ADA and Rehab Act without physical injury.47 The Seventh Circuit reached
the same conclusion in an ADA case, Cassidy v. Indiana Dep't of Corrections. 48
The PLRA "precludes claims for emotional injury without any prior physical injury,"
reasoned the Davis court, "regardless of the statutory or constitutional basis
of the legal wrong. ,,49 The PLRA also requires that incarcerated people
exhaust institutional grievance systems before filing suit. sO The Supreme Court
has interpreted this exhaustion requirement broadly,S1 and incarcerated people
bringing claims under the ADA and the Rehab Act should make every effort to
exhaust all available administrative remedies.
It is important to keep in mind, however, that some provisions of the PLRA,
such as the limitation on recovery for mental and emotional injuries and the ex-
41 42 U.S.c. § 12131 (2000).
42 Miller v. District of Columbia, 983 F. Supp. 205 (D.D.C. 1997) (concluding that District of
Columbia violated TItle II of the ADA and Section 504 of the Rehabilitation Act by failing to provide
911 TOD service for deaf citizens); Galloway v. D.C. Superior Court, 816 F. Supp. 12, 19 (D.D.C.
1993) ("it is ... obvious that the Superior Court system falls within the parameters of the ADA").
43 See Galloway, 816 F. Supp. at 12 n.14.
44 Pub. L. 104-134, 110 Stat. 1321 (codified in scattered sections of 18 U.S.c.)
45 42 U.S.C. § 1997e(e) (2000).
46 158 F.3d 1342 (D.C. Cir. 1998).
47 However, in the case of a wrongful denial of parole, some advocates have argued that the
resultant period of incarceration can constitute a "physical injury" within the meaning of the PLRA.
48 199 F.3d 374 (7th Cir. 2000).
49 158 F.3d at 1348-49.
50 42 U.S.c. § 1997e(a) provides: "No action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted."
51 Porter v. Nussle, 534 U.S. 516, 531 (2002) (holding "that the PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some other wrong."); Booth v. Churner, 532 U.S.
731, 741 (2001) (concluding that the PLRA exhaustion requirements apply to cases for money
damages).

186 THE UNIVERSITY OF TIlE DISTRlcr OF COLUMBIA LAW REVIEW
haustion requirement, apply only to "suits by prisoners. ,,52 These provisions of
the Act do not apply to claims by ex-prisoners after they are released, even for
incidents that happened during the period of their incarceration. 53 If there is no
restriction by the statute of limitations, incarcerated people can consider waiting
to file claims until after they are released. 54
There are other barriers to recovering damages under the ADA and Rehab
Act. Parolees suing federal actors for disabilities discrimination under the Rehab
Act - probably most District of Columbia plaintiffs - cannot recover money
damages. In Lane v. Pena,55 the Supreme Court concluded that the United
States did not waive its sovereign immunity under the Rehab Act. 56 Earlier this
year, the Supreme Court also decided that punitive damages are not available
under either the ADA or the Rehab Act. 57
Whether any money damages are available against states under Title II of the
ADA remains undecided. In Yeskey, the Supreme Court explicitly left open the
question of whether Title II of the ADA was a constitutional exercise of Congress'
authority under Section 5 of the Fourteenth Amendment. 58 • The circuits
are split on the issue. 59 A number of appeals courts have applied the Supreme
52 42 U.S.C. § 1997e(h) dermes "prisoner" as "any person incarcerated or detained in any facility
who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal
law or the terms and conditions of parole, probation, pretrial release, or diversionary programs."
53 See e.g., Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Janes v. Hernandez, 215 F.3d 541,
543 (5th Cir. 2000); LaFontant v. I.N.S, 135 F.3d 158 (D.C. Cir. 1998) (petitioner ceased being a
"prisoner" for PLRA purposes when he was paroled). Contrast Thcker v. Branker, 142 F.3d 1294
(D.C. Cir. 1998) (relief from prison does not relieve a prisoner of his past due obligations for PLRA
filing fees that were incurred when he was a prisoner).
54 However, PLRA provisions governing the entry of injunctions and consent decrees in "civil
actions with respect to prison conditions" arguably apply even after a named plaintiff is released. 18
U.S.C. § 3626(a) (2000).
55 518 U.S. 187 (1996)
56 [d. at 197.
57 Barnes v. Gorman, 122 S.Ct. 2097, 2103 (2002).
58 524 U.S. at 212.
59 Compare Hason v. Medical Bd. of California, 279 F.3d 1167 (9th Cir. 2(02), reh 'g denied, 294
F.3d 1166 (9th Cir. 2(02), with Wessel v. Glendening, 306 F.3d 203, 214 (4th Cir. 2002) ("[W]e conclude
that Congress did not validly abrogate the sovereign immunity of the states when it enacted Part
A of TItle II of the ADA"); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2(01) ("Congress has not
validly acted through its Fourteenth Amendment § 5 power to abrogate state sovereign immunity.");
Erickson v. Board of Governors 207 F.3d 945 (7th Cir. 2000) (Eleventh Amendment bars private suits
under TItle II in federal court); Thompson v. Colorado, 278 F.3d 1020 (10th Cir. 2001) (TItle II of
ADA not a valid abrogation of state's Eleventh Amendment immunity). See also Kiman v. New
Hampshire Dep't of Corrections, 311 F.3d 439 (1st Cir. 2(02) (staying rehearing on the TItle II sovereign
immunity issue pending resolution of Hason); Garcia v. S.U.N.Y. Health Sciences Center, 280
F.3d 98 (2d Cir. 2001) (holding "that a private suit for money damages under TItle II of the ADA may
only be maintained against a state if the plaintiff can establish that the TItle II violation was motivated
by either discriminatory animus or will due to disability."); Popovich v. Cuyoga County Court of
Common Pleas, 276 F.3d 808 (6th Cir. 2002) (Eleventh Amendment barred ADA claim to the extent

PROTECfING PAROLEES UNDER THE ADA AND REHAB ACf 187
Court's decision in Board of Trustees of the University of Alabama v. Garrett,60
which concluded that the provision of the ADA barring discrimination in employment
(TItle I) did not invalidate state employers' immunity to claims for
money damages by their employees with disabilities. 61 It remains to be seen
whether the Court will apply the reasoning of Garrett to non-employment cases
involving public entities.
In November 2002, the Supreme Court granted certiorari in Medical Board of
California v. Hason 62 to decide whether Congress improperly abrogated states'
Eleventh Amendment sovereign immunity in enacting Title II of the ADA.63
That case was removed from the oral argument calendar, however, in March
2003, because the petitioner filed a Motion to Dismiss that was under consideration
by the Court at the time this article went to press. At press time, it was not
clear whether the Supreme Court would decide this issue this term. Because it is
a federal funding statute, the availability of damages under the Rehab Act is
more secure, but this issue also has been the subject of recent litigation. Although
Pena concluded that the federal government had not waived its sovereign
immunity in the Rehab Act, compliance with the Rehab Act is a condition of a
state accepting federal funds, so a state may waive its immunity by accepting
funding. 64 After the Supreme Court in Atascadero concluded that Congress had
not unmistakably expressed its intent to abrogate states' Eleventh Amendment
immunity,65 Congress amended the Rehab Act to speak more clearly.66 A number
of circuits have confirmed in recent years that acceptance of federal funds
it relied on congressional enforcement of equal protection under § 5 of Fourteenth Amendment but
not to the extent that it relied on congressional enforcement of due process)
60 531 U.S. 356 (2001).
61 See note 59 supra
62 123 S. Ct. 561 (2002).
63 Although the Supreme Court could conclude that Title II is not a valid exercise of the Supreme
Court's power to abrogate state sovereign immunity under § 5 of the Fourteenth Amendment,
the availability of the Ex parte Young fiction probably will ensure that avenues remain open for seeking
prospective relief against a state official in their official capacity. See notes 73 and 74 infra and
accompanying text.
64 Armstrong, 275 F.3d at 878. See also College Sav. Bank v. Florida Prepaid Postsecondary
Educ. Expense Bd., 527 U.S. 666, 686-87 (1999) ("Congress may, in the exercise of its spending power,
condition its grant of funds to the States upon their taking certain actions that Congress could not
require them to take, and ... acceptance of the funds entails an agreement to the actions.").
65 "Section 1003 [codified at 42 U.S.c. § 2000d-7a (a)] was enacted in response to our decision
in Atascadero State Hosp. v. Scanlon, [473 U.S. 234 (1985)], where we held that Congress had not
unmistakably expressed its intent to abrogate the States' Eleventh Amendment immunity in the Rehabilitation
Act, and that the States accordingly were not subject to suit in federal court by litigants
seeking retroactive monetary relief." Lane, 518 U.S. at 198 (internal quotation marks omitted).
66 See 42 U.S.c. § 2000d-7a (a) ("A State shall not be immune under the Eleventh Amendment
... from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973.").

188 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
constitutes a waiver of a state's immunity under the Rehab Act. 67 However, the
Second Circuit has concluded that, despite Congress' clear intent to abrogate
state sovereign immunity under the Rehab Act, New York did not waive its immunity
by accepting federal funds because it was not clear that the state had
intentionally relinquished a "known right or privilege.,,68 At the time that New
York accepted federal funding, the Garcia court reasoned, it was believed that
Title II of the ADA abrogated a state's sovereign immunity.69 The state could
not have understood the significance of accepting funds and waiving its immunity
under the Rehab Act, the court wrote, because, at the time, it appeared that its
immunity already had been lost under the ADA.70
There are a number of ways that parolees suing state agencies under the ADA
and Rehab Act can avoid Eleventh Amendment problems. Litigants could make
use of the Ex parte Young fiction to sue paroling officials for injunctive relief in
their official capacities.71 Under this doctrine, federal courts can enter prospective
relief against state officials in their official capacities, in order to force them
to comply with federallaw.72 The Supreme Court suggests this route in Garrett,?3
as does the Ninth Circuit in Armstrong.1 4 The Seventh Circuit has concluded,
however, that the Ex parte Young fiction is not available under the ADA, because
the statute covers "entities" and not "persons.,,75 Suits against states and state
agencies under the ADA could proceed in state court without presenting Eleventh
Amendment problems. 76 Of course, D.C. litigants suing local D.C. agencies
67 Nihiser v. Ohio Environmental Protection Agency, 269 F.3d 626, 628 (6th Cir. 2001); Jim C.
v. United States, 235 F.3d 1079, 1081-82 (8th Cir. 2000); Douglas v. California Department of Youth
Authority, 271 F.3d 812, 820-21 (9th Cir. 2001).
68 Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 113-15 (2d Cir. 2001)
(emphasis in the original).
69 Id. at 114.
70 Id.
71 209 U.S. 123, 155-56 (1908). See Randolph V. Rodgers, 253 F3d 342, 349 (8th Cir. 2001)
("We believe that the District Court did not err by holding that [the plaintiff] may proceed under Ex
parte Young to seek prospective injunctive relief on his ADA and Rehabilitation Act claims against [a
state official] in her official capacity.")
72 Martin A. Schwartz, Section 1983 Claims and Defenses § 8.2 at 151 (3d ed. 1997).
73 531 U.S. at 374 n.9.
74 275 F.3d at 877-78.
75 Walker V. Snyder, 213 F.3d 344, 347 (7th Cir. 2000) ("We held above that the only proper
defendant in an action under the provisions of the ADA at issue here is the public body as an entity.
A suit resting on the Young approach is not a suit against the public body and therefore cannot
support relief.").
76 See Walker, 213 F.3d at 347; Erickson, 207 F.3d at 952. The Supreme Court recently has
concluded that a state waives its Eleventh Amendment immunity when it voluntarily removes a case
from state court to federal court. Lapides V. Board of Regents of the University System of Georgia,
535 U.S. 613 (2002). However, the holding in Lapides may be limited, because the Court concluded
that the only valid remaining claims against the state were state law claims.

PROTECTING PAROLEES UNDER THE ADA AND REHAB ACf 189
will not encounter Eleventh Amendment problems, because D.C. is not considered
a "state" for Eleventh Amendment purposes. 77
Armstrong and Thompson demonstrate that the ADA and the Rehab Act can
provide important sources of protection in the parole context, a setting in which
there are minimal protections. In light of the PLRA and sovereign immunity
issues, it is fair to say that there are greater obstacles to recovering damages
under the ADA and Rehab Act than to using the statutes for institutional reform
litigation. Given the many issues involved, there is sure to be substantial future
litigation nationwide as prisoners and parolees seek relief under the disabilitiesrights
statutes.
77 LaShawn v. Barry, 87 F.3d 1389, 1393 0.4 (D.C. Cir. 1996).

LITIGATION LAND MINES: OBTAINING A'ITORNEYS
FEES IN CONDITIONS OF CONFINEMENT LITIGATION
AFTER BLOOMBERG v. CHRISTINA A.
Mark Soler*
I. INTRoDucnoN
Abuse of children in state institutions is a longstanding and notorious problem.
1 Advocates for children have successfully brought federal civil rights litigation
over the past thirty years to protect the lives, safety, and rights of children in
jails,2 juvenile detention facilities,3 and state corrections institutions. 4 In recent
years, however, such litigation has become more difficult as a result of enactment
of the Prison Litigation Reform Act (PLRA)5 and an array of United States Supreme
Court decisions. In a number of decisions over the past two decades, the
Supreme Court has significantly restricted the rights of prisoners and imposed
other obstacles to litigation by inmates. 6 In passing the PLRA, Congress specifically
sought to discourage federal civil rights litigation by prisoners, and the definition
of "prisoners" includes incarcerated children.
The bills that became the PLRA were introduced by Republican leaders immediately
after Congress convened following the 1994 elections, and the legislation
was ultimately signed by President Clinton on April 26, 1996. The legislation
had two goals: to limit "frivolous" lawsuits filed by prisoners and to limit the
relief available in federal civil rights lawsuits over conditions of confinement. 7
* President, Youth Law Center, Washington, D.C. The author was lead counsel in Bloomberg
v. Christina A, 167 F. Supp. 2d 1094 (D.S.P. 2001).
1 See, e.g., AMNESTY INTERNATIONAL, BETRAYING THE YOUNG: CHILDREN IN
THE U.S. JUSTICE SYSTEM (1998); CHARLES DICKENS, OLIVER TWIST (1838).
2 See, e.g., Cox v. Thrley, 506 F.2d 1347 (6th Cir. 1974); Doe v. Burwell, 537 F. Supp. 186 (S.D.
Ohio 1982); D.B. v. Tewksbury, 545 F. Supp. 896 (D. Or. 1982).
3 See, e.g., Hewett v. Jarrard, 786 F.2d 1080 (11th Cir. 1986); Martarella v. Kelley, 349 F. Supp.
575 (S.D.N.Y. 1973); Lollis v. New York Dep't of Soc. Servs., 322 F. Supp. 473 (S.D.N.Y. 1970),
modified, 328 F. Supp. 1115 (S.D.N.Y. 1971).
4 See, e.g., Nelson v Heyne, 491 F.2d 353 (7th Cir. 1974); Morales v. Turman, 383 F. Supp. 53
(E.D. Tex. 1974), rev'd, 535 F.2d 864 (5th Cir. 1976), rev'd, 430 U.S. 322 (1977); Alexander S. v. Boyd,
876 F. Supp. 773, 782 (D.S.C. 1995), affd in part and rev'd in part on other grounds, 113 F.3d 1373 (4th
Cir. 1997), cert. Denied 522 U.S. 1090 (1998). See generally MICHAEL J. DALE ET AL., Legal
Rights of Children in Institutions, in REPRESENTING THE CHILD CLIENT (2001).
5 18 U.S.c. § 3626,42 U.S.c. § 1997e(d). See generally Margo Schlanger, Inmate Litigation, 116
HARV. L. REV. 1555 (2003) (analyzing inmate litigation before and after the PLRA)
6 E.g., Lewis v. Casey, 518 U.S. 343 (1996); Sandin v. Connor, 515 U.S. 472 (1995); Whitley v.
Albers, 475 U.S. 312 (1986).
7 141 CONGo REC. SI4414-16 (daily ed. Sept. 27, 1995); id. at 14418 (remarks of Sen. Hatch);
Prison Reform: Enhancing the Effectiveness of Incarceration: Hearings before the Senate Comm. on the
Judiciary, 104th Cong., 1st Sess. 2 (1995); Taking Back our Streets Act of 1995: Hearings before the

192 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
To limit "frivolous" litigation, the statute requires exhaustion of administrative
remedies prior to filing suit, allows dismissal of frivolous actions by the court sua
sponte, limits recovery for mental or emotional injury to cases in which a prisoner
can show physical injury, and requires payment of the filing fee by the prisoner if
he has any funds available. s To limit the relief available in federal civil rights
lawsuits over conditions of confinement, the PLRA imposes stringent requirements
for prospective (injunctive) relief, requires an order by a three-judge court
before any prisoners may be released, provides that any relief shall be "terminable"
after two years, automatically stays existing relief if the defendants file a
motion to modify or terminate relief, limits the authority of special masters who
are appointed to assist the court in implementing relief, and sets hourly fees far
below market rate for special masters and for attorneys for prevailing plaintiffs. 9
There have been numerous challenges to provisions of the PLRA, and several
cases have reached the U.S. Supreme Court. The Court has upheld the statute
against all attacks. 1o
A major area of controversy in conditions and confinements cases has been
the availability and amount of attorneys fees for successful plaintiffs. These issues
were the focus of a recent decision by the U.S. Court of Appeals for the
Eighth Circuit. Bloomberg v. Christina A.11 involved conditions of confinement
for children at the South Dakota State Training School. The issues are of particular
interest in the District of Columbia, where litigation over conditions in the
city's juvenile detention facility and attorneys fees for plaintiffs in Jerry M. v District
of Columbia has been going on for sixteen years.
Though the factual situations may be compelling - entailing terrible abuses of
children - conditions of confinement cases are difficult to litigate. They require
substantial investment of resources by plaintiffs' attorneys in terms of time and
out-of-pocket expenses. Plaintiffs' counsel must navigate the obstacles imposed
by the PLRA and adverse case law. In Buckhannon Board and Care Home, Inc.,
House Subcomm. on Crime of the Comm. on the Judiciary, 104th Cong., 1st Sess. 2 (1995). See generally
Lynn S. Branham, Toothless in Truth? The Ethereal Rational Basis Test and the Prison Litigation
Reform Act's Disparate Restrictions on Attorney Fees, 89 CALIF. L. REV. 999 (2001).
8 42 U.S.c. § 1997e(a), (c), (e), 28 U.S.C. § 1915(b). There is considerable controversy about
"frivolous" prisoner lawsuits. The Chief Judge of the Second Circuit conducted his own unsuccessful
search for the "Top 10 frivolous prisoner lawsuits" cited by supporters of the legislation. Hon. Jon O.
Newman, Foreward: Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 65 BROOKLYN
L. REV. 519, 520-523 (1996).
9 18 U.S.C. § 3626 (a), (b), (e), (f), 42 U.S.C. § 1997e(d).
10 E.g., Porter v. Nussle, 534 U.S. 516 (2002) (upholding the requirement of exhaustion of administrative
remedies under the PLRA, even if the remedies available could not provide the relief
sought).
11 315 F.3d 990 (8th Cir. 2003), rev'g, Christina A. v. Bloomberg, 167 F. Supp. 2d 1094 (D.S.D.
2001).

