legal memo 法律备忘录(18)

legal memo

Although unclear, the Ninth Circuit has given some indication that at minimum the rights and entitlements for the civilly confined and criminally incarcerated should be the same. See Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004); Hydrick v. Hunter, 2007 U.S. App. Lexis 20729, 22-23 (9th Cir. 2005) ("We acknowledge at the outset that it is not always clearly established how much more expansive the rights of civilly detained persons are than those of criminally detained persons.") (emphasis added). There also exists a "presumption of punitive conditions" when a civil detainee is subject to conditions that are either the same or more restrictive than the conditions under which pretrial criminal detainees are confined, or more restrictive than those he would face if he were actually civilly confined. Jones, 393 F.3d at 934. This presumption is rebuttable based on a showing that there was a legitimate, non-punitive purpose justifying the particular condition. Id. (applying the presumption based on its findings that the conditions of confinement of the civil detainee/plaintiff were "far more restrictive conditions than those afforded to the general jail population"); and Id. at 935 ("The significant limitations on, or total denials of, recreational activities, exercise, phone calls, visitation privileges, out-of-cell time, access to religious services, and access to the law library, indicate that in numerous respects confinement in T-Sep was substantially more restrictive than confinement in the Main Jail.").28

In at least one case, albeit in dicta, the Ninth Circuit implied that persons civilly committed because of a contagious disease would retain protection afforded by the ADA. Thompson, 295 F.3d at 896-897. In Thompson, the Ninth Circuit reversed a district court ruling that a parole board decision would not be a benefit within the framework of the ADA. Id. at 896-97. The district court reasoned that the ADA did not extend to the "substantive decision making process" within the prison context. Id. 896-897. The Ninth Circuit sharply disagreed with that reasoning and stated that there was "no basis for concluding that Title II of the ADA contains such a broad exception[,]" and that "[a]lthough the power to fashion and enforce criminal laws is reserved primarily to the States, many functions traditionally reserved to the states are subject to the ADA, including quarantine laws and, significantly, prison administration." Id., citing Armstrong v. Wilson, 124 F.3d 1019, 1024-25 (9th

Cir.1997).

One state court opinion that has discussed conditions of confinement with respect to persons involuntarily committed because of TB offers some illumination as to what conditions such a person could expect. City of Newark J.S., 279 N.J. Super. at 205, A.2d.at 278. In City of Newark v. J.S., the issue was the constitutionality of the commitment process. The court reviewed the individual's past conduct, which like that of Mr. Daniels involved non-compliance with medical advice, avoiding his TB medication, and appearing in public places, such as the pediatrics ward of hospitals, without a facemask. Id. at 185-86, A.2d.at 268-69. The Superior Court of New Jersey upheld the involuntary commitment based on the "significant future risk" that the individual posed. Id. at 204, A.2d at 278-79 . However, Judge Goldman also added in dicta that the rights of civilly committed persons with TB shall be protected and honored with respect to the conditions of confinement "to the extent feasible and practical." Id. at 205, A.2d.at 278 (allowing that "the provisions regarding the opportunities to see visitors must be accomplished according to established hospital procedures for infection control. His right to outdoor activities may have to be curtailed if he refuses to wear his mask. The hospital may not have safe and suitable facilities for extended visits with persons of the opposite sex[,]" and notably adding "I will not interfere with medical judgment, but I will remain available on short notice to resolve any disputes").29

2.30Overview of what conditions of confinement are afforded to criminally incarcerated persons.31

A few of the conditions of confinement that Mr. Daniels has alleged are violations of the ADA, are benefits to which criminally incarcerated persons are entitled either through protections under the Eighth Amendment or the First Amendment. 32Importing the reasoning that civilly committed persons with disabilities are entitled to at least the same benefits and services as criminally incarcerated ones, then Mr. Daniels can establish that the conditions outlined below are benefits or services to which he is entitled and cannot be excluded on the basis of his disability.

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the Eighth Amendment include:

∙"No showers for the first nine months of his quarantine;" Comp. 28(viii). The state must provide criminally confined persons with the means to maintain their personal hygiene, which includes the right to regular showers. Rhodes v.

Chapman, 452 U.S. 337, 355 (1981): Toussaint v. McCarthy, 597 F.Supp.1388, 14111 (N.D. Cal. 1984), aff'd in part and vacated in part, 801 F.2d 1080 (9th Cir. 1986).

∙"No exercise or walking outside of [his] room;" Comp. 28(x), and "Exposure to the outside for fresh air only once in nine months;" Comp. 28(ii); "No external view outside due to the frosted glass windows and metal bars;" Comp.

28(vii). The state must also provide prisoners incarcerated in long-term, segregated conditions with regular outdoor

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