Today, tens of thousands of Americans with serious mental illness live in tiny concrete cells1 — alone and largely forgotten.2 They have almost no engagement with or even sight of any other human beings, sometimes with the exception of muffled mental health interviews across sealed steel doors.3 Many have lived like this not for days, but for decades on end.4 A practice described by the Supreme Court over a century ago as a “terror and peculiar mark of infamy,”5 solitary confinement, or segregation,6 has made a resurgence in American prisons since the 1980s, and it has disproportionately affected people with serious mental illness.7 Though there is virtually universal medical agreement8 and growing judicial acknowledgment9 that solitary confinement’s disturbing harms are exacerbated for people with serious mental illness, the practice of segregating these individuals remains constitutional in just about every jurisdiction today.10 This may be changing. Recently, in Palakovic v. Wetzel,11 the Third Circuit held that the parents of a seriously mentally ill young man who was repeatedly placed in solitary confinement sufficiently stated multiple types of Eighth Amendment “cruel and unusual punishment” claims.12 The panel articulated forceful, broadly applicable reasoning for why segregation was a major, if not sufficient, factor in two of these types of claims. Especially given the recent chorus of voices characterizing segregation as inconsistent with “evolving standards of decency,”13 Palakovic’s reasoning lays a compelling doctrinal foundation for a future holding that segregating individuals with serious mental illness is per se unconstitutional.
The story of Palakovic begins with a twenty-two-year-old man with serious mental illness being convicted of burglary; it ends about a year later14 with that same young man — described by his parents as “funny, vibrant, handsome, intelligent and loving” — hanging himself with a bedsheet,15 alone in his “tiny cement cell.”16 Upon entering state prison, Brandon Palakovic was diagnosed with multiple serious mental illnesses, including impulse control disorder, antisocial personality disorder, and alcohol dependence.17 During Brandon’s18 incarceration, guards repeatedly sent him to thirty-day stints in solitary confinement, allegedly in response to behaviors caused by his illness.19 There, in a cement cell of less than 100 square feet with slits as windows, he was isolated for twenty-three to twenty-four hours a day, with only five hours of weekly exercise in an “outdoor cage.”20 Despite disclosing previous suicide attempts and being nicknamed “Suicide” by fellow inmates, Brandon received no counseling or group therapy.21 Instead, he received mental health interviews for one to two minutes at a time through the slit in his steel cell door.22 One summer day, Brandon was sent to solitary confinement again for a “minor rules violation.”23 Four days later, he committed suicide.24 In response, his parents, Renee and Darian Palakovic, sued the prison’s officials in district court.25
The Palakovics’ complaint alleged that officials violated the Eighth Amendment in two ways: by acting with “deliberate indifference” to the prison’s inhumane conditions of confinement and to its inadequate mental health care.26 The U.S. District Court for the Western District of Pennsylvania dismissed both types of claims.27 It held that, because “the ultimate harm alleged” was suicide, the “vulnerability to suicide” framework applied.28 This framework is narrower in scope than those typically associated with the two types of claims brought by the Palakovics, as it considers only facts surrounding a person’s suicide, not the broader conditions the person endured while alive.29 The court ultimately found a failure to state facts sufficient to satisfy this framework for both types of claims.30 It further reasoned that the Palakovics were unable to claim inadequate mental health care because some care was provided to Brandon.31 The Palakovics then filed an amended complaint that set forth vulnerability-to-suicide claims, as well as a related failure-to-train claim; after dismissals,32 the Palakovics appealed to the Third Circuit.33
The Third Circuit vacated and remanded to the district court.34 Writing for a unanimous panel, Chief Judge Smith35 held that it was legal error to dismiss the first complaint’s inhumane conditions of confinement and inadequate mental health care claims as deficient under the vulnerability-to-suicide framework.36 The panel noted that the Palakovics were seeking to hold officials accountable for Brandon’s experience over the course of his time living in prison, not for failing to prevent his death.37 As such, the district court was wrong to require that the two types of claims fit the vulnerability-to-suicide framework; the Palakovics should not have been precluded from moving forward on their claims because Brandon committed suicide.38 The court then evaluated the claims, applying the two-pronged “deliberate indifference” test in light of the plausibility standard for surviving a motion to dismiss.39
