En la jurisprudencia estadounidense, la falta de una adecuada atención a los problemas de salud mental de los presos puede constituir una violación de la Octava Enmienda a la Constitución de los Estados Unidos, que prohíbe la imposición de “castigos crueles e inusuales”. El objeto de este artículo es analizar el tratamiento que reciben dichos supuestos en los tribunales federales.
In Estelle v. Gamble, the Supreme Court of the United States stated that “deliberate indifference to serious medical needs of prisoners” constitutes a violation of the Eighth Amendment. This is true “whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.”
The starting point is the idea that prison authorities have an obligation to provide health care to prisoners, since prisoners cannot care for themselves. This duty is implicit in the Eighth Amendment:
The Constitution does not mandate comfortable prisons, but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment. In its prohibition of cruel and unusual punishments, the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take reasonable measures to guarantee the safety of the inmates.
However, not every lack of adequate medical care in the prison context constitutes a violation of the Eighth Amendment. Cruel and unusual punishments are characterized by “unnecessary and wanton infliction of pain” or by being “repugnant to the conscience of mankind.” The Eighth Amendment does not prohibit “medical malpractice”, but rather “deliberate indifference to serious medical needs” of prisoners.
Although Estelle examined the claim of an inmate with physical health needs—his complaint was based on the failure to diagnose and inadequate treatment of his back injury—federal appeals courts have recognized that “deliberate indifference to an inmate’s serious mental health needs [also] violates the eighth amendment.” In Bowring v. Godwin, a case decided a few months after Estelle, the Fourth Circuit saw “no underlying distinction between the right to medical care for physical ills and its psychological or psychiatric counterpart” and recognized, accordingly, “a prisoner’s right to psychological or psychiatric treatment.” This right, insofar as it derives from the Eighth Amendment, which prohibits only “cruel and unusual punishments,” is limited:
[Every inmate] is entitled to psychological or psychiatric treatment if a physician or other health care provider, exercising ordinary skill and care at the time of observation, concludes with reasonable medical certainty (1) that the prisoner’s symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of care would be substantial. The right to treatment is, of course, limited to that which may be provided upon a reasonable cost and time basis and the essential test is one of medical necessity and not simply that which may be considered merely desirable.
Prisoners affected by deliberate indifference to serious medical needs may seek relief in federal courts under section 1983 of title 42 of the United States Code (42 U.S.C. § 1983), which governs civil actions for deprivation of rights.
According to Estelle, the failure to provide adequate health care to prisoners constitutes cruel and unusual punishment prohibited by the Eighth Amendment when two requirements are met: (1) an inmate has a serious medical need, and (2) a member of the prison staff acts with deliberate indifference to that medical need.
Deliberate indifference claims require a showing of “serious” medical needs of an inmate. The Supreme Court has not established any guidelines for interpreting this requirement, having merely justified its necessity on the fact that “society does not expect that prisoners will have unqualified access to health care.”
In the absence of guidelines, the circuit courts have attempted to define the concept of serious medical need, acknowledging the difficulty of this task:
It is a far easier task to identify a few exemplars of conditions so plainly trivial and insignificant as to be outside the domain of Eighth Amendment concern than it is to articulate a workable standard for determining “seriousness” at the pleading stage. Indeed, the fact that this Court has yet to fashion or endorse such a standard in the twenty years since Estelle was decided is, we imagine, partially a product of the difficulty involved in formulating a standard that is adequately sensitive (in the sense of capturing those medical conditions properly within the realm of Eighth Amendment concern) yet appropriately specific (i.e., excluding those conditions that are not).
Generally, a medical need qualifies as “serious” if “it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” This recognition is more difficult in the case of mental health issues.
The Ninth Circuit has identified three circumstances that suggest a prisoner has a serious medical need:
The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual’s daily activities; or the existence of chronic and substantial pain are examples of indications that a prisoner has a “serious” need for medical treatment.
A serious medical need does not require current harm to health; “significant risk of future harm” may constitute cruel and unusual punishment prohibited by the Eighth Amendment. Under this amendment, prisoners are to be protected “not only from deliberate indifference to his or her current serious health problems, but also from deliberate indifference to conditions posing an unreasonable risk of serious damage to future health.”