LITIGATION LANDMINES 193
v. West Virginia Department of Health and Human Resources I2 the Supreme
Court contracted the definition of "prevailing parties" entitled to attorneys fees
by excluding situations where defendants voluntarily changed their conduct, even
when the changes were those sought by plaintiffs in litigation. Consequently,
many attorneys will not take on such difficult litigation if they cannot receive
compensation at reasonable rates when they are successful, and therefore abusive
conditions, no matter how horrific, may go unchallenged.
The issue is also about money. The PLRA restricts attorneys fees in conditions
of confinement cases to an hourly rate not greater than 150% of the hourly
rate for federal court-appointed counsel established under 18 U.S.C. §3006A.
That hourly rate is less than $100 per hour. Under 42 U.S.C. §1988, however, the
general rule in other civil rights cases (e.g., involving employment or housing
discrimination) is that plaintiffs who are "prevailing parties" in a civil rights case
are entitled to hourly fees at market rates. I3 In Christina A., the market rates for
plaintiffs' attorneys were much higher than PLRA rates; for example, the market
rate for lead counsel was $330 per hour. Since litigation over conditions of confinement
often involves hundreds and even thousands of hours of attorney time,
the difference in total fees under the PLRA rate and under market rates can be
hundreds of thousands of dollars.
I. THE CHRISTINA A. LmGATION
Christina A. v. Bloomberg involved abusive conditions and practices at the
South Dakota State Training School in Plankinton, South Dakota, including excessive
use of restraints ("four-pointing" - handcuffing and shackling children to
their beds), excessive isolation, inadequate mental health services, inadequate education
(including special education for disabled students), and inadequate training
of staff. The plaintiffs, youth confined at the facility, and the defendants, the
superintendent of the Plankinton facility and the secretary of the state Department
of Corrections, settled the substantive claims by a Settlement Agreement in
12 532 U.S. 598 (2001). See generally Macon Dandridge Miller, Catalyst as Prevailing Parties
Under the Equal Access to Justice Act, 69 U. CHI. L. REV. 1347 (2002) ;Deborah M. Weissman, Law
as Largess: Shifting Paradigm of Law for the Poor, 44 WM. & MARY L. REV. 737 (2002); Michael
Ashton, Note, Recovering Attorneys' Fees with the Voluntary Cessation Exception to Mootness Doctrine
after Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and Human
Resources, 2002 WIS. L. REV. 965 (2002); Mary D. Fan, Note, Textual Imagination, 111 YALE L.
REV. 1251 (2002) (describing Buckhannon as privileging "a cannon of statutory construction over
legislative record of congressional intent"); Richard Gibson, Note, Redefining the Civil Rights Attorney's
Fees Award Act: Buckhannon Board and Care Home and the End of the Catalyst Theory, 52
CArn. U. L. REV. 207 (2002); 115 HARV. L. REV. 457, Leading Cases (2001); Martha Pacold,
Comment, Attorney's' Fees in Class Actions Governed by Fee-Shifting Statutes, 68 U. CHI. L. REV.
1007 (2001); Marilyn A. Mahusky & Joseph A. Reinert, Erosion of Civil Rights Enforcement: Judicial
Constriction of the Civil Rights and Disability Law Bar, 28-Jun VT. B. J. 41 (2002).
13 See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Blum v. Stenson, 465 U.S. 886 (1984).

194 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
November 2000. The Agreement required numerous changes in conditions and
policies at the facility, and provided for monitoring by plaintiffs' counsel for a
period of one year. 14 In December 2000, the District Court formally approved
the Settlement Agreement and kept jurisdiction over the case during the next
year for the purpose of enforcing the Settlement Agreement. Plaintiffs' attorneys
monitored the facility during the next year. On December 31, 2001, the state
decided to close the facility permanently.
A. Prevailing parties
After signing the Settlement Agreement, plaintiffs moved for attorneys' fees,
pursuant to 42 U.S.C. § 1988. The defendants objected that the state had
changed the conditions and policies "voluntarily" and therefore the plaintiffs
were not "prevailing parties.,,15 The plaintiffs responded that many of the
changes were directly required by the terms of the Settlement Agreement. Moreover,
plaintiffs claimed that - whether or not the state voluntarily made the
changes - the litigation was a "catalyst" for the changes, and under case law
they were entitled to fees for that reason. 16
The "catalyst theory" was an accepted basis for attorneys fees in most federal
circuits, including the Eighth, when the plaintiffs submitted their motion. I7 However,
by the time the District Court actually ruled on the motion, the U.S. Supreme
Court had closed that road. Buckhannon Board and Care Home, Inc. v.
West Virginia Department of Health and Human Resources 18 was decided on May
29, 2001, more than six months after the parties entered into the Settlement
Agreement, more than five months after the District Court approved the Agreement,
but four months before the District Court ruled on the fees motion. It held
that where defendants change their conduct voluntarily, plaintiffs are not entitled
to attorneys fees, even if the changes were those sought by plaintiffs in the litigation.
Such changes "lack the necessary judicial imprimatur.,,19 Furthermore, the
fact that the litigation was a "catalyst" for the changes is an insufficient basis for
14 Christina A. v. Bloomberg, 167 F. Supp. 2d 1094 (D.S.D. 2001).
15 42 U.S.C. § 1988.
16 Hewitt v. Helms, 482 U.S. 755, 760 (1987).
17 See, e.g., Stanton v. Southern Berkshire Regional Sch. Dist., 197 F.3d 574, 577 n. 2 (1st Cir.
1999); Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995); Baumgartner v. Harrisburg Hous. Auth., 21 F.
3d 541, 546-550 (3d Cir. 1994; Payne v. Board of Ed., 88 F.3d 392 (6th Cir. 1996); Zinn v. Shalala, 35
F.3d 273, 276 (7th Cir. 1994); Little Rock Sch. Dist. v. Pulaski Cty. Sch. Dist. #1,17 F.3d 260, 263 n.2
(8th Cir. 1994); Kilgour v. Pasadena, 53 F.3d 1007, 1010 (9th Cir. 1995); Beard v. Teska, 31 F.3d 942,
952 (10th Cir. 1994); Morris v. West Palm Beach, 194 F.3d 1203,1207 (11th Cir. 1999). See Buckhannon
v. Board and Care Home, Inc., v. West Virginia Dep't of Health and Human Res., 532 U.S. 598,
622-628 (Ginsburg, J., dissenting).
18 532 U.S. 598, 121 S. Ct. 1835 (2001).
19 Id. at 605.

LITIGATION LANDMINES 195
an award of fees. Instead, plaintiffs must obtain a "judicially sanctioned,,20
change in the defendant's conduct such as a judgment on the merits or a courtordered
consent decree. The Court emphasized the importance of "judicial approval
and oversight,,21 over "a material alteration in the legal relationship of the
parties. ,,22
In awarding fees in Christina A., the District Court held that even though the
plaintiffs could no longer rely on the catalyst theory, they were nevertheless entitled
to attorneys fees. The changes made by the defendants were not "voluntary,"
and therefore the Settlement Agreement met the requirements of
Buckhannon:
The Settlement Agreement in this case is not a formal consent decree. But
to read Buckhannon to require one particular form for resolving a dispute
in order to become a prevailing party is to read the opinion too narrowly
.... The Settlement Agreement requires Defendants to make certain improvements
at Plankinton and allows Plaintiffs to enforce those changes
within a year. In its Order dated December 13, 2000, this Court expressly
retained jurisdiction over the matter for the purpose of enforcing the Settlement
Agreement. Thus, unlike a voluntary change undertaken by a defendant,
the changes embodied in the Settlement Agreement do not lack "the
necessary judicial imprimatur.,,23
B. Hourly rate
In requesting fees, the plaintiffs also claimed that the PLRA attorneys fees
limitations did not apply to them because the case involved a juvenile facility.
They reasoned as follows. The limitations on attorneys fees in the PLRA are
contained in § 803 of the Act and apply to "any action brought by a prisoner who
is confined to any jail, prison, or other correctional facility. ,,24 The plaintiffs in
Christina A. were "prisoners" within the meaning of § 803. 25 However, they
were not confined in a "jail, prison, or other correctional facility." Instead, they
were confined in a facility "for juveniles."
20 [d.
21 [d.
22 [d. at 604, quoting Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,792-
793 (1989).
23 167 F. Supp. 2d at 1098-1099.
24 42 U.S.c. §1997e(d)(1).
25 42 U.S.c. §1997e(h): "As used in this section, the term "prisoner" means any person incarcerated
or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent
for, violation of criminal law or the terms and conditions of parole, probation, pretrial release,
or diversionary program."

196 THE UNIVERSITY OF THE DISTRICf OF CoLUMBIA LAW REVIEW
When it was enacted, § 803 amended an existing statute, the Civil Rights of
Institutionalized Persons Act (CRIPA).26 In a provision that pre-dated enactment
of the PLRA (and was unchanged by enactment of the PLRA), CRIPA
expressly defined the term "institution" and identified five types of facilities. 27
One type, identified in subsection (ii) of the provision, is "a jail, prison, or other
correctional facility." Another type of facility, identified in subsection (iv), is "for
juveniles." Since CRIPA expressly applies to prisoners in "a jail, prison or other
correctional facility," as distinguished from prisoners in facilities "for juveniles,"
and since the plaintiffs in Christina A. were in a facility "for juveniles," the plaintiffs
claimed that the attorney fee limitations in § 803 did not apply to their lawsuit.
The District Court agreed 28 and awarded fees at market rates, a total of
$302,617.50 for more than 1,500 attorney hours, plus $74,019.98 in costs as reimbursement
for out-of-pocket expenses.
It is an understatement to say that the District Court was bucking the tide on
the issue of hourly rates. 1\vo appeals courts had previously ruled on the issue.
The Fourth Circuit, in Alexander S. v. Boyd,29 and the District of Columbia Court
of Appeals, in District of Columbia v. Jerry M.,3° held that the fee limitations in
the PLRA do apply to cases involving juveniles incarcerated in juvenile facilities,
although the courts ruled for different reasons. 31 The defendants appealed the
award of fees, basing their argument on Alexander S., Jerry M., and Buckhannon.
C. The Eighth Circuit opinion
The Eighth Circuit opinion was a 2-1 split decision of a three-judge panel. The
majority held that under Buckhannon, the plaintiffs were not prevailing parties.
Even though the District Court had approved the Settlement Agreement and
found it to be "fair, reasonable, and adequate," the panel found it a fatal flaw that
the District Court did not explicitly incorporate the terms and conditions of the
26 42 U.S.c. §1997 et seq.
27 42 U.S.C. §1997(1): As used in this subchapter:
(1) The term "institution" means any facility or institution -
(A) which is owned, operated, or managed by, or provides services on behalf of any
State or political subdivision of a State; and
(B) which is-
(i) for persons who are mentally ill, disabled, or retarded, or chronically ill or
handicapped;
(ii) a jail, prison, or other correctional facility;
(iii) a pretrial detention facility;
(iv) for juveniles ...
(v) providing skilled nursing, intermediate or long-term care, or custodial or residential
care.
28 167 F. Supp. 2d at 1099-1100.
29 113 F.3d 1373 (4th Cir. 1997).
30 717 A.2d 866 (D.C. 1998).
31 Compare 113 F.3d at 1383-1385 with 717 A.2d at 869-875.

LITIGATION LANDMINES 197
agreement into its opinion and order. Further, although the District Court retained
jurisdiction over the agreement for one year for the express purpose of
enforcing it, the panel found that a violation of the agreement would not support
a citation for contempt. 32 Accordingly, the Court found that the agreement
lacked "judicial imprimatur,,33 and was not akin to a consent decree but merely a
"private settlement agreement. ,,34 The PLRA defines a "private settlement
agreement" as "an agreement entered into among the parties that is not subject
to judicial enforcement other than the reinstatement of the civil proceeding that
the agreement settled.,,35 Further, the Court found that the fees limitations in
the PLRA apply to juveniles in juvenile facilities, relying on Alexander S. v.
Boyd.
The third judge on the panel filed a vigorous dissent on the issue of prevailing
party status: "The Court in Buckhannon did not limit the availability of prevailing
party status to only those cases resolved through a consent decree or final
judgment on the merits.,,36 Rather, he noted, the Supreme Court identified criteria
to determine whether there is "a judicially sanctioned, material change in the
legal relationship of the parties. ,,37 The criteria were finality, judicial approval,
judicial oversight, and enforcement jurisdiction. 38 He found that all were present
in Christina A. Moreover, he noted that the Eleventh Circuit had approved a
settlement agreement in similar circumstances, finding Buckhannon to be no
impediment. 39
Plaintiffs petitioned the Eighth Circuit for rehearing en banc, pointing out that
the majority decision by the panel conflicted not only with case law in the Eleventh
Circuit, but also in the Fourth 40 and Ninth 41 Circuits, as well as in the Eighth
Circuit itself.42 The en banc Court voted 6-5 to deny the petition, leaving the
plaintiffs with no fees or costs.
32 315 F.3d at 992-994.
33 [d. at 993.
34 [d. at 994, citing Kokkonen v. Guardian Life Ins., 511 U.S. 375, 381 (1994).
35 18 U.S.C. § 3626(g)(6).
36 315 F.3d at 996.
37 [d.
38 [d. at 997, noting that Kokkonen, supra note 35, should be limited to its holding - that "district
courts lack inherent authority to enforce settlement agreements where there is no incorporation
of the agreement in the order of dismissal or retention of enforcement jurisdiction" - but should not
be expanded to mean that district courts lack authority to enforce settlement agreements where they
have expressly retained jurisdiction for the purpose of enforcement.
39 [d. at 999, citing American Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315, 1318-1320 (11th
Cir.2002).
40 Smyth v. Rivero, 282 F.3d 268 (4th Cir. 2002).
41 Barrios v. California Interscholastic Fed'n, 277 F.3d 1128 (9th Cir. 2002); Watson v. County
of Riverside, 300 F.3d 1092 (9th Cir. 2002).
42 Gilbert v. Monsanto, 216 F.3d 695 (8th Cir. 2000).

198 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
II. A VOIDING LANDMINES - SOME LESSONS FROM CHRISTINA A.
A. The "judicial imprimatur" should be clear and unmistakable.
To avoid the fatal consequences cited by the majority, a settlement agreement
should require, for it to be binding on the parties, a court order that retains jurisdiction
and explicitly incorporates the terms and conditions of the agreement.
The purpose of retention of jurisdiction - to enforce the agreement - should also
be explicit in the agreement and the court's order. In addition, the consequences
of violation and the manner of enforcement of the agreement - i.e., through the
contempt power of the court - should be made clear.
B. The appellate courts are unsympathetic to the argument that cases involving
juveniles in juvenile facilities are exempt from P LRA rate limits.
Although the District Court in Christina A. agreed with the argument, every
appellate judge who has ruled on the issue has turned it down. Evidently, if cases
involving juveniles in juvenile facilities are to be treated differently than those
involving adult prisoners, Congress will have to make that distinction by amending
the PLRA.
C. The above two considerations can pose difficult ethical and financial
challenges to plaintiffs' attorneys.
In many conditions of confinement cases, the defendants will agree to a resolution
of the substantive claims, but will not agree to an explicit statement in the
settlement agreement that plaintiffs are entitled to attorneys fees. This puts the
plaintiffs in a potential conflict situation: if they protect their clients' interests by
settling the substantive claims, they may jeopardize their fees. Refusing to settle
on those terms, however, may jeopardize their clients' interests, and thereby violate
their ethical duty to the clients. The U.S. Supreme Court addressed an extreme
version of this situation in 1986 in Evans v. Jeff. D,43 where defendants
explicitly conditioned settlement of a civil rights action (over inadequate state
services for disabled children) on plaintiffs' waiver of their fees. Plaintiffs accepted
the offer, considering themselves ethically obligated to do SO.44 The Supreme
Court upheld the agreement, but provided no guidance for plaintiffs'
attorneys caught (or trapped) in this dilemma.
The financial difficulties posed by the PLRA fee limits are also evident. There
is no question that the PLRA provisions, including the low cap on attorneys fees,
have resulted in a dramatic decrease in lawsuits by prisoners. Between 1995 and
1999, federal criminal case filings increased by 32%, but prisoner civil rights lit i-
43 475 u.s. 717 (1986).
44 Id. at 722.

