Cruel and Unusual Punishment of Prisoners with Mental Illnesses: From Oates to Plata

Abstract

In the United States Supreme Court decision of Brown v Plata, handed down on 23 May 2011, the majority denounced the overcrowding conditions in Californian prisons insofar as they impacted upon the mental and physical health of prisoners and upheld an order mandating such prisons to reduce their populations to 137.5% of design capacity. The majority judgment found there had been a breach of the Eighth Amendment right to be free from cruel and unusual punishment and that it was appropriate for the courts to ensure that the right was enforceable. This paper reviews the landmark and controversial judgments in Brown v Plata and argues that it is a decision in relation to the obligation for imprisoning authorities to care for the wellbeing of prisoners that is likely to have significant repercussions well beyond the confines of the United States. It raises squarely the potential for the cruel and unusual punishment preclusion to be used as a potent protection for those made vulnerable and dependent by reason of their incarceration.

Key words:

• cruel and unusual punishment
• human rights
• mental illness
• overcrowding
• prison
• torture

Notes

 1. The author acknowledges the research assistance draft by Simon McGregor and Dr Julie Debeljak and suggestions on an earlier draft by Simon McGregor.

 2. http://www.supremecourt.gov/opinions/10pdf/09–1233.pdf, viewed 2 June 2011.

 3. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

 4. See e.g., K Akuffo, “The Involuntary Detention of Persons with mental Disorder in England and Wales – A Human Rights Critique” (2004) 27 International Journal of Law and Psychiatry 109.

 5. See generally J Lobel, “Cruel and Unusual Punishment: Litigating under the Eighth Amendment: Prolonged Solitary Confinement and the Constitution” (2008) 11 U Pa J Const L 115; MA Geer, “Human Rights and Wrongs in Our Own Backyard? Incorporating International Human Rights Protections Under Domestic Civil Rights Law – A Case Study of Women in United States Prisons” (2000) Harvard Human Rights Journal 72; MC Friedman, “Cruel and Unusual Punishment in the provision of Prison Medical Care: Challenging the Deliberate Indifference Standard” (1992) 45 Vanderbilt Law Review 921.

 6. See e.g., J Bonta and P Gendreau, “Reexamining the Cruel and Unusual Punishment of Prison Life” (1990) 14(4) Law and Human Behavior 347.

 7. Compare the initiative by the Supreme Court of India in Vishaka v State of Rajasthan (1997) 6 SCC 241 after the rape of a social worker to direct that nominated guidelines and norms be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women with the force of law “until suitable legislation is enacted to occupy the field.

 8. http://australianpolitics.com/democracy-and-politics/bill-of-rights-1689, viewed 12 June 2011. See AF Granucci, “‘Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning” (1969) 57(4) California Law Review 839.

 9. See J Lane, Titus Oates (A Dakers Ltd., London, 1949); J Pollock, The Popish Plot (Cambridge University Press, Cambridge, 2010).

10. Among other things, Oates made 43 allegations against various members of Catholic religious orders, including over 500 Jesuits, accused the Queen's physician and the secretary to the Duchess of York of planning to assassinate the King, as well as multiple members of the nobility, and even the Queen of plotting to poison the King, Many of the his allegations were directed toward what he alleged were the machinations of the Jesuits.

11. (1685) 10 St Tr 1227 at 1316–1317; [1685] KB 1316: http://books.google.com.au/books?id=px2KCNCWwsIC&pg=PT629&dq=titus+oates&hl=en&ei=XvP5TYyvGo_wvwPWg_WVAw&sa=X&oi=book_result&ct=result&resnum=4&ved=0CDsQ6AEwAw#v=onepage&q=titus%20oates&f=false, viewed 12 June 2011. See too http://press-pubs.uchicago.edu/founders/documents/amendVIIIs1.html, viewed 13 June 2011.In addition, the provision needs to be seen in the context of the “Bloody Assizes”: see J Tutchin, J Bent, and J. Dunton, The Bloody Assizes (JW Hodge & Co, London, 1929).

12. (1685) 10 St Tr 1227 at 1329.

13. See S Joseph, J Schultz, and M Castan, The International Covenant on Civil and Political Rights (Oxford University Press, Oxford, 2nd edn, 2004), ch. 9. See too Article 3 of the European Convention on Human Rights (ECHR); M Amos, Human Rights Law (Hart Publishing, Oxford, 2006), at p205ff. See too R (on the application of Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [[2004] QB 395. In relation to supervised confinement of patients for the protection of others from significant harm.

14. http://www2.ohchr.org/english/law/cat.htm, viewed 12 June 2011.

15. See generally RKM Smith, International Human Rights (Oxford University Press, New York, 2005), ch 14.

16. Human Rights Committee, General Comment, Art 7 (47th session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI\GE1\Rev 1 an 30 (1994): http://www1.umn.edu/humanrts/gencomm/hrcom20.htm, viewed 14 June 2011.

17. This is identical to 12(1)(e) of the Constitution of the Republic of South Africa 1996. Section 10 of the Human Rights Act 2004 (ACT) is in almost identical terms.

18. See too Human Rights Act 2004 (ACT), s19(1); Article 10(1) of the ICCPR. See generally C Evans and S Evans, Australian Bills of Rights (Lexis Nexis, Sydney, 2008), at 1.107ff, N O'Neill, S Rice and R Douglas, Retreat from Injustice: Human Rights Law in Australia (The Federation Press, Sydney, 2004), ch 10.

19. Robinson v. California, 370 U.S. 660 (1962). See generally O'Neill, Rice and Douglas, 2004, ch 10.

20. 408 US 238 at 271–282 (1972).

21. For a useful early analysis of such matters, see M.J. Radin, “The Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause” (1978) 126 University of Pennsylvania Law Review 990.

22. 356 US 86 at 101 (1958).

23. Wilkerson v Utah, 99 US. 130 (1878).

24. Furman v Georgia, 408 US 238 (1972); see too Gregg v Georgia, 428 US 153 (1976).

25. Coker v Georgia, 433 US 584 (1977).

26. Kennedy v Louisiana, 554 US 407 (2008).

27. See Wilson v Seiter, 501 US 294 (1991); Farmer v Brennan, 511 US 825 (1994).

28. [1978] ECHR 2; (1979) 2 EHRR 1.

29. [1989] ECHR 14; (1989) 11 EHRR 439.

30. 2001 (3) SA 382 at [35].

31. [2009] VCAT 646 at [574]–[575].

32. T Carney, “Mental Health Law in Postmodern Society: Time for New Paradigms?” (2003) 10(1) Psychiatry, Psychology and Law 12.

33. See too the protection, albeit somewhat limited, extended in the decision of Kudla v Poland, 2000. ECtHR Application no 30210/96. Judgment 20 October 2000. See also PM Prior, “Mentally Disorder Offenders and the European Court of Human Rights” (2007) 30 International Journal of Law and Psychiatry 546.

34. Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Human rights of People with Mental Illness: http://www.humanrights.gov.au/disability_rights/inquiries/mii.htm, viewed 22 June 2011.