At sentencing, a judge can often foresee that an individual, given his major mental disorder and other vulnerabilities, will experience serious harm in prison. These harms may include psychological deterioration and mental distress, attempted suicide, or victimization by staff or other inmates. In response, some jurisdictions allow a judge to commit a disordered offender for treatment in lieu of incarceration, while others designate need for treatment and undue offender hardship as mitigating factors for use at sentencing. None of these measures, however, goes far enough to protect vulnerable prisoners.
This Article builds a case for expanding judges’ sentencing power by authorizing them to tailor the conditions of confinement for vulnerable offenders with major mental disorders when certain conditions are necessary to fulfill the purposes of punishment or for its humaneness. It defends the premise that vulnerability is a legitimate source of concern for sentencing judges, addresses concerns of judicial competence and undue infringement into correctional affairs, and evaluates a number of possible sentencing conditions that judges could order. Potential conditions, which vary in cost and degree of intrusiveness, could include requiring comprehensive mental health evaluations, disqualifying facilities with insufficient mental health or protective resources, specifying types of facilities where an offender will serve or begin his sentence, and mandating certain treatment in prison.
E. Lea Johnston, Conditions of Confinement at Sentencing: The Case of Seriously Disordered Offenders, 63 Cath. U. L. Rev. 629 (2014), available at http://scholarship.law.ufl.edu/facultypub/509