LITIGATION LANDMINES 199
gation decreased by 400/0. By comparison, other civil rights actions (e.g., housing,
welfare, voting) increased by 10% during the same period. 45
D. Advocacy after Christian A.
A solution is elusive. As noted earlier, the Supreme Court has upheld the
PLRA against every challenge. The Republican leadership in both houses of
Congress, with its well-known antipathy toward trial attorneys,46 is unlikely to
support legislative changes that would increase fees for civil rights attorneys.
What then can advocates for children in confinement do?
First, where abusive conditions exist, children's advocates should utilize all of
the advocacy strategies available to put themselves in the strongest position for
negotiating settlement agreements. Through media advocacy, for example, they
can keep the public's attention focused on conditions in the facility, and keep
pressure on public officials to make needed changes. In South Dakota, and other
states such as Louisiana and Maryland, there has been extensive press coverage
of abuses in juvenile facilities and reform efforts. 47
To encourage conditions of confinement litigation where clear abuses are identified,
and to assure plaintiffs attorneys that they will receive some level of compensation,
charitable foundations and other funding sources such as IOLTA
funds 48 should make grants to non-profit public interest law firms working on
children's issues to litigate the claims. Some foundations have made such grants
in the past and continue to do so, but many foundations actually prohibit grants
funds from being used for litigation.
Civil rights attorneys should also consider litigating under state civil rights laws
in state courts, where the PLRA does not apply.49 Moreover, attorneys should
45 Roger Roots, Of Prisoners and Plaintiffs' Lawyers: A Tale of Two Litigation Reform Efforts,
38 WILLAMEITE L. REv. 210 (Spring 2002).
46 E.g., Dana Milbank, The Political Mind Behind Tort Reform, WASH. POST, Mar. 25, 2003,
at A21; George F. Will, License to Legislate, WASH. POST, Apr. 17, 2003, at A23; Sheryl Gay Stolberg,
Lobbyists on Both Sides in Medical Malpractice Debate, N.Y. TIMES, Mar. 12,2003, at A2l.
47 E.g., Jennifer Gerrietts and Lee Williams, Lawsuit: Juvenile Abuse Continues, ARGUS
LEADER (Sioux Falls), Feb. 25, 2000, at 1; Jennifer Gerrietts, "They would leave us shackled to the
four-point bed . .. for days," ARGUS LEADER, Jul. 11,2000, at 1; Jennifer Gerrietts, Scores: State
Knew About Boot-camp Abuse For Years, ARGUS LEADER, Jan. 9, 2001, at 1; Todd Richissin, Lt.
Gov. Is Urged to Close Teen Jail, BALTIMORE SUN, Nov. 27, 2001; Douglas Tallman, Dad Says Son
Victim of Sex Assault, FREDERICK NEWS-POST, Dec. 21, 2001; Cheltenham Guard Is Charged
with Sexual Assault, BALTIMORE SUN, Apr. 12,2002; Doug Simpson, Judge Orders Inmates Removed
from Tallulah, Associated Press, Nov. 12,2002; 'TImes-Picayune Editorial Board, Tallulah and
Beyond, (New Orleans) TIMES-PICAYUNE, Nov. 18,2002; Gwen Filosa, The Trials of Tallulah,
TIMES-PICA YUNE, Feb. 16, 2003; Adam Nossiter, After Lawsuits and Scandal, Louisiana Looks at
Revamping Juvenile Prisons, Associated Press, Mar. 6, 2003; The Advocate Editorial Board, Prison
Contract Calls for Action, THE ADVOCATE (Baton Rouge), Mar. 11,2003.
48 See Brown v. Legal Found, 123 S. Ct. 1406 (2003).
49 18 U.S.c. § 3626(d).

200 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
pursue state tort remedies for individual youth who endure dangerous and harmful
conditions in juvenile facilities. Such cases may require less specialization
than civil rights class actions, and there are far more personal injury attorneys
than civil rights lawyers in this country. Moreover, corporate law firms will often
represent individual abused youth on a pro bono basis.

MENTAL HEALTH AND INCARCERATION:
WHAT A BAD COMBINATION
Olinda Moyd*
The District of Columbia has one of the highest per capita incarceration and
criminal justice supervision rates in the United States l and among the highest in
the world. The local prison population has risen dramatically over the past decade
for a variety of reasons including increased rates of re-incarceration for parole
violations and the imposition of longer sentences for drug offenses. Recent
acts of Congress have seriously impacted the sentencing laws in the District including
determination of where persons sentenced for violating local D.C. laws
will serve such sentences. On August 5, 1997, President Clinton signed into law
The National Capital Revitalization and Self-Government Improvement Act of
1997 (the "Revitalization Act")? which effectively "federalized" the local prison
population by transferring authority for incarcerating D.C. prisoners to the
United States Bureau of Prisons. Thus, while there are still "local prisoners,"
there is no longer a local prison, nor do the D.C. prisoners remain "local."
Rather, persons convicted of crimes in the District of Columbia are now held in
prisons operated by, or contracted on behalf of, the federal government.
The Revitalization Act also mandated the creation of a District of Columbia
Truth-In-Sentencing Commission to make recommendations to the Council of
the District of Columbia to completely revamp the local sentencing structure. 3
Changes included altering the sentence a judge may impose from an indeterminate
to a determinate sentencing structure, abolishing parole for thirty-seven felony
offenses, and requiring offenders to serve at least 850/0 of any prison sentence
imposed for those offenses. These recommendations became law in August 2000.
The Revitalization Act also abolished the local D.C. Board of Parole and authorized
the United States. Parole Commission to make all parole grant and release
decisions, including the specific terms of supervised release, the decision to
revoke supervised release, and the length of any prison sentence upon revocation
of supervised release. Although several state legislatures have enacted major
* Olinda Moyd, J.D., is a staff attorney at the D.C. Public Defender Service where she has been
employed since 1990 with the Prisoners' Rights Program and since 1998 with the Special Litigation
Division. In the Fall Semester 2002, she was a visiting professor of law at the University of the District
of Columbia David A. Clarke School of Law where she taught the Prisoner's Rights and Advocacy
Clinic.
1 JEROME G. MILLER, NATIONAL CENTER ON INSTITUTIONS AND ALTERNATIVES, Hobbling a
Generation: Young African American Males in D.C.'s Criminal Justice System (1992).
2 Pub. L. No. 105-33, 111 Stat. 712 (1997) (codified at D.C. Code Ann. § 24-101 et seq. (West
2003).
3 (D.C. Code Ann. § 24-111 (West 2003).

202 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
changes in their sentencing and corrections policies,4 nowhere else in the country
has Congress imposed such significant changes in the entire criminal justice system,
from the sentencing phase to incarceration to parole supervision.
Currently there are approximately 11,000 men and women incarcerated who
have been convicted for violating a D.C. criminal code offense. Because of the
Revitalization Act, approximately 9,000 prisoners are in the custody of the Bureau
of Prisons and are housed in federal, state, or private facilities operated by
or contracted for by the Bureau of Prisons for such term of imprisonment as the
court has directed. 5 Therefore, the District of Columbia Central Detention Facility
(otherwise known as the D.C. Jail) and the privately operated Corrections
Corporation of America Correctional Treatment Facility ("CCAlCTF") are the
two local facilities that house D.C. code offenders. Currently, there are approximately
717 prisoners housed at CCAlCTF and nearly 1900 at the Jail.
MENTAL HEALTH TREATMENT AT THE D.C. JAIL
Despite years of litigation, one of the most serious problems facing D.C. prisoners
is the lack of adequate access to medical care and mental health treatment.
Caring for and coping with the mentally ill offender is a major problem in most
correctional facilities. Second only to AIDS, mental illness is the principal health
problem that prisoners experience behind bars.
In Campbell v. McGruder, 6 and Inmates of D. C. Jail v. Jackson, 7 D.C. courts
upheld plaintiffs' challenges to the totality of the conditions at the D.C. Jail.B The
court found that the delivery of medical care, including mental health services,
was inadequate. The D.C. Jail ("the Jail") is located in Southeast Washington
D.C. and is operated by the D.C. Department of Corrections largely, though not
completely, as a pre-trial detention facility. The Jail has housing units for both
men and women, an infirmary, and an intermediate care mental health cell block.
4 Four states adopted revisions to selected mandatory and "truth in sentencing" laws: Connecticut,
Louisiana, Mississippi and North Dakota. Five states expanded the role of drug treatment as a
sentencing option: Arkansas, California, Idaho, Oregon and Texas. Seven states passed legislation to
ease prison overcrowding: Arkansas, Iowa, Mississippi, Montana, North Carolina, Texas and Virginia.
RYAN S. KING & MARC MAUER, THE SENTENCING PROJEcr, STATE SENTENCING AND CORRECTIONS
POLICY IN AN ERA OF FISCAL RESTRAINT 5 (2002).
5 Section 11201(b) of the Revitalization Act mandates that the Lorton Correctional Complex
be closed no later than December 31, 2001, that the Bureau of Prisons shall be responsible for the
custody, care, subsistence, education, treatment and training of such persons and that at least 50% of
the DC sentenced felon population be housed in private contract facilities. 111 Stat. 712 (codified at
D.C. Code Ann. § 24-101 (West 2003».
6 C.A. No. 1462-71 (D.D.C. 1971) (WBB)
7 e.A. No. 75-1668 (D.D.C. 1975) (WBB)
8 These cases have been consolidated. Opinions in these cases have been published at Campbell
v. McGruder, 416 F. Supp. 100 (D.D.C. 1975); 416 F. Supp. 106 (D.D.C. 1975); 416 F. Supp. 111
(D.D.C. 1976); affd in part and remanded, 580 F.2d 521 (D.C. Cir. 1978); on remand, 554 F. Supp. 562
(D.D.e. 1982).

MENTAL HEALTH AND INCARCERATION 203
Prisoners in the Jail are confined in single and double cells. All persons incarcerated
by the Department of Corrections are first confined at the Jail prior to their
eventual placement at another facility. Until recently there has been a court imposed
population ceiling of 1,674 prisoners at the Jail as a result of the Campbell
lawsuit.
The Campbell case was filed in 1971 on behalf of a class of plaintiffs consisting
of all D.C. Jail pre-trial detainees. In 1974, Inmates of D. C. Jail was filed on
behalf of a class consisting of all sentenced prisoners at the D.C. Jail. Following a
trial in 1975, Judge William B. Bryant held that the conditions of confinement in
the D.C. Jail were so severe that they violated the constitutional rights of the
persons confined there. Over the next ten years, Judge Bryant repeatedly ordered
remedial actions, culminating in 1985 with the negotiation and entry of a
court-approved stipulation. The stipulation required that the D.C. Department
of Corrections reduce the population at the Jail to not more than 1,674 prisoners,
improve the system for classifying prisoners, implement improvements in the
medical and mental health system, and implement pretrial release programs. 9
The court found that the Jail was so overcrowded that prisoners were being subjected
to "both physical and psychological damage.,,10
In 1993, After finding that the District had failed to comply with the stipulation,
and with other orders of the court, Judge Bryant appointed a Special Officer
on April 22, 1993, to monitor and report on the District's compliance. ll On September
15, 1993, experts engaged by the Special Officer submitted lengthy reports
on serious, life-threatening deficiencies in medical and mental health care at
the Jail. 12 These reports described medical and mental health systems that were
in complete disarray. A subsequent report on February 2, 1994, described thirtysix
court-ordered provisions that the Department of Corrections had violated.
By 1995 the Court was unconvinced that the Jail staff could independently comply
with the medical and mental health requirements and placed such services
under court-ordered, five year receivership. Plaintiffs' attorneys argued that the
Stipulation was necessary in order to "break the defendants' pattern of resistance,
indifference and incompetence. ,,13 Jail officials recently petitioned the
court to relieve them of the court-imposed population cap for sixty days to prove
that they can provide adequate services with increased populations. Director
9 Order, August 22, 1985; Stipulation, August 22, 1985.
10 Memorandum and Order, March 21,1975 at 2.
11 Order Appointing Special Officer, April 22, 1993.
12 Expert Reports on Medical and Mental Health Services at the District of Columbia Jail
(Sept. 15, 1993).
13 See Plaintiffs' Memorandum of Points and Authorities in Support of Motion for Appointment
of a Receiver, filed by Plaintiffs attorneys Patrick Hickey at Shaw, Pittman, Potts and Towbridge
(attorney in Campbell) and Jonathan Smith at D.C. Prisoners' Legal Services Program
(attorney in Inmates).

204 THE UNIVERSITY OF TIlE DISTRIcr OF COLUMBIA LAW REVIEW
Odie Washington said in an interview that he hoped that after the two-month
stay, the "parties will be satisfied that the jail can provide adequate conditions for
a larger inmate pool and will agree to abolish the cap.,,14
Medical screening and clearance are required for every D.C. Code offender
entering the D.C. Jail. As a part of that screening, an assessment should be conducted
by a mental health technician to determine the mental health needs of the
offender. The mental health technician is generally a psychiatric nurse who is
licensed by the District to conduct such diagnoses. Mental health offenders are
housed in South Three (one of eighteen cellblocks at the D.C. Jail) that houses
twenty to thirty prisoners. Male and female offenders who are diagnosed as being
acute or chronic are housed in this unit, which is staffed twenty-four hours
with mental health personnel. Offenders who need to be stabilized are given
psychotropic medications and are seen by a psychiatrist within about four weeks
after their arrival. The offenders can participate in individual and group counseling
sessions and meet with the staff psychiatrist monthly. The office of mental
health services determines which clients will be transferred to St. Elizabeth's
Hospital and this transfer is uneventful unless agency politics prevent the immediate
transfer and, according to a staff caseworker, offenders are left to deteriorate
while waiting. When D.C. Code offenders are sent to the CCAICTF, they
have already completed this initial screening process, but the staff completes a
suicide evaluation to determine the mental health status of offenders housed
there.
The District's failure to comply with court orders has not only been costly
because of attorneys' fees and sanctions, but, most importantly, has also resulted
in significant harm to prisoners. According to the Criminal Justice Mental Health
Standards, correctional facilities should provide a range of mental health services
for prisoners and should provide adequately trained personnel readily available
to provide such services. I5 The available evidence suggests that even after three
decades of litigation, the D.C. Jail often fails to meet this standard.
THE LAW AND MENTAL HEALTH IN PRISONS
The Bureau of Justice Statistics reports that over 238,800 individuals with
mental illnesses are confined in U.S. jails and prisons. 16 As prison populations
have grown so have the numbers of prisoners with mental illness. During the
past decade, state mental health hospitals have rapidly been closing because of
deinstitutionalization, while hundreds of new prisons have opened. As a result,
14 Serge F. Kovaleski, D.C. Seeks Lifting of Inmate Cap at Jail, WASH. POST, , Mar. 2, 2002, at
B02.
15 A.B.A., CRIMINAL JUSTICE MENTAL HEALTII STANDARDS 7-10.2 (a) (1989).
16 Paula M. Ditton, BUREAU OF JUSTICE STATISTICS, Mental Health and Treatment of Inmates
and Probationers (U.S. Dep't of Justice 1999).

MENTAL HEALTH AND INCARCERATION 205
jails and prisons have become the institutions most likely to house the mentally
ill. Overcrowding that is endemic in prisons today leads to greater violence, a
lack of privacy, excessive noise, and other stressful conditions that are hard on
everyone, but particularly so on those vulnerable to emotional and psychiatric
problems.
While not every mental health problem constitutes a serious need, the denial
of adequate care for serious mental health needs may constitute deliberate indifference.
17 Deliberate indifference is the legal standard for determining whether
the conduct of the corrections official meets the requirements of a constitutional
challenge. In Eighth Amendment conditions cases, the plaintiff must prove that
the defendants acted with "deliberate indifference;" knowledge of the actual conditions
that existed, and knowledge of the likely consequence that those conditions
would cause harm. The standard for deliberate indifference falls
somewhere between mere negligence (carelessness) and actual malice (intent to
cause harm}.18 The Supreme Court applied this standard first to medical care
cases 19 and later, in Wilson v. Seiter,20 to all conditions of confinement cases. The
question posed is: Are corrections officials deliberately indifferent to the serious
mental health needs of the prisoner? Courts have upheld an inmate's right to
mental health care by equating psychiatric care with medical care. The Fourth
Circuit Court of Appeals saw "no underlying distinction between the right [of a
prisoner] to medical care for physical ills and its psychological or psychiatric
counterpart. ,,21
Although prisoners are not entitled to their choice of treatment or the best
possible treatment, in order to avoid a constitutional violation, prison officials
must exercise some form of professional judgment and must provide some treatment.
The failure to train correctional staff to deal adequately with mentally ill
prisoners can constitute deliberate indifference?2 Mental conditions such as
acute or severe depression generally constitute a serious medical need for which
prison officials must provide treatment. 23 After Wilson, courts also look to con-
17 Smith v. Jenkins, 919 F.2d 90, 92-93 (8th Cir. 1990); Langley v. Coughlin, 888 F.2d 252, 254
(2d Cir. 1989); Waldrop v. Evans,871 F.2d 1030, 1033 (11th Cir 1989); rehearing denied, 880 F.2d 421
(11th Cir. 1989); Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981).
18 Estelle V. Gamble, 429 U.S. 97, 104 (finding mere negligence or medical malpractice insufficient
to state a cause of action absent showing of acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs).
19 Estelle V. Gamble, 429 U.S. at 104 (1976).
20 501 U.S. 294,303 (1991) (finding "no significant distinction between claims alleging inadequate
medical care and those alleging inadequate 'conditions of confinement' ").
21 Bowring V. Godwin, 551 F.2d 44, 47 (4th Cir. 1977).
22 Langley V. Coughlin, 709 F. Supp. 482, 483-85 (S.D.N.Y. 1989).
23 Peterkin V. Jeffes, 661 F. Supp. 895, 917, 923 (E.D. Pa. 1987) (citing abnormally high incidence
of chronic depression among death row inmates as sufficiently serious medical need).

206 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
sistent and repeated failures over an extended period, coupled with actual knowledge
of the substandard conditions and the harm they may cause, to establish
deliberate indifference. A constitutional violation occurs only where the deprivation
alleged is objectively "sufficiently serious" and the official has acted with
"deliberate indifference" to inmate health or safety needs. 24
Care that grossly departs or dramatidllly deviates from professional standards
amounts to deliberate indifference. 25 Grossly incompetent or inadequate care
constitutes deliberate indifference, especially in cases in which the prisoners'
medication is discontinued abruptly and without justification, and consequent
harm can be demonstrated. 26 Courts have also condemned deficiencies in various
aspects of psychiatric care and treatment of mentally ill prisoners, including
the lack of mental health screening upon intake 27 and the failure to follow up
with inmates known or suspected to have mental disorders. 28 Prisoners have a
right to have psychotropic medications continued if discontinuation would
amount to grossly inadequate psychiatric care. 29 In a Georgia case, the representative
of a prisoner successfully brought an action against the state for deliberate
indifference to his health when he had a history of mental illness and had been
taking antidepressants, but the prison psychiatrist discontinued his anti-depressants.
In that case, a prison official had received a report that the inmate was
thinking about suicide and failed to take any precautions. 3o
Most of the cases in which the court has found constitutional violations in the
mental health area focus on the lack of adequate and qualified staff. 31 In Inmates
of Occoquan v. Barry,32 the district court determined that the "woefully short"
mental health staff supported a finding of unconstitutionality. The Honorable
Judge June Green found that two psychologists were not enough to meet the
needs of 1,900 inmates, especially because there was no staff psychiatrist and only
24 Farmer v. Brennan, 511 U.S. 825, 832-834 (1994).
25 Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990).
26 Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989) and Greason v. Kemp, 891 F.2d 829,
835 (11th Cir. 1990)
27 Balla v. Idaho State Bd. of Corr., 595 F.Supp. 1558,1577 (D. Idaho 1984); Ruiz v. Estelle, 503
F. Supp 1265, 1339 (S.D. Tex. 1980); Inmates of Allegheny County Jail v. Pierce, 487 F. Supp. 638,
642, 644 (W.O. Pa. 1980).
28 Arnold ex reI. H.B. v. Lewis, 803 F. Supp. 246, 257 (D. Ariz. 1992).
29 Waldrop v. Evans, 871 F.2d 1030, 1033 (11th Cir. 1989).
30 Greason v. Kemp, 891 F.2d 829, 834 (11th Cir. 1990).
31 See e.g., Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983) (requiring on-site psychiatrist);
Ramos v. Lamm, 639 F.2d 559, 578 (10th Cir. 1980) (requiring one full-time psychiatrist for
1,400 inmates, of wham an estimated 10% were "seriously mentally ill"); Jones v. Metzger, 456 F.2d
854 (6th Cir. 1972) (requiring doctor be on call at all times); Cody v. Hilliard, 599 F. Supp. 1025, 1058-
59 (D.S.D. 1984) (finding number of staff inadequate); Alberti F. Sheriff, 406 F. Supp. 649, 677 (S.D.
Tex. 1975) (requiring prison officials to obtain services of psychiatrist); Miller v. Carson, 401 F. Supp.
835,879 (M.D. Fla. 1975) (noting minimal attempt at rehabilitation due to "no trained personnel").
32 717 F. Supp. 854 (D.D.C. 1989).