The panel first found that the Palakovics sufficiently stated their claim of inhumane conditions of confinement.40 It concluded that the first, objective prong of the deliberate indifference test — the existence of a substantial risk of serious harm — was met, referencing the “growing consensus” regarding segregation’s potential to “cause severe and traumatic psychological damage.”41 Turning to the second, subjective prong — that prison officials had knowledge of the risk but recklessly disregarded it — the panel noted that officials’ diagnoses of Brandon indicated knowledge of his illness, and that past issues of other inmates’ self-harm indicated knowledge of the risks of segregation.42 It concluded that those facts, “in light of the increasingly obvious reality” that extended segregation causes serious mental health damage, were “more than sufficient” to state a claim.43
The court also found that the Palakovics sufficiently stated their claims of inadequate mental health care.44 The panel recognized that the “substantial risk of serious harm” prong, represented by a “serious medical need” for inadequate care claims, was uncontested.45 In considering the “reckless disregard” prong, it refuted the district court’s reasoning by noting that even if a prison provides some care, that care can be so inadequate that it amounts to recklessness.46 The panel identified issues with Brandon’s “minimal treatment”47 and system-wide problems, like the substitution of punishment for treatment.48 It emphasized the “final, key component” of the claim “which [took] it from the realm of mere negligence to a potential claim of constitutional magnitude”: the officials allowed Brandon, in his “fragile” state, “to be repeatedly subjected to the harsh and unforgiving confines of solitary confinement.”49 In doing so, they allegedly “affirmatively contributed” to the deterioration of his condition.50 Separately, the panel concluded that the Palakovics sufficiently stated their vulnerability-to-suicide and failure-to-train claims, citing evidence of officials ignoring suicide warning signs and noting the reasonable possibility that staff training could have prevented the death.51
In Palakovic, the Third Circuit laid out a legal blueprint for establishing that solitary confinement of individuals with serious mental illness is a per se Eighth Amendment violation. Though the panel did not go so far as to state a per se holding, its analysis paved two potential avenues to such a holding and lent credence to a third. The panel’s reasoning that segregating people with serious mental illness creates a severe and “obvious” risk of harm52 can be used to argue that the practice always meets the deliberate indifference test for inhumane conditions of confinement claims. And its reasoning that the practice can be the “key component”53 in finding reckless disregard of serious medical needs can be used to argue that the practice always meets the deliberate indifference test for inadequate mental health care claims. These two arguments are even more potent when combined with a third rationale, hinted at by the panel, that segregating those with serious mental illness defies “evolving standards of decency.”54 Overall, the reasoning in Palakovic has the force to dismantle the constitutionality of placing Americans with serious mental illness in solitary confinement, and to weaken the legal foundations of solitary confinement altogether.
One pathway to per se constitutional liability advanced by the Third Circuit is the concept that segregating people with serious mental illness amounts to deliberate indifference to inhumane conditions of confinement. First, the panel — notably “[b]efore . . . turn[ing] to the Palakovics’ particular allegations”55 — established that there is a severe risk of harm inherent in segregation. In describing this risk as independent of case-specific facts, it supported the argument for per se satisfaction of the deliberate indifference test’s first prong — a substantial risk of serious harm — for conditions of confinement claims. Further, courts sometimes distinguish long-term segregation in their analyses,56 but the time Brandon spent in segregation — multiple thirty-day periods over about a year — is not considered “long-term,”57 meaning the panel did not cabin its reasoning to this category. Second, the panel provided a rationale for per se satisfaction of the recklessness prong, which often equips officials with impermeable defenses.58 Its key assertion was that the risk of harm is “increasingly obvious.”59 This claim — combined with the principle, articulated by the Supreme Court in Farmer v. Brennan,60 that knowledge can be inferred by establishing that a risk of harm is obvious61 — supports a way for future plaintiffs to show recklessness without having to prove facts about actual knowledge. To be sure, the panel did not fully embrace a per se rule; its recklessness analysis briefly noted facts specific to Brandon’s case.62 Nevertheless, its conclusions about the serious, obvious nature of the risk in general advances the theory that segregating people with serious mental illness is itself sufficient to violate the Constitution.
