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In this chapter we address what has become a challenging area of law-the standards that govern the treatment of "special needs" of vulnerable criminal offenders. The challenging nature of the topic stems largely from the fact that applicable legal doctrines are often contradictory and operate at cross-purposes with one another. These core contradictions are simple to articulate but difficult to resolve. On the one hand, the special needs of offenders ostensibly entitle them to enhanced services and treatment while incarcerated. These same needs also make the prisoners uniquely vulnerable to the potential pains of incarceration that, in turn, theoretically afford them greater claim to special protections. On the other hand, in a political climate in which correctional agencies focus more on delivering punishment than providing services, these claims can take on problematic significance. Special needs and heightened vulnerability may mean that offenders are less able to conform their conduct to the requirements of the institution, resulting in their exclusion from already limited programs and subjecting them to increased punishment. Rather than more treatment, they may get less than other offenders and little of what they need.Another contradiction affecting offenders with special needs is that contemporary criminal justice thinking still emphasizes punishment over rehabilitation, and there 51

Following the U.S. Supreme Court’s landmark decision in Plata v. Brown, the author toured prison systems in Western Europe with a University of Maryland study abroad program and then again with corrections and public officials from three states. The goal of the first trip was to compare and contrast competing correctional systems. The second trip was designed to expose relevant public officials to different penological values and practices. Both groups quickly appreciated the profound differences in conditions and philosophies. Even though imprisonment in these European countries is a last resort, prisons are designed to be as “normal” as possible. The State’s responsibility goes past the constitutional minimum under the Eighth Amendment to provide food, clothing, shelter and personal safety. Reintegration into the community—not punishment—is the primary objective. These values translated to conditions and programs that are more humane and effective than those typically found in the United States. Correctional leaders used this experience to put into place programs limiting the housing of the mentally ill prisoners in segregation, improving reentry programs, and “normalizing” some prison units. Direct and personal exposure to European prison and criminal justice systems promoted humane and effective prisons at home.