MENTAL HEALTH AND INCARCERATION 207
one psychiatrist who came from the outside only two afternoons a week. One of
the psychologists testified that there was a large backlog of inmates who needed
testing in order to move to a lower level security facility and that he was struggling
to provide even emergency services. At the time, the staff used Q block at
Occoquan to house mentally ill inmates. Inmates remained locked in their cells
for twenty hours a day with no social contact and received no treatment, except
for medication and an occasional visit from the psychologist. The psychologist
testified that he tried to walk through Q block daily, but he would often just call
and talk to the officers there. He admitted that those on suicide watch received a
visual check every thirty minutes, but said this was ineffective. The psychologist
testified further that the corrections staff did not receive training on how to deal
with mentally ill inmates in Q block, and that the inmates in Q block were "abandoned
to their hallucinations and their delusions. . .. [I]t makes the illness more
difficult to treat, in come cases may make it untreatable. ,,33 The Court concluded
that housing mental health inmates in Q block showed deliberate indifference to
their psychiatric health needs. 34
In Cabrales v. County of Los Angeles,35 the Ninth Circuit determined that
deliberate indifference was established where the mental health staff could only
spend "minutes per month" with disturbed inmates. In Langley v. Coughlin,36 the
district court held that the use of untrained or unqualified personnel and inadequate
supervision by a psychiatrist supported the plaintiffs' constitutional claims.
Furthermore, the Seventh Circuit found that the absence of an on-site psychiatrist
in a large prison was unconstitutional,37 and other courts have required
prison officials to keep adequate mental health records. 38 In many prison settings,
officials issue psychotropic medications to "troublesome" prisoners without
regular monitoring or counseling. However, psychotropic medications must be
administered under the continued supervision of a qualified psychiatrist and cannot
be used as a form of punishment. 39 In Vitek v. Jones, the U.S. Supreme Court
held that it is unconstitutional to require a change in an inmate's behavior without
a legitimate reason. Thus, a corrections facility cannot force prisoners to undergo
psychiatric treatment as a form of punishment. 4o
Regardless of the elaborate constitutional standards that these and other federal
courts have established over the last thirty years, individuals with mental
33 [d. at 864.
34 [d. at 868.
35 864 F.2d 1454, 1461 (9th Cir. 1988)
36 715 F. Supp. 522, 540 (S.D.N.Y. 1989)
37 Wellman v. Faulkner, 715 F.2d at 272-73 (7th Cir. 1983).
38 Balla v. Idaho State Bd. of Corr., 595 F.Supp. 1558, 1577 (D. Idaho. 1984).
39 Lightfoot v. Walker, 486 F. Supp. 504, 522 (S.D. Ill. 1980) (prohibiting use of psychotropic
medication simply to control inmate behavior).
40 Vitek v. Jones, 445 U.S. 480,492, (finding that major changes in conditions of confinement
amounted to "grievous loss to inmate").

208 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
health problems routinely face inadequate care in incarceration facilities, including
the D.C. Jail. The following case studies illustrate some of the problems I
have observed in the D.C. Jail.
DETECI10N OF MENTAL HEALTH PROBLEMS AT INTAKE SCREENING
Mr. B.D. is an older offender who has been charged with committing a very
serious offense and is currently being held at the D.C. Jail awaiting trial. According
to information from his family, he is highly educated, speaks three foreign
languages, has studied oversees and has served in the U.S. military. Yet, he sits in
solitary confinement (by choice), unable to put any comprehensible sentences
together and barely able to effectively communicate with his attorney. He is
completely withdrawn. No one, except his attorney (who has no formal training
in detecting mental illness), has suspected that he may be suffering from
depression.
Although prisoners have the constitutional right to adequate medical diagnosis
and treatment, including psychiatric care, many like B.D. do not receive it. It is
estimated that only 16% of all inmates reported current mental illness or an overnight
stay in a mental hospita1. 41 Many offenders come to the criminal justice
system with mental health-related factors, including histories of physical and
mental abuse, extensive drug histories and psychological problems that have
often gone undiagnosed or un-addressed. Inmates fail to report such factors for a
variety of reasons, including wanting to avoid the stigma associated with mental
illness in the community and the inability to navigate through programs that are
difficult to access. For women offenders, mental health issues are often
multiplied.
Generally, persons with mental illness have a sixty% greater chance of being
arrested than those who are not mentally ill but commit the same offense. 42 A
recent study on jails and prisons in New York concluded that the rising cost of
managed health care, the population growth of jails and prisons, and the punishment
of "quality of life" crimes have contributed to the incarceration of
thousands of people with mental illness. These mental health issues are often
exacerbated by incarceration. If effective screening is not performed, then many
prisoners who do not want to disclose information or are aware of their illness go
undetected.
For these reasons, intake screening is an essential element in the provision of
mental health services in a jail setting. A screening process must be in place that
41 The Sentencing Project, MENTALLY ILL OFFENDERS IN THE CRIMINAL JUSTICE SYSTEM:.AN
ANALYSIS AND PRESCRIPTION 2 (2002), available at http://www.sentencingproject.org/news/
pub9089.pdf.
42 BAZELON CENTER FOR MENTAL HEALTH LAW, ENDING THE CRIMINALIZATION OF PEOPLE
WITH MENTAL ILLNESS (2001).

MENTAL HEALTH AND INCARCERATION 209
can identify high-risk inmates, including those at risk for psychosis, suicide and
self-destructive behavior as well as those who require special housing and increased
supervision based on mental illness. The initial screening at the D.C. Jail
is conducted as part of the intake clinical history and physical examination.
When mental health issues go undetected the results can be deadly. Historically,
inmates at the Jail have made suicide attempts by drinking disinfectant, overdosing
on medications, hanging with bed clothing and self-inflicting skin lacerations.
Proper and consistent treatment must also be provided to inmates during the
incarceration period.
TREATMENT OF MENTAL HEALTH ISSUES DURING INCARCERATION
On January 22, 2002, I represented Mr. J.H. at a preliminary interview before
the U.S. Parole Commission. I met with J.H. two times prior to the date of our
final revocation hearing scheduled for February 27, 2002. He was coherent, could
understand the defenses discussed, and we practiced the presentation he would
make on his own behalf at the final hearing. Tho days prior to the hearing he was
abruptly transferred to CCAICTF. When he was transported to the Jail for his
hearing, he was physically disheveled and disoriented. He asked the same questions
repeatedly and complained that his tongue felt heavy. He could barely navigate
his surroundings. When asked if he had been given psychotropic
medication, he answered affirmatively. In my limited capacity, I tried to ascertain
his ability to understand the proceedings. While he was able to recite important
dates and numbers, it became apparent that he was lethargic and could
barely keep his eyes open during the proceedings. I requested the Parole Commission
hearing examiner that the hearing be postponed, but the client repeatedly
yelled that he wanted to continue the hearing. The hearing examiner had to
be convinced that it was in the best interest of the client to continue the hearing
until a later date. Thus far, I have been unable to pinpoint why he was abruptly
transferred and given psychotropic medications, what medications he was given,
and who determined the need for such.
Mental health care in prisons must be consistent because mentally ill prisoners
are more vulnerable and have difficulty protecting themselves unless they are
properly diagnosed and medicated. Likewise, parole officers must also be crosstrained
to detect and understand the characteristics of mental illness and its effects
on daily functioning. In J.H.'s case, the parole officer was not familiar
enough with the client to assist me in assessing his mental ability. I was recently
notified that the United States Parole Commission has deferred his parole decision
pending the completion of a mental health evaluation.

210 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
DISCHARGE PLANNING OF MENTAL HEALTH PRISONERS
Mr. T.P suffers from schizophrenia for which he was diagnosed at an early age.
On August 15,2000, Mr. T.P. was released from the D.C. Jail after being granted
parole. His mother had been aware of his impending release date and was in
regular communication with his case manager at the D.C. Jail. On the day before
his pending release, the case manager assured his mother that he would be released
on the morning of August 15, 2000. Having heard the horrible stories of
prisoners being released in the middle of the night, the mother repeatedly asked
for assurance that T.P. would be released the next morning when she could pick
him up. The case manager again assured her that she could pick him up the next
morning.
However, when the case manager ended her workday, personnel in the
records office noticed his release date and began the process of releasing Mr. T.P.
Despite all efforts, he was released at 1 :00 a.m., and no one bothered to notify his
family of his release. He was given $2.50 for carfare, but did not know where to
go. He wandered through the streets of D.C. in his prison jumpsuit until he came
to a neighborhood that was familiar to him. He was found by his mother's inlaws.
He was sitting on the porch two doors down from where these relatives
lived. The relatives called his mother and notified her that he was there. They
gave him a pair of jeans and a t-shirt and took him home. It is truly a mystery
how he was able to recollect the neighborhood of his relatives when this was his
first release after serving nineteen years in prison. Though he had been on
psychotropic medication throughout his entire incarceration he was also released
without any supply of medication.
T.P.'s mother and father called D.C. Superior Court, the Office of Parole Supervision,
and worked hard to stabilize T.P. and to place him in the Spring Road
Mental Health Clinic where he reported daily while living at home. Due to the
collaboration among his parole officer, psychiatrist, and caseworker, T.P. was
successfully in the community for nearly a year until he was arrested by the U.S.
Marshal Service for violating the conditions of his parole. He allegedly submitted
one urine sample that tested positive for marijuana. Both of his parents, his
caseworker and a psychiatrist attended and testified at his parole revocation
hearing. His psychiatrist testified that he was working with T.P. teaching him to
be more assertive. T.P. expressed his concern that the neighborhood in which he
had to walk after leaving the Spring Road Clinic everyday to go home was a
drug-infested area and the guys would often ask him to participate in smoking
marijuana. The hearing examiner revoked his parole, but, convinced that further
incarceration was not necessary, scheduled a release date of November 2, 2001.
This, however, is not the end of the story. The U.S. Parole Commission has recently
determined that T.P. could not be released because his case manager had

MENTAL HEALTH AND INCARCERATION 211
submitted insufficient release planning information. Mr. T.P. remains housed at
the D.C. Jail.
The failure to establish a continuum of care has many harmful consequences
for the offender and for the community. During their incarceration, most inmates
with mental illness receive minimal mental health services. When their release
date arrives, moreover, they are usually discharged without a referral to
community treatment and without income, insurance, medication or housing.
They do not receive any of the support they need to obtain treatment, maintain
their psychiatric stability, and stay out of trouble. Offenders with mental illness
who receive no discharge planning are likely to re-offend, thereby creating both
financial and social costs for their communities. The District's failure to provide
adequate care to mentally ill offenders perpetuates the "revolving door" of repeated
incarcerations - it sets people up to re-offend. All of society benefits
from establishing links between jails and community treatment providers because
the goal of discharge planning is to create a smooth transition for the offender
back into the community. The days and weeks immediately following the release
of a person with mental illness from jail or prison are critical. The offender's
actions and access to resources during this time are likely to determine whether
the individual will succeed or fail in the community.
Jails must provide pre-discharge planning to all mentally ill prisoners and ensure
immediate access to essential services following their release. Although federal
law prohibits the use of Medicaid funds to pay healthcare providers for
health care costs of incarcerated individuals, it does not require state or local
governments to terminate benefits eligibility for those individuals. Nevertheless,
many states terminate inmate eligibility to Medicaid, Supplemental Security Income
and other entitlements such as Social Security Disability Insurance when
mentally ill individuals are incarcerated. As a result, many former inmates must
reapply for benefits upon release to the community, a process that can take
weeks or months.
CONCLUSION
Since Wilson, a prisoner claiming that the conditions of his confinement violate
the Eighth Amendment must show a culpable state of mind on the part of
prison officials. Such indifference may be shown by repeated examples of negligent
acts, which disclose a pattern of conduct by the prison medical staff or by
showing systemic or gross deficiencies in staffing, facilities, equipment or procedures.
The long duration of cruel prison conditions may make it easier to establish
knowledge and hence some form of intent. The medical care, including
mental health care, a prisoner receives is just as much a condition of his confinement
as the food he is fed, the clothes he is issued, the temperature he is subjected
to in this cell, and the protection he is afforded against other inmates.
Thus, as retired Justice Powell has concluded, "Whether one characterizes the

212 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
treatment received by [the prisoner] as inhumane conditions of confinement, failure
to attend to his medical [or mental health] needs, or a combination of both, it
is appropriate to apply the 'deliberate indifference' standard articulated in
Estelle. ,,43
Clearly, in the case studies presented above, strong arguments could be made
that the prison officials fell short in their responsibilities to both Mr. T.P. and Mr.
B.D. In the case of Mr. B.D. the staff at the initial screening should have been
sufficiently equipped to suspect and detect that he may be suffering from depression.
In the case of Mr. T.P., the case management and mental health staff fell
short of their responsibilities by releasing him without adequate medication, and
without taking steps to ensure that his mental health treatment would continue in
the community. In the case of Mr. J.H., I am still gathering facts to establish who
determined that he needed medication and whether appropriate dosages were
administered. We can conclude in these cases that the prison officials knew of
and disregarded the risk to the inmate's mental health or knew that substantial
harm existed and exhibited a deliberate indifference to that harm.
Accurate screening, adequate diagnosis and treatment while in prison, discharge
planning, and community follow-up are all necessary ingredients to success
for mentally ill offenders. Jail mental health professionals must be equipped
to recognize and respond to inmates who are experiencing symptoms of mental
illness and ensure their access to appropriate medications in the proper dosage.
Better legal enforcement and improved coordination of the existing mental
health and corrections staff might be the best remedy to some of the problems
described.
Untreated mental illness and co-occurring substance abuse disorders propel
"the revolving door between jail and the street for individuals who have committed
relatively minor crimes - many of them "nuisance crimes." Public perceptions
about the dangerousness of people with mental illness are often
unsubstantiated. Violent behavior is most likely to occur when people with
mental illness have a co-occurring substance abuse problem. Alcohol and drug
abuse also raise the likelihood of violence in the non-mentally ill. One major
problem arises from the splintered nature of the many mental health and treatment
options that are provided. Many psychiatric programs are designed to treat
either the mentally ill or people with a chemical dependency. Many substance
abuse programs do not accept people with mental illness. We must encourage
these programs to overcome political and agency inertia.
If jail and prison officials employ qualified staff to conduct adequate screenings,
proper diagnosis and treatment, and the necessary discharge planning, prisoners'
claims of "deliberate indifference" in mental health cases would become
obsolete.
43 Wilson,SOl U.S. 294 at 303.

SUICIDE IN JAILS AND PRISONS:
WHAT THE NUMBERS TELL US
Karen L. Cropsey, Psy.D. *
A. GENERAL FAcrS ABOUT SUICIDE
Suicide is often the most common cause of death in correctional settings across
the world. The World Health Organization (WHO) recently published a report
stating that suicide "is a public health problem that demands our attention."!
Across the world, one suicide attempt is made every three seconds, with one
completed suicide every minute. More people die across the world from suicide
than by armed conflict. The risk factors for suicide include being a young or elderly
male, being indigenous, being an individual with a mental illness or substance
abuse history, and being incarcerated or in custody. Further, individuals who
have made a past suicide attempt are more likely to complete a suicide. 2 This
article describes the occurrence of suicide in jails and prisons in the United States
and England. It proposes that guidelines from the American Correctional Association
(ACA) and the National Commission on Correctional Health Care
(NCCHC), both published in the early 1940s, may be useful in preventing suicides
in jails and prisons.
B. SUICIDES IN UNITED STATES' CORRECTIONAL SETTINGS
Compared to community samples, completed suicides in jails are ten times
higher, while suicides in prison are three times the rate seen in the community.3
In the United States, higher rates of suicides have been found in states with small
prison populations, possibly indicating a lack of resources devoted to suicide prevention
strategies. 4 Suicide is the third leading cause of death in prison, following
natural causes and Acquired Immune Deficiency Syndrome (AIDS).5 Suicides
are higher than death from accidents, executions, and homicides in prison. While
the death rate from AIDS has decreased since 1996, with the advent of protease
inhibitors and other medications, the suicide rate in state prisons has remained
level. Further, deaths from natural causes have increased between 1996 and 1999,
* Karen L. Cropsey, Psy.D., Virginia Commonwealth University, Campus of the Medical College
of Virginia, Department of Psychiatry, P.O. Box 980109, Richmond, Virginia 23298.
1 WORLD HEALTH ORGANIZATION, DEPARTMENT OF MENTAL HEALTH, MENTAL AND BEHAV-
IORAL DISORDERS, PREVENTING SUICIDE: A RESOURCE FOR PRISON OFFICIALS 5 (2000).
2 Id.
3 Id. at 6.
4 See L. Hayes, Prison Suicide: An Overview and a Guide to Prevention, THE PRISON J. 75, 445
(1995).
5 CRIMINAL JUSTICE INSTITUTE, INC., THE 2000 CORRECTIONS YEARBOOK 30 (2000).

