It is the sad reality that our prisons have become the new “institutions” for housing the severely mentally ill in the aftermath of the deinstitutionalization movement. Instead of compassionate medical treatment, these individuals are often isolated for long periods of time (seclusion) or tied down against their will (restraint) when they “fail to comply” with an order or “act out” in the corrections setting. Frequently, the very behavior triggering placement of mentally ill “prisoners” into prolonged and illegal seclusion and restraint is a manifestation of their illness(es), which is only exacerbated by the harsh conditions of confinement and a “corrections” environment, as opposed to a treatment- and rehabilitation-centered milieu. Indeed, they are often left without any medical supervision whatsoever, much less the minimally adequate treatment that the law requires.

This Article explores emerging thought and the legal underpinnings for challenging the status quo of the failure to protect the basic civil rights of confined mentally ill individuals. When challenged or otherwise subject to scrutiny, deference given under the law to clinical decisions in the corrections setting regarding the care and treatment of confined mentally ill individuals should not amount to the complete abdication of jurisprudential responsibility for ensuring equal protection of the law to those who need the protections of our Constitution the most. When it comes to unjustified and prolonged seclusion and restraint of severely mentally ill individuals, the authors of this Article believe that the medical and clinical professionals currently enlisted to provide their services to such mentally ill prisoners should not be given any deference to order prolonged seclusion and restraint as part of their so-called “clinical” decision-making.