On April 12, 2012, a Massachusetts federal court entered an order approving a private settlement agreement between the Massachusetts Department of Correction (DOC) and the Boston-based Disability Law Center (DLC) which prohibits lengthy segregation of DOC prisoners with serious mental illness (SMI) and provides for an overhaul in how the DOC treats such prisoners.

The DLC brought a civil rights suit in federal court alleging that the DOC violated the federal constitutional rights of prisoners with SMIs by subjecting them to disciplinary and other types of segregation for lengthy periods. DLC was reacting to a high rate of suicides among prisoners with SMIs who had been kept in segregation for extended periods. The DLC is the Massachusetts agency authorized under the Protection and Advocacy for Individuals with Mental Dullness Act, 42 U.S.C. §§1081, et seq., to pursue legal remedies and other redress to ensure mentally ill persons are not abused or neglected. The complaint the DLC filed alleged that the isolation attendant to disciplinary and other types of segregation exacerbates the condition of prisoners with SMIs and generates new mental illness in previously-healthy prisoners. It also alleged that some prisoners with SMIs were held in such isolation for years despite the recommendations of mental health professionals that they be removed from segregation. This allegedly violated the prisoners' Eighth and Fourteenth Amendment rights as well as Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and the Americans with Disabilities Act, 42 U.S.C. §12101, et seq.

Years of unsuccessful negotiation ensued. The main problem appears to have been budgetary constraints on the DOC. Nonetheless, the DOC unilaterally began reform of its segregation policies and practices with respect to prisoners with SMIs. These limited reforms had already reduced the number of suicides among prisoners with SMIs.

Eventually, the parties were able to negotiate a "private settlement agreement" which, because it does not involve the court ordering any relief or having the ability to hold a party in contempt for not fulfilling their part of the agreement, is not subject to 18 U.S.C. § 3626(a)(1)(A), the part of the Prison Litigation Reform Act which limits consent decrees in prisoner cases.

The agreement prohibits the placement of prisoners with SMIs in Department Disciplinary Units, a type of segregation, and limits the use of other types of segregation for such prisoners, requiring treatment and out-of-cell activities opportunities even in short-term segregation. The DOC also agreed to screen prisoners for SMIs before and during segregation confinement and to maintain several Secure Treatment Units as alternatives to segregation for prisoners with SMIs. It agreed to integrate mental health professionals into the disciplinary process and to use alternatives to segregation for prisoners whose mental health is at substantial risk.

The agreement also provides for additional mental health services and regular status review for prisoners with SMIs who are held in segregation. It requires the DOC to periodically provide the DLC with documentation of its compliance with the agreement and hive a mental health expert, retained and paid for by the DLC, limited access to DOC facilities, employees and prisoners to monitor the DOC's compliance with the agreement.

The agreement has the court retaining jurisdiction for three years, expandable to up to five years it noncompliance is found. It allows for a resumption of litigation if the parties cannot agree on noncompliance issues. It also provides that the DOC will pay $1,250,000 to the DLC for attorney fees and costs and allows the DLC to seek additional fees and costs should additional litigation become necessary.

Normally, a court would not be required to approve a private settlement agreement between the parties. However, because this agreement involved a third party representing the interests of persons who were unable to represent their own interests due to mental illness in what was literally a life and death matter, the court evaluated the agreement. After having found that agreement to be fair, reasonable and adequate, the court allowed the agreement, stayed the case, retained jurisdiction and ordered the case dismissed in three years absent further orders from the court.

The prisoners were represented by Boston attorneys Alan Kerzin and Richard M. Glassman of the DLC; David Yamin, Carol E. Head and Alison Mickley Silveira of Bingham McCutchen, LLP; James R. Pingeon and Leslie Walker of Prisoners' Legal Services, Inc.; Robert Fleischner of the Center for Public Representation; and James S. Rollins of Nelson, Mullins, Riley Er Scarborugh, LLP.

See: Disability Law Center v. Massachusetts Department of Correction, U.S.D.C.-D.Mass., C.A.No. 07-10463-MLW.

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