214 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
likely due to the "truth in sentencing" laws, which keep inmates in prison for
longer sentences. 6
Since 1984, suicide rates have been declining in state prison systems but have
remained relatively stable over the past four years. In 1984, the suicide rate was
twenty-seven per 100,000 inmates, while the rates from 1996 to 1999 have remained
at fIfteen or sixteen suicides per 100,000 inmates? Over this fIfteen-year
period, suicide rates have declined 40% in the state prison system. s This decline is
likely due to a growing awareness of suicide as a problem in correctional systems,
along with better guidelines to implement suicide prevention programs.
In the federal prison system, suicides in 1990 indicate a stable or slightly decreasing
trend. In 1990 there were nineteen suicides per 100,000 inmates, while in
2001 there were twelve suicides per 100,000 inmates. Suicides have decreased
38% in the federal system since 1990. 9
C. SUICIDES IN ENGLAND's CORRECI10NAL FACILmES
The suicide rate in correctional facilities in England has doubled since 1983.10
Compared to the United States, England has eight times the suicide rate in their
prison facilities. Compared to the general population in England, the suicide
rates for prisoners are nine times higher and range from ninety to 100 people per
100,000. 11 D. CHARACI'ERISnCS OF INMATES WHO COMMIT SUICIDE
Different characteristics are found between jail and prison inmates who commit
suicide. Individuals who commit suicide in jails tend to be young, unmarried
males who are charged with their fIrst offense, which is usually a minor substance
abuse offense. These individuals are usually intoxicated at the time of their arrest
and usually commit suicide within the fIrst twenty-four hours of being in
custody.12
Individuals who commit suicide in prison tend to be older males with a history
of mental illness and are usually in prison serving a long sentence for a violent
6 See id. at 32.
7 See id. at 34.
8 See Hayes, supra note 4, at 445. See generally CRIMINAL JUSTICE INsTITUTE, INC., THE 2000
CORREcrIONS YEARBOOK 34 (2000).
9 These statistics are from a 2002 telephone interview with the Bureau of Prisons.
10 Centre for Evidence Based Mental Health (2001), at http://www.psychiatry.ox.ac.uklcebmhl
elmh/nelmh/suicide Iprison/statistics/3.html.
11 Id.
12 WORLD HEALTH ORGANIZATION, DEPARTMENT OF MENTAL HEALTH, MENTAL AND BE.
HAVIOR DISORDERS, PREVENTING SUICIDE: A RESOURCE FOR PRISON OFFICIALS 5 (2000); see also R.
Bonner, Correctional Suicide Prevention in the Year 2000 and Beyond, JAIL SUICIDEIMENTAL HEALTH
UPDATE 3 (2000).

SUICIDE IN JAILS AND PRISONS 215
crime. They tend to commit suicide four to five years after their initial incarceration,
which may be indicative of the time that their final appeals are exhausted.
Their suicide is usually precipitated by a conflict with prison staff or family.I3 A
recent study of twenty-five suicides in the Texas prison system noted that suicides
tended to be over-represented by Caucasian inmates and less common, proportionately,
among African-American prisoners.
i. Gender
Previous studies have noted that while women make more suicide attempts,
men have higher rates of suicide completion, usually by adopting more lethal
suicide methods. I4 Specifically, Goldkuhle reported almost a third of her women
prison sample had a history of attempted suicide. I5 However, when examining
completed suicides in prisons, proportionally, women commit suicide at slightly
higher rate than men. While men account for 95.5% of the prison population in
England, they accounted for 94.80/0 of the completed suicides. Women in prison,
who accounted for 4.5% of the total prison population, completed 5.2% of all
suicides. I6 Similar proportions have been noted for suicide victims in U.S. jails. I7
ii.
Age
While suicide rates are generally proportional to the population in prison,
some differences do emerge. Specifically, individuals from ages eighteen to
twenty comprised 11 % of the prison sample in England, yet accounted for 140/0
of the completed suicides. Similarly, while individuals' aged thirty to thirty-nine
were 280/0 of the prison sample, they accounted for approximately 31 % of completed
suicides. IS
13 WORLD HEALTH ORGANIZATION, DEPARTMENT OF MENTAL HEALTH, MENTAL AND BE­
HAVIOR DISORDERS, PREVENTING SUICIDE: A RESOURCE FOR PRISON OFFICIALS 7 (2000); see also R.
Bonner, Correctional Suicide Prevention in the Year 2000 and Beyond, JAIL SUICIDEIMENTAL HEALTH
UPDATE 3 (2000).
14 See S. Canetto & L. Sakinofsky, The Gender Paradox in Suicide, Suicide and Life Threatening
Behavior 1 (1998). See also U. Goldkuhle, Health Service Utiliz.ation by Women in Prison: Health Need
Indicators and Response Effects. J. OF CORRECTIONAL HEALTH CARE 73 (1999).
15 Goldkuhle. supra note 14, at 77.
16 Centre for Evidence Based Mental Health (2001). at http://www.psychiatry.ox.ac.uklcebmhl
elmh/nelmhlsuicide/prisonlstatistics/3.html.
17 See, e.g., L. Hayes, National Study of Jail Suicides: Seven Years Later, PSYCHIATRIC QUAR­
TERLY (1989).
18 Centre for Evidence Based Mental Health (2001). at http://www.psychiatry.ox.ac.uklcebmh/
elmhlnelmhlsuicide/prisonlstatistics/3.html.

216 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
iii.
Days in Custody
The time immediately following arrest presents the highest risk of suicide. In
particular, 10% of all suicides in English prisons occur during the first twentyfour
hours following arrest. 19
iv.
Length of Sentence
Generally, individuals serving long sentences, particularly life sentences, are at
the highest risk for completing suicide. Specifically, while individuals serving life
sentences accounted for 8% of the total prison population in England, they committed
a third of the completed suicides. 2o
v. Ethnicity
Suicide in the prisons in England is primarily found among Caucasian inmates.
Their suicide rate accounts for over 91 % of all suicides, even though Caucasian
inmates make up about 82% of the prison population. Conversely, African­
American prisoners account for 12% of the prison population but only complete
approximately 7% of suicides. Similarly, other minority popUlations, for example,
Asians, commit suicide at a much lower proportional rate than Caucasians. 21
vi.
Suicide Method
In England, hanging is the most frequently employed suicide method. In particular,
hanging by a ligature made from bedding tied to cell window bars is the
most frequently employed method for suicide, accounting for over 900/0 of all
suicides. Overdoses and cuttings made up 2% each of completed suicides, while
suffocation made up 1.5% of all suicides. 22 These numbers likely reflect access to
lethal means, and may be quite different in the United States, where
pharmacotherapy is widely available. Unfortunately, specific research addressing
these issues has not been reported for U.S. prisons and jails.
E. SUICIDE PREVENTION STANDARDS
The American Correctional Association (ACA) and the National Commission
on Correctional Health Care (NCCHC) have both developed suicide prevention
standards for the United States. The following is a brief overview of the standards.
Both the ACA and NCCHC publish complete descriptions of suicide prevention
standards.
19 Id.
20 Id.
21 Id.
22 [d.

SUICIDE IN JAILS AND PRISONS 217
i. ACA Standards
The. ACA has developed the following guidelines for suicide prevention. First,
a written policy is required to ensure special management of suicidal inmates who
should be observed at staggered thirty-minute intervals, with actively suicidal inmates
maintained under observation. A mental health staff member must approve
a written suicide prevention program. Finally, all staff, including
correctional officers, administrators, and medical staff should be trained in the
suicide prevention program. 23
The six components of a suicide prevention program outlined by ACA include
the following: First, all staff must be educated and trained on suicide recognition
and intervention. Second, all inmates should be screened upon intake including
questioning to assess current and past suicide risk. Third, inmates who are suicidal
should be housed in an area that can be made safe for them, with close
observation directly by staff or through cameras. Fourth, it is recommended that
a suicide prevention program contain different levels of supervision of the inmate
based on the presenting risk factors for suicide. Fifth, train staff should be trained
to intervene, not just in suicide prevention, but also for inmates who have recently
attempted suicide, including first aid and CPR. Finally, a component of
administrative review should follow a suicide to attempt to identify what could
have been done to prevent the suicide. 24
ii.
NCCHC Standards
The NCCHC suicide prevention standards emphasize determining the level of
suicide risk for each inmate using the following four levels: Level 1 risk is determined
after an inmate makes a suicide attempt. Inmates at this level receive constant
staff supervision in a "safe" room, which is a room that has been stripped of
anything that inmates could use to harm themselves (e.g., sharps, shoelaces, bedding).
Level 2 risk is considered high risk and is based on a history of past suicide
attempts and mental illness. These individuals may be housed in a safe room with
staff observation every five to ten minutes. Level 3 risk is determined to be moderate
risk based on history and suicidal intent. The staff observe individuals in
this risk category every ten minutes during waking hours and every thirty minutes
while asleep. Level 4 risk are individuals who have a history of suicide attempts
but who do not express any suicidal intent. Individuals in this category are
checked every thirty minutes?5
23 AMERICAN CORREcrIONAL ASSOCIATION, STANDARDS FOR ADULT CORREcrlONAL INSTI­
TUTIONS (3d ed. 1990).
24 Id.
25 NATIONAL COMMISSION ON CORREcrlONAL HEALTH CARE, STANDARDS FOR HEALTH SER­
VICES IN PRISONS (1992). L. Hayes, Prison Suicide: An Overview and a Guide to Prevention, THE
PRISON J. 75, 448-52 (1995).

218 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
While 790/0 of the Departments of Corrections have a suicide prevention policy,
only 15% contain a majority of the elements outlined by the ACAlNCCHC
guidelines. 26 Clearly, implementing suicide prevention strategies saves lives. Bonner
reports that in New York the suicide rate has dropped by two thirds since
implementation of a suicide prevention training program that includes suicide
intake assessment procedures, intervention and supervision of high-risk inmates,
community linkages and resources, and an eight-hour training on suicide prevention
for their staff. 27
CONCLUSIONS
It appears that in the United States suicide rates have fallen in correctional
settings in the last twenty-four years, although rates still remain much higher than
in the general population. Research has just begun to identify individuals who are
at the highest risk for suicide, and different patterns emerge when comparing
prison inmates to jail inmates. Further, it is important to note that while completed
suicides are more common among men in the general population, women
in prison complete suicide at rates similar to men and proportional to the number
of incarcerated women in the system. Implementing the suicide prevention programs
outlined by the ACA and NCCHC may be important in reducing the number
of suicides in prison and provide guidance in designing effective prevention
programs for clinicians working in correctional settings.
26 R. Bonner, Correctional Suicide Prevention in the Year 2000 and Beyond, JAIL SUICIDEI
MENTAL HEALTH UPDATE 2 (2000).
27 [d.

THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
EDITED PROCEEDINGS*
Comments of
MR. PAUL QUANDER:
Director
Court Services and Offender Supervision Agency for the District of Columbia
Good morning. For the past seven or eight years, I have been responsible for
prosecuting some of the most violent offenders in the District of Columbia.
I was in the middle of a trial recently that lasted for about eight months when I
got a phone call from the White House. And the person on the other end said,
"Have you ever considered a political appointment?"
And I, of course, being the fine and sophisticated individual that I am said,
"Which one of my friends have put you up to this?" I demanded a phone number
because I'm a prosecutor and I'm paranoid about everything.
She gave me her phone number, and I dialed it back and behold it was the
White House. For some strange reason they thought I would be a good candidate
to be the director of CSOSA, Court Services and Offender Supervision Agency.
It wasn't long after I received that phone call that I received another phone
call from a dear friend and classmate of mine, Commissioner Arlene Robinson.
And Commissioner Robinson said, "Paul, you have grown up in the District of
Columbia; you know the District of Columbia; you have worked in the criminal
justice system; you have touched on mental health issues. We have a symposium
that we are going to do at the University of the District of Columbia David A.
Clarke School of Law, and I would like you to come out and spend a couple of
minutes to talk about some of the issues that you have faced in your career."
Now, if you don't know Commissioner Robinson, Arlene, or "Mother Superior,"
as I like to refer to her, you don't say "no" to Mother Superior. So I'm here
and I'm going to try to do my best to fulfill an obligation to a friend and someone
that I really respect.
I grew up in the District of Columbia, and I want to mention that because I
think it's important. Because all too often people don't understand that the District
is unique. We are a small little enclave all to ourselves. And so some of the
problems that we face here in the District of Columbia are unique to us.
* Verbatim transcript of proceedings on file in the University of the District of Columbia Law
Review office.

220 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
When I started my career, I started with Neighborhood Legal Services. I was
doing public benefits work; I was doing some work at Saint Elizabeth's Hospital;
and I was doing landlord and tenant work.
You get to see people. You get to go out into some of the communities that
you don't normally get to go to. You get to interact with people, and you get to
see their issues. One of the issues that became abundantly clear to me is that
there are some people that the system just was not reaching. There are some
people that have special needs. Until we address some of those special needs, we
are never going to make a difference in their lives, and they are never going to do
all that is possible for them to do.
That was my first eye-opening experience. Because when you deal with poverty-based
programs, you are going to run into individuals who need that assistance,
people that have mental health issues.
After I spent a couple of years with Neighborhood Legal Services, I wanted to
do trial work. I wanted to get into the courtroom. So I decided to go into the
Corporation Counsel's office.
And in the Corporation Counsel's office, I was put into a courtroom setting
and I dealt with juvenile offenders. And if I thought I was leaving individuals who
needed special assistance by going over to do criminal work, I was sadly mistaken.
Because, as many of you know, a number of the youths that are in our city,
a number of the youths that come into contact with the criminal justice system,
have a full range of issues.
They just don't commit crime because it's there. There are special needs. And
all too often those special needs aren't addressed. All too often those special
needs are misdiagnosed. All too often, we don't do a good job of identifying
those needs, addressing them right then and there, and putting something into
place that will satisfy, that will meet, that will give guidance, that will help to
control and to shed light on problems.
Little did I know that once I finished my tenure with the juvenile system for
about five years - and you would see individuals come, and you would see individuals
go. And some of my colleagues moved on to adult crime. But I stayed in
juvenile because it was there that you felt you could put your hands on someone.
If you could catch them at an early age, you could direct them.
I was working under this thought that there were all sorts of special programs.
If a child came in and he committed a serious offense, we talked about something
called residential placement. And we would send this child out to Texas or Colorado
or everywhere but right here at home in D.C.
And there was an inordinate amount of money that we were spending. And all
too often, that child was not receiving the type of comprehensive mental health
assistance that he or she needed.
After my five years with the juvenile justice system I decided to go and do
some civil litigation. And there, again, I ran into my friend Arlene Robinson, and

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 221
we worked in civil together. And we represented police officers, the fire department,
all the agencies and the mayor of the District of Columbia.
And then I got another one of those phone calls from Fred Cook, who was the
Corporation Counsel, and he said, "We want you to go over and be General
Counselor the chief of our correctional litigation section." And that section dealt
with the prisons. It dealt with Lorton. It dealt with something that was almost
completely foreign to me.
But I took the job and I went there. And I got involved in corrections. And I
got involved in the legal side of how things are done. And we came into contact
with mental health professionals, because at Lorton at that time there were a
number of individuals who needed assistance, and the programs were just woefully
deficient.
So we had to work. And there were lawsuits. And there were challenges. And
I was representing the agency that was deficient. So I would represent the District
of Columbia and its agencies in an effort to try to correct-and sometimes in an
effort to try to ward off-a lot of the litigation.
And that was fine until I got another phone call that said, "Well, son, you have
been on the sidelines for a while and you have all these great ideas. And you say
you have all this energy. Why don't you take off your coat, stop being a mouthpiece,
and come on over here and get your hands dirty. Come on in and let's put
your hands into the mix."
And I did. I was asked to be the Deputy Director for the District of Columbia
Department of Corrections. Now, you won't believe this, but at that time I had
no gray hair whatsoever. Now I have gray, it's balding on the top. I'm not going
to show you. But you talk about a job that was both enjoyable and trying, that
was it, because it gave you an opportunity to actually try and do something to
make a difference in individuals' lives.
When Dean Broderick was talking about going into Lorton Reformatory and
being a white female who was dealing with the young African-American population
that was there, my experience, although different, was similar and also wide
opening as far as my eyes were concerned. Because the first time I went into the
institution, it wasn't that people were looking at me strangely. It was that as I
walked through the central facility, I saw people that I knew. And they recognized
me, and we spoke. And there were issues that people had. People that I
had grown up with from elementary school to junior high school to high school
and, yes, even one young man that was in college with me.
And when you sit down and you talk to people, your friends, and people that
you have known most of your life and you talk to them about why, about the
choices that they made and the impact that it's had on not only their lives, but on
the lives of others, you get a real good feeling for what's needed in this city.
You also get a feeling that when you have an individual who is incarcerated,
who has had his or her liberty taken away, it can be an opportunity. It can be an

222 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
opportunity to provide the type of services that that individual needs. The old
saying that you have a captive audience is true. But we haven't done a very good
job about doing the best that we can to provide the types of services that we need
to provide to that population because the need is there.
The skills, we have. The resources may be an issue, but we can't let resources
be our defeating point. We have to figure out a way to provide those services.
I mentioned that I just completed a trial. And in the District of Columbia
where my family goes back for years and years and years, I was one of the lead
prosecutors on the first death penalty case in the city. And I was the individual
who litigated the death penalty phase of that trial. And I did it with some trepidation,
but I did it because I thought it was the right thing to do. Many may
disagree.
But during the death penalty portion of that case where Mr. Elion and his
attorneys were trying to convince the jury that he should not be put to death,
there were a number of arguments, a number of facts that were just compelling
about this man's life, about the impact of his environment, about substance
abuse, how substance abuse as far as his mother was concerned and about how
his father was concerned, what impact that had on his life.
Mind you, Mr. Elion was sophisticated enough and mature enough never in his
life to have ever used any illicit substance whatsoever. Not a cigarette, not a can
of beer, not marijuana, nothing.
But his mother had consumed heroin and other illicit items all of her life. So
did his brothers and sisters. He grew up in an environment where that was acceptable,
where mental health and the people that he came into contact with
were never mentioned. That just can't continue. There are people in our community
that need intervention, that need assistance.
So when I received that phone call and I thought about whether or not I
wanted to leave the U.S. Attorney's Office, something that I really enjoy as far as
trying cases, to go over to an agency that was about something completely different.
And that agency is about making a change in individuals' lives.
Again, the Court Services and Offender Supervision Agency is an agency that
has a captive audience. It's about an agency that will receive back into the community
members of its community who have been incarcerated for years.
And the question is, what do we do with these individuals, men, and I have to
highlight, women, because the number of women that are incarcerated is
skyrocketing. And if you think men need special services that have mental health
issues, women often do as well. And they are unique, and they are special, and we
have to address them because they are coming back to us.
And the question is: What do we do? How do we get this population back?
How do we work with them? How do we provide the services? How do we get
them back into our community so that they are our neighbors, our friends, our
brothers and sisters?