In cases of delay in access to health care, “the ‘seriousness’ of an inmate’s medical needs also may be decided by reference to the effect of delay in treatment [...], deciding whether the delay worsened the medical condition.” As the Second Circuit noted in Smith v. Carpenter,
[w]hen the basis for a prisoner’s Eighth Amendment claim is a temporary delay or interruption in the provision of otherwise adequate medical treatment, it is appropriate to focus on the challenged delay or interruption in treatment rather than the prisoner’s underlying medical condition alone in analyzing whether the alleged deprivation is, in objective terms, sufficiently serious, to support an Eighth Amendment claim. There is no need to distinguish between a prisoner’s underlying “serious medical condition” and the circumstances of his “serious medical need” when the prisoner alleges that prison officials have failed to provide general treatment for his medical condition. In a case like this, however, where the prisoner is receiving appropriate on-going treatment for his condition, but, instead brings a narrower denial of medical care claim based on a temporary delay or interruption in treatment, the serious medical need inquiry can properly take into account the severity of the temporary deprivation alleged by the prisoner.
In short, what is relevant for Eighth Amendment purposes is “the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner’s underlying medical condition, considered in the abstract.” This is crucial for assessing the seriousness of prisoners’ mental health medical needs, because, rather than focusing solely on whether their psychiatric disorders —such as depression, bipolar disorder, or schizophrenia— are inherently severe, attention should be given to the “the actual medical consequences that flow from the denial of care.” An example of this analysis can be found in Charles v. Orange County:
Plaintiffs have plausibly alleged that they had a sufficiently serious need for discharge planning given their serious mental illnesses. Plaintiffs’ mental illnesses cause paranoia, delusions, hallucinations and aggressive shifts in mood when they go untreated. Without continuous care and daily medication to keep them mentally stable, Plaintiffs face serious risk of physical and psychological harm.
For the failure to provide adequate care for a prisoner’s serious medical needs to constitute a violation of the Eighth Amendment, a member of the prison staff must exhibit deliberate indifference to those needs. The rationale for this requirement was stated in Estelle:
Similarly, in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment.
The Supreme Court defined deliberate indifference in Farmer v. Brennan. This element “entails something more than mere negligence”, but “it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.” Specifically, deliberate indifference is equated with subjective recklessness, which involves “know[ing] of and disregard[ing] an excessive risk to inmate health or safety.” The Supreme Court “reject petitioner’s invitation to adopt an objective test for deliberate indifference,” relying on the terms of the Eighth Amendment:
This [subjective] approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual “conditions”; it outlaws cruel and unusual “punishments.” An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis. But an official’s failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.
Farmer clarifies two important points regarding the evidence of the required knowledge to establish deliberate indifference. First, it is not necessary to “show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Second, “the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence”, such as “the very fact that the risk was obvious.” However, this presumption can be rebutted:
Because [...] prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer knowledge from the obvious, in other words, does not mean that it must do so. Prison officials charged with deliberate indifference might show, for example, that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.
To constitute deliberate indifference, the defendant prison staff member must not only be aware of the substantial risk of serious harm but also recklessly disregard that risk. Reckless disregard exists when “the official does not respond reasonably to the risk [...], of which the official is subjectively aware.” Therefore, “prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted.” This is because “a prison official’s duty under the Eighth Amendment is to ensure reasonable safety, a standard that incorporates due regard for prison officials’ unenviable task of keeping dangerous men in safe custody under humane conditions.”
Most claims of deliberate indifference to serious mental health needs of prisoners arise in suicide cases. As Taylor points out, the risk of suicide involves two duties of prison officials under the Eighth Amendment: (1) the duty to ensure reasonable safety in prison, and (2) the duty to provide adequate medical care to inmates. However, the intersection of these duties does not automatically mean that the failure to prevent the risk of suicide in prisons constitutes cruel and unusual punishment. This requires a showing of deliberate indifference to serious medical needs of prisoners.
There is no doubt that “the risk of suicide is an objectively serious medical condition” and that, consequently, “inmates have the right to be free from deliberate indifference to this risk while in custody.” This means that in cases where there is risk of a prisoner’s suicide the objective element of a deliberate indifference claim is satisfied by the mere existence of that risk.
