Evolving Standards of Decency Don’t Include Solitary Confinement for Autistic Prisoners

Marie Linette Soueid

If an individual deprived of her liberty was having a heart attack, screaming out in pain as she fell to the floor, and then put in solitary confinement for being disruptive, we would be outraged. Rightly so. The outrage should be no different for a young man with autism who, out of inability to comprehend his incarceration or crippling fear of being touched, is placed in solitary confinement for becoming frustrated, angry, and agitated and lashing out.

Time and again, reports surface of individuals who are arrested, beaten, or punished by law enforcement officials because of what officials construe as their refusal to comply with law enforcement demands. The failure of local law enforcement officials to understand the behavior of individuals on the autism spectrum has led to fatal consequences for many autistic people who have the misfortune of encountering law enforcement, even when authorities are contacted to protect the individual. In some studies, those with autism are sometimes classified as “mentally ill.” One study found that at least half of all individuals fatally shot by police suffer from mental illness, leading to the unique phenomenon of the criminalization of mental illness or intellectual disability.

Individuals with autism who end up embroiled in the criminal justice system often find themselves not only brutalized by police because of law enforcement’s failure to recognize and understand autism, but also severely punished if they end up in prison. Some are even re-victimized because of mental health illnesses that result from traumatizing experiences associated with their incarceration. For many, particularly children, the penchant to place incarcerated individuals with autism in solitary confinement — either for their own safety or as punishment for perceived misbehavior — raises concerns under the Eighth and Fourteenth Amendments to the Constitution and may amount to a breach of the international prohibition against cruel and unusual punishment.

Prolonged solitary confinement is cruel and inhuman for those who do not fall on the autism spectrum and who do not have intellectual disabilities. The effects on individuals with autism are not well-studied — because of a tendency to classify autistic individuals as mentally ill — but are increasingly coming to light as disastrous and potentially fatal.

Cruel and unusual punishment is prohibited by the Eighth Amendment to the Constitution and the Fourteenth Amendment requires due process of law when a liberty interest is at stake. Though standards for both are stringent, the state’s interest in punishing crimes cannot effectively be carried out through solitary confinement on individuals that may not comprehend the reasons for punishment. If the consequences described above are any indication, the cruelty of isolating an individual with autism is sufficiently severe to meet Eighth Amendment standards. Given the research that demonstrates the severity of solitary on those with mental illnesses, prison administrators can no longer claim that such treatment does not breach the Eighth Amendment “patently unnecessary” standard.

Weighing the liberty interest involved in a due process claim — an individual’s humanity and basic functioning while deprived of liberty — against the state’s interest in either protecting the inmate, guards, or other prisoners, the balance comes out in favor of autistic inmates.

The Supreme Court has acknowledged the fluctuating nature of the Eighth Amendment, which is interpreted to fit with “evolving standards of decency in a civilized society.” When it ended the use of the death penalty for the intellectually disabled, the Supreme Court noted that the United States was an international outlier in maintaining the practice.

The international community has turned away from the use of solitary confinement in general and in particular for individuals with intellectual disabilities. The UN Special Rapporteur on torture and other cruel, inhuman and degrading treatment or punishment, Juan Méndez called for a ban on the practice for those with mental disabilities. European regional systems restrict solitary confinement to the shortest time possible and to the most necessary of circumstances, with socio-psychological factors playing an important role in whether to use solitary at all. Most nations in Europe have completely ended the practice.

Just as the “evolving standards of decency” have led to a categorical ban on the death penalty for individuals with intellectual disability — a burden of proof that may be too arbitrary and high to be meaningful — these standards should likewise unequivocally restrict the use of solitary confinement for individuals with autism, mental illnesses, and intellectual disabilities. The effects of solitary confinement and social isolation on individuals with autism should be better studied, and where autism or disability led directly to the crime, alternatives to incarceration and solitary confinement should be explored. Iustitia believes that criminalizing and punishing neurodiversity and intellectual disability has no place in a civilized society.