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 223
Many people think or thought that when I received that nomination, a number
of my friends called me and they said, "Paul, we thought there was something
strange about you, but we never knew you were a Republican." And I said, "I'm
not a Republican." I have to now carry my voter registration card on me to show
my friends that I'm not a Republican. There is nothing wrong with being a Republican.
I haven't been confirmed yet, but I just don't happen to be one.
But more importantly, some people thought that a prosecutor sitting in that
position would be the worst thing going because all that person wants to do is
lock up people day in and day out. But when you are talking about a community,
as the District of Columbia is, and you are talking about growing up in this area,
and you talk about seeing the needs that people have in this community, mental
health is an illness. And it affects all too many people. And it affects a large
portion of the incarcerated population.
It's an opportunity for us, for me - as the director, if confirmed - and for
everyone sitting in this room today to help to make sure that we do everything
that we need to do - from the Bureau of Prisons in the District of Columbia
Department of Corrections to CSOSA - to make sure that people who are incarcerated
receive the mental health intervention and treatment, long-term care
and support once they get out. It's not that we have to do it. It's that it's the right
thing to do for us all.
That's what my goal will be if confirmed - and if not too many of you go and
tell the people in the power that I'm not a Republican - if I get the opportunity,
with your help, to do what needs to be done to address some of these issues.
Because no one man can do it nor can one man stop us. It's something that we all
have to be committed to.
With that, I'm going to end my comments and thank you very much for inviting
me here. And I look forward to working with you in the future. Thank you all
very much.

224 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
PROCEEDINGS
Comments of
DR. ANDREA WEISMAN:
Senior analyst and special projects director for the Department of Mental Health
in Washington, D.C.
So I'm the clinician in the crowd, and I'm actually going to do something
slightly different. Let me tell you that before I got a Ph.D. in psychology, I studied
philosophy and did so for quite a number of years and bring that perspective
to bear as well. I want to share with you a story" a recent story that I want to
serve as the frame for all else I have to say.
Recently, I was at a state mental health hospital and I was there doing an
investigation and providing recommendations around the issues of seclusion and
restraint. I walk onto one of the wards on the very first day of my being in the
hospital, and, indeed, a woman is being put into restraints. The events which I
observe immediately antecedent to her going into restraints are these: She walks
back and forth in front of the nurse's station, which is organized as a giant horseshoe
- in a giant horseshoe shape at one end of a very large, cavernous space.
The rest of the space is all for patients, but this space, the space behind the horseshoe-shaped
desk, is the space for the staff. Everything that goes on in this space
is for the staff. Everything that gets discussed in this space is staff-worthy. Patients
have an unwritten rule that they share with staff about how close they will
come to that station, about how much they can come to that station.
Here is the scene. The woman is walking back and forth in front of this station.
There is a cake with a knife in the nurse's station. People, staff, are helping themselves
to the cake, not really thinking about this woman or any of the patients out
doing whatever they were doing in this cavernous day room, most of them sleeping,
still, today, in 2002.
The woman pole-vaults over the nurse's station, grabs the knife, starts waving
it around, and the staff rushed in a huddle to contain her. They grab the knife.
The mental director, who happened to be with me, asserted that they would get
to the root of it - and get all of the contraband that was in the hospital.
And the following Monday when I walked in, he had two handfuls, not one,
but two handfuls of all of the knives, most of them butter knives - of all the
knives that had been collected. And he holds them up, and he shows me all this,
and he notes then that, over the weekend, they have developed a new policy

THE LOUISA V AN WEZEL SCHWARTZ SYMPOSIUM 225
around the handling and storage of knives in the hospital, and that this patient in
particular had been discussed and considered in a treatment planning process
that very morning, and that her propensity to violence was identified, and because
they were on their way to discharging this patient, this was a good thing
because now they could provide her more appropriate services, since theretofore
a propensity to violence had never been identified.
And I shake my head in considerable disbelief and I note to myself, it never
occurred to them that she wanted the cake. That's the frame.
So I don't often get an opportunity to take the time to think about the work I
do, except in the most up-close and immediate sense: What do I need to do to get
this or that done? Who do I need to meet with? What do I need to wear? Those
are the concerns of my everyday life. Rarely do I have the opportunity to think
about the work I do from the perspective of where it fits as an example of this or
that intellectual trend, a piece of intellectual history.
We recently marked the 100th anniversary of the beginning of the juvenile
justice system, so today I want to take a slightly longer way around to the issue of
the mental health needs of kids in juvenile justice, and my particular focus is the
mental health needs of kids in juvenile justice. So what I propose to do here is to
think about the social historical context within which the whole notion of the
juvenile court was developed and about the fact that the public sensibilities that
made its creation possible are no longer operative.
Context is important for everything, everywhere, no matter what. I propose
that, in thinking about the mental health needs of juveniles in the justice system
and what we need to do about it, we contemplate some of what may be understood
to be its intellectual history, the historical context for what I believe shaped
the issues today, and our collective response to it.
What we'll accomplish is this five-minute version of the mental health history
of the last hundred years - and where is Billy Joel when you need him - but I
propose to do just that. Not extensive. The good news is, this will not be extensive;
the bad news is, this will also not be extensive. It's not meant to be. What we
have is just one person's annotated view of how to assemble core ideas in the
history of psychology, philosophy, and the nation's public mental health policies
over time. I shudder a little bit at that, seeing Bernie Arons sitting in the back.
At any rate, what we have then is in this paper a mosaic of ideas organized
around a central thesis: that is, that public beneficence has historically entailed an
implicit social contract that requires that the individual or group to whom the
public directs its largess must agree to maintain its victimness, its victim status, its
willingness to be one down, less than, deficient to, in relation to those who control
the resources.
Scene 1, act 1, or whatever the playwright language is. A hundred years ago.
The juvenile court was created in 1899, at the end of the 19th century. It was a

226 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
time when societies and academies that focused on various health issues and
those that engaged in scientific inquiry were forming.
There was the coming together of two emerging ideas taking root in the public
consciousness. The first was the dawning public perception that they had a collective
responsibility for youth (because, after all, they were not fully formed yet)
and those less fortunate.
Organized public responsibility came about in part due to the work of the
tireless reformer, Dorothy Dix, for example, who crisscrossed the country by
dusty train in the late 1800s to bring the plight of the mentally ill t.o the attention
of those with money and/or influence. I refer to the late 19th century as the beginning
- and the beginning of the 20th century as the birth of public beneficence.
And the opening of the state mental hospitals was really the beginning of
public mental health. In 1866, the first state hospital in Minnesota opened. In
1870, the first state hospital in Rhode Island opened. In 1875, the American Neurological
Association was founded. In 1885, the first state hospitals in North Dakota,
Utah, Arizona and Oregon appeared. In 1908, vocational guidance was
born.
Also, around this time classification and measurement were born. Positivism
prevailed, and people were measuring like mad. In 1876, the decimal system developed
by Melville Dewey was inaugurated. In 1886, the Audubon Society was
created and began categorizing everything.
It was very early in the 1900s, 1907, for example, that Piaget began classifying
and distinguishing between the cognitive skill sets of children of all ages. In 1905,
Benet developed the whole measuring concept of intelligence. Freud was doing
his thing, delineating parts of personality and their function. Behaviorism was
born. Pavlov, Thorndike measured stimuli and responses.
In 1910 at the annual meeting of the American Association for the Study of
the Feebleminded in Lincoln, Illinois, Henry Goddard proposed definitions for a
system for classifying individuals with mental retardation. Goddard used the
terms "moron," "imbecile," and "idiot" for categories of increasing impairment.
In 1867, the first U.S. Department of Education was established. By 1900, fifteen
million children were enrolled in American public schools. Thirty-three
states and D.C. had compulsory education laws. Systems were organized. Public
beneficence came into being.
This, then, was the context for the creation of the juvenile court, the development
of a separate system of care for juveniles who got into trouble with the law
and came to the attention of the court. The original notion, consistent with the
thrust of the thinking at the time, was that since they were still becoming, they
should be handled fundamentally differently than adults. Following from that,
and with the advent of what was a burgeoning mental health system, the core
concept was that juveniles should receive treatment and rehabilitation.

THE LOUISA V AN WEZEL SCHWARTZ SYMPOSIUM 227
In a recent article, Tom Grisso notes that that view held ground for ninety
years. He observes that in the last ten years, speaking of the '90s, the 1990s, that
everything underwent a massive transformation. He attributes the correctionalization
of juvenile justice facilities to the public fear that got going, that got generated
around then by the increase in juvenile crime rates, the high rate of youth
violence.
Grisso and so many other child legal and mental health advocates will tell
you-and mental health professionals working within juvenile justice facilities
will attest-that it isn't about that anymore. Grisso and others are undoubtedly
right about the correctionalization of juvenile justice having sprung from those
events and other events around that time. We know that more kids got prosecuted.
We know that the lowering - that the age of - that the waiver into the
adult system became more regular, and that within juvenile facilities, the adoption
of the perspective that these were dangerous kids prevailed and security prevailed
over clinical concerns.
Many people have weighed in on why we were susceptible to fear, especially to
a heightened fear of, frankly, people of color. Candidates began to run on gettough
policies, and from the courts to the legislatures, the principles of get-tough
took hold. But shifts in public perception and social policy must be understood in
terms of the intricate web of social, economic, and intellectual ideas that gave rise
to them, and so that couldn't have been all.
For openers - and let's go back again - there was a backlash. We're going to
take a look at the other ideas of the 20th century that got this going. There was a
backlash against positivism, against the view that the world was an ordered and
measurable place as we had wanted to believe it to be. We believed that we could
dissect it, break it into discrete, atomistic bits, and then reassemble them so they
were logically complete and internally consistent. Those bits and their assembly
became reality. We believed that language had definitive meaning, that it had a
meaning because we agreed on an elaborate system for the words to refer in
some isomorphic fashion to those things in the world that it stood for, linking to
fixed ideas or fixed objects.
But psychologists and philosophers began to doubt this premise of a fixed and
independent reality. Among my most cherished memories of my graduate education
during the '70s, and also '80s, is a class that my mentor, Mort Weiner at
Clark University, taught on learning how to think. I believe I use the lessons that
I learned then to this day. So we're around 1975, and here we are, budding psychologists,
learning how to think. And Mort's question was, "When did Kennedy
die?" And the point of Mort's question was, as he subsequently observed for us,
that there was no moment of JPK' s death, that there were many moments, depending
on your perspective, depending, that is, on whether you were Kennedy
himself, his wife, representatives of the medical establishment or you were a social
historian, and so on.

228 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
Perspectivism, which was gaining popularity in the psychological and philosophical
world of ideas, posited that there can be radically different and incommensurate
conceptual schemata that work equally well, and which are equally
true. It's a matter of timing and choice which of the schemata we elect to adopt.
We elect the one that makes the most sense of our world at that moment in time.
It was a whole area of psychology called construct theory, called attribution
theory, and we studied people like Wittgenstein who didn't believe in an isomorphic
relationship of language to the world, but rather believed that language
meant, by virtue of the uses to which people had put it, and Gilbert Ryle, who
talked about mind as a category mistake, that after you had looked at all of the
classrooms, buildings and, so on, that there was no additional thing called University
to look at, that it was all a category mistake.
Let's skip right along to 1967 when R.D. Laing and Thomas Szasz published
the Politics of Experience and the Myth of Mental Illness, respectively, both of
which argued that mental illness itself was a construct, an alternative lifestyle, a
fundamentally different perspective on the world.
And Goffman and, after them, very notable researchers, Burginsky and
Burginsky, followed in their sharing of the perception that people and their behavior
was largely volitional and that they weren't victims, but rather managed
their presentation to the world in order to accomplish whatever their particular
goals in an event were.
Then came 1954, we're at the Board of Education - Brown v. Board of Education;
1964, the civil rights moment. We're really rushing through current history,
but the point is this: That an unspoken agreement was violated. The
underlying principles - and how did it get violated? All of these so-called
marginalized and fringe groups - when there became no such thing as an objective
reality, when reality was an interpretable event and everybody's reality was
as good as anybody else's reality, and all the groups rushed to the trough to get
their rights and civil entitlements, a fundamental contract was broken. I believe
an unspoken agreement was violated, the underlying principles, assumptions and
moral core that maintained the beneficence of the public's posture was broken.
The code was that the downtrodden had to remain downtrodden in order to be
worthy of being championed. This very theme is a common interpretation of the
cartoon artistry of Joseph Keppler who regularly drew for the magazine Puck,
which was described and read widely during the 1900s, early 1900s.
For example, for those who have seen his cartoons - as long as, for example,
the woman suffragettes laughed at their own attempts to gain power, and as long
as they had a hearty sense of humor about their own efforts, it was all right. But
you had to remain properly grateful for whatever philanthropic efforts were
made in your direction. You couldn't get uppity.
Act 2. In part what's happening in the juvenile justice, system is analogous to
what happened and continues to happen in the criminal justice system. The sys-

THE LOUISA V AN WEZEL SCHWARTZ SYMPOSIUM 229
tems and correctional facilities have become the most significant, in some jurisdictions
the principal, providers of mental health services.
Relatively recent data from the Bureau of Justice Statistics, 1999, indicates that
sixteen percent of those in the criminal justice system have a serious mental
health disorder. The incidence of mental illness among juveniles is even higher,
cobbled together from various sources.
Here is what we think we know. Close to two million people come into contact
with the juvenile justice system, or did in 2000. Of those who touched the system,
estimates are that between twenty and thirty percent - this is just touching the
system; this is not arrested or deeper. Of those who touched the system, estimates
are that between twenty and thirty percent have identifiable mental health disorders.
Compare this to the Surgeon General's estimate of one in ten youth among
their cohorts in the general population. Of the ten percent of youth who wind up
incarcerated, estimates of the incidence of mental health disorders is staggering.
The National Mental Health Association estimates that as many as seventy-three
percent have at least one diagnosable mental health disorder. The National Association
for Mental Health program directors' estimates place the figure at seventy-five
percent.
The figures further co-vary, depending on the particular index being examined.
Some research estimates the incidence of abuse among girls in the system to be as
high as eighty to 100 percent. Estimates are at seventy percent for those with a
substance abuse or co-occurring substance abuse disorder.
Those with learning disabilities are estimated to be between thirty and sixty
percent.
Demographics of youth in the justice system in D.C. reveal that the typical
juvenile offender in the District is African-American, seventeen years old, lives
with his mother; often the mother has not graduated from high school, has three
additional children, and is receiving public assistance. Significantly, she often admits
involvement in some form of alcohol or illicit drug use or both. The young
offender has not attended school for approximately six months and has had at
least four prior contacts with the court, in addition to having a previous complaint
of neglect and/or abuse as a child. His prior charges include acts against persons
and drug law violations. His fourth contact with the court is in response, most
typically, to a custody order - he's run away - issued as a result of failure to
appear in court or his escape from a community placement. That's thirty percent
of all the youth committed and supervised by YSA - to YSA - are in abscondant
status.
We know that the deeper youth penetrate the juvenile justice system, from
arrest through incarceration, the more likely it becomes that they will be mentally
ill. As reported by the Building Blocks for Youth Initiative, we know that in virtually
every state, the great weight of punitive injustice policies falls disproportionately
on youth of color who are over-represented and receive disparate

230 THE UNIVERSITY OF THE DISTRICr OF COLUMBIA LAW REVIEW
treatment at every stage of the juvenile justice system. We know that in state
after state, whatever the percentage of the general population blacks may represent
and people of color may represent, that their numbers are disproportionately
higher in both the juvenile and criminal justice systems, Building Blocks
again. These discrepancies are not the result of young people of different racial
groups committing different types of crimes. Nationwide, a study found that African-American
and Latino youth are treated more severely than white teenagers
charged with comparable crimes at every step of the juvenile justice system.
We think we know that toxicity increases in direct proportion to crowding.
Consider that over seventy-five percent of youth incarcerated nationwide are
housed in detention and correction facilities that violate standards relating to living
space. Juvenile places - juvenile facilities are dangerous places. So, of
course, are adult correctional facilities.
What else needs to go into the stew? We would do well to consider what lessons
we have learned from the mental retardation and mental health systems'
attempts to close state facilities and build community services. What we know is
that it won't work to just transfer the same headset or zeitgeist or metaphors to
the community. That won't work. The contract of public beneficence was broken,
and we need to create a new public contract, a contract that, to use the new
language of the consumer-focused, recovery-based models, plays more, speaks
more, addresses more the strengths and a strength-based approach to working
with individuals.
I was recently at a conference, a national conference of mental health, mostly
legal advocates, and was frankly overwhelmed. The dialogue in the group was
about whether they should treat the kids at the front end when they were first
coming into contact with the system or at the back end. Which of the youth, from
a clinical perspective, could they most easily capture? Which of the populations
could they most effectively advocate for? That would be the group that they
would focus their energy and their resources on. That group, ultimately, the one
that they identified as the group that they would advocate for, was identified as
those with mental health needs.
I posit the following to you. That we're doing the same thing again. What we
are doing-the same thinking that had the advocacy group identify a deficitbased
population so that they could make the case to the stakeholders and public
policy makers that this was a group that was worthy of being championed, that
this was the downtrodden group next to be focused on-is a disservice to these
kids.
I suggest to you that we haven't the foggiest idea what numbers of youth in the
juvenile justice system have real mental health needs. I propose to you that they
all do, that they all require mental health services. To say that a limited subset
probably experience biochemical changes is probably true, but we will leave no

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 231
child behind, we will lose them all if we focus on the few who have mental health
needs.

232 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
PROCEEDINGS
Comments of
MS. BRENDA SMITH
Associate Professor at Washington College of Law at American University
Now, you would think that I was as old as dirt after listening to that introduction.
Well, the truth is, I am as old as dirt. And I told Paul Quander that we are
both as old as dirt.
First, I want to thank Arlene for inviting me. Many, many months ago Arlene
called and asked me if I would speak at this symposium on mental health in
correctional institutions.
At that time I was fairly fresh into a new school year and had every intention
of saying "no". However, as most of you know, Arlene is not a person that you
can turn down. And she is determined, she is resolute, and she will find a way to
sweep away any objections that you have. So I really couldn't argue that time was
an objection because I'm really not that important yet that my schedule is booked
six months ahead of time.
I tried to give her sort of the struggling, untenured person who needs to present
argument. So I told her, I said, "Look, I can't do this unless there is a publication
opportunity." So hence those of you who spoke and who ended up having
to present a paper, you can thank me for that.
Then I told her that I needed to speak about a topic that I was beginning to
write about. And so that's why I'm going to be talking about intimacy, sexuality,
and fertility in prisons.
You may be wondering because everybody else has mental health somewhere
in their title how that fits into a symposium about mental health in corrections.
What I would like to say is that I'm using that particular blueprint to collapse my
broader project and to use it to speak to the unmet needs for mental health services
for women in the criminal justice system.
One of the things that also is really a privilege of going last is that everybody
else has done your presentation for you. And so what I'm going to try to do is
limit my comments, so that we can have an opportunity for some dialogue. You
already have my background. And I'll just say a couple of things, just four points
about what brings me to this place talking about these issues of mental health and
women in the criminal justice system.