To establish deliberate indifference, an inmate must show a member of the prison staff “had actual knowledge of an inmate’s ‘substantial’ risk of suicide and did not take reasonable measures to abate the risk.” Specifically, the subjective element requires knowledge of a “‘strong likelihood’ of suicide,” which can be proved by circumstantial evidence, such as “evidence that the inmate was already on suicide watch, previously attempted suicide under similar conditions, or recently expressed a desire to self-harm.” By contrast, an inmate’s despondency “does not suggest a ‘strong likelihood’ of suicide,” not “even when an inmate’s despondency is coupled with other stressors, like drug withdrawal [...], if the inmate expressly denies feeling suicidal.” Nor does “an inmate’s membership in a high-risk group [...] alone make it obvious that he will attempt suicide.”
Once it is shown that the defendant knew of a strong likelihood of prisoner suicide, it must be proved that he failed to take reasonable measures to address that risk. Therefore, there is no deliberate indifference if the defendant “responded reasonably.” In order to be exempt from liability, it is not enough to take “some reasonable precautions”; reasonableness of the measures must be assessed “on the whole.” When it comes to “simple and obvious precautions against a risk of suicide,” failure to take such measures is indicative of deliberate indifference.
Examples of deliberate indifference to risk of suicide are as follows: (1) placement of an inmate who has a known strong likelihood of suicide in a cell with tie-off point, loose bedding and without constant supervision; (2) a social worker’s decision to take a prisoner off suicide watch and place him in general population after he told her that he was very depressed and had suicidal ideation all the time; and (3) the failure of intake staff to implement the jail’s suicide prevention protocol despite their knowledge that the inmate had a high risk of committing suicide.
Prolonged solitary confinement is not itself unconstitutional, but, under certain circumstances, it can violate the Eighth Amendment. In Hutto v. Finney, the Supreme Court held that “confinement [...] in an isolation cell is a form of punishment subject to scrutiny under Eighth Amendment standards.” Despite this statement, “no federal court has found solitary confinement to be a per se violation”.
The Third Circuit has recognized “the devastating mental health consequences caused by long-term isolation in solitary confinement.” These negative psychological effects of prolonged solitary confinement are described in Williams v. Secretary Pennsylvania Department of Corrections:
A comprehensive meta-analysis of the existing literature on solitary confinement within and beyond the criminal justice setting found that the empirical record compels an unmistakable conclusion: this experience is psychologically painful, can be traumatic and harmful, and puts many of those who have been subjected to it at risk of long-term damage. Specifically, based on an examination of a representative sample of sensory deprivation studies, the researchers found that virtually everyone exposed to such conditions is affected in some way. They further explained that there is not a single study of solitary confinement wherein non-voluntary confinement that lasted for longer than 10 days failed to result in negative psychological effects. And as another researcher elaborated, all individuals subjected to solitary confinement will experience a degree of stupor, difficulties with thinking and concentration, obsessional thinking, agitation, irritability, and difficulty tolerating external stimuli.
Anxiety and panic are common side effects. Depression, post-traumatic stress disorder, psychosis, hallucinations, paranoia, claustrophobia, and suicidal ideation are also frequent results.
In short, “it is well established in both case law and scientific and medical research that prolonged solitary confinement [...] poses a substantial risk of serious psychological [...] harm.” This means, first of all, that long-term isolation in itself satisfies the objective component of deliberate indifference. In addition, evidence of the substantial risk of serious harm posed by prolonged solitary confinement impacts the assessment of the subjective requirement of deliberate indifference to serious medical needs. As the Fourth Circuit noted in Porter v. Clarke, “the extensive scholarly literature describing and quantifying the adverse mental health effects of prolonged solitary confinement that has emerged in recent years provides circumstantial evidence that the risk of such harm was so obvious that it had to have been known.”
However, according to the aforementioned decision, “a legitimate penological justification can support prolonged detention of an inmate in segregated or solitary confinement [...], even though such conditions create an objective risk of serious emotional and psychological harm.” Thus, Eighth Amendment claims for prolonged solitary confinement must overcome “the hurdle of legitimate penological interest”.