The court also cleared a second, more inventive path to per se liability: the theory that segregating people with serious mental illness amounts to deliberate indifference to serious medical needs. Courts have widely held that adequate treatment of serious mental illness is a serious medical need, satisfying the deliberate indifference test’s first prong.63 Palakovic’s innovation is its characterization of Brandon’s segregation, given his fragile state, as the “key component” that elevated officials’ care to recklessness under the second prong.64 Though courts have historically been hesitant to second-guess prison care,65 new routes have been created over time for plaintiffs to demonstrate recklessly inadequate care, including by showing a lack of individualized care.66 Palakovic builds on this trend — and potentially unlocks segregation challenges as a route for future plaintiffs with serious mental illness — by suggesting that segregation is fundamentally incompatible with the treatment needs of a person suffering from serious mental illness. Moreover, a defendant’s only safe harbor — arguing lack of knowledge of a person’s serious mental illness — is increasingly impeded by the growing judicial view that adequate mental health care requires adequate screening for mental illness.67 As such, though it noted other issues with Brandon’s care,68 the Third Circuit’s emphasis on segregation as the linchpin of a recklessness finding forms a powerful second theory of per se liability under the inadequate mental health care claim.
A third and more direct avenue to per se liability, to which language in Palakovic lends support, is the theory that segregating people with serious mental illness is unconstitutional because it contravenes “evolving standards of decency that mark the progress of a maturing society.”69 In determining these standards, the Supreme Court has emphasized state legislative action, while also looking to factors like professional consensus, history, and international norms.70 Starting with state policy, several states have banned or severely restricted the practice of segregating people with serious mental illness.71 Palakovic touched on the professional consensus and history factors, as it detailed the “growing consensus — with roots going back a century” — that segregation can cause severe harm.72 And looking internationally, there is considerable agreement that segregation can be a form of torture.73 Adding context is the recent momentum in chipping away at the legal underpinnings of segregation generally, especially as it relates to youth74 and long-term isolation of the general inmate population.75 Ultimately, language in Palakovic — combined with these factors and the fact that the “evolving standards of decency” concept has spurred recent expansions of Eighth Amendment rights, including for people with mental disability76 — supports a final route to per se unconstitutionality: segregation of people with serious mental illness, and perhaps segregation in general, violates the Eighth Amendment’s central proscription of cruel and unusual punishment, independent of the deliberate indifference doctrine.
After filing their claims in 2014, Brandon’s parents wrote about their aspirations:
Brandon is finally at peace and can no longer be drugged, locked up and ignored, but we know there are others that are still enduring similar nightmares. We hope and pray that somehow, someway Brandon’s death can bring attention to these serious issues within Pennsylvania State Correctional Institutions and save other prisoners and their families from this same pain.77
Perhaps the Palakovics’ prayer is being answered. The Third Circuit listened carefully to Brandon’s story, and its opinion may catalyze a long-elusive change to prison conditions in America. It advances legal theories which may compel a holding that solitary confinement of seriously mentally ill individuals is a per se Eighth Amendment violation. And the panel’s powerful characterization of segregation’s harmful effect on all people may even act as a stepping stone to a broader holding that solitary confinement is facially unconstitutional. Though the underlying failures to treat mental illness in prisons would persist, these holdings would uplift some of our society’s most neglected individuals while honoring the Eighth Amendment’s foundational value: human dignity.78 And if it is true that the barometer of a civilization is how it treats its most vulnerable members,79 these changes would be a heartening mark of progress in American society.