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 233
There are many, many connections here. I have worked with the Public Defender
Service where Olinda Moyd, our first speaker, is currently employed. And
actually when I did the Women in Prison Project, which was actually just a way to
use all of the expertise that's in the District, Olinda was one of the standard
speakers there, as was Erias Hyman when he was at the Board of Parole and also
during the brief period of time that he was head of corrections. I think he had a
dual appointment at one point.
I spent about - not eight years, but about ten years running a program at the
minimum security annex addressing issues that women had raised as important in
that setting.
And it was a very simple sort of theory. My theory was that there were so
many experts in D.C. and you know that any time you leave D.C. and go more
than thirty minutes and you speak fifteen minutes, then you become an expert.
So I figured that what I would do is I would have a very simple thing and I would
say to all these people, if you are an expert, come in - only two or three of you
can come at a time - and you have to speak on issues that women have identified
as priorities.
And the other thing is that you have to agree to take phone calls and resolve
these women's issues when they call you. Because these are also women who are
in the population that you are dealing with. So if you are a parole person, these
are women who are going to need parole services. If you are an abuse and neglect
judge, then the reason you didn't see this person at the hearing was because they
were locked up. So that was the basic theory.
And then I guess the last thing that I want to talk about in terms of what
brings me here is that around 1993 I was involved in some fairly contentious and
public litigation addressing staff sexual misconduct against women in D.C. prisons.
And at that time the District - I sued the D.C. Department of Corrections
for a pattern and practice of sexual abuse of women in D.C. prisons. And I was
successful in that litigation. And the court ruled that staff sexual misconduct
against women inmates is a violation of the eighth amendment. And so that's sort
of my background.
I want to start my discussion today with a little bit of a narrative that relates to
some extent to that litigation. The litigation was settled - not settled, but we
won the litigation in 1994. And, of course, there were two years of appeals. But in
the fall of 1995, I received a phone call from a local newspaper reporter informing
me that she had heard that two women at a local prison had become pregnant
while incarcerated. Well, having done this litigation, I knew that was actually a
fairly common occurrence in D.C. prisons.
While she did not have the women's names, she did have their prison ID numbers,
and she wanted me to identify the women for her. I told her that I would
contact the women, and, if they wanted to speak with her, they could.

234 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEW
I also told her that I would be advising them that under no circumstances
should they speak to her. As it turned out, I had assisted one of the women,
Allison, with a parole matter several years before. And this isn't the person's real
name, but we'll call her "Allison".
Allison was serving a long prison sentence for killing one of her kids. Before
the incident, she had never been incarcerated; she had no prior arrests or convictions.
And because of the incident, she became childless. Her parental rights were
terminated as to her surviving children. I had helped Allison by convincing the
parole board to consider her for parole every three years instead of every five
years. And Margaret and Erias are laughing because they all have stories of people
that I have come in and lobbied very seriously on their behalf for parole
relief.
And they talk about all of the trouble that I have gotten them into in the past.
I made an appointment to see Allison at the prison. And when I saw her in the
prison visiting room, I told her about the phone call from the reporter. Allison
didn't plan to speak to the reporter, and she was unconcerned about her pregnancy
being discovered. In her mind, she had beaten the system.
First, she had embarrassed the prison system by exposing one of its weaknesses.
Security is so poor that she could conceive while incarcerated. Second, she
had thwarted efforts by the courts and the foster care system to deprive her of
motherhood. She had conceived a child who, to her, was safe from the system.
And third, Allison had gained someone's attention. It would be hard for other
women and for the prison system to ignore her needs at this point.
While Allison's story is disturbing, it's a story that plays out every day in correctional
institutions. Of course, not every woman is there for having killed her
kids or harmed her kids. In fact, most women are in the system for parole violations,
as I'm going to talk about, for drug offenses and other nonviolent offenses.
There are those who - like Allison - who are in prison for violent offenses, but
more often than not their first convictions were for nonviolent offenses.
While the factual circumstance that brought these women to prisons differ
greatly, they often have past histories that are very similar. And that, I think, Ms.
Cropsey talked about. Many have past histories of physical and sexual abuse. The
Bureau of Justice Statistics, in its report on women offenders in 1999, estimates
about forty percent of women were physically or sexually abused - and/or sexually
abused prior to eighteen years old.
Angela Brown, who wrote a book called Battered Women Who Kill, did a longterm
study at a maximum-security prison for women in New York and found that
over ninety percent of those women had past histories of physical and sexual
abuse.
These women also share mental health issues, including depression, that were
untreated prior to coming into the system and that remain untreated while they
are in the system. They also have significant substance abuse issues, which are

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 235
also part of the DSM vernacular, but again, which were untreated in the community
and continue to be untreated when they go into prison.
There is actually some very interesting data, which is the drug use forecasting
data, which looks at rates of substance abuse in twenty-four major cities. And
consistently women have higher rates of drug abuse for serious drugs, while men
have higher rates of drug abuse for marijuana and less serious drugs. Women also
have higher rates of intravenous drug use.
Another thing that these women share is very serious trauma that they have
often suffered before, and often during, incarceration. And when I talk about
trauma, I'm talking about physical trauma: hitting, abuse, inappropriate use of
restraints, inappropriate and excessive use of force.
These women also bring to the institutions huge issues about loss. In particular,
issues about the loss of their children. So that's what I mean in terms of
intimacy and talking about fertility, the loss of the opportunity to parent, a stigma
related to imprisonment. Any of you who have worked with women before know
that there is a tremendous stigma for women around being in prison and the fact
that they are not doing what they are supposed to do and to some extent they
have stepped out of the roles that we have defined for them. Tremendous grief
and loss about the opportunities for intimacy and the opportunity to form close
relationships with other people.
One of the things that - I think one of the most defining features of prisons is
the isolation and the lack of touch and the lack of physical contact that people
can have as between prisoners and also with staff. And also for an increasing
number of women, particularly those who are serving long sentences, the loss of
an opportunity to bear children, hence the discussion about fertility.
And I think, finally, one of the issues that really goes unresolved is a lot of
anger. Anger about how they ended up in the system and why nobody addressed
their needs before they got there, and also why their needs continue to go unaddressed
in the system.
While I'm discussing this issue for women through the prism of intimacy, sexuality,
and fertility, what I'm really talking about is their need to be in relation. I
think that Ann talked about that some, which is the fact that you are talking
about juveniles. What we are talking about is a need for people to develop relationships
and to have relationships. And those opportunities just don't present
themselves in a correctional environment. And while I'm talking about women
here, this is a human need, and it is also a need for men, as well.
My contention is that prison and other institutions' policies, practices, and realities
deny these needs and thereby create larger problems, and importantly, for
purposes of this conference, don't meet the needs of women.
So, I have outlined three policies that I think sort of lead to some of the isolation,
vulnerability, and mental health problems that people have.

236 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
Limitations on contact visits. We have already talked about the need for intimacy,
for contacts and about how having that contact can decrease depression.
Yet there are limitations on contact visits. There are limitations on the frequency
of those visits.
Another area where I'm going, because I'm talking about intimacy, sexuality
and fertility: conjugal visits. Whenever we talk about conjugal visits, people think
we are talking about sex. But a study of conjugal visits in Florida talks about the
fact that men use conjugal visits to see women, while women use conjugal visits to
see family and children.
Third, termination of parental rights of parents who are in prison, and failure
to devote sufficient resources to assessing whether reunification is possible or
practical.
I believe that the D.C. Prisoners' Legal Services project is going to be doing a
project where they are working with child and family services specifically to deal
with that issue and to deal with trying to create communication between people
in prison and kids who are in foster care.
Practices that I think are important to look at: the placement of inmates in
facilities far from home. While that has typically been a situation that's particularly
affected women because there are so few facilities, if we look at the situation
and D.C. prisoners in general, that's a feature for all of the prisoners in D.C., and
I think that it increases the mental health issues that they face. It also creates
isolation again and vulnerability.
None of those things are good in terms of the long-term outcomes for this
particular population. The other thing that happens in a place where inmates are
far from home is there is nobody who was invested in them. If you are in Suffolk,
Virginia, or Ohio, or New Mexico, or wherever, there is nobody there who you
can even attach to in terms of having some sort of information about where you
grew up or your home.
The lack of consistent - again, another practice that I think contributes to
some of the mental health difficulties in prisons, the lack of consistent commitment
to mental health services and groups. For example, NA & AA have trouble
getting into institutions because of poor planning. These groups are not mental
health, but they provide support which can help people get into treatment,
whether that is substance abuse, pharmacological treatment or talk treatment.
A second practice: when cuts are made in budgets, medical education and
mental health are often the first to go. These are the people and facilities that can
actually, by policy, touch prisoners. Medical and mental health touch bodies and
they touch minds. And while corrections people may feel that the primary mission
of corrections is security, the best security is inmates whose needs are met.
And, as we all know from very difficult experiences, in many pieces of litigation,
these needs will get met one way or the other.

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 237
Finally, the lack of assessment tools to assess people's needs upon entering
facilities. We sort of have a don't ask/don't tell policy, and we have no idea of the
kind of baggage and trauma that people are carrying into facilities, and how that
has an impact on their adjustment.
The reality is that correctional institutions are pretty sick environments. Much
of what goes on on a routine basis is contrary to good mental health practice: the
use of restraints, over-medication, administrative segregation, violence and social
isolation for people with mental health problems.
I want to take two minutes and talk about a woman that I recently saw over at
CfF who was pregnant and who had serious mental health problems. She was in
administrative segregation and had been in segregation for many, many weeks.
And she had been there because they weren't giving her medication because she
was pregnant. And the medication - she really needed the medication to be able
to control her behavior. But no one had made a phone call to her physician at St.
Elizabeth's to try to figure out how that medication could be handled so that she
could get out of administrative segregation.
I also want to talk about the realties of limited resources for mental health
services. And also, finally, another reality of prison is the stigma, fear and antipathy
toward inmates with mental health problems. Often, staff talk about how they
set up inmates with mental health problems so that they will end up in administrative
segregation so they won't have to deal with their needs.
Finally, the point that I want to make and how it relates to my initial topic: I
found that the expression of the need for intimacy, fertility and sexuality are natural
and appropriate among women and, indeed, anybody. We all have those
needs; however, those needs become problematic when there are not appropriate
outlets for them.
Appropriate mental health services could begin to address some of these
needs. Grief counseling would have helped Allison, the woman that I talked
about in the beginning, to deal with the anger and grief that she had about having
killed her child, about having lost custody and having actually lost any right to
contact with the two remaining children. And the actions that she took, I believe,
were really focused out of depression and anger.
Appropriate diagnosis and medications and counseling to address depression
and other mental health issues, I think, is really needed. Groups to address
shared experiences of women related to physical and sexual abuse-that would
also be something that would be really needed but that is often not provided.
And the need to create a healthier environment in prison so that people are
not re-traumatized while they are there, and that includes protection against sexual
and physical violence while people are in prison.
And finally, the point that I want to make is that the connections to and collaborations
with institutions that can meet the needs of women both inside and
outside of prisons is a good thing to do. Not only is it a good thing to do because

238 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
we are required to do that and should do that as a constitutional matter, but I
believe that it is a good thing to do as a correctional policy matter as well.
Thank you.

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM
239
THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
PROCEEDINGS
Comments of
DR. RAYMOND PATTERSON
General and Forensic Psychiatrist in the District of Columbia
What I've been doing in the last several years, as Erias mentioned, has been
working in secure facilities, meaning forensic hospitals and lor departments of
corrections in various states. I've also done some oversight for federal agencies
and federal courts, and some consultations to various programs and states that
are attempting to not get into litigation and other kinds of legal actions based on
their mental health services.
I want to talk some about correctional psychiatry, but I also want to talk about
what I consider the baseline of any practice in psychiatry or mental health, and
that has to do with understanding the culture in which you practice and the culture
of the folks that you attempt to deliver services to.
When I give discussions about cultural competence, I don't usually talk about
race and ethnicity and gender issues as much as some other presenters may. I
tend to talk about the culture behind the walls, the culture within correctional
settings.
Any of you who have ever been in a jail or a prison I think recognize very
quickly, you are in somebody else's house. This is important to recognize because
mental health professionals are very quick to try to teach anybody anything. We
will train almost anyone on something if you give us an opportunity. Unfortunately,
when we sometimes walk into a different environment and assume we are
going to teach the people who are running that environment how to do what they
do, we may make mistakes.
This would be as if I was your cousin from somewhere; you got a phone call
from me saying, "I'm going to be in town, can I stay at your house? And you said,
"Okay, because I know you're a family member; I don't really know you very
well, and if you weren't a family member, I probably wouldn't be having this
conversation, but since you are, okay, you can stay with me." And when you
open the door, and I say, "Hello" and you say, "Hello," I come in and I say, "You
know, this living room furniture you have here really should be in the kitchen.
And that refrigerator and stove, let's take those up to the bedroom and let's keep
them up there. And that bed, I think it should be out back in the backyard."

240 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEW
You don't go into somebody else's house and tell them how to run their household.
You may go in and you may be able to assist them. And that's where we
come in.
Fifteen to twenty years ago when I first started doing any work with correctional
or secure settings, most of the time the officers, the administrators, et
cetera, really didn't want to see me. They really didn't want to see those dogooder,
mental health types coming in saying that someone's behavior maybe
wasn't their fault, that if they were getting into trouble or problems within the
environment, maybe it had something to do with them having some needs that
were not being met.
They didn't want to hear that because that's not the traditional culture of correctional
settings. The mission for mental health and general health care providers
is usually treatment of the individual. Usually, it is come in, find out what's
going on for that individual and try to arrange, if necessary, if possible, some way
of helping them.
The primary mission of corrections is to maintain order. The mission is also to
maintain custody and security. The bottom line is maintaining order. Why is that?
Well, do the math. If you have 200 or 300 men going to a dining hall for lunch and
you have six correctional officers whose job it is to get them from their cells to
that dining hall and back, do the math. If order is not maintained, you have a
problem.
If you go into most jails or prisons that were built before the 1980s, you will
almost always see some form of a demarcation. It's either a line or it's some sign
that says, "Don't move past this!" something that says "out of bounds". And that
is to maintain order.
When I first entered corrections, I thought "deadline" was a term that applies
to trying to get a story in to a newspaper to have it published. Wrong. "Deadline"
in corrections means, "Don't step over that line because, if you do, you're dead."
That's where it originates within corrections. When you go into an older facility,
usually about three feet from the wall, there is a line, and inmates stay on this
side of the line, and staff stay on that side of the line. Because if one inmate
crosses that line, it's not a big problem. Three inmates cross that line, little bit
hazy. Ten inmates cross that line, you've got six officers, and now they are not
armed, you've got a problem.
So the mentality, the idea, the mission of what corrections is about flies in the
face of individual needs.
The distinctions between jails and prisons are very valid, and must be. Corrections
is not "one size fits all." A jail is a place where people come in, and are
being processed. Most have not yet been to trial. They may have been to trial and
been found guilty of something. Some may have a short-term sentence, in some
places up to twenty-three months; most places, no longer than that. There is a

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 241
high turnover. There is rapid turnover. A lot of people bond out in the first
twenty-four hours. So there is a tremendous movement within a jail.
Prison, on the other hand, is for long distance runners. Inmates are going to be
there for a while, sometimes life. Therefore, the mission and how that mission is
implemented is different in a prison than it is in a jail. They are both very different
from the real world.
In many states, the mental health staff, medical staff, and the prison administration
staff said, "We're not keeping up with the needs of the population." Inmates
wrote to their attorneys who wrote to other attorneys, and before you
knew it, there were class action lawsuits for the rights of inmates to receive adequate,
appropriate health care. And, interestingly enough, only prisoners as a
group have a constitutional right to health care. Nobody in this room has a constitutional
right to health care unless you are locked up behind the walls. That is a
constitutional right, Estelle v. Gamble, 1976. That's how long it's been there.
But if you think about it, most prisons and jails were not built to provide
mental health care. That was not their mission. Most officers will tell you, "I
didn't go into being a correctional officer to become a social worker. I don't believe
in this group therapy crap. People do the time if they did the crime. That's
how we work."
So, fifteen years ago they didn't really want to see too many of us because we
came in and we said, "You know, you've got to do something better than what
you're doing."
And then the plaintiffs' attorneys hired experts, and they came in and they
said that. And then the states hired experts, and they came in and they said that.
And then the state said, "Wait a minute, we've got to hire some different experts."
So they did, and those experts came in and they said, "You've got to do
better. This is cruel and unusual. This is below the standard of care. And the
standard of care is what the community should be able to provide."
In several states, the federal courts finally said, "You know what? We're taking
control of your system by appointing a special master. That special master will
tell you how this system is going to work. And that special master will cost you a
lot of money because he is going to hire experts and monitors to come in and
look at your system."
In some states, they have signs posted in the highest security level stating they
fire no warning shots. They may also have a fence that is electrified, and it is not
on stun. They are not attempting to scare someone.
When you are coming from a mental health background, this does not make
sense to you. It does not make sense to you because that's not how you thought
life was supposed to be.
The first time you see walk-alone cages, that may be ten-by-ten, ten feet tall,
ten feet wide and usually about twenty feet long, and they are walk-alones, meaning
that someone who is out for recreation goes in that cage, and that's where

242 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
. they are for their hour in the yard, isolated from everybody else. It can be frightening.
Why? Because there are prison gangs in most state correctional facilities.
When you get off the bus from the county, they say to you, "What's your name,
what's your number, and what's your affiliation?" And they are not talking
religion.
And they house you according to those three criteria, so that you may have
people in the yard who all belong to the Aryan Brotherhood, but they don't rec
at the same time as the Nazi Low-riders because, although they are both white
supremacist gangs, they may hate each other.
That's how it tends to be. So what do you do then when you are trying to
provide mental health services? How do you have group therapy in administrative
segregation, twenty-three-hour-a-day lockdown?
Remember, those of you who are old enough to remember this, there was once
a show called "Superman." Superman would dash into a telephone booth and
change into his Superman stuff, right? Amazingly, some prisons have those same
size telephone booths, but they have wire mesh on all four sides. And they set six
of them in a semicircle so that men in administrative segregation can each be
isolated from each other, and the group therapist sits in the middle with six telephone
booths, and that's group therapy.
The first time you see that, you think, "What planet did I just step onto?" But
that's maybe the only way that group therapy can be held and meet prison rules
for someone in administrative segregation in prisons that were not built to provide
mental health services.
So many states have been forced to make accommodations. There are three
phases that states tend to go through. First is a liability stage.
What are you liable for? What are you supposed to do? You are supposed to
provide mental health care and treatment. So how do you do that?
So experts, sometimes in the system, sometimes coming from outside, come in
and they say, "Here is what the standard is. You've got to have certain systems
like a medical records systems." You'd be surprised at the number of states that
don't have medical records, or only recently started to get medical records, or
had two medical records, one for medical and one for mental health, and they
never shared information.
Currently, some states are having to move forward with having combined
medical records; so, if I'm the psychiatrist and I'm prescribing a medication and
the neurologist is prescribing something for seizures, both of us can know what
the other one is doing.
After that, there is a remediation stage. What are the remedies? What do you
need to put in place? Maybe you have to put in place a medical records system.
Maybe you have to put in place a suicide prevention program.
In order to do that, obviously, it takes resources. You've got to have people.
You've got to have management information systems. You've got to be able to