Clark v. Coupe provides a good example of the analysis of deliberate indifference to serious medical needs of prisoners kept in prolonged solitary confinement. In this case, an inmate brought a claim alleging his placement in solitary confinement for seven months by officials who knew he had serious mental disorders —maniac depression and paranoid schizophrenia— violated the Eighth Amendment. To support the objective requirement, the Third Circuit refers to “a growing consensus that solitary confinement conditions can cause severe and traumatic psychological damage that in turn leads to high rates of self-harm or suicide in inmates who had spent time in solitary confinement.” Regarding the subjective element, prison staff’s knowledge of the substantial risk of serious harm to the inmate is presumed not only from the extensive literature warning of the mental health issues caused by prolonged solitary confinement, but also from two other circumstances:
The DOC’s own internal policies required they consider [prisoner]’s mental illness in determining both the appropriateness and length of time spent in solitary confinement, and the results of a completed investigation concluded that defendant Warden [...] and the [prison]’ use of isolation threatened the health of mentally ill inmates.
Finally, the court rejects the penological justification argument:
Even assuming [the inmate] was initially placed in the [isolation unit] for a justified penological purpose, the pronounced worsening of his mental illness symptoms resulting from months in isolation was wholly pointless and unjustified. No penological purpose was served by irrevocably damaging [the prisoner]’s already severely compromised mental health; the increased incidents of hallucinations or self-mutilation resulting from the exacerbation of his schizophrenia and bi-polar disorder cannot be deemed a legitimate part of his penalty for committing a disciplinary infraction.
And it is added that “there is no indication in the complaint that prison officials imposed the prolonged term of solitary confinement for legitimate non-punishment reasons, such as for [the prisoner]’s own protection or out of administrative necessity.”
When a prisoner has serious medical needs, “a total deprivation of care is not a necessary condition for finding a constitutional violation.” The Eighth Amendment requires prison staff to provide inmates with “constitutionally adequate treatment,” so that “a plaintiffs receipt of some medical care does not automatically defeat a claim of deliberate indifference.” This means that inadequate medical treatments may constitute deliberate indifference to serious medical needs.
The determining factor in assessing deliberate indifference in cases of inadequate medical treatment is the “lack of professional judgment.” As the Seventh Circuit pointed out in Zaya v. Sood, “a treatment decision that’s based on professional judgment cannot evince deliberate indifference because professional judgment implies a choice of what the defendant believed to be the best course of treatment.” There can be no deliberate indifference “where a defendant has based his actions on a medical judgment that either of two alternative courses of treatment would be medically acceptable under the circumstances.”
But “the deference owed to the professional judgment of medical personnel [...] does not mean that a defendant automatically escapes liability any time he invokes professional judgment as the basis for a treatment decision.” To escape liability, the defendant must “honestly believe his proffered medical explanation.” The context surrounding a treatment decision determines whether it was actually made in accordance with professional judgment:
When a doctor says he did not realize his treatment decisions (or lack thereof) could cause serious harm to a plaintiff, a jury is entitled to weigh that explanation against certain clues that the doctor did know. Those context clues might include the existence of documents the doctor regularly consulted which advised against his course of treatment, evidence that the patient repeatedly complained of enduring pain with no modifications in care, inexplicable delays or departures from common medical standards, or of course, the doctor’s own testimony that indicates knowledge of necessary treatment he failed to provide.
Hence, “to infer deliberate indifference on the basis of a physician’s treatment decision, the decision must be so far afield of accepted professional standards as to raise the inference that it was not actually based on a medical judgment.” Deliberate indifference requires “more than a difference of medical opinion as to the need to pursue one course of treatment over another”; the chosen treatment must be “medically unacceptable under the circumstances” and “the plaintiff must show that [the defendants] chose this course in conscious disregard of an excessive risk to plaintiff's health.”
An illustrative example is Porretti v. Dzurenda, where the United States District Court for the District of Nevada granted a preliminary injunction —affirmed by the Ninth Circuit— requiring the Nevada Department of Corrections to provide Wellbutrin (an anti-depressant medication) and Seroquel (an anti-psychotic medication) to treat the plaintiff inmate’s serious mental illnesses. The district court found that the medical report submitted by the defendants, which recommended only cognitive behavioral treatment, “was medically unacceptable and not credible” because it “relied almost exclusively on one short interview with [the inmate].” Unlike the plaintiff’s doctor, who stated in his report that the prisoner should receive the aforementioned medications, the defendants’ doctor “did not review [the inmate]’s medical records, failed to discuss the potential abuse of Wellbutrin and Seroquel in the prison system, failed to discuss [the prisoner]’s experience with Wellbutrin and Seroquel, and provided testimony designed to support Defendants’ litigation position.” The fact that Nevada Department of Corrections officials relied on that medical report to justify their decision not to provide the inmate with Wellbutrin and Seroquel suggests that they “likely acted with deliberate indifference to [his] serious medical need.”
