Cognitive distractions, such as texting while driving, and cognitive destruction, such as repetitive brain trauma, are intently studied. Yet, the mental demolition of confinement is largely unmeasured. Computational technology exists that can reveal to the criminal justice system the disabling conditions of a population under chronic psychological assault.

The FDA has approved ImPACT, a computerized assessment to evaluate the cognitive effects of concussive injuries. And certain psychiatric disorders can now be studied with machine learning. See Sarah K Fineberg et al., “Computational Psychiatry in Borderline Personality Disorder,” 4(1) Current Behav. Neuroscience Rep. 31 (March 2017).

So, applications exist to gauge the mental trauma of confinement; to measure individual cognitive infringement; and to create a computational evaluation of post-conviction justice.

Prison Think

Confinement consumes the flesh, confiscates reason, and promotes mental estrangement. And without counsel, the pleas of discarded people cannot be heard over the thrum of the suffering and the dying. See Ken Strutin, “Prison Affected People: Punished to the Margins of Life,” LLRX, Dec. 30, 2016.

“Prison think” is the descent of the human mind into inhuman conditions. For the poor and the punished, this means that “prison” does the thinking and the lawyering.

When the dust settles on their transcripts, the solitary mind is their only counsel. But neuroscience can measure the incarcerative effect on the isolated brain, build a consensus around it, and recognize the de facto incapacity for self-representation.

To begin, cognitive assessments are reshaping the classifications of juvenile minds and penality. See Dana Goldstein in “Who's a Kid?,” The Marshall Project, Oct. 27, 2016. Indeed, they have been a driver behind the Supreme Court's categorical exemptions from the death penalty, life without parole and the movement away from solitary confinement. See Tanya Renn and Christopher Veeh, “Untreated Traumatic Brain Injury Keeps Youth in Juvenile Justice System,” Juv. Just. Infor. Exch., June 26, 2017.

Picking up where the Stanford Prison Experiment and current studies have left off, neuro-technology can reveal that imprisonment is cerebral punishment.

Prison walls concentrate an unremitting psychic ordeal: “About 1 in 7 state and federal prisoners (14 percent) and 1 in 4 jail inmates (26 percent) reported experiences that met the threshold for serious psychological distress (SPD) … .” Jennifer Bronson, Indicators of Mental Health Problems Reported by Prisoners and Jail Inmates, 2011-2012 (BJS 2017).

Indeed, studies of the imprisoned show on average that more than 80 percent suffered from brain trauma compared with six percent for the general population. See Erika Hayasaki, “Teaching Prison Inmates About Their Own Brain Trauma Could Help Them Rehabilitate,” Newsweek, June 29, 2016. And yet, this condition remains unlinked to their ability to litigate without counsel.

Accessible computer technology can go further than surveys to portray the cognitive functioning of an individual incarcerated.

For instance, in an excessive force lawsuit, Davis v. Moroney, 857 F.3d 748, 752 (7th Cir. 2017), Judge Richard Posner used an online text evaluator to assess the pro se petitioner's ability to read the lower court's orders:

“To cast some additional light on whether Davis [inmate], given his mental handicaps, could have been expected to understand most of the orders he received from the district judge and Moroney [prison guard], we conducted an experiment using the Flesch Reading Ease Readability Formula … . The most optimistic assessment of Davis's reading ability is that he can read at a 6th-grade level—two or three levels below the reading ability required for an understanding of the interrogatories.”

Informed by technology, the appeals court concluded that Mr. Davis “needs a lawyer desperately.”

For people in a trauma factory, their petitions ought to be reviewed in “trauma-informed courts,” with judges educated to the psychological detriments of incarcerative stress. Cf. Brian L. Meyer, “How to Become a Trauma-Competent Court,” Utah Fall Substance Abuse Conf., Sept. 22, 2016.

Distracted

In confinement, inner resources, otherwise devoted to survival, rehabilitation and unreconciled innocence, are stolen by a system of justice that compels inmates to be unsuccessful lawyers. See Margo Schlanger, “Inmate Litigation,” 116 Harv. L. Rev. 1555, 1609-1614 (2003) (“[C]ases with counseled plaintiffs are more successful for those plaintiffs.” Id. at 1610).

Prison is where the human mind is turned inside out. A place that exacerbates the gamut of disabilities, illnesses, educational and linguistic disadvantages, sensory and print impairments, poverty and cultural discriminations, hardships and the scarcity of resources.

Mental reservoirs are quickly depleted when burdened by the assaults of confinement and the overwhelming complexities of post-conviction justice. And preoccupation with physical and cognitive incapacitation can explain a litigant's failure to act in their own interest.

In Matter of Ramunno, 202 A.D.2d 511, 511-512 (2nd Dept 1994), the Appellate Division determined:

“[T]he petitioner was prevented from seeking out the aid of counsel and from having a notice of claim served timely by reason of the severity of the injuries he sustained in the accident complained of. The extensive injuries received by the petitioner as well as the various therapies which were needed caused him to be more concerned with his own emotional and physical health than in maintaining an action to receive compensation.”

Indeed, courts have recognized such grounds for equitable tolling under the AEDPA. See Barbara J. Van Arsdale, “Personal Limitations of Petitioner as Grounds for Equitable Tolling,” 9 A.L.R. Fed. 2d 343 (2006).

In the end, computational evidence of prison-induced disablement, coupled with recognition of a cognitive right to counsel, might fairly constitutionalize the post-conviction process. See Ken Strutin, “Litigating from the Prison of the Mind: A Cognitive Right to Post-Conviction Counsel,” 14 Cardozo Pub. L. Pol'y & Ethics J. 343 (2016).

Conclusion

Confinement can destroy minds but not facts. Only denying counsel does that. For without lawyers to investigate, to litigate, to vindicate, facts remain buried along with the truth.

Were fMRIs wheeled into every precinct of confinement and computer-based assessments administered to every inmate, we should soon see a new measure of mental trauma and cognitive rights.

Ken Strutin is director of legal information services at the New York State Defenders Association.