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 243
talk to each other. You've got to be able to write it down. We're talking resources
that were not in budgets. And, frankly, a number of the initial lawsuits were essentially
sweetheart lawsuits where the prison official said, "Yeah, sue us. The
only way we are going to get some money out of our state is if the federal government
or somebody makes us do it."
Because when our candidates are running for election, they don't say, "We
want to put more health care into prisons." They don't say that. They say things
like, "You want us to spend this $200 on your child or one of those crooks?"
Unfortunately, depending on one's point of view - I think it's unfortunate -
the prison population is expanding in age in both directions. Because of threestrike
rules, mandatory sentencing, et cetera, people are staying longer.
One of our nearby neighboring states has a permanent loss of contact visits if
as an inmate you refuse to give up a urine sample. That's a rule. There are other
issues like that that have to do with whether or not something is cruel and unusual,
makes any sense, is in the interest of the prison, in the interest of prison
safety, safety of people within it. All of those things are frequently the reasons
that rules exist. Whether or not they make sense may sometimes seem to not be
part of that reasoning process.
There was a time when if you were under eighteen, you were a juvenile. It
seems pretty simple. What's your birthdate? You're not eighteen yet; you're a
juvenile. Not in the eyes of some jurisdictions.
In some states, the prosecutor decides. In other states, a judge decides based
on the crime, not based on your age. If you did a certain crime, you can be
twelve, you can be eight, and be charged as an adult.
In some prisons, the older inmates would say, keep us away from those kids
because we want to get out. And the kids don't seem to realize that if they keep
breaking rules, they are going to keep losing good time credits. And if they lose
good time credits, they serve day for day. That's another one that's a probable
ADA lawsuit waiting to happen. The mentally ill in prison may serve more time
than the non-mentally ill based on being mentally ill. Now, if I said that were true
for a diabetic, or that was true for someone with hypertension, there would be a
major uproar. You can't discriminate based on somebody's illness.
What about mental illness? Well, if you happen to hear voices and you happen
to respond to an officer in a way that you shouldn't, you get a charge called
"disrespect". Disrespecting the officer. Violation of rules. A typical rules violation
is "out of bounds." You're someplace you're not supposed to be. Only staff
can go there. You're there, you get a charge. Refusing to lock in, meaning "go
back in your cell when you are told to," you get a charge. Refusing to come out,
so a cell extraction team comes and pulls you out of your cell, you get a charge.
If you happen to have been mentally ill when any of these violations happened,
sometimes now, because of litigation, because of more attention to it,

244 THE UNIVERSITY OF lHE DISTRICT OF COLUMBIA LAW REVIEW
mental health professionals are consulted, and they have to actually give a report
on your mental health condition at the time you got the charge.
This seems like it makes common sense. I'm treating you. You just picked up a
charge for something. Maybe the prison officials would like to know whether or
not I think you were sick when you did this. Such input is now becoming a part of
disciplinary hearing processes, but it didn't used to be, and in some places it still
isn't.
So after you get to remediation, what are the remedies? The last stage is implementation,
how do you implement all this stuff? It costs money; it costs lots of
money to get the staff in place and to create the space.
Remember, these prisons were not built to have treatment space. In prisons,
doctors can't see an inmate anytime they want. "What's wrong with you, Doc?
We have a count at 2:00. We do six counts a day. Don't you know whose house
you're in?" The Doctor who is learning the process may say, "Oh, yeah. I guess I
do. So you do six counts a day, so I can't do anything when you're doing a count,
and I can't do anything when you're having meals." Some meals, actually, people
still go to dining rooms, but a lot of meals are served in the cell where trays are
coming down the block and people are just passing them in. "So, I have to work
my treatment stuff around your schedule because I'm in your house."
Once all of that gets maybe settled down a little bit and you've got an idea of
what it is that you're trying to do, many of the more enlightened systems realize
you can help them, as a mental health professional, you can help them, because
what's their mission? Maintain order.
They don't want somebody who is actively hallucinating screwing up their routine.
They don't want assaults because of what I usually refer to as the "threefoot-circle
guys." Do you know who the three-foot-circle guys are? Those are
guys that have a three-foot magical circle around them, and nobody gets within
that three feet. As long as nobody gets into that three feet, everything is okay.
They might be very sick, they might be very delusional, they might be hallucinating,
or they might just be really, really mean. They might not have any mental
illness at all, but as long as you're outside of that three-foot circle, nobody
bothers you. Just like if you go outside right now and you see somebody with a
shopping cart and it's full of all kinds of stuff, and they're kind of talking to
themselves as they're walking along, you move out of the way. You give them
their three feet. You don't go up there and say, "Hey, you know man, who are
you talking to?" You don't do that unless you've got a plan, unless you've got
some backup, unless you've got a plan of how you're going to deliver services.
You just don't go and start asking questions when you have nothing to offer.
The same thing is true within corrections. You don't go in asking questions and
making definitions for other people if you have nothing to offer. What we can
offer is the same thing we'd offer out in the world. We can help someone maintain
their best level of functioning if we can treat them appropriately. And if we

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM 245
do that, they won't get in your way. And if they don't get in your way, you maintain
order.
Maybe we all win. Maybe everybody gets something out of that. That's a very
different approach than, "Hey, I'm Dr. 'So and so'; this man has got schizophrenia,
and, damn it, you better give him medication." "Okay, Doc. Just wait over
there for a minute." You hear an alarm go off, and all kinds of doors start locking,
and you don't have any keys. Where are you going? Nowhere. Nowhere.
So the point - and I'll wrap it up because I know we've got to get back over
to the other building; then we can talk about anything and any questions anybody
might have. The point is that mental health services work inside the walls as well
as they do outside. There are just modifications that have to be done.
The next round of lawsuits - the first round of lawsuits was about early identification,
screening, people coming in the front door, how do you identify somebody
who has mental health needs? That was the first wave of lawsuits.
The second wave of lawsuits was, now that you've identified them, what do
you provide?
The third wave of lawsuits had to do with supermaxes and administrative segregation
and twenty-three-hour-a-day lockdowns. If you lock somebody down for
twenty-three hours a day and they are fragile in terms of their mental health, is it
fairly likely they are going to have some problem? And how do you monitor that
person? How do you assist them? How do you decide whether or not they can be
in twenty-three-hour-a-day lockdown? Can't do it unless you've got some mental
health folks helping you do that because everybody doesn't handle seclusion the
same as everybody else. Some people get really, really sick in a very short period
of time. Other people do fine for years. In fact, when you try to move them back
into the general population, then you've got a problem because they might be a
three-foot-circle guy. And they haven't had to share a cell with anybody for the
last two years.
All of a sudden, you say, "Okay, we're going to transfer you back to the main
yard, general population. You've got a cellmate." If they're a three-foot-circle
guy and the other guy doesn't know they're a three-foot-circle guy, we might
have a little problem here.
So you need mental health input to manage those issues within the population
that you serve because where you do the service, whose house you are living in,
makes a lot of difference in what you can provide. But we can provide a very
effective level of treatment if we understand where we're providing it.
The next round of lawsuits, I think, which I've been saying to various state
officials in various states, is going to be about aftercare.
What happens when you've identified that somebody who is in your institution
is mentally ill and you don't know when they are getting out?
Now, I used to think, "How can that possibly be? A guy has got a ten-year
sentence - one, two, three, four, five, six, seven, eight, nine, ten. On such and

246 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
such a day, ten years is up, he gets out." And prisons bend over backwards to
make sure that they don't keep anybody any longer than they have to because
most of them are overcrowded and over their caps, and they're trying to get people
out.
So, they don't keep anybody an extra two days if they can help it. So, at 12:01
a.m., somebody in classification knows this man's time is up, and that's when he
hits the street.
What's open at 12:01 a.m.? Your local mental health clinic? Probably not.
What's open at 12:01 a.m.? Liquor store? Probably. Maybe somebody on the corner
saying, "Hey, I got you what you need." It's not a pharmaceutical. Well, I
guess you could call it a pharmaceutical. It's not in a pill; it's in a powder, but it
works.
There are some guys who were locked up before crack hit the street. They
don't even know what it is. So they come out, and they run into somebody from
the old neighborhood who says, "Hey, here you go," and we're back on that trip
again.
The next round of lawsuits, I think, is going to be aftercare - that you identify
the people in need while they are your responsibility, and you give them three
days' worth of medication, and it takes two weeks to get a clinic appointment.
Let's do the math.
That's where municipalities will come into the lawsuit business against their
mental health systems, because most of the time the correctional system doesn't
necessarily talk to the mental health system and the parole board. Bureau of
Prison teams and parole officers are in a whole different place.
Unless they are talking to each other, somebody slips through the cracks,
somebody gets locked up, something bad happens sometimes because someone is
sick, and a whole new law is invented. Kendra's Law. New York system. Subway
system. Man pushes somebody in front of a train. Whole new law affecting outpatient
civil commitment comes out of that. One case.
How many other cases are there like that that don't have as tragic an end to
them? A lot of them.
So those are the next round for those of us who don't necessarily work inside
the prisons, but may have some responsibility for the citizen who just got released
from the prison or the jail. The bottom line when I talk to prison officials and
when I talk to legislators is, you can pay now or you can pay later. When you pay
later, it costs a lot more, and it costs in human tragedy.
Thank you.

THE LOUISA VAN WEZEL SCHWARTZ SYMPOSIUM
247
THE LOUISA VAN WEZEL SCHWARTZ
SYMPOSIUM ON MENTAL HEALTH ISSUES
IN CORRECTIONAL INSTITUTIONS
PROCEEDINGS
Comments of
MS. SUSAN ROSENBERG
I am happy and glad to be here. Thank you for inviting me. My contribution to
this begins with a discussion of the problem of mental health and incarceration.
This was discussed this morning, and I hope to add to that discussion. I was hesitant
about speaking because I am not a mental health professional, nor am I a
patient's rights advocate. But I realized that, due to my sixteen-plus years in
prison, my life as a prisoner made my view an important part of the discussion.
I don't know how many people work inside the prisons themselves. Everybody
I have heard so far is associated with resources and advocacy, or judging, or various
aspects of criminal justice in one form or another. But how many people
actually go inside or are ex-prisoners?
And so I think I must start by saying very briefly that whenever I speak about
prisons I always want to name names. And I think it is one of the tasks of exprisoners
to bear witness to some of the experiences that we have had inside. So,
I want to name a few people.
Karen Bailey, Reese Jones, Janet Washington. There are others whose names
should be mentioned, as well, women who committed suicide while in federal
prison. And that is a hard place to start, but I think it is an appropriate place to
start, since the topic is mental health. And I would ask, "What do these women
have in common?" What they have in common is that their mental health
problems went untreated while they were in prison. Their mental health
problems, which no doubt played a pivotal role in the conditions of their lives
that led them to prison in the first place, were not discussed by law enforcement
people who arrested them, the criminal justice system that prosecuted them, and
then the prison officials who incarcerated them. The agony of mental illness in
prisons is one of the most neglected conditions, and yet it is the most serious.
I listened to the gentleman at lunch talk about the numbers and the problems
of a system and the need to manage that system, and all the issues that arise with
that, but I don't think that is the place to start. Although I understand why people
in power and with authority start at that point. But starting there is part of the
problem, because, by definition, it denies that our system of incarceration is part
of the problem, especially for those inside who are mentally ill; rather, it sees
prisoners as the problem. I say that because to me, mental health in prison is an

248 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW
oxymoron. I say that because care and prison are incompatible with each other.
They are incompatible because prison is defined by its task. And I would define
its function, having lived on the other side of it, as separating segments of society
from the rest of society. I would define it as a prison industrial complex that must
incarcerate more and more in order to grow. It really, in some ways, is very
simple.
But to do that, and to ensure the rift between individuals in prison and people
in the community at large, people have to be criminalized, and they have to be
dehumanized and, ultimately, I think, they have to be demonized. And as someone
said earlier, to dehumanize someone means to take one's identity. You are
no longer an individual. The individual's needs, by definition, are an attack on the
running of the system. And to criminalize and demonize whole populations, it
takes power, control, and force to do that. This means security has to dominate.
Security concerns take precedence over all other concerns. Because security defines
the conditions, and authority is exerted through power, the very idea of care
is an impossibility. The concept of care is transformed into total routine-based
institutional life. There can be no deviation from that regimentation. Mental
health needs, as a result, threaten the working of the system.
And I think this is true with general health care, and it is true with mental
health care. I would like to say that I watched doctor after doctor, mental health
care professional after mental health care professional defer and defer and defer
to the supposed security needs, as opposed to the prisoner's needs. And what
happened were some very serious, ongoing, mental health issues.
I have to focus on the federal system. All of these diversion programs are
good, to divert people into programs that are designed to help them is better than
sending people who are ill to prison. But there is something that is more fundamental
that has to be addressed, because the reality is that for thirty years there
have been programs to help people and to divert people, and yet the system is
worse. It is systematically and systemically worse off than it has ever been. And
that is connected to the incredible growth in the prison population. The federal
women's prisoner population has grown by over 400% in the last five years. The
number of poor and homeless people has grown in leaps and bounds. . . and
many of them are ending up in prison. The sheer numbers make the system incapable
of dealing with any individual needs.
To speak about Danbury, where the District of Columbia women actually go,
is to talk about this issue concretely. There is a stigma in federal prison from the
administration, the guards, and other prisoners against people from the District
of Columbia. It is a racist stigma that further criminalizes the women. The majority
of the popUlation from the District of Columbia is black, and, when they originally
entered the federal system, the population demographics changed very
radically. What was a predominantly white population became a totally mixed
one. I would call the stigma pure racism. In Danbury, there isn't medical or

THE LOUISA V AN WEZEL SCHWARTZ SYMPOSIUM 249
mental health care, even though it is designated as a health facility by the BOP. I
focus on the feds because it is the flagship of the prison system and the supposed
leadership of prisons in the criminal justice system. There are 1,600 women in the
Danbury facility, in the federal prison camp, and behind the wall in the medium
security facility. There are three therapists for that entire facility. There is an inhouse
drug program where people who are court-ordered to participate live for a
year of their sentence. They are separated from the rest of the population, and
they can gain a year off their sentence if they complete the program. The Bureau
of Prisons keeps statistics on this program. They say that sixty percent of the
people who go through the program stay drug-free for three years. The only
problem with the statistic is that they only followed people for the first three
months. So the reality is, we don't have an accurate and realistic statistic. Like
health care in general, there is a problem with coercion, drug withdrawal, and
rehabilitation.
There is no active mental health program there, and since there are numerous
women with a wide range of mental health issues, the response is to medicate
everyone who is defined as problematic. That is the only solution, and again here
it is because the secure running of the institution has to come before any individual
inside. From the administration's point of view, others in the system should
not be endangered. There is no long-term therapy, or even real diagnostic
processes, but there is medication. At Danbury when I left, there were over 300
women who were on heavy psychotropic medication. I don't know if they needed
it, but there certainly are three hundred or more angry women there.
A related topic to this over-medication is suicide. Prison drives people to the
most profound despair, so the programs for suicide prevention in the federal system
are equally as bad as any other of their programs. A potential suicide is
placed in a stripped cell for days at a time, and there is no other intervention.
This is the triage management. I was a volunteer suicide watcher. What that
meant was that I sat outside of the stripped cell and monitored the person. The
rules dictated that we weren't allowed to speak to the person on the other side of
the cell wall, nor give them anything. In many cases the woman was four pointed
to the bed to ensure that she wouldn't "do anything." I broke that rule and always
talked to the person. More times than net what drove someone to that point
was something beyond their control related to their family or their children. They
didn't need a stripped cell; they needed real mental and practical help.
Suicide; over-medication; forced drug treatment; the despair of incarceration
itself; the end of rehabilitation as a construct for prison time; the general racism
and misogyny; the end of all higher education programs; the inability to deal with
learning disabilities; the statistics that indicate huge numbers of women who have
been sexually abused, or who are victims of incest, or suffered trauma from violence;
all add up to a public health nightmare.

250 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW
In order to develop programs that respond to the mental health crisis in prisons,
people on the outside of prison must really understand the full magnitude of
the problem. The prison system is a hidden and secret world, and it is highly
skilled at keeping it that way. It is a prerequisite for their continued growth.
Here is a little story to indicate what I would consider criminal negligence and
the BOP's need to keep the truth from the public. In Danbury, the prison was in
violation of the Americans with Disabilities Act (ADA). There were no provisions
for anybody with any physical disabilities in any part of the prison at all.
Physical disabilities don't keep people from being sentenced to prison, yet there
is very little provision made for them. The prison was put under court order and
being fined a lot of money because they were not in compliance with the Act.
There were no ramps, no elevators, and no special facilities at all. One day, instead
of the prisoners going to their allocated jobs as usual, they were assigned to
a work crew. Why? What were we doing? We were building ramps because the
auditors and the monitors around this court order were coming to the prison, and
don't you know that all these temporary ramps went up in a matter of forty-eight
hours prior to their arrival. The access to the medical department was only
through a metal outdoor steep staircase that was hard for the very fit to navigate.
That was never repaired or changed. I think this story shows bad faith. And I
would say that it is not a unique story about what the public is fed and how it is
done.
There are two federal psychiatric prisons, and people go to them when they
are no longer controllable in the population. The rumor among prisoners is that
the medical centers are where you go to die. And I am afraid that with the aging
of the prison population, that is going to prove to be true. These mental health
units are in Fort Worth, Texas and Springfield, Missouri.
There is no federal law, or I should say there is no constitutional right to
mental health care. There is a human right to mental health, and to health care.
And I think it is to that human right that the BOP should be held accountable.
There is something very important in separating and then criminalizing people
and their right to mental health. I don't have a solution to this problem. But I do
think that if the District of Columbia asserts its political will towards its own
prisoners and their conditions of incarceration in the federal prison system, it
would be an opening into the system. Without getting in the door to the prison
system, there can be no exposure to the suffering and the injustices that go on.
Go to the federal prisons and see them, and talk to the women there themselves;
demand to see the conditions and the effects of those conditions.
Thank you.