So far, I have analyzed cases of deliberate indifference “to a particular inmate’s medical needs.” However, deliberate indifference may also arise when there are “systemic deficiencies at the prison’s health care facility,” revealing that “the medical treatment [is] constitutionally inadequate for all inmates.” Indeed, “the prohibition against cruel and unusual punishment contained in the Eighth Amendment [...] is not limited to specific acts directed at selected individuals, but is equally pertinent to general conditions of confinement that may prevail at a prison.”
In Brown v. Plata, the Supreme Court recognized that Eighth Amendment claims can be based on
systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners [...] to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.
This decision affirmed a three-judge district court’s ruling that ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years, on the grounds that prison overcrowding was the primary cause of constitutionally inadequate mental health care for inmates. The requirement of a serious medical need is meet because “overcrowding may prevent the timely diagnosis and care necessary to provide effective treatment and to prevent further spread of [...] serious physical or mental illness,” with “all prisoners in California”, including “prisoners who are not sick or mentally ill.”
In contrast, Brown does not include any analysis of the subjective element of deliberate indifference to serious medical needs. This omission, likely based on the obviousness of the risk, did not set a precedent: federal courts have continued to examine claims of systemic deficiencies in prison health services from both an objective and subjective perspective. For example, in Rasho v. Jeffreys, which resolved a prisoners’ class action against officials of Illinois Department of Corrections (IDOC) for inadequate mental health care, the Seventh Circuit stated that “the subjective state-of-mind element applies to claims of [...] pervasive deficiencies in prison medical treatment.” The court found no Eighth Amendment violation, concluding that the defendants did not act with deliberate indifference:
The evidence establishes that IDOC made reasonable efforts to cure the deficiencies in the five areas identified in the plaintiffs' claim and to alleviate the staffing shortage. These include increasing the number of psychiatric providers, authorizing unlimited overtime, paying travel stipends and supercompetitive salaries, and increasing the use of telepsychiatry (among other steps). These actions by IDOC administrators demonstrate a commitment to addressing the problem—the antithesis of the callous disregard required to make out an Eighth Amendment claim.
As the Supreme Court of the United States said in Trop v. Dulles, “the basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” This principle implies the government’s duty to provide “humane conditions of confinement” for prisoners, including access to adequate medical care. Respecting the human dignity of inmates requires ensuring that their basic medical needs are met, as failure to do so may result in suffering “inconsistent with contemporary standards of decency.”
Deliberate indifference to serious medical needs of prisoners constitutes a violation of the Eighth Amendment. The constitutional prohibition against cruel and unusual punishment extends beyond physical abuse to include the denial of adequate medical care, which is particularly critical in the context of mental health. Some psychiatric disorders, if left untreated, can result in severe harm, including suicide.
However, the standard of deliberate indifference is “extremely high.” Federal courts require that prison officials have subjective knowledge of a substantial risk of serious harm and disregard it. This high bar makes it difficult for plaintiffs to succeed in their Eighth Amendment claims, even when the risk is obvious. In response to this situation, it has been proposed that the deliberate indifference standard be replaced with an objective standard.
This research is framed within the project “Estudio crítico del uso de sanciones alternativas penales: una mirada a la salud mental y al género” (PID2021-126236OB-I00).
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GORDON, S. E.: “Solitary Confinement, Public Safety, and Recidivism,” University of Michigan Journal of Law Reform, Vol. 47, 2014, pp. 495-528. https://doi.org/10.36646/mjlr.47.2.solitary
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MARSHALL, M.: “The Promise of Porter? Porter v. Clarke and Its Potential Impact on Solitary Confinement Litigation,” Columbia Law Review Forum, Vol. 120, No. 3, 2020, pp. 67-79. https://doi.org/10.2139/ssrn.3528493
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[*] Profesor Permanente Laboral de Derecho Penal. ORCID: https://orcid.org/0000-0002-0310-4409. Facultad de Derecho de la Universitat de València. Dirección: Avinguda dels Tarongers, S/N, Valencia, 46022. david.colomer@uv.es
[10] 42 U.S.C. § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress...”
[20] Smith v. Carpenter, 316 F.3d 178, 185-186 (2nd Cir. 2003) (internal quotation marks and citations omitted).
