Supermax Prisons and the Constitution: Liability ... - Supermaxed

is not peer review or sophisticated quality assuranceby a group of disinterested mental healthprofessionals.When it comes to ECU mental health issues, acorrections department may be in the strongestlegal position if it incorporates some form ofongoing quality assurance reviews into its standardoperating procedures. Such proceduresbecome even more credible if they draw on professionalsfrom outside thedepartment. Quality assurancereviews can serve two purposes:(1) alerting the departmentto problems as they develop, sodeficiencies can be corrected;and (2) providing a credible,nonadversarial-based source ofinformation about the operationof the ECU.Transferring Inmates forMental Health TreatmentSimply transferring a prisoninmate to a mental health treatmentfacility triggers dueprocess protections under a1980 Supreme Court decision. 43In Vitek v. Jones, which concernedthe transfer of a prisoner from a Nebraskastate prison to a mental hospital, the Court saidthat as part of such a transfer decision, the inmatewas entitled to a hearing that included more proceduralprotections than would be required in adisciplinary hearing. Notably, the inmate had aright to “qualified and independent assistance”(but not necessarily a lawyer) and the right tocross-examine witnesses. The model the Courtadopted for the transfer hearing is similar to thatWhen it comes toECU mental healthissues, a correctionsdepartment may bein the strongestlegal position if itincorporates someform of ongoingquality assurancereviews into itsstandard operatingprocedures.required for a parole revocation. The Court didnot require a hearing in emergency situations orwhen a transfer is simply for a clinical evaluation.Several factors were of significance to the Courtin Vitek. The Court considered that the transferunder review was to an agency and institutionoutside the jurisdiction of the state department ofcorrections, that such a transfer imposed a stigmaon the inmate, and that the transfer exposed theinmate to a mandatory programof behavior modification.The Vitek decision left severalsubstantial questions unanswered.Unfortunately, relativelylittle litigation has comeforth in the aftermath of Vitekto answer these questions. 44The most obvious question iswhether Vitek applies when thetransfer is not to a mental hospitalrun by the state’s mentalhealth agency but to a mentalhealth treatment unit located inanother institution run by thecorrections department. Whatif the transfer is simply to amental health unit in the sameprison? In The Mentally Disordered Inmate andthe Law, Cohen argues that Vitek should applyunder such circumstances but recognizes that, inpractice, it frequently is not observed. 45 Amongother questions Cohen notes are what criteriashould be used in deciding to transfer an inmatefor mental health treatment and what the burdenof proof should be in the transfer hearing.23Mental Health43Vitek v. Jones, 445 U.S. 480 (1980).44For a lengthier discussion of Vitek and inmate mental health issues generally, see Cohen, The Mentally DisorderedInmate and the Law.45Ibid